City wants to hire the city marshal's son as a reserve officer. The city marshal also serves as chief of police. The mayor is in charge of hiring/firing while the council approves and sets compensation. Obviously there are problems with this under Section 21 O.S. 484 <https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69183&date=12/29/1981> which provides: Any person related within the third degree by affinity or consanguinity to any member of either the legislative, judicial or executive branch of the State Government shall not be eligible to hold any clerkship, office, position, employment or duty in such branch of the State Government. Am I correct in assuming that we cannot hire the marshal/chief's son as a reserve? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling *580-759-0049*.

Although I don't think it makes a difference in this particular situation (see below for an email Matt sent out on this issue a few years ago) . . . Does the City actually hire reserves (meaning he will be an employee with minimum wage and benefits) or are the reserve officers volunteers? I ask because many cities confuse this issue and can get themselves in trouble with the FLSA. The key statute is in Title 11 of the Oklahoma statutes at Section 8-106, which reads, in relevant part: No elected or appointed official or other authority of the municipal government shall appoint or elect any person related by affinity or consanguinity within the third degree to any governing body member or to himself or, in the case of a plural authority, to any one of its members to any office or position of profit in the municipal government. The provisions of this section shall not prohibit an officer or employee already in the service of the municipality from continuing in such service or from promotion therein. The first sentence references "any office or position of profit". The second sentence references "an officer or employee". So the questions really are: 1) is the volunteer position and "office" or "position of profit" for appointment purposes and 2) if someone is already in the service and wants to advance, are they currently an "officer" or "employee" of the municipality? "Office" and "Officer" are effectively the same - the "Officer" is the person holding a public "Office". Compensation is not required for the position to be a public office. Rather, there is a 3 prong test the Courts use to evaluate whether a position is a public "Office": (1) The position is conferred by law; (2) It has permanence and continuity; and (3) The duties conferred on the office involve the exercise of some of the sovereign functions of the government. Guthrie Daily Leader v. Cameron, 1895 OK 71, 41 P. 635. So, for example, the Attorney General for Oklahoma has concluded that Planning Commissioners, while uncompensated, are officers. See 1983 OK AG 176. So how does that fit in with volunteers that serve as either Reserve Police Officers or Volunteer Firefighters? Police Believe it or not, there actually is no specific case law or AG opinion on point as to reserve officers. The AG discussed the issue of whether a police officer is a public "Office" (concluding that it is a public "Office") in 2000 OK AG 58, and in doing so the AG recites a long history of prior cases and opinions that address that issue. The logic used would seem to apply with equal force to reserve officers - in 1995 OK AG 48, the AG noted: Applying the Oklahoma City v. Century Indemnity Co. test to a municipal police officer position, we find that the position is also an office... Municipalities are created by statute, and they, in turn, create police officer positions in accordance with their charters and invest police officers with a portion of the sovereign's power to arrest, search and seize. The same could be said of reserves. They are positions created by municipalities and are invested with the sovereign power to arrest, search and seize. Moreover, the legislature appears to believe that they are public "Offices". Title 51 of the Oklahoma statutes, at Section 6 addresses the prohibition on dual office holding. It creates numerous exceptions to the general rule that a person cannot hold more than one public "Office" and 3 of those exceptions make an exception whereby a person could serve as a reserve peace officer while holding another specified type of public "Office". Them implication being: you wouldn't need to make an exception for reserves if they weren't legally a public "Office". In my opinion, a Reserve Police Officer is a public "Office" and the holder of the office is a public "Officer". As such, a relative of a governing body member could not be appointed to that position even if it is an unpaid position. Where it could get dicey would be if a relative of a governing body member was already a Reserve Police Officer before their relative