Re: [Oama] conflict of interest question
Sent from Mail for Windows 10
From: Kay Wall
Sent: Wednesday, March 11, 2020 4:57 PM
To: Toni Capra; Kimberlee Spady; OAMA@lists.imla.org
Subject: RE: [Oama] conflict of interest question
Many thanks to all who have emailed. My town is an OMAG town, and it appears that Matt Love has written an opinion on this previously, saying it is allowable. Matt cites authority.
Today, Suzanne Paulson emailed me saying the Trustee may not be covered in both positions by our OMAG coverage. I asked her to check into this and get back to me again. She says it is fact specific, but I will keep the group posted.
Alas, in another of my small towns, a gentleman on the Council is also a volunteer fireman, who receives a fee. I, too, have taken the position that it is allowable, but I agree that it is questionable. (I did not want to run through a raging fire, Beth Ann !!!) Or, should I say, “fact specific” – set fee, mileage, etc….
Kay Wall
From: Oama <oama-bounces@lists.imla.org> On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 2:53 PM
To: Kimberlee Spady <Kim@spadylaw.com>; OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
AG’s opinion says it is not about monetary but about benefits.
Sent from Mail for Windows 10
From: Kimberlee Spady
Sent: Wednesday, March 11, 2020 11:13 AM
To: OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
Well, a trustee can’t be paid, other than the amount set by ordinance to be paid to trustees.
I don’t think a budget increase to the PD to equip reserve officers in general would be an issue.
I do agree that there is real potential for conflict. I would want to be certain the PD has a reserve program in place, that the trustee qualifies to serve as a reserve, and that expenditures and use of reserves is consistent with policies and historical procedures. I can imagine a situation where the trustee acting as a reserve officer is basically the trustee taking advantage of his/her position to play cop – and a police chief who serves at the pleasure of the trustees may not feel free to deny the request.
On the pay issue – I’ve been concerned about that with trustees who serve as volunteer firefighters and receive “run money.” Several years ago, I suggested that it would be best practice for the trustee/ff to refuse the run money. You would have thought I suggested the volunteer firefighters be forced to walk through a raging inferno unprotected. The suggestion was not well-received. So I’ve consistently advised that run money must remain at a level that can be justified as a reimbursement for out-of-pocket costs to the volunteer firefighter. That’s sometimes difficult to sell because these are small areas – it’s not like the few blocks’ drive to the station is going to merit a large mileage check – and these guys are so highly revered and appreciated (rightfully so).
Kim
From: Toni Capra <capralawfirm@gmail.com>
Sent: Wednesday, March 11, 2020 10:57 AM
To: Kimberlee Spady <Kim@spadylaw.com>; OAMA@lists.imla.org
Subject: RE: Re: [Oama] conflict of interest question
That was my question? Hypothetical: If PD wants/needs new car and the Reserve is benefitting from it by driving the new car Or if they wanted a budget increase so he could begin being paid?
Sent from Mail for Windows 10
From: Kimberlee Spady
Sent: Wednesday, March 11, 2020 10:54 AM
To: OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
Shouldn’t every action of the Board of Trustees that concerns the PD be taken in the best interests of the PD?
I don’t see how there is a conflict, as long as the issue doesn’t benefit or involve the individual reserve officer/trustee.
We often have trustees/councilmembers who serve as volunteer firefighters. I’ve advised that there is no need to abstain from voting on matters that concern the volunteer fire department.
I am interested to hear others’ thoughts on this point.
Kim Spady
From: Oama <oama-bounces@lists.imla.org> On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 10:47 AM
To: Michael R. Vanderburg <mike.vanderburg@sbcglobal.net>; Kay Wall <lkrw@sbcglobal.net>; OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
I agree with Mr. Vanderberg, however, In my mind this creates an additional issue: If BoT/Reserve officer remains on the board and there are issues pertaining to the Police Department which come before the board, can he still vote on those issues. Does he benefit? IMO, I would advise the Trustee to abstain from voting on those issues.
Sent from Mail for Windows 10
From: Michael R. Vanderburg
Sent: Tuesday, March 10, 2020 9:40 PM
To: Kay Wall; OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
This would be considered dual office holding if the Trustee were an officer for any entity other than his/her own town However, and as a general rule, if the Trustee is not being paid for the second work for the same town, there is no prohibition that I know of which prevents a trustee from being given additional duties, even that of a reserve police officer (assuming that the needed training is in place.)
Just remember, that any reserve officer can generate the same liability for the town as any other police officer and that this liability under federal law can be personal to the officer and not just general to the town. In fact, under 1983 litigation, the federal and personal liability can include punitives which the town is prohibited from indemnifying.
