Empathy List Archives

PM

Phillip Morton

Tue, May 25, 2021 5:44 PM

A small municipality I represent is wanting to get rid of the elected city
marshal position and simply hire a police chief. The city is an aldermanic
form of government. As far as I can see, the only way to get rid of the
position is to either consolidate it with the street marshal or change the
form of government. Is this correct, or is there a way to get rid of the
city marshal position without consolidating the position or changing the
form of government?

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.

A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government? 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*.

DD

david davis

Tue, May 25, 2021 6:01 PM

See ag opinion below for guidance

Question Submitted by: The Honorable Kenneth Converse, Oklahoma House of Representatives
1987 OK AG 63
Decided: 10/15/1987
Oklahoma Attorney General

Cite as: 1987 OK AG 63, __ __

¶0 The Attorney General has received your request for an official opinion asking, in effect:

Does a city ordinance, enacted less than thirty days prior to the next primary election date, which consolidates two municipal offices in an aldermanic form of government but restricts the duties of one of the combined offices, violate the provisions of 11 O.S. 9-115https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987 (1986)?
Is there a property right in the duties of a municipal officer which is constitutionally protected?

I.

¶1 Based on the facts you have provided, it appears that a municipal ordinance was passed which arguably consolidated the positions of town marshal and street commissioner. The creation of those offices is authorized by 11 O.S. 9-114https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75814&date=10/15/1987 (1986), which provides:

There shall be one marshal and one street commissioner, who shall be officers of the city. The marshal may be the chief of police. The marshal shall have such powers, duties, and functions as may be prescribed by law or by ordinance. The street commissioner may be the head of the street department. The street commissioner shall have such powers, duties, and functions as may be prescribed by law or by ordinance.

¶2 These offices, and other municipal offices, may be combined by proper action of the municipality's governing body. See 11 O.S. 9-115https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987 (1986), which provides:

The governing body may combine, merge, or consolidate by ordinance any of the various offices of city government as it deems necessary and convenient for the administration of the affairs or government of the city. Any consolidation of elected city offices shall go into effect at the end of the term of office of those officers whose offices are consolidated or when a vacancy occurs in one of the offices to be consolidated. An ordinance consolidating offices must be enacted at least thirty (30) days prior to the date of the next municipal primary election.

¶3 It appears from the facts you have provided that, at a minimum, the duties of the town marshal have been drastically affected. Assuming, arguendo, that the ordinance in question has, in fact, effected a "merger" or "consolidation" of two offices of city government, the limitations specified in 11 O.S. 9-115,https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987 supra, come into play. Such changes may normally be made at the end of the term of the offices affected or when a vacancy occurs in one of the offices to be consolidated. Id. However, any such changes must be enacted at least thirty days prior to the date of the next primary election. Id.

¶4 The plain language of a statute may not be ignored. State v. Sims, 690 P.2d 1052 (Okl. 1984). The thirty-day requirement in 11 O.S. 9-115,https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987 supra, contains no exceptions, express or implied, and exceptions which were not made by the Legislature should not be read into statutes. Udall v. Udall, 613 P.2d 742 (Okl. 1980). Therefore, assuming, from the facts you provided, that the ordinance in question was enacted less than thirty days prior to the date of the next primary election, and also assuming that the ordinance, in fact, combines or merges the two offices at issue, it violates 11 O.S. 9-115https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987 (1986), supra.

II.

¶5 As to your second question, a determination as to whether a municipal officer has a constitutionally protected property right in his office necessarily involves the resolution of numerous questions of fact in order to ascertain whether an officer has acquired vested rights in his office. Because issues dominated by questions of fact cannot be answered in an Attorney General Opinion, this Opinion cannot and does not address your second inquiry.

¶6 It is, therefore, the official opinion of the Attorney General that:

A city ordinance, enacted less than thirty days prior to the next primary election date, which consolidates two municipal offices in an aldermanic form of government, and which restricts the duties of one of the combined offices, violates the provisions of 11 O.S. 9-115https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987 (1986).
Whether a municipal officer has a constitutionally protected right in his office involves questions of fact as to whether such officer's rights have vested, thus precluding an answer by an official Attorney General Opinion.

ROBERT H. HENRY
ATTORNEY GENERAL OF OKLAHOMA
KATHLYN A. RHODES
ASSISTANT ATTORNEY GENERAL

CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.

s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com mailto:ddavislaw@live.com

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Tuesday, May 25, 2021 12:44 PM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] City Marshal

A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government?

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.