got on the Council and then that Officer wanted to be promoted to a full time Police Officer. They would be an officer already in service so the issue would be whether moving from an unpaid Reserve to a paid full time Police Officer would be considered a promotion rather than a new appointment. If it's a promotion, then it's likely ok. If it is a new appointment, then I think it would be problematic. Suzie Suzanne D. Paulson Executive Director spaulson@omag.org<mailto:spaulson@omag.org> [OMAG-Logo] 3650 S. Boulevard Edmond, OK 73013 Phone: 405.657.1444 Fax: 405.657.1401 OMAG Web Site<http://www.omag.org/> Follow us on: [https://www.omag.org/portals/0/facebook.png]<https://www.facebook.com/pages/Oklahoma-Municipal-Assurance-Group/217733311740931?ref=stream> [https://www.omag.org/portals/0/twitter.png] <https://twitter.com/omag1977> [https://www.omag.org/portals/0/linkedin.png] <http://www.linkedin.com/company/oklahoma-municipal-assurance-group> From: Phillip Morton <mortonlawoffice@gmail.com> Sent: Tuesday, September 6, 2022 12:18 PM To: oama@lists.imla.org Subject: [Oama] Nepotism Question City wants to hire the city marshal's son as a reserve officer. The city marshal also serves as chief of police. The mayor is in charge of hiring/firing while the council approves and sets compensation. Obviously there are problems with this under Section 21 O.S. 484<https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2Foscn%2Fdeliverdocument.asp%3Fciteid%3D69183%26date%3D12%2F29%2F1981&data=05%7C01%7Cspaulson%40omag.org%7Cb08f06b3897c47b677fc08da902bd280%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C637980815140799438%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=XPbYSD5QE7IFp0BUz54LkAmwzImHlGTMQeSNYYVmyY4%3D&reserved=0> which provides: Any person related within the third degree by affinity or consanguinity to any member of either the legislative, judicial or executive branch of the State Government shall not be eligible to hold any clerkship, office, position, employment or duty in such branch of the State Government. Am I correct in assuming that we cannot hire the marshal/chief's son as a reserve? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com<mailto:MortonLawOffice@gmail.com> CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.

Typically the city brings them on as a volunteer, and that is what is being discussed with this particular individual. "Hiring" probably wasn't the correct term to use On Tue, Sep 6, 2022, 12:43 PM Suzanne Paulson <spaulson@omag.org> wrote: > Although I don’t think it makes a difference in this particular situation (*see > below for an email Matt sent out on this issue a few years ago*) . . . > Does the City actually hire reserves (meaning he will be an employee with > minimum wage and benefits) or are the reserve officers volunteers? I ask > because many cities confuse this issue and can get themselves in trouble > with the FLSA. > > > > The key statute is in Title 11 of the Oklahoma statutes at Section 8-106, > which reads, in relevant part: > > > > No elected or appointed official or other authority of the municipal > government shall appoint or elect any person related by affinity or > consanguinity within the third degree to any governing body member or to > himself or, in the case of a plural authority, to any one of its members to > any office or position of profit in the municipal government. The > provisions of this section shall not prohibit an officer or employee > already in the service of the municipality from continuing in such service > or from promotion therein. > > > > The first sentence references “any office or position of profit”. The > second sentence references “an officer or employee”. So the questions > really are: 1) is the volunteer position and “office” or “position of > profit” for appointment purposes and 2) if someone is already in the > service and wants to advance, are they currently an “officer” or “employee” > of the municipality? > > > > “Office” and “Officer” are effectively the same – the “Officer” is the > person holding a public “Office”. Compensation is not required for the > position to be a public office. Rather, there is a 3 prong test the Courts > use to evaluate whether a position is a public “Office”: > > > > (1) The position is conferred by law; > > (2) It has permanence and continuity; and > > (3) The duties conferred on the office involve the exercise of some of the > sovereign functions of the government. > > > > *Guthrie Daily Leader v. Cameron*, 1895 OK 71, 41 P. 635. So, for > example, the Attorney General for Oklahoma has concluded that Planning > Commissioners, while uncompensated, are officers. *See *1983 OK AG 176. > So how does that fit in with volunteers that serve as either Reserve Police > Officers or Volunteer Firefighters? > > > > *Police* > > > > Believe it or not, there actually is no specific case law or AG opinion on > point as to reserve officers. The AG discussed the issue of whether a > police officer is a public “Office” (concluding that it is a public > “Office”) in 2000 OK AG 58, and in doing so the AG recites a long history > of prior cases and opinions that address that issue. The logic used would > seem to apply with equal force to reserve officers – in 1995 OK AG 48, the > AG noted: > > > > Applying the *Oklahoma City v. Century Indemnity Co.