Re: [Oama] conflict of interest question
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
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 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
can we get a copy of that opinion that Matt Love wrote?
On Wed, Mar 11, 2020 at 4:58 PM Kay Wall lkrw@sbcglobal.net wrote:
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 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 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 mike.vanderburg@sbcglobal.net
*Sent: *Tuesday, March 10, 2020 9:40 PM
*To: *Kay Wall 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 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
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Kevin Dodson
Attorney at Law
308 A Northeast First Street
Pryor, OK 74361
918-824-3600 <(918)%20824-3600>
Fax: 918-824-3601 <(918)%20824-3601>
E-Mail: kevinatdodsonlawoffice@gmail.com
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To clarify OMAG’s position, what would likely happen is that we would defend him both positions but if a judge or jury came back and said that he was acting “outside the scope of his duties” and awarded damages to the plaintiff then we would not indemnify him for those damages because just like a city we can’t pay damages for someone acting outside the scope of their duties. Of course we can’t predict what will happen or what would be filed or what a judge/jury would do so it’s all hypothetical but I always like to warn members when there is a potential risk (even if it’s low) that either a defense won’t be provided and/or damages won’t be indemnified.
Suzanne D. Paulson
General Counsel
spaulson@omag.orgmailto:spaulson@omag.org
[OMAG-Logo]
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Edmond, OK 73013
Phone: 405.657.1444
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From: Oama oama-bounces@lists.imla.org On Behalf Of Kay Wall
Sent: Wednesday, March 11, 2020 4:57 PM
To: 'Toni Capra' capralawfirm@gmail.com; 'Kimberlee Spady' 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.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 2:53 PM
To: Kimberlee Spady <Kim@spadylaw.commailto:Kim@spadylaw.com>; OAMA@lists.imla.orgmailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
AG’s opinion says it is not about monetary but about benefits.
From: Kimberlee Spadymailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 11:13 AM
To: OAMA@lists.imla.orgmailto: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.commailto:capralawfirm@gmail.com>
Sent: Wednesday, March 11, 2020 10:57 AM
To: Kimberlee Spady <Kim@spadylaw.commailto:Kim@spadylaw.com>; OAMA@lists.imla.orgmailto: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?
From: Kimberlee Spadymailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 10:54 AM
To: OAMA@lists.imla.orgmailto: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.orgmailto: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.netmailto:mike.vanderburg@sbcglobal.net>; Kay Wall <lkrw@sbcglobal.netmailto:lkrw@sbcglobal.net>; OAMA@lists.imla.orgmailto: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.
From: Michael R. Vanderburgmailto:mike.vanderburg@sbcglobal.net
Sent: Tuesday, March 10, 2020 9:40 PM
To: Kay Wallmailto:lkrw@sbcglobal.net; OAMA@lists.imla.orgmailto: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
From: Kay Wallmailto:lkrw@sbcglobal.net
Sent: Monday, March 9, 2020 2:07 PM
To: OAMA@lists.imla.orgmailto: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
Matt’s research and response to another city:
I view 51 O.S. 6 is addressing dual office holding where the two offices are at two different public entities. Section 6 starts with “Except as may be otherwise provided,”. There is a dual office holding statute specific to holding 2 or more offices within the same municipality, 11 O.S. 8-106, which I believe would “otherwise provide” for dual office holding within the same municipality. The Attorney General concurs with this interpretation that Section 8-106 is an exception to the general dual office holding prohibition in Section 6. See 2018 OK AG 11, 1981 OK AG 31.
8-106 states, in relevant part:
A person may hold more than one office or position in a municipal government as the governing body may ordain. A member of the governing body shall not receive compensation for service in any municipal office or position other than his elected office.
The Attorney General addressed a similar question in his opinion in 1980 OK AG 225. There, the AG was asked to opine as to whether the Mayor in an Aldermanic form of government could serve as superintendent of a City owned utility. The AG concluded that the Mayor could hold both positions, but held that governing body approval was necessary to avoid a Section 6 violation:
Section 8-106 permits dual office holding by municipal officials, “as the governing body may ordain.” This is consistent with 51 O.S. 1971, § 6, since that statute is prefaced with an exception, “Except as may be otherwise provided. . . .”. Section 8-106 “otherwise provides.” Therefore, a mayor of an aldermanic city could sit as superintendent of a city owned utility, even if both were public offices, provided the governing body has given its sanction and approval to the arrangement.
