Opinion No. (1991) Ag ( 1991 )

IS A MEMBER OF A BOARD OF TRUSTEES UNDER THE TOWN BOARD OF TRUSTEES FORM OF MUNICIPAL GOVERNMENT A MUNICIPAL "OFFICER" UNDER OKLAHOMA LAW WHEN MEMBERSHIP ON THE BOARD OF TRUSTEES IS NOT LISTED AS A MUNICIPAL OFFICER IN THE MUNICIPAL CHARTER?

ATTORNEY GENERAL LOVING HAS ASKED THAT I RESPOND TO YOUR REQUEST.

BECAUSE IT WOULD APPEAR THAT BOTH OKLAHOMA CASE LAW AND THE RELEVANT STATUTES WILL FULLY ANSWER YOUR QUESTION, A FORMAL OPINION OF THE ATTORNEY GENERAL IS NOT NECESSARY AT THIS TIME.

THE ANSWER TO YOUR QUESTION COMES IN PART FROM THE DEFINITION OF THE TERM "PUBLIC OFFICE". THE TERM "PUBLIC OFFICE" WAS FIRST DEFINED IN THE CASE OF GUTHRIE DAILY LEADER V. CAMERON, 41 P. 635, 636 (OKL. 1895), WHEN THE COURT EXPLAINED:

"A PUBLIC OFFICE IS THE RIGHT, AUTHORITY AND DUTY CREATED AND CONFERRED BY LAW, BY WHICH FOR A GIVEN PERIOD, EITHER FIXED BY LAW OR ENDURING AT THE PLEASURE OF THE CREATING POWER, AN INDIVIDUAL IS INVESTED WITH SOME PORTION OF SOVEREIGN FUNCTIONS OF THE GOVERNMENT, TO BE EXERCISED FOR THE BENEFIT OF THE PUBLIC. THE INDIVIDUAL SO INVESTED IS A PUBLIC OFFICER."

THIS WAS LATER FOLLOWED BY THE CASE OF OKLAHOMA CITY V. CENTURY INDEMNITY COMPANY, 62 P.2D 94, 97 (OKL. 1936), WHICH LISTED THE FOLLOWING AS INDICIA OF A PUBLIC OFFICE:

"(A) THE SPECIFIC POSITION MUST BE CREATED OR AUTHORIZED BY LAW;

"(B) THERE MUST BE CERTAIN DEFINITE DUTIES IMPOSED BY LAW ON THE INCUMBENT; AND

"(C) THEY MUST INVOLVE THE EXERCISE OF SOME PORTION OF THE SOVEREIGN POWER(.)"

THE STATUTORY TOWN BOARD OF TRUSTEES FORM OF MUNICIPAL GOVERNMENT IS AUTHORIZED BY 11 Ohio St. 12-101. SPECIFIC DUTIES OF THE BOARD AND ITS MEMBERS ARE OUTLINED IN 11 Ohio St. 12-105 AND 11 Ohio St. 12-106, AND SPECIFIC POWERS ARE GRANTED THAT INCLUDE, BUT ARE NOT LIMITED TO: DETERMINATION OF MATTERS OF POLICY, RAISING REVENUE, MAKING APPROPRIATIONS, AND THE REGULATION OF MUNICIPAL FISCAL AFFAIRS. ALL OF THESE POWERS ARE A DELEGATION OF THE STATE'S SOVEREIGN POWER.

THUS, THE INDICIA OF A PUBLIC OFFICE OUTLINED IN OKLAHOMA CITY V. CENTURY INDEMNITY COMPANY, SUPRA, ATTACH TO A MEMBER OF A TOWN BOARD OF TRUSTEES AND MAKE THE POSITION A "MUNICIPAL OFFICE". THE FOCUS THEN SHIFTS TO WHAT WEIGHT IS GIVEN THE FACT THAT THE BOARD MEMBERS ARE NOT LISTED AS OFFICERS IN THE TOWN'S MUNICIPAL CODE.

EMPHASIS IS PLACED UPON THE PROVISIONS OF 11 Ohio St. 12-112 (1990) IN YOUR OPINION REQUEST. THIS PROVISION PROVIDES:

"IN THE TOWN BOARD OF TRUSTEES FORM OF GOVERNMENT, THERE SHALL BE SUCH ADMINISTRATIVE DEPARTMENTS, OFFICERS, AND AGENCIES AS THE BOARD MAY ESTABLISH. THE BOARD MAY COMBINE, MERGE, OR CONSOLIDATE BY ORDINANCE ANY OF THE VARIOUS OFFICES OF TOWN GOVERNMENT AS IT DEEMS NECESSARY AND CONVENIENT FOR THE ADMINISTRATION OF THE AFFAIRS OR GOVERNMENT OF THE TOWN."

BY ITSELF, THIS PROVISION APPEARS TO GRANT SWEEPING POWERS TO THE TOWN BOARD OF TRUSTEES; ALLOWING THEM TO ALTER EVEN THEIR OWN MEMBERSHIP. BUT THIS PROVISION MUST BE READ IN LIGHT OF 11 Ohio St. 12-101, WHICH STATES:

"TOWNS GOVERNED UNDER THE STATUTORY TOWN BOARD OF TRUSTEES FORM SHALL HAVE ALL THE POWERS, FUNCTIONS, RIGHTS, PRIVILEGES, FRANCHISES AND IMMUNITIES GRANTED, OR WHICH MAY BE GRANTED, TO TOWNS. SUCH POWERS SHALL BE EXERCISED AS PROVIDED BY LAW APPLICABLE TO TOWNS UNDER THE TOWN BOARD OF TRUSTEES FORM, OR IF THE MATTER IS NOT THUS PRESCRIBED, THEN IN SUCH MANNER AS THE BOARD OF TRUSTEES MAY PRESCRIBE. (EMPHASIS ADDED)"

THIS LANGUAGE SERVES AS AN EXPLICIT LIMITATION ON THE BOARD OF TRUSTEES POWER — IT MUST ACT IN CONFORMITY WITH THE PROVISIONS OF 11 Ohio St. 12-101 ET SEQ. THUS, BOARD MEMBERSHIP MUST BE MAINTAINED AT THE STATUTORILY PRESCRIBED LEVEL AND MUST MAINTAIN THE STATUTORILY DESCRIBED DUTIES. IN THIS LIGHT, IT IS APPARENT THAT EVEN THOUGH THE BOARD MEMBERS ARE NOT LISTED AS OFFICERS IN THE MUNICIPAL CODE, THEY RETAIN THE CHARACTERISTICS OF A "MUNICIPAL OFFICER" UNDER THE PROVISIONS OF THE OKLAHOMA STATUTES.

(REBECCA RHODES)