Good Morning All: One of my municipalities operating under the council-manager form of government has two vacant seats on its 5 person board. As has been discussed on this list before, there are many actions with require a majority of the governing board as opposed to a majority of the quorum. So, now I’m trying to figure out who/what the term “governing body” covers. Is the governing body the total number of seated members, or is it the total number of seats available. The definition of quorum in 11 OS § 1-102 is very clear that vacant seats are included, but governing body doesn’t include that in the definition. I have looked at a handful of cases and AG opinions and they all seem to gloss over this issue, but I could have certainly missed something in the research. I’d appreciate any help or guidance anyone could provide. Thanks, Jared Harrison Harrison & Mecklenburg, Inc. 202 N. 6th Street P.O. Box 658 Kingfisher, OK 73750 (Phone) 405-375-6484 (Fax) 405-375-6413 Email: jared.harrison@hmlawoffice.com<mailto:jared.harrison@hmlawoffice.com> Website: www.hmlawoffice.com<http://www.hmlawoffice.com/> HM [AY8OaK+2H4ydAAAAAElFTkSuQmCC] CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information which is legally privileged and/or confidential, and is solely for the use of the intended recipient(s). If you are not the intended recipient, any review, disclosure, copying, distribution or use of the information contained in or attached to this transmission is strictly prohibited. If you have received this e-mail transmission in error, please destroy it and notify us immediately at (405) 375-6484.

My view: 11 O.S. 9-110 (Aldermanic), 10-109 (Council-Manager), 11-110 (Strong Mayor) & 12-108 (Town) all provide that the City Council / Town Board may conduct business so long as a majority "all" the members are present. Implicitly this would mean that a majority of the quorum is all that is needed to take an action *unless* there's some other requirement established by law. The most obvious example of a specific statutory requirement that would control over this general rule comes with ordinances. 11 O.S. 14-102, I would argue, establishes a higher bar. To adopt an ordinance, a "vote of a majority of *all* the members of the Council ... shall be required". 11 O.S. 14-103 uses similar verbiage when it comes to emergency clause, requiring a 3/4 approval from "all the members" of the governing body. The plain text of these statutes requires the majority and supermajority calculation to be made based on all the seats and not just those who show up. After all, if all that was intended was a majority of the quorum, then the added verbiage would be mere surplusage. The potentially harder question would be whether a vacancy affects the number of "members" that you use to calculate the majority requirement when a statute (like 14-102 and 14-103) requires more than a majority of the quorum. I suppose I could make an argument that references to "members" in these statutes is a reference to the current, active incumbents. 11 O.S. 9-102, 10-102, 11-102, and 12-102 define the governing body for each of the 4 statutory forms of government as comprising all the seats on the Council/Board. But that would mean that there are Council/Board seats and that the individuals who hold those seats at a given time are the current members. So, for example, when a 5 member Council has 2 vacancies, there are only 3 current members of the City Council. So, I could try to argue, a majority of the members of the City Council is a majority of the 3 current members. Two problems with that argument. First, statutes like 14-102/14-103 typically use the qualifier "all" before members. If all they required was a majority of the quorum, then there'd be no need to reference members or governing bodies / city councils / town boards. But the use of the qualifier "all" has to be a reference to the Council as a whole, meaning all the seats. The Legislature knows how to reference a smaller number of remaining members - see 11 O.S. 8-109 which deals with vacancies and uses a different qualifier ("remaining members"). If the Legislature wanted it to be a majority of *current* members, they could have used that verbiage. But they used "all" for a reason. Second, going with this argument that it's only the current incumbent members would lead to an absurd result. It would allow, for example, local laws to be adopted and put in place when less than a majority of the elected positions voted in favor of the law. It would allow a bare minimum City Council (e.g. 3 out of 5 when there are 2 vacancies) to adopt and put into place emergency laws. This would run contrary to the letter and spirit of the statutes. This is among the reasons I've always taken the position that statutes like 14-102/14-103 require a majority (or super majority) vote of all the seats regardless of if any are vacant. If you have 2 vacancies on a 5 member Council, that would mean a 2-1 vote could do a lot of things, but when it comes to important things like adopting local laws or appropriating taxpayer money (see 11 O.S. 17-101), you'll need 3-0 votes to do those things. Matt On Fri, Aug 23, 2024 at 9:47 AM Jared Harrison via Oama <oama@lists.imla.org> wrote: > Good Morning All: > > > > One of my municipalities operating under the council-manager form of > government has two vacant seats on its 5 person board. As has been > discussed on this list before, there are many actions with require a > majority of the governing board as opposed to a majority of the quorum. So, > now I’m trying to figure out who/what the term “governing body” covers. Is > the governing body the total number of seated members, or is it the total > number of seats available. > > > > The definition of quorum in 11 OS § 1-102 is very clear that vacant seats > are included, but governing body doesn’t include that in the definition. I > have looked at a handful of cases and AG opinions and they all seem to > gloss over this issue, but I could have certainly missed something in the > research. > > > > I’d appreciate any help or guidance anyone could provide. > > > > Thanks, > > Jared Harrison > Harrison & Mecklenburg, Inc. > 202 N. 6th Street > P.O. Box 658 > Kingfisher, OK 73750 > (Phone) 405-375-6484 > (Fax) 405-375-6413 > Email: jared.harrison@hmlawoffice.com > Website: www.hmlawoffice.com > HM > > [image: AY8OaK+2H4ydAAAAAElFTkSuQmCC] > > CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, > files or previous e-mail messages attached to it, may contain information > which is legally privileged and/or confidential, and is solely for the use > of the intended recipient(s). If you are not the intended recipient, any > review, disclosure, copying, distribution or use of the information > contained in or attached to this transmission is strictly prohibited. If > you have received this e-mail transmission in error, please destroy it and > notify us immediately at (405) 375-6484. > -- > Oama mailing list -- oama@lists.imla.org > To unsubscribe send an email to oama-leave@lists.imla.org >