The fact that the Police Department is ultimately accountable to the Board does not necessarily make it a per se conflict of interest for the Mayor to be a reserve. In 2008 OK AG 15, the Attorney General was asked whether it was a conflict of interest for someone to be either the Mayor or City Manager and also the Fire Chief in a City. The key issue was the supervision and control of the sub-unit of the City (there, the FD) but the person holding the higher position. The AG held it was not a per se conflict, but could become one depending on local ordinances:
The city manager's power to supervise and control all administrative departments, officers and agencies does not appear to conflict with his or her role as fire chief, since the city manager supervises all departments, including but not limited to the fire department. But municipal councils may set forth in ordinances what other offices and positions in city government a fire chief, city manager and mayor may have, and whether allowing the same person to serve as fire chief and city manager or mayor creates a conflict of interest is a question of fact that is outside the scope of an Attorney General's Opinion. 74 O.S.2001, § 18b(A)(5). We cannot conclude that there is a per se conflict of interest.
Finally, and forgive me for closing with this (I assure you, it wasn’t for dramatic flare so much as the fact that I found this AG opinion last), but the AG answered a question in 1998 OK AG 13 where he was asked whether it would be lawful for the Mayor in a Strong Mayor form of government to appoint himself as a police officer, whether fulltime or reserve. The AG concluded that the Mayor (who, in that form of government, serves as both CEO and as a legislator) could not be a full peace officer, but only because 70 O.S. 3311(D)(5) defines peace officer as being a “full-time duly appointed or elected officer who is paid”. 8-106 allows the Mayor to hold other positions, but not for extra compensation. Hence, he could not meet the “paid” requirement to be a full peace officer. He could, however, be a unpaid reserve officer.
So there’s the legal part. I’ll (really) close with the practical. Cops and politicians are positions that beg public criticism (at least if you are doing your job right). It appears you can be both the Mayor and a reserve officer, but please make sure you do so with both eyes open. You would be inviting some extra headaches by taking on both roles. Also, I would urge you to be mindful that, when you are wearing the reserve cop hat, you work for the Chief whereas the Chief works for you and the Board when you are wearing your Mayor hat. While the AG says it’s not legally a conflict, this setup could create some points of conflict between you and your Chief. And they don’t have to be express conflicts – the very setup can create a situation for the Chief where he/she might feel some hesitation to address matters with you as a reserve that he/she would freely address with any other officer. If you do it, I urge you to make clear to the Chief that he/she is Chief and, while acting as a reserve, you work for him/her. Make sure the Chief remains empowered to be Chief.
That’s my practical advice in addition to the legal. If you have any other questions or concerns, please feel free to reach out.
From: Oama oama-bounces@lists.imla.org On Behalf Of Kevin Dodson
Sent: Wednesday, March 11, 2020 5:17 PM
To: Kay Wall lkrw@sbcglobal.net; oama@lists.imla.org
Subject: Re: [Oama] conflict of interest question
can we get a copy of that opinion that Matt Love wrote?
On Wed, Mar 11, 2020 at 4:58 PM Kay Wall <lkrw@sbcglobal.netmailto:lkrw@sbcglobal.net> wrote:
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.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Toni Capra
Sent: Wednesday, March 11, 2020 2:53 PM
To: Kimberlee Spady <Kim@spadylaw.commailto:Kim@spadylaw.com>; OAMA@lists.imla.orgmailto:OAMA@lists.imla.org
Subject: Re: [Oama] conflict of interest question
AG’s opinion says it is not about monetary but about benefits.
From: Kimberlee Spadymailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 11:13 AM
To: OAMA@lists.imla.orgmailto: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.commailto:capralawfirm@gmail.com>
Sent: Wednesday, March 11, 2020 10:57 AM
To: Kimberlee Spady <Kim@spadylaw.commailto:Kim@spadylaw.com>; OAMA@lists.imla.orgmailto: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?
From: Kimberlee Spadymailto:Kim@spadylaw.com
Sent: Wednesday, March 11, 2020 10:54 AM
To: OAMA@lists.imla.orgmailto: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.orgmailto: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.netmailto:mike.vanderburg@sbcglobal.net>; Kay Wall <lkrw@sbcglobal.netmailto:lkrw@sbcglobal.net>; OAMA@lists.imla.orgmailto: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.
From: Michael R. Vanderburgmailto:mike.vanderburg@sbcglobal.net
Sent: Tuesday, March 10, 2020 9:40 PM
To: Kay Wallmailto:lkrw@sbcglobal.net; OAMA@lists.imla.orgmailto: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
From: Kay Wallmailto:lkrw@sbcglobal.net
Sent: Monday, March 9, 2020 2:07 PM
To: OAMA@lists.imla.orgmailto: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
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Kevin Dodson
Attorney at Law
308 A Northeast First Street
Pryor, OK 74361
918-824-3600tel:(918)%20824-3600
Fax: 918-824-3601tel:(918)%20824-3601
E-Mail: kevinatdodsonlawoffice@gmail.commailto:kevinatdodsonlawoffice@gmail.com
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