See ag opinion below for guidance Question Submitted by: The Honorable Kenneth Converse, Oklahoma House of Representatives 1987 OK AG 63 Decided: 10/15/1987 Oklahoma Attorney General ________________________________ Cite as: 1987 OK AG 63, __ __ ________________________________ ¶0 The Attorney General has received your request for an official opinion asking, in effect: 1. Does a city ordinance, enacted less than thirty days prior to the next primary election date, which consolidates two municipal offices in an aldermanic form of government but restricts the duties of one of the combined offices, violate the provisions of 11 O.S. 9-115<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987> (1986)? 2. Is there a property right in the duties of a municipal officer which is constitutionally protected? I. ¶1 Based on the facts you have provided, it appears that a municipal ordinance was passed which arguably consolidated the positions of town marshal and street commissioner. The creation of those offices is authorized by 11 O.S. 9-114<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75814&date=10/15/1987> (1986), which provides: There shall be one marshal and one street commissioner, who shall be officers of the city. The marshal may be the chief of police. The marshal shall have such powers, duties, and functions as may be prescribed by law or by ordinance. The street commissioner may be the head of the street department. The street commissioner shall have such powers, duties, and functions as may be prescribed by law or by ordinance. ¶2 These offices, and other municipal offices, may be combined by proper action of the municipality's governing body. See 11 O.S. 9-115<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987> (1986), which provides: The governing body may combine, merge, or consolidate by ordinance any of the various offices of city government as it deems necessary and convenient for the administration of the affairs or government of the city. Any consolidation of elected city offices shall go into effect at the end of the term of office of those officers whose offices are consolidated or when a vacancy occurs in one of the offices to be consolidated. An ordinance consolidating offices must be enacted at least thirty (30) days prior to the date of the next municipal primary election. ¶3 It appears from the facts you have provided that, at a minimum, the duties of the town marshal have been drastically affected. Assuming, arguendo, that the ordinance in question has, in fact, effected a "merger" or "consolidation" of two offices of city government, the limitations specified in 11 O.S. 9-115,<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987> supra, come into play. Such changes may normally be made at the end of the term of the offices affected or when a vacancy occurs in one of the offices to be consolidated. Id. However, any such changes must be enacted at least thirty days prior to the date of the next primary election. Id. ¶4 The plain language of a statute may not be ignored. State v. Sims, 690 P.2d 1052 (Okl. 1984). The thirty-day requirement in 11 O.S. 9-115,<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987> supra, contains no exceptions, express or implied, and exceptions which were not made by the Legislature should not be read into statutes. Udall v. Udall, 613 P.2d 742 (Okl. 1980). Therefore, assuming, from the facts you provided, that the ordinance in question was enacted less than thirty days prior to the date of the next primary election, and also assuming that the ordinance, in fact, combines or merges the two offices at issue, it violates 11 O.S. 9-115<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987> (1986), supra. II. ¶5 As to your second question, a determination as to whether a municipal officer has a constitutionally protected property right in his office necessarily involves the resolution of numerous questions of fact in order to ascertain whether an officer has acquired vested rights in his office. Because issues dominated by questions of fact cannot be answered in an Attorney General Opinion, this Opinion cannot and does not address your second inquiry. ¶6 It is, therefore, the official opinion of the Attorney General that: 1. A city ordinance, enacted less than thirty days prior to the next primary election date, which consolidates two municipal offices in an aldermanic form of government, and which restricts the duties of one of the combined offices, violates the provisions of 11 O.S. 9-115<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=75815&date=10/15/1987> (1986). 2. Whether a municipal officer has a constitutionally protected right in his office involves questions of fact as to whether such officer's rights have vested, thus precluding an answer by an official Attorney General Opinion. ROBERT H. HENRY ATTORNEY GENERAL OF OKLAHOMA KATHLYN A. RHODES ASSISTANT ATTORNEY GENERAL CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message. s/ David A. Davis LAW OFFICE OF DAVID A. DAVIS 4312 N. Classen Blvd. OKLAHOMA CITY, OK 73118 405 840-6353 405 557-0777 (FAX) ddavislaw@live.com<mailto:ddavislaw@live.com> ________________________________ From: Phillip Morton <mortonlawoffice@gmail.com> Sent: Tuesday, May 25, 2021 12:44 PM To: oama@lists.imla.org <oama@lists.imla.org> Subject: [Oama] City Marshal A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government? 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.

K

Kim@spadylaw.com

Tue, May 25, 2021 6:02 PM

The city council of any city may provide by ordinance for the submission to a vote of the registered voters of the city the question of providing for the appointment by the mayor, with the approval of the council, of the city marshal, the street commissioner, the city clerk, the city treasurer, or the city clerk-treasurer. 11 O.S. 16-207(A).

The marshal may be the chief of police. 11 O.S. 9-114.

Another way to address it is to make the marshal position essentially a title only with nominal pay. (State law doesn’t assign the marshal any authority or responsibility.) The city can hire a police chief with authority, who is paid accordingly. (May or may not be the same person as the marshal. This protects against the election of a person who isn’t qualified to serve as police chief.)

