Municipal Attorney and Judge
All,
A municipality reached out to me and ask if the municipal attorney could also be the municipal judge for the same municipality. As an initial thought, I do not think this would be permissible, but the dual office holding statutes 11 O.S. § 8-106https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=75793 and 51 O.S. 6https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438635, AG opinions, and case law do not cover this specifically since a municipal attorney is not an "office". If anyone has any thoughts on this issue it would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
[cid:1f431267-3d3b-4aa2-a1ac-57cf12e5c5a0]
The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
In a small community (the name I cannot remember) in the North part of the state, the Judge also functions as the attorney.
Harlan Pinkerton
Sent from my iPad
On Jan 10, 2025, at 12:32 PM, Christian Rinehart via Oama oama@lists.imla.org wrote:
All,
A municipality reached out to me and ask if the municipal attorney could also be the municipal judge for the same municipality. As an initial thought, I do not think this would be permissible, but the dual office holding statutes 11 O.S. § 8-106 and 51 O.S. 6, AG opinions, and case law do not cover this specifically since a municipal attorney is not an "office". If anyone has any thoughts on this issue it would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
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Several years ago in the 1990’sI had a friend who was holding both jobs in a small town in eastern Oklahoma and a District Judge filed a bar complaint against him for holding both roles. I know he had to resign as judge, and it seems like he told me he was reprimanded.
The friend is deceased now, but I believe the Town was in LeFlore County. I would imagine some of the older members of the bar down there would remember the details.
Sent from my iPhone
On Jan 10, 2025, at 1:26 PM, HARLAN PINKERTON via Oama <oama@lists.imla.org> wrote:
In a small community (the name I cannot remember) in the North part of the state, the Judge also functions as the attorney.Harlan Pinkerton
Sent from my iPad
On Jan 10, 2025, at 12:32 PM, Christian Rinehart via Oama <oama@lists.imla.org> wrote:
All,
A municipality reached out to me and ask if the municipal attorney could also be the municipal judge for the same municipality. As an initial thought, I do not think this would be permissible, but the dual office holding statutes 11 O.S. § 8-106 and 51 O.S. 6, AG opinions, and case law do not cover this specifically since a municipal attorney is not an "office". If anyone has any thoughts on this issue it would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
<Outlook-5c1nu34u.png>The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
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I do not believe the dual office prohibition contained in 11 OS 8-106 or 51 OS 6 would prohibit the same person from simultaneously serving as city attorney and municipal judge for the same municipality. This is because the dual office prohibition is only triggered if the same individual holds two or more offices. However, this scenario doesn't involve two offices. Even assuming for argument's sake the position of city attorney is an office, the position of municipal judge is expressly not one. Under SB 462 (2023 OSL 274), the Legislature expressly declared municipal judges are not "officers" of the municipality they serve and the various dual office holding prohibition expressly do not apply. 11 OS 27-104(A). Because both positions have to be officer positions, this triggering event is not satisfied and the prohibition is not applicable.
Whether the municipality in question wants the relationship is, therefore, ultimately a policy question for the municipality and a professional ethics question for the would-be attorney/judge.
JTH
From: Jeff- Business via Oama oama@lists.imla.org
Sent: Friday, January 10, 2025 3:14 PM
To: HARLAN PINKERTON hspii@aol.com
Cc: Christian Rinehart christian@oml.org; oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Re: Municipal Attorney and Judge
Several years ago in the 1990’sI had a friend who was holding both jobs in a small town in eastern Oklahoma and a District Judge filed a bar complaint against him for holding both roles. I know he had to resign as judge, and it seems like he told me he was reprimanded.
The friend is deceased now, but I believe the Town was in LeFlore County. I would imagine some of the older members of the bar down there would remember the details.
Sent from my iPhone
On Jan 10, 2025, at 1:26 PM, HARLAN PINKERTON via Oama oama@lists.imla.org wrote:
In a small community (the name I cannot remember) in the North part of the state, the Judge also functions as the attorney.
