Executive Session to discuss applicants to fill vacancy by appointment
Fellow Attorneys:
I have had a resignation of a council member in one of my City's. We have been taking applications for persons who would like to be considered for appointment.
Can we go into executive session to discuss the applicants?
Thank you so much,
Kay Wall
Kay,
See 1992 OK AG 23
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=62067,
which contains a good discussion related to your question. There, the
question related to a County using a 307(B)(1) ES to consider who to
appoint to a vacant County elected office (e.g. County Commissioner).
307(B)(1) allows for an executive session "for the purpose of discussing
the ... appointment ... of any individual salaried public officer or
employee." It must be an individual position / person, must be a
compensated position (salaried), and must be a public office or employment
position. It certainly sounds like you have an individual public office.
The question would be whether it's a compensated office. I'm not sure if
there's authority on this issue, but I would have concern using 307(B)(1)
if you had nominal compensation for your Councilmembers. While the
Legislature used the term "salaried", obviously that doesn't mean you can
only go in on FLSA exempt positions (i.e. I think you can use 307(B)(1) for
positions paid an hourly rate). But there is an argument to make that
nominal compensation does not create an employment type relationship and,
therefore, the people remain volunteers, and by extension the argument
would be that 307(B)(1) was only designed to allow for an ES when you are
dealing with a position that would otherwise be akin to an employment
position (even if it's an elected public office that receives a meaningful
salary). I perhaps shouldn't make that argument with a straight face,
seeing as how the FLSA doesn't apply to elected office...I'm more making
the point that I'm not sure a Court would hold that the Legislature
intended to allow for an ES for what is really a nominally compensated
elected office.
Matt
On Wed, Apr 12, 2023 at 3:32 PM Kay Robbins Wall lkrw@sbcglobal.net wrote:
Fellow Attorneys:
I have had a resignation of a council member in one of my City's. We have
been taking applications for persons who would like to be considered for
appointment.
Can we go into executive session to discuss the applicants?
Thank you so much,
Kay Wall
Oama mailing list -- oama@lists.imla.org
To unsubscribe send an email to oama-leave@lists.imla.org
Kay:
I've had this issue come up in the past and also fairly recently. My answer to the municipality in each instance was "No" in those specific instances. If you look at the wording of 25 O.S. 307 B(1):
B. Executive sessions of public bodies will be permitted only for the purpose of:
- Discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee;It was my opinion that "salaried" would not include something like a stipend that some municipalities provide for the elected council or board.
I could be wrong, but I think Matt Love has either written an article or posted in the list server on this issue in the past. I'm also very interested in what everyone else has to say on this issue. Best wishes and hope to see all of you at the OAMA Spring Conference.
Joel W. Barnaby
Attorney at law
PO BOX 311
Skiatook, OK 74070
Phone: 918-695-7798
Email: jwbarnaby@sbcglobal.net
NOTICE: This e-mail (including any attachments) is covered by theElectronic Communications Privacy Act, 18 U.S.C. §§2510-2521, is confidentialand may be legally privileged. If you are not the intended recipient, you arehereby notified that any retention, dissemination, distribution, or copying ofthis communication (including any attachments) is strictly prohibited. Pleasereply to the sender that you have received the message in error, then deleteit.
On Wednesday, April 12, 2023 at 03:33:01 PM CDT, Kay Robbins Wall <lkrw@sbcglobal.net> wrote:
Fellow Attorneys:
I have had a resignation of a council member in one of my City's. We have been taking applications for persons who would like to be considered for appointment.
Can we go into executive session to discuss the applicants?
Thank you so much,
Kay Wall--
Oama mailing list -- oama@lists.imla.org
To unsubscribe send an email to oama-leave@lists.imla.org
And Matt beat me to it. I should have refreshed before I sent.
Joel W. Barnaby
Attorney at law
PO BOX 311
Skiatook, OK 74070
Phone: 918-695-7798
Email: jwbarnaby@sbcglobal.net
NOTICE: This e-mail (including any attachments) is covered by theElectronic Communications Privacy Act, 18 U.S.C. §§2510-2521, is confidentialand may be legally privileged. If you are not the intended recipient, you arehereby notified that any retention, dissemination, distribution, or copying ofthis communication (including any attachments) is strictly prohibited. Pleasereply to the sender that you have received the message in error, then deleteit.
On Wednesday, April 12, 2023 at 03:48:32 PM CDT, Matt Love <matt.love@gmail.com> wrote:
Kay,
See 1992 OK AG 23, which contains a good discussion related to your question. There, the question related to a County using a 307(B)(1) ES to consider who to appoint to a vacant County elected office (e.g. County Commissioner).
307(B)(1) allows for an executive session "for the purpose of discussing the ... appointment ... of any individual salaried public officer or employee." It must be an individual position / person, must be a compensated position (salaried), and must be a public office or employment position. It certainly sounds like you have an individual public office. The question would be whether it's a compensated office. I'm not sure if there's authority on this issue, but I would have concern using 307(B)(1) if you had nominal compensation for your Councilmembers. While the Legislature used the term "salaried", obviously that doesn't mean you can only go in on FLSA exempt positions (i.e. I think you can use 307(B)(1) for positions paid an hourly rate). But there is an argument to make that nominal compensation does not create an employment type relationship and, therefore, the people remain volunteers, and by extension the argument would be that 307(B)(1) was only designed to allow for an ES when you are dealing with a position that would otherwise be akin to an employment position (even if it's an elected public office that receives a meaningful salary). I perhaps shouldn't make that argument with a straight face, seeing as how the FLSA doesn't apply to elected office...I'm more making the point that I'm not sure a Court would hold that the Legislature intended to allow for an ES for what is really a nominally compensated elected office.
Matt
On Wed, Apr 12, 2023 at 3:32 PM Kay Robbins Wall lkrw@sbcglobal.net wrote:
Fellow Attorneys:
I have had a resignation of a council member in one of my City's. We have been taking applications for persons who would like to be considered for appointment.
Can we go into executive session to discuss the applicants?
Thank you so much,
Kay Wall--
Oama mailing list -- oama@lists.imla.org
To unsubscribe send an email to oama-leave@lists.imla.org
--
Oama mailing list -- oama@lists.imla.org
To unsubscribe send an email to oama-leave@lists.imla.org