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
omissions….”
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
process?
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
trusts.
Updated 01-03-2011
READER COMMENTS