Harlan Pinkerton
Sent from my iPad
On Jan 10, 2025, at 12:32 PM, Christian Rinehart via Oama oama@lists.imla.org wrote:
All,
A municipality reached out to me and ask if the municipal attorney could also be the municipal judge for the same municipality. As an initial thought, I do not think this would be permissible, but the dual office holding statutes 11 O.S. § 8-106https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=75793 and 51 O.S. 6https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438635, AG opinions, and case law do not cover this specifically since a municipal attorney is not an "office". If anyone has any thoughts on this issue it would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
<Outlook-5c1nu34u.png>
The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
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I agree that there's no dual office holding issue - and that there really
never was. Municipal Attorneys are not public officers. *See *2006 OK AG
42, ¶¶ 34-38.
But I do think there are other potential issues that would have to be
flushed out. In my opinion, the position of Municipal Judge meets
the common law test for being a public office of the Municipality. This was
a long concern I had because there are several attorneys who have been
serving as Municipal Judge as multiple communities. Thankfully, the
legislature snuck in a fix to that problem when they amended 11 O.S.
§27-104(A) to add language that the Judge is not a public officer for the
purposes of 51 O.S. §6 and 11 O.S. §1-102. But that only fixed the
potential dual office holding issue.
But you'd still have to flush out whether other legal restrictions that
apply to public officers would be implicated by this arrangement. Article
10, Section 11 of the OK Constitution and 21 O.S. §341 both criminalize the
receipt of public monies by a public officer of a municipality beyond the
compensation provided for their position as provided by law. So if I'm the
Judge for City X, receiving compensation for that public office as provided
by law, and I'm also a contractor for the City performing the duties of the
City Attorney, am I violating these provisions since I'm receiving public
(City) money as a contract City Attorney which is money above and beyond
the compensation I receive for my public office (Judge) with the City?
Normally I would mention that potential for a conflict or
incompatibility between the two roles. But would that be a legal barrier?
As I recall, when the question has arisen in prior instances, the issue was
analyzed and resolved based on the provisions of 51 O.S. §6. For example,
in Town of Wellston v. Wallace, 2007 OK CIV APP 2, 152 P.3d 284, the
Court held that it was unlawful for members of a Town Board of Trustees to
serve as members of the Town's Board of Adjustment, because of the
appellate role that the BOA plays. But the legal prohibition was statutory
- and §6 wouldn't apply here since the City Attorney is not a common law
public officer and the City Judge is now exempt from the provisions of §6.
But even in the absence of a statutory prohibition, I think there ethical
considerations still have to come into play. The statutes don't really
define the duties of a municipal attorney, at least when the City/Town only
has a Court Not of Record. Compare 11 O.S. §§ 27-108 with 28-109. In cities
with a Court of Record, the City Attorney and their assistants "shall" be
the prosecutors in the Court. But in cities and towns with Courts Not of
Record, the statute merely says that the City/Town Attorney "may" serve as
the prosecutor. Which means that the City/Town can have a completely
separate attorney who serves as prosecutor. 2012 OK AG 20, ¶13. As Judge,
the attorney would be hearing cases which were initiated and pursued by
City employees/officials - employees or officials that, one would think,
obtain legal counsel from the attorney in their capacity as City/Town
Attorney. As Judge, the attorney would potentially hear challenges to the
sufficiency / vagueness of ordinances that the attorney likely drafted in
their capacity as City/Town Attorney. Because there is a lack of statutory
guidance on what duties and role the City/Town Attorney actually plays
within the City/Town, it'd be hard to say that there is an absolute, per
se, ethical issue with this kind of arrangement. A different attorney
could be used to draft criminal ordinances and/or to advise
employees/officials on matters that may lead to the filing of a criminal
case in the municipal Court. But I'm willing to bet that such an
arrangement doesn't exist in communities that might be confronting this
issue.
Bottom line, I think it's a major problem (or concern). City Attorneys
represent the City and protect and advocate for the City's interests.
Prosecutions are brought in Municipal Courts in the name of the City
against a third party. While the Judge is a part of the City government,
their long standing role is an independent one - independent from the
legislative and executive branches of the government, which branches are
advised by the City Attorney. I would not be comfortable serving as a City
Attorney and City Judge in the same City.
Those are my thoughts.
