Question Submitted by McCortney, 092518 OKAG, 2018 OK AG 11

Docket Nº:2018 OK AG 11
Party Name:Question Submitted by: The Honorable Greg McCortney, Oklahoma State Senate
Attorney:MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA RACHEL ROGERS ASSISTANT ATTORNEY GENERAL
Case Date:September 25, 2018
Court:Oklahoma Attorney General Opinions
 
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2018 OK AG 11

Question Submitted by: The Honorable Greg McCortney, Oklahoma State Senate

No. 2018 OK AG 11

Oklahoma Attorney General Opinions

September 25, 2018

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA

RACHEL ROGERS ASSISTANT ATTORNEY GENERAL

I.

BACKGROUND

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

In light of 11 O.S.2011, § 8-106, may a statutory town board of trustees appoint the same person to serve as both municipal judge and municipal court clerk?

¶1 The statutory town board of trustees form of government is provided for in Title 11, Sections 12-101 through 12-114 of the Oklahoma Statutes. "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." 11 O.S.2011, § 12-101. As the name suggests, such towns are governed by a board of either three or five trustees elected at large, id. § 12-102, and the board "shall elect from among its members a mayor." Id. § 12-104. "All powers of a statutory town board of trustees town, including the determination of matters of policy, shall be vested in the board of trustees," including, without limitation, the "[e]nact[ment] of municipal legislation subject to limitations...imposed by the Oklahoma Constitution and law[.]" Id. § 12-106.

¶2 Under the Oklahoma Municipal Code, all statutory municipalities are authorized to create by resolution of the governing body a Municipal Court not of record [1] that has jurisdiction to hear and determine municipal ordinance violations. See 11 O.S.2011, §§ 27-101 -- 27-103. Municipal Court judges--who need not be licensed attorneys--are appointed by the mayor, with the consent of the municipality's governing body. Id. § 27-104. The town's municipal clerk, or a designated deputy, "shall be the clerk of the municipal court unless the governing body establishes or authorizes a position of chief municipal court officer to serve as court clerk." Id. § 27-109. 2

II.

DISCUSSION

A. Oklahoma law generally prohibits a person from holding two municipal offices.

¶3 Title 51, Section 6 of the Oklahoma Statutes sets forth the State's general prohibition against dual office holding:

Except as may be otherwise provided, no person holding an office under the laws of the state and no deputy of any officer so holding any office shall, during the person's term of office, hold any other office or be the deputy of any officer holding any office, under the laws of the state.

51 O.S.Supp.2017, § 6 (emphasis added). [3] This section has been interpreted consistently to mean that, unless otherwise provided by law, all state, county, and municipal officers and deputies are prohibited from holding two offices simultaneously. See A.G. Opins. 2006-22, at 145, 2001-34, at 158, 1985-16, at 30, 1977-179, at 114. Nevertheless, as indicated by its introductory clause--"Except as may be otherwise provided"--the prohibition in Title 51, Section 6 may be superseded by contrary provisions of law. See, e.g., A.G. Opin. 1981-31, at 61.

¶4 To answer your specific question, we must first determine whether a municipal judge and a municipal court clerk are both public officers as contemplated by Title 51, Section 6. With regard to the former, this office has consistently recognized municipal judges as "officers" for purposes of that statute. See, e.g., A.G. Opins. 2001-34, at 158, 1985-16, at 30 (referencing A.G. Opins. 1980-7, 1974-118, 1970-228, and 1969-185), 1977-179, at 115. 4 However, we are not aware of any authority having considered whether a municipal court clerk is also an...

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