Mike Vanderburg
Sent from Mail for Windows 10
From: Kay Wall
Sent: Monday, March 9, 2020 2:07 PM
To: OAMA@lists.imla.org
Subject: [Oama] conflict of interest question
Fellow attorneys:
One of my smallest towns has a five-member Town Trustee Board of Government This Board votes on any and all issues to govern the police chief and the police department.
I have learned that one of the Town Trustees has volunteered to be a reserve police officer (no pay), and is driving (alone) in a police car, wearing a reserve officer badge.
“On patrol”, I would guess.
I have also learned that the Police Chief has scheduled him to attend classes for reserve officers.
In my opinion, this is a great conflict. If I am wrong, it will be a relief, because I will not have to disappoint the police chief and the town trustee, with my advice.
I have asked OMAG, our insurance carrier, for an opinion. Just wondering what some of you think about this situation.
Thoughts?
Kay Wall
918.689.7737 office
I agree, Toni. I find this list serve incredibly helpful. Aside from the knowledge and advice, it’s helpful to know that others deal with the same issues and receive similar pushback.
Kim
From: Toni Capra capralawfirm@gmail.com
Sent: Thursday, March 12, 2020 11:39 AM
To: Kay Wall lkrw@sbcglobal.net; Kimberlee Spady Kim@spadylaw.com; OAMA@lists.imla.org
Subject: RE: RE: [Oama] conflict of interest question
I too am grateful for the input of the group as I have grappled with the same issues. When I get push back from my town officials with regard to my opinions, ie board members and the volunteer fd. I generally give them my opinion then I leave it up to them whether they follow that opinion or not. One audit is all it takes to have your town sit up and pay attention. $18,000.00 is a huge sum for a small town like mine.
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for Windows 10
From: Kay Wall mailto:lkrw@sbcglobal.net
Sent: Wednesday, March 11, 2020 4:57 PM
To: Toni Capra mailto:capralawfirm@gmail.com ; Kimberlee Spady mailto:Kim@spadylaw.com ; OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: RE: [Oama] conflict of interest question
Many thanks to all who have emailed. My town is an OMAG town, and it appears that Matt Love has written an opinion on this previously, saying it is allowable. Matt cites authority.
Today, Suzanne Paulson emailed me saying the Trustee may not be covered in both positions by our OMAG coverage. I asked her to check into this and get back to me again. She says it is fact specific, but I will keep the group posted.
Alas, in another of my small towns, a gentleman on the Council is also a volunteer fireman, who receives a fee. I, too, have taken the position that it is allowable, but I agree that it is questionable. (I did not want to run through a raging fire, Beth Ann !!!) Or, should I say, “fact specific” – set fee, mileage, etc….
Kay Wall
From: Oama <oama-bounces@lists.imla.org mailto:oama-bounces@lists.imla.org > On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 2:53 PM
To: Kimberlee Spady <Kim@spadylaw.com mailto:Kim@spadylaw.com >; OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
AG’s opinion says it is not about monetary but about benefits.
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for Windows 10
From: Kimberlee Spady mailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 11:13 AM
To: OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
Well, a trustee can’t be paid, other than the amount set by ordinance to be paid to trustees.
I don’t think a budget increase to the PD to equip reserve officers in general would be an issue.
I do agree that there is real potential for conflict. I would want to be certain the PD has a reserve program in place, that the trustee qualifies to serve as a reserve, and that expenditures and use of reserves is consistent with policies and historical procedures. I can imagine a situation where the trustee acting as a reserve officer is basically the trustee taking advantage of his/her position to play cop – and a police chief who serves at the pleasure of the trustees may not feel free to deny the request.
On the pay issue – I’ve been concerned about that with trustees who serve as volunteer firefighters and receive “run money.” Several years ago, I suggested that it would be best practice for the trustee/ff to refuse the run money. You would have thought I suggested the volunteer firefighters be forced to walk through a raging inferno unprotected. The suggestion was not well-received. So I’ve consistently advised that run money must remain at a level that can be justified as a reimbursement for out-of-pocket costs to the volunteer firefighter. That’s sometimes difficult to sell because these are small areas – it’s not like the few blocks’ drive to the station is going to merit a large mileage check – and these guys are so highly revered and appreciated (rightfully so).
Kim
From: Toni Capra <capralawfirm@gmail.com mailto:capralawfirm@gmail.com >
Sent: Wednesday, March 11, 2020 10:57 AM
To: Kimberlee Spady <Kim@spadylaw.com mailto:Kim@spadylaw.com >; OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: RE: Re: [Oama] conflict of interest question
That was my question? Hypothetical: If PD wants/needs new car and the Reserve is benefitting from it by driving the new car Or if they wanted a budget increase so he could begin being paid?
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for Windows 10
From: Kimberlee Spady mailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 10:54 AM
To: OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
Shouldn’t every action of the Board of Trustees that concerns the PD be taken in the best interests of the PD?