Matt
Matthew Love
Municipal Attorney & Counselor at Law
Matt@mattlove.law
405.973.8515
On Fri, Jan 10, 2025 at 12:32 PM Christian Rinehart via Oama <
oama@lists.imla.org> wrote:
All,
A municipality reached out to me and ask if the municipal attorney could
also be the municipal judge for the same municipality. As an initial
thought, I do not think this would be permissible, but the dual office
holding statutes 11 O.S. § 8-106
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=75793 and
51 O.S. 6
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438635,
AG opinions, and case law do not cover this specifically since a municipal
attorney is not an "office". If anyone has any thoughts on this issue it
would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
*The Municipal Inquiry Service provides information based on Oklahoma
Statutes and sample policies from other member cities and towns to members
of the Oklahoma Municipal League. There may be other facts and details that
were unknown to OML or not relayed that may alter the information
provided. OML does not provide legal advice or act as a legal advisor.
The advice of your municipal attorney, as your legal advisor, should be
followed before implementing any policy or making any decisions regarding
your legal matters. **The OML American Recovery Plan Act Inquiry service
provides information based on the guidance provided by the U.S. Department
of the Treasury and the state of Oklahoma. Each Oklahoma municipality is
responsible for submitting and verifying the correct budget information,
using ARPA funds correctly, obligating the ARPA funds by December 31, 2024,
spending the ARPA funds by December 31, 2026, and submitting a project and
expenditure report by April 30th, 2025. The advice of a municipal attorney,
as a legal advisor, should be followed before making any decisions
regarding accepting, spending, or reporting on ARPA funds. *
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I agree with Matt, particularly on the potential conflict of interest is you are the City Attorney and the City Judge in the same city. Seems like an ethical issue to me.
Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.orgmailto:jbryant@omag.org
[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma 73013
Phone: 405-657-1419
Fax: 405-657-1401
Cell: 405-830-8672
www.omag.orghttp://www.omag.org/
From: Matt Love via Oama oama@lists.imla.org
Sent: Tuesday, January 14, 2025 10:43 AM
To: Christian Rinehart christian@oml.org
Cc: oama@lists.imla.org
Subject: [Oama] Re: Municipal Attorney and Judge
I agree that there's no dual office holding issue - and that there really never was. Municipal Attorneys are not public officers. See 2006 OK AG 42, ¶¶ 34-38.
But I do think there are other potential issues that would have to be flushed out. In my opinion, the position of Municipal Judge meets the common law test for being a public office of the Municipality. This was a long concern I had because there are several attorneys who have been serving as Municipal Judge as multiple communities. Thankfully, the legislature snuck in a fix to that problem when they amended 11 O.S. §27-104(A) to add language that the Judge is not a public officer for the purposes of 51 O.S. §6 and 11 O.S. §1-102. But that only fixed the potential dual office holding issue.
But you'd still have to flush out whether other legal restrictions that apply to public officers would be implicated by this arrangement. Article 10, Section 11 of the OK Constitution and 21 O.S. §341 both criminalize the receipt of public monies by a public officer of a municipality beyond the compensation provided for their position as provided by law. So if I'm the Judge for City X, receiving compensation for that public office as provided by law, and I'm also a contractor for the City performing the duties of the City Attorney, am I violating these provisions since I'm receiving public (City) money as a contract City Attorney which is money above and beyond the compensation I receive for my public office (Judge) with the City?
Normally I would mention that potential for a conflict or incompatibility between the two roles. But would that be a legal barrier? As I recall, when the question has arisen in prior instances, the issue was analyzed and resolved based on the provisions of 51 O.S. §6. For example, in Town of Wellston v. Wallace, 2007 OK CIV APP 2, 152 P.3d 284, the Court held that it was unlawful for members of a Town Board of Trustees to serve as members of the Town's Board of Adjustment, because of the appellate role that the BOA plays. But the legal prohibition was statutory - and §6 wouldn't apply here since the City Attorney is not a common law public officer and the City Judge is now exempt from the provisions of §6.