* test to a municipal > police officer position, we find that the position is also an office… > Municipalities are created by statute, and they, in turn, create police > officer positions in accordance with their charters and invest police > officers with a portion of the sovereign's power to arrest, search and > seize. > > > > The same could be said of reserves. They are positions created by > municipalities and are invested with the sovereign power to arrest, search > and seize. Moreover, the legislature appears to believe that they are > public “Offices”. Title 51 of the Oklahoma statutes, at Section 6 addresses > the prohibition on dual office holding. It creates numerous exceptions to > the general rule that a person cannot hold more than one public “Office” > and 3 of those exceptions make an exception whereby a person could serve as > a reserve peace officer while holding another specified type of public > “Office”. Them implication being: you wouldn’t need to make an exception > for reserves if they weren’t legally a public “Office”. > > > > In my opinion, a Reserve Police Officer is a public “Office” and the > holder of the office is a public “Officer”. As such, a relative of a > governing body member could not be appointed to that position even if it is > an unpaid position. Where it could get dicey would be if a relative of a > governing body member was already a Reserve Police Officer before their > relative got on the Council and then that Officer wanted to be promoted to > a full time Police Officer. They would be an officer already in service so > the issue would be whether moving from an unpaid Reserve to a paid full > time Police Officer would be considered a promotion rather than a new > appointment. If it’s a promotion, then it’s likely ok. If it is a new > appointment, then I think it would be problematic. > > > > Suzie > > > > > *Suzanne D. Paulson *Executive Director > > spaulson@omag.org > > > [image: OMAG-Logo] > 3650 S. Boulevard > > Edmond, OK 73013 > Phone: 405.657.1444 > Fax: 405.657.1401 > *OMAG Web Site* <http://www.omag.org/> > > > > * Follow us on: * > > [image: https://www.omag.org/portals/0/facebook.png] > <https://www.facebook.com/pages/Oklahoma-Municipal-Assurance-Group/217733311740931?ref=stream> > [image: https://www.omag.org/portals/0/twitter.png] > <https://twitter.com/omag1977> [image: > https://www.omag.org/portals/0/linkedin.png] > <http://www.linkedin.com/company/oklahoma-municipal-assurance-group> > > > > > > > > *From:* Phillip Morton <mortonlawoffice@gmail.com> > *Sent:* Tuesday, September 6, 2022 12:18 PM > *To:* oama@lists.imla.org > *Subject:* [Oama] Nepotism Question > > > > City wants to hire the city marshal's son as a reserve officer. The city > marshal also serves as chief of police. The mayor is in charge of > hiring/firing while the council approves and sets compensation. Obviously > there are problems with this under Section 21 O.S. 484 > <https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2Foscn%2Fdeliverdocument.asp%3Fciteid%3D69183%26date%3D12%2F29%2F1981&data=05%7C01%7Cspaulson%40omag.org%7Cb08f06b3897c47b677fc08da902bd280%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C637980815140799438%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=XPbYSD5QE7IFp0BUz54LkAmwzImHlGTMQeSNYYVmyY4%3D&reserved=0> which > provides: > > Any person related within the third degree by affinity or consanguinity to > any member of either the legislative, judicial or executive branch of the > State Government shall not be eligible to hold any clerkship, office, > position, employment or duty in such branch of the State Government. > > Am I correct in assuming that we cannot hire the marshal/chief's son as a > reserve? > > > Phillip N. Morton, J.D. > > P.O. Box 1886 > > Ada, OK 74820 > > Phone: 580-759-0049 > > Fax: 580-759-2177 > > Email: MortonLawOffice@gmail.com > > > > CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail > transmission, as well as any attachments, may contain confidential > information that is legally privileged. If you are not the intended > recipient, any disclosure, copying, distribution, or use of any of the > information contained in or attached to this message is STRICTLY PROHIBITED > by law. If you have received this message in error, please immediately > notify us by replying to this email or by calling *580-759-0049*. >