I don’t see how there is a conflict, as long as the issue doesn’t benefit or involve the individual reserve officer/trustee.
We often have trustees/councilmembers who serve as volunteer firefighters. I’ve advised that there is no need to abstain from voting on matters that concern the volunteer fire department.
I am interested to hear others’ thoughts on this point.
Kim Spady
From: Oama <oama-bounces@lists.imla.org mailto:oama-bounces@lists.imla.org > On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 10:47 AM
To: Michael R. Vanderburg <mike.vanderburg@sbcglobal.net mailto:mike.vanderburg@sbcglobal.net >; Kay Wall <lkrw@sbcglobal.net mailto:lkrw@sbcglobal.net >; OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
I agree with Mr. Vanderberg, however, In my mind this creates an additional issue: If BoT/Reserve officer remains on the board and there are issues pertaining to the Police Department which come before the board, can he still vote on those issues. Does he benefit? IMO, I would advise the Trustee to abstain from voting on those issues.
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for Windows 10
From: Michael R. Vanderburg mailto:mike.vanderburg@sbcglobal.net
Sent: Tuesday, March 10, 2020 9:40 PM
To: Kay Wall mailto:lkrw@sbcglobal.net ; OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
This would be considered dual office holding if the Trustee were an officer for any entity other than his/her own town However, and as a general rule, if the Trustee is not being paid for the second work for the same town, there is no prohibition that I know of which prevents a trustee from being given additional duties, even that of a reserve police officer (assuming that the needed training is in place.)
Just remember, that any reserve officer can generate the same liability for the town as any other police officer and that this liability under federal law can be personal to the officer and not just general to the town. In fact, under 1983 litigation, the federal and personal liability can include punitives which the town is prohibited from indemnifying.
Mike Vanderburg
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for Windows 10
From: Kay Wall mailto:lkrw@sbcglobal.net
Sent: Monday, March 9, 2020 2:07 PM
To: OAMA@lists.imla.org mailto:OAMA@lists.imla.org
Subject: [Oama] conflict of interest question
Fellow attorneys:
One of my smallest towns has a five-member Town Trustee Board of Government This Board votes on any and all issues to govern the police chief and the police department.
I have learned that one of the Town Trustees has volunteered to be a reserve police officer (no pay), and is driving (alone) in a police car, wearing a reserve officer badge.
“On patrol”, I would guess.
I have also learned that the Police Chief has scheduled him to attend classes for reserve officers.
In my opinion, this is a great conflict. If I am wrong, it will be a relief, because I will not have to disappoint the police chief and the town trustee, with my advice.
I have asked OMAG, our insurance carrier, for an opinion. Just wondering what some of you think about this situation.
Thoughts?
Kay Wall
918.689.7737 office
Please take this firm off of the mailing list.
Thank you.
-----Original Message-----
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Kimberlee
Spady
Sent: Thursday, March 12, 2020 1:55 PM
To: OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
I agree, Toni. I find this list serve incredibly helpful. Aside from
the knowledge and advice, it's helpful to know that others deal with the
same issues and receive similar pushback.
Kim
From: Toni Capra capralawfirm@gmail.com
Sent: Thursday, March 12, 2020 11:39 AM
To: Kay Wall lkrw@sbcglobal.net; Kimberlee Spady Kim@spadylaw.com;
OAMA@lists.imla.org
Subject: RE: RE: [Oama] conflict of interest question
I too am grateful for the input of the group as I have grappled with the
same issues. When I get push back from my town officials with regard to
my opinions, ie board members and the volunteer fd. I generally give
them my opinion then I leave it up to them whether they follow that
opinion or not. One audit is all it takes to have your town sit up and
pay attention. $18,000.00 is a huge sum for a small town like mine.
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for
Windows 10
From: Kay Wall mailto:lkrw@sbcglobal.net
Sent: Wednesday, March 11, 2020 4:57 PM
To: Toni Capra mailto:capralawfirm@gmail.com ; Kimberlee Spady
mailto:Kim@spadylaw.com ; OAMA@lists.imla.org
Subject: RE: [Oama] conflict of interest question
Many thanks to all who have emailed. My town is an OMAG town, and it
appears that Matt Love has written an opinion on this previously, saying
it is allowable. Matt cites authority.
Today, Suzanne Paulson emailed me saying the Trustee may not be covered
in both positions by our OMAG coverage. I asked her to check into this
and get back to me again. She says it is fact specific, but I will keep
the group posted.
Alas, in another of my small towns, a gentleman on the Council is also a
volunteer fireman, who receives a fee. I, too, have taken the position
that it is allowable, but I agree that it is questionable. (I did not
want to run through a raging fire, Beth Ann !!!) Or, should I say,
"fact specific" - set fee, mileage, etc..