But even in the absence of a statutory prohibition, I think there ethical considerations still have to come into play. The statutes don't really define the duties of a municipal attorney, at least when the City/Town only has a Court Not of Record. Compare 11 O.S. §§ 27-108 with 28-109. In cities with a Court of Record, the City Attorney and their assistants "shall" be the prosecutors in the Court. But in cities and towns with Courts Not of Record, the statute merely says that the City/Town Attorney "may" serve as the prosecutor. Which means that the City/Town can have a completely separate attorney who serves as prosecutor. 2012 OK AG 20, ¶13. As Judge, the attorney would be hearing cases which were initiated and pursued by City employees/officials - employees or officials that, one would think, obtain legal counsel from the attorney in their capacity as City/Town Attorney. As Judge, the attorney would potentially hear challenges to the sufficiency / vagueness of ordinances that the attorney likely drafted in their capacity as City/Town Attorney. Because there is a lack of statutory guidance on what duties and role the City/Town Attorney actually plays within the City/Town, it'd be hard to say that there is an absolute, per se, ethical issue with this kind of arrangement. A different attorney could be used to draft criminal ordinances and/or to advise employees/officials on matters that may lead to the filing of a criminal case in the municipal Court. But I'm willing to bet that such an arrangement doesn't exist in communities that might be confronting this issue.
Bottom line, I think it's a major problem (or concern). City Attorneys represent the City and protect and advocate for the City's interests. Prosecutions are brought in Municipal Courts in the name of the City against a third party. While the Judge is a part of the City government, their long standing role is an independent one - independent from the legislative and executive branches of the government, which branches are advised by the City Attorney. I would not be comfortable serving as a City Attorney and City Judge in the same City.
Those are my thoughts.
Matt
Matthew Love
Municipal Attorney & Counselor at Law
Matt@mattlove.lawmailto:Matt@mattlove.law
405.973.8515
On Fri, Jan 10, 2025 at 12:32 PM Christian Rinehart via Oama <oama@lists.imla.orgmailto:oama@lists.imla.org> wrote:
All,
A municipality reached out to me and ask if the municipal attorney could also be the municipal judge for the same municipality. As an initial thought, I do not think this would be permissible, but the dual office holding statutes 11 O.S. § 8-106https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=75793 and 51 O.S. 6https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438635, AG opinions, and case law do not cover this specifically since a municipal attorney is not an "office". If anyone has any thoughts on this issue it would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
[cid:image002.png@01DB6675.E09C0650]
The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
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Thank you all for the feedback! This is very helpful.
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
[cid:20ebf209-92c4-44de-b78b-99f43699dc1f]
The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
From: Jeff Bryant jbryant@omag.org
Sent: Tuesday, January 14, 2025 11:17 AM
To: Matt Love matt.love@gmail.com; Christian Rinehart christian@oml.org
Cc: oama@lists.imla.org oama@lists.imla.org
Subject: RE: [Oama] Re: Municipal Attorney and Judge
I agree with Matt, particularly on the potential conflict of interest is you are the City Attorney and the City Judge in the same city. Seems like an ethical issue to me.
Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.orgmailto:jbryant@omag.org
[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma 73013
Phone: 405-657-1419
Fax: 405-657-1401
Cell: 405-830-8672
www.omag.orghttp://www.omag.org/
From: Matt Love via Oama oama@lists.imla.org
Sent: Tuesday, January 14, 2025 10:43 AM
To: Christian Rinehart christian@oml.org
Cc: oama@lists.imla.org
Subject: [Oama] Re: Municipal Attorney and Judge
I agree that there's no dual office holding issue - and that there really never was. Municipal Attorneys are not public officers. See 2006 OK AG 42, ¶¶ 34-38.
But I do think there are other potential issues that would have to be flushed out. In my opinion, the position of Municipal Judge meets the common law test for being a public office of the Municipality. This was a long concern I had because there are several attorneys who have been serving as Municipal Judge as multiple communities. Thankfully, the legislature snuck in a fix to that problem when they amended 11 O.S. §27-104(A) to add language that the Judge is not a public officer for the purposes of 51 O.S. §6 and 11 O.S. §1-102. But that only fixed the potential dual office holding issue.
But you'd still have to flush out whether other legal restrictions that apply to public officers would be implicated by this arrangement. Article 10, Section 11 of the OK Constitution and 21 O.S. §341 both criminalize the receipt of public monies by a public officer of a municipality beyond the compensation provided for their position as provided by law. So if I'm the Judge for City X, receiving compensation for that public office as provided by law, and I'm also a contractor for the City performing the duties of the City Attorney, am I violating these provisions since I'm receiving public (City) money as a contract City Attorney which is money above and beyond the compensation I receive for my public office (Judge) with the City?
