Letter from Tulsa City Attorney to Mayor and City Council

The following is a Dec. 28, 2010 letter from City Attorney David Pauling answering several questions from the Tulsa City Council and Mayor’s Office. 

The letter is part of ongoing quarrels between the city offices. The Letter Follows:

TO:  Jack Henderson, District 1 

  Rick Westcott, District 2  

  Roscoe Turner, District 3 

  Maria Barnes, District 4 

  Chris Trial, District 5 

  Jim Mautino, District 6 

  John Eagleton, District 7 

  Bill Christiansen, District 8 

  G.T. Bynum, District 9 

FROM:  David L. Pauling, Interim City Attorney 

DATE: December 28, 2010 

SUBJECT: Response to Council Consensus 2010-10; Appointment of TARE Trustees 

You have requested a legal opinion addressing a set of facts presented in a Council Consensus 2010-

10, dated December 9, 2010 (copy attached). Specifically you have requested response to 4 questions 

which I shall answer, in seriatim, as follows: 

1. Whether the City Charter amendment which requires the Mayor to appoint individuals within a 

specified timeframe also applies to appointment of TARE trustees?  

ANSWER : NO; TARE is a statutory trust created pursuant to title 60 O.S. §§176, et seq., and is 

governed by and subject to state law, not the terms of Tulsa’s Charter.   

2. If the TARE trust indenture supersedes the Charter of the City of Tulsa, (as previously suggested) 

what effect does the removal of the language: “The trustees shall serve during their terms of office 

and until their successors have been duly elected or appointed” from the trust indenture have on the 

ability of the trustees to continue in that position until their successors have been duly elected and 

appointed or appointed and approved?  

ANSWER: NONE; It is noted that the Council Attorney places great significance on this omission 

which, in fact, occurred in 1990. The Charter and general state laws concerning matters of statewide 

interest and the trust bylaws must reasonably co-exist, and one does not necessarily supersede the 

other. The public trust statute is a law of statewide application. The omitted TARE language, as to a 

statutory trust, is supplied by the general laws of the State of Oklahoma.  

175 E. Second St., Suite 685, Tulsa, OK 74103 Office 918.596.7717 Fax 918.596.9700 www.cityoftulsa.org 

 10, dated December 9, 2010 (copy attached). Specifically 

Title 60 O.S. §178 (Trustees), states:  

“The instrument …creating such trust may provide for the …succession …(and) term of the 

trustee or trustees …. If the said instrument … makes no provision in regard to any of the 

foregoing, then the general laws of the state shall control as to such omission or 


Title 51 O.S. §15(Officers) states regarding the term of an appointed officer:  

“Every appointed officer shall hold his office until the end of the term for which the term for 

which the officer whom he succeeds was elected or appointed, and until his successor is 

elected or appointed.” 

Additionally, the TARE Indenture provides that the Trustees “shall adopt by-laws for the 

conduct of their business….”   Article Vi. Sec. 6.  This provision has been in the Indenture since 

its inception.  The bylaws provide that “Trustees shall be appointed as provided in the Trust 

Indenture and shall serve until their successors are appointed and qualified, or until they are 

removed for cause, die or resign.”  Article 2, Section 2.  This provision has been in the bylaws 

since 1977 and is still in the bylaws.  It was not necessary to include the language omitted in the 

Indenture in the 1990 amendment because the provision was and is in the bylaws. 

3. May the Mayor continuously refuse to appoint a new individual into the trustee position, thus 

leaving his original choice for reappointment as a trustee despite the City Council’s denial of the 

appointment, thus defeating the intent and purpose of the trust indenture’s appointment and approval 


ANSWER: YES. It is the intent of state law that the appointing authority (Mayor) has control over 

trustee appointments. The Mayor has a responsibility to identify to the Council the objective 

qualifications (not political credentials or considerations) of his nominee. The Council may reject the 

nominee and is certainly free to suggest to the Mayor an alternative nominee whom it deems more 

qualified by identifying his (or her) objective qualifications. The Mayor determines which nominee 

will be recommended back to the Council. This process can be repeated until a nominee is confirmed 

4. If the answer to number three is yes, what action can be taken to enforce the purpose and intent of 

the TARE trust indenture?  

ANSWER: This question is, as understood, irrelevant. Question 2 presumed the trust indenture was 

silent concerning continuation of service until successor trustee was nominated and confirmed. 

Question two was answered by explanation that state law was controlling and supported the TARE 

bylaws. I am preparing a document which will offer more global advice to both the Mayor and 

Council for future reference. The advice will touch upon both Charter-related and statutory tit. 60 


Updated 01-03-2011

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