Kim Spady

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Tuesday, May 25, 2021 12:44 PM
To: oama@lists.imla.org
Subject: [Oama] City Marshal

A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government?

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.

The city council of any city may provide by ordinance for the submission to a vote of the registered voters of the city the question of providing for the appointment by the mayor, with the approval of the council, of the city marshal, the street commissioner, the city clerk, the city treasurer, or the city clerk-treasurer. 11 O.S. 16-207(A). The marshal may be the chief of police. 11 O.S. 9-114. Another way to address it is to make the marshal position essentially a title only with nominal pay. (State law doesn’t assign the marshal any authority or responsibility.) The city can hire a police chief with authority, who is paid accordingly. (May or may not be the same person as the marshal. This protects against the election of a person who isn’t qualified to serve as police chief.) Kim Spady From: Phillip Morton <mortonlawoffice@gmail.com> Sent: Tuesday, May 25, 2021 12:44 PM To: oama@lists.imla.org Subject: [Oama] City Marshal A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government? 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.

SP

Suzanne Paulson

Tue, May 25, 2021 6:05 PM

Assuming this is an Aldermanic city, 11 O.S. 9-114 contemplates (in my opinion) that the elected Marshal may not be the actual Police Chief by using the “may.”

11 O.S. 9-114: There shall be one marshal and one street commissioner, who shall be officers of the city. The marshal may be the chief of police. The marshal shall have such powers, duties, and functions as may be prescribed by law or by ordinance. The street commissioner may be the head of the street department. The street commissioner shall have such powers, duties, and functions as may be prescribed by law or by ordinance.

I don’t think you can change the terms for the current Marshal but I think you could for the next election. I do know that there are some Aldermanic city’s that have an elected Marshal but also appoint a Police Chief. Here’s an ordinance from the City of Marietta:

DIVISION 5. MARSHAL Sec. 2-121. Appointment; duties. (a) There shall be a City marshal as provided by 11 O.S. § 9-114. (b) The City marshal shall not be known as the Chief of Police nor shall the marshal have any duties involving the operation of the police department.

Sec. 2-134. Police Department. The Police Department shall be headed by the Chief of Police who Shall be the supervisor over the Assistant Chief of Police, who shall in turn be the supervisor over the Police Officers. The Chief of Police Shall also be the supervisor over the Code Enforcement Officer who shall in tum he the supervisor over the Animal Control Officer.

I think you can still have an elected Marshall but the Council can pass an ordinance appointing a police chief and budget for the Police Chief position.

OMAG’s COVID-19 Info Page: https://www.omag.org/covid19-faq

Suzanne D. Paulson
General Counsel
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 Sitehttp://www.omag.org/

Follow us on:
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From: Phillip Morton mortonlawoffice@gmail.com
Sent: Tuesday, May 25, 2021 12:44 PM
To: oama@lists.imla.org
Subject: [Oama] City Marshal

A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government?

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.

Assuming this is an Aldermanic city, 11 O.S. 9-114 contemplates (in my opinion) that the elected Marshal may not be the actual Police Chief by using the “may.” 11 O.S. 9-114: There shall be one marshal and one street commissioner, who shall be officers of the city. The marshal may be the chief of police. The marshal shall have such powers, duties, and functions as may be prescribed by law or by ordinance. The street commissioner may be the head of the street department. The street commissioner shall have such powers, duties, and functions as may be prescribed by law or by ordinance. I don’t think you can change the terms for the current Marshal but I think you could for the next election. I do know that there are some Aldermanic city’s that have an elected Marshal but also appoint a Police Chief. Here’s an ordinance from the City of Marietta: DIVISION 5. MARSHAL Sec. 2-121. Appointment; duties. (a) There shall be a City marshal as provided by 11 O.S. § 9-114. (b) The City marshal shall not be known as the Chief of Police nor shall the marshal have any duties involving the operation of the police department. Sec. 2-134. Police Department. The Police Department shall be headed by the Chief of Police who Shall be the supervisor over the Assistant Chief of Police, who shall in turn be the supervisor over the Police Officers. The Chief of Police Shall also be the supervisor over the Code Enforcement Officer who shall in tum he the supervisor over the Animal Control Officer. I think you can still have an elected Marshall but the Council can pass an ordinance appointing a police chief and budget for the Police Chief position. OMAG’s COVID-19 Info Page: https://www.omag.org/covid19-faq Suzanne D. Paulson General Counsel 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, May 25, 2021 12:44 PM To: oama@lists.imla.org Subject: [Oama] City Marshal A small municipality I represent is wanting to get rid of the elected city marshal position and simply hire a police chief. The city is an aldermanic form of government. As far as I can see, the only way to get rid of the position is to either consolidate it with the street marshal or change the form of government. Is this correct, or is there a way to get rid of the city marshal position without consolidating the position or changing the form of government? 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.