Normally I would mention that potential for a conflict or incompatibility between the two roles. But would that be a legal barrier? As I recall, when the question has arisen in prior instances, the issue was analyzed and resolved based on the provisions of 51 O.S. §6. For example, in Town of Wellston v. Wallace, 2007 OK CIV APP 2, 152 P.3d 284, the Court held that it was unlawful for members of a Town Board of Trustees to serve as members of the Town's Board of Adjustment, because of the appellate role that the BOA plays. But the legal prohibition was statutory - and §6 wouldn't apply here since the City Attorney is not a common law public officer and the City Judge is now exempt from the provisions of §6.
But even in the absence of a statutory prohibition, I think there ethical considerations still have to come into play. The statutes don't really define the duties of a municipal attorney, at least when the City/Town only has a Court Not of Record. Compare 11 O.S. §§ 27-108 with 28-109. In cities with a Court of Record, the City Attorney and their assistants "shall" be the prosecutors in the Court. But in cities and towns with Courts Not of Record, the statute merely says that the City/Town Attorney "may" serve as the prosecutor. Which means that the City/Town can have a completely separate attorney who serves as prosecutor. 2012 OK AG 20, ¶13. As Judge, the attorney would be hearing cases which were initiated and pursued by City employees/officials - employees or officials that, one would think, obtain legal counsel from the attorney in their capacity as City/Town Attorney. As Judge, the attorney would potentially hear challenges to the sufficiency / vagueness of ordinances that the attorney likely drafted in their capacity as City/Town Attorney. Because there is a lack of statutory guidance on what duties and role the City/Town Attorney actually plays within the City/Town, it'd be hard to say that there is an absolute, per se, ethical issue with this kind of arrangement. A different attorney could be used to draft criminal ordinances and/or to advise employees/officials on matters that may lead to the filing of a criminal case in the municipal Court. But I'm willing to bet that such an arrangement doesn't exist in communities that might be confronting this issue.
Bottom line, I think it's a major problem (or concern). City Attorneys represent the City and protect and advocate for the City's interests. Prosecutions are brought in Municipal Courts in the name of the City against a third party. While the Judge is a part of the City government, their long standing role is an independent one - independent from the legislative and executive branches of the government, which branches are advised by the City Attorney. I would not be comfortable serving as a City Attorney and City Judge in the same City.
Those are my thoughts.
Matt
Matthew Love
Municipal Attorney & Counselor at Law
Matt@mattlove.lawmailto:Matt@mattlove.law
405.973.8515
On Fri, Jan 10, 2025 at 12:32 PM Christian Rinehart via Oama <oama@lists.imla.orgmailto:oama@lists.imla.org> wrote:
All,
A municipality reached out to me and ask if the municipal attorney could also be the municipal judge for the same municipality. As an initial thought, I do not think this would be permissible, but the dual office holding statutes 11 O.S. § 8-106https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=75793 and 51 O.S. 6https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438635, AG opinions, and case law do not cover this specifically since a municipal attorney is not an "office". If anyone has any thoughts on this issue it would be greatly appreciated.
Thanks,
Christian Rinehart
DEPUTY GENERAL COUNSEL
OKLAHOMA MUNICIPAL LEAGUE
201 Northeast 23rd Street
Oklahoma City, OK 73105
(405) 528-7515
[cid:image002.png@01DB6675.E09C0650]
The Municipal Inquiry Service provides information based on Oklahoma Statutes and sample policies from other member cities and towns to members of the Oklahoma Municipal League. There may be other facts and details that were unknown to OML or not relayed that may alter the information provided. OML does not provide legal advice or act as a legal advisor. The advice of your municipal attorney, as your legal advisor, should be followed before implementing any policy or making any decisions regarding your legal matters. The OML American Recovery Plan Act Inquiry service provides information based on the guidance provided by the U.S. Department of the Treasury and the state of Oklahoma. Each Oklahoma municipality is responsible for submitting and verifying the correct budget information, using ARPA funds correctly, obligating the ARPA funds by December 31, 2024, spending the ARPA funds by December 31, 2026, and submitting a project and expenditure report by April 30th, 2025. The advice of a municipal attorney, as a legal advisor, should be followed before making any decisions regarding accepting, spending, or reporting on ARPA funds.
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