Kay Wall
From: Oama oama-bounces@lists.imla.org On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 2:53 PM
To: Kimberlee Spady Kim@spadylaw.com; OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
AG's opinion says it is not about monetary but about benefits.
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for
Windows 10
From: Kimberlee Spady mailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 11:13 AM
To: OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
Well, a trustee can't be paid, other than the amount set by ordinance to
be paid to trustees.
I don't think a budget increase to the PD to equip reserve officers in
general would be an issue.
I do agree that there is real potential for conflict. I would want to
be certain the PD has a reserve program in place, that the trustee
qualifies to serve as a reserve, and that expenditures and use of
reserves is consistent with policies and historical procedures. I can
imagine a situation where the trustee acting as a reserve officer is
basically the trustee taking advantage of his/her position to play cop -
and a police chief who serves at the pleasure of the trustees may not
feel free to deny the request.
On the pay issue - I've been concerned about that with trustees who
serve as volunteer firefighters and receive "run money." Several years
ago, I suggested that it would be best practice for the trustee/ff to
refuse the run money. You would have thought I suggested the volunteer
firefighters be forced to walk through a raging inferno unprotected.
The suggestion was not well-received. So I've consistently advised that
run money must remain at a level that can be justified as a
reimbursement for out-of-pocket costs to the volunteer firefighter.
That's sometimes difficult to sell because these are small areas - it's
not like the few blocks' drive to the station is going to merit a large
mileage check - and these guys are so highly revered and appreciated
(rightfully so).
Kim
From: Toni Capra capralawfirm@gmail.com
Sent: Wednesday, March 11, 2020 10:57 AM
To: Kimberlee Spady Kim@spadylaw.com; OAMA@lists.imla.org
Subject: RE: Re: [Oama] conflict of interest question
That was my question? Hypothetical: If PD wants/needs new car and the
Reserve is benefitting from it by driving the new car Or if they
wanted a budget increase so he could begin being paid?
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for
Windows 10
From: Kimberlee Spady mailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 10:54 AM
To: OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
Shouldn't every action of the Board of Trustees that concerns the PD be
taken in the best interests of the PD?
I don't see how there is a conflict, as long as the issue doesn't
benefit or involve the individual reserve officer/trustee.
We often have trustees/councilmembers who serve as volunteer
firefighters. I've advised that there is no need to abstain from voting
on matters that concern the volunteer fire department.
I am interested to hear others' thoughts on this point.
Kim Spady
From: Oama oama-bounces@lists.imla.org On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 10:47 AM
To: Michael R. Vanderburg mike.vanderburg@sbcglobal.net; Kay Wall
lkrw@sbcglobal.net; OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
I agree with Mr. Vanderberg, however, In my mind this creates an
additional issue: If BoT/Reserve officer remains on the board and there
are issues pertaining to the Police Department which come before the
board, can he still vote on those issues. Does he benefit? IMO, I
would advise the Trustee to abstain from voting on those issues.
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for
Windows 10
From: Michael R. Vanderburg mailto:mike.vanderburg@sbcglobal.net
Sent: Tuesday, March 10, 2020 9:40 PM
To: Kay Wall mailto:lkrw@sbcglobal.net ; OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
This would be considered dual office holding if the Trustee were an
officer for any entity other than his/her own town However, and as a
general rule, if the Trustee is not being paid for the second work for
the same town, there is no prohibition that I know of which prevents a
trustee from being given additional duties, even that of a reserve
police officer (assuming that the needed training is in place.)
Just remember, that any reserve officer can generate the same liability
for the town as any other police officer and that this liability under
federal law can be personal to the officer and not just general to the
town. In fact, under 1983 litigation, the federal and personal liability
can include punitives which the town is prohibited from indemnifying.
Mike Vanderburg
Sent from Mail https://go.microsoft.com/fwlink/?LinkId=550986 for
Windows 10
From: Kay Wall mailto:lkrw@sbcglobal.net
Sent: Monday, March 9, 2020 2:07 PM
To: OAMA@lists.imla.org
Subject: [Oama] conflict of interest question
Fellow attorneys:
One of my smallest towns has a five-member Town Trustee Board of
Government This Board votes on any and all issues to govern the police
chief and the police department.
I have learned that one of the Town Trustees has volunteered to be a
reserve police officer (no pay), and is driving (alone) in a police car,
wearing a reserve officer badge.
"On patrol", I would guess.
I have also learned that the Police Chief has scheduled him to attend
classes for reserve officers.
In my opinion, this is a great conflict. If I am wrong, it will be a
relief, because I will not have to disappoint the police chief and the
town trustee, with my advice.
I have asked OMAG, our insurance carrier, for an opinion. Just
wondering what some of you think about this situation.
Thoughts?
Kay Wall
918.689.7737 office