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TRENTHAM v. ISAACS2014 OK CIV APP 35324 P.3d 425Case Number: 111754Decided: 12/19/2013Mandate Issued: 04/10/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 35, 324 P.3d 425
RONALD TRENTHAM, Plaintiff/Appellant,v.NORMAN ISAACS, 
ALEX MINK, and DEAN THOMAS, Defendants/Appellees,andSTILWELL AREA 
DEVELOPMENT AUTHORITY, Intervenor/Appellee.

APPEAL FROM THE DISTRICT COURT OFADAIR COUNTY, OKLAHOMA
HONORABLE THOMAS H. ALFORD, JUDGE

AFFIRMED

Barry K. Roberts, Norman, Oklahoma, for Plaintiff/Appellant,Ronald D. 
Cates, Tulsa, Oklahoma, for Defendant/Appellee Alex Mink and 
Intervenor/Appellee, and Lloyd E. Cole, Stilwell, Oklahoma, for 
Intervenor/Appellee.


Kenneth L. Buettner, Presiding Judge:
¶1 Plaintiff/Appellant Ronald Trentham (Mayor) challenged actions taken by 
three members of the Stilwell City Council, Defendants/Appellees Norman Isaacs, 
Alex Mink, and Dean Thomas (collectively, "Council Members") and sought judgment 
declaring the parties' rights under a city charter. Stilwell is a home rule 
charter city governed by a mayor and a five-member city council; the dispute 
here is between Mayor and a majority of the council over their respective 
powers. The record shows no dispute of material fact. The issues of law 
presented are who may appoint the city attorney and members of the utility 
board, and whether the mayor may veto ordinances passed by the council. The 
Stilwell city council violated an ordinance which authorized Mayor to appoint 
the city attorney, but the city council later repealed that ordinance, which 
resulted in the council having authority to name the city attorney. Mayor 
purported to veto the repealing ordinance, but the city charter includes a list 
of the mayor's powers, which list does not include veto authority, and the 
charter prevails over a statute affording a veto power to mayors of non-charter 
cities. Following the repeal, appointing a city attorney was the task of the 
council. The council also violated the charter in purporting to appoint a member 
to the utility board. Stilwell's charter provides for the mayor, with the 
council's approval, to appoint members to the utility board and where there is a 
vacancy, the charter provides for the remaining utility board members to 
recommend a new member with approval of the council. On de novo review of 
the questions of law presented, we affirm summary judgment.
¶2 In Mayor's August 8, 2011 Petition, he alleged Council Members violated 
the city charter, Ordinance 183, and state law by making or attempting to make 
appointments that were reserved to Mayor. Mayor sought an injunction prohibiting 
Council Members from violating the charter and state law, as well as an order 
vacating or invalidating the appointments made by Council Members.
¶3 Council Members responded that a different section of the charter gave 
them the authority to select officers and employees of the City. They contended 
that under Oklahoma law, a city charter trumps ordinances which are inconsistent 
with the charter and that therefore the ordinance cited by Mayor was not 
controlling.
¶4 Mink filed an Answer and Counterclaim, in which he admitted Mayor's 
allegations, but denied Council Members' actions violated the charter, City's 
ordinances, or state law. In his counterclaim, Mink sought a judgment declaring 
the powers of Mayor and Council Members.
¶5 The trial court entered an order October 20, 2011 denying Council Members' 
motion to dismiss (that motion is not part of the record on appeal) and granting 
a temporary injunction to Mayor. The court found that Council Members' 
appointment of a city attorney violated Ordinance 183 and enjoined Council 
Members from further acting in violation of that ordinance.
¶6 Mayor filed his Amended Petition December 13, 2011. He alleged Council 
Members again violated the city charter by refusing to confirm Mayor's 
appointment to the Municipal Utilities Board and by attempting to appoint a 
person to that board without Mayor's involvement, then later appointing a person 
to that board in violation of the temporary injunction. Finally, Mayor alleged 
Council Members had passed an ordinance repealing Ordinance 183, which Mayor 
contended violated state law. Mayor sought a judgment declaring the rights of 
the parties and the applicability of various ordinances and laws.
¶7 The Stilwell Area Development Authority (Authority) intervened January 27, 
2012, asserting it was a public trust and had an interest in the determination 
of the authority and procedure for appointing members to Authority.
¶8 Mayor filed his Motion for Summary Judgment April 17, 2012. Mayor asserted 
ten undisputed facts supported judgment in his favor.1 Mayor asserted four issues remained to 
be decided by the trial court: whether Council Members violated Ordinance 183 
and the charter in naming Lloyd Cole as city attorney, whether Council Members 
violated the charter in appointing Morton to the Utility Board; whether Mayor 
had the authority to veto ordinances adopted by Council Members, and whether 
Council Members had authority to employ a city attorney not appointed by 
Mayor.
¶9 Authority responded to Mayor's summary judgment motion May 24, 2012. 
Authority did not dispute Mayor's statements of fact. It alleged an additional 
undisputed fact was that Mayor was recognizing a former city attorney whose 
contract had expired as the current city attorney. Authority asserted that 
Ordinance 183 required the concurrence of the mayor and city council on the 
appointment of a city attorney, and noted Council Members had not approved any 
city attorney candidates other than Lloyd Cole. Mink filed a Motion for Summary 
Judgment, without argument, and a response to Mayor's Motion for Summary 
Judgment, in which he stipulated there was no dispute to Mayor's statements of 
fact.
¶10 Isaacs and Thomas filed their own Motion for Summary Judgment, in which 
they admitted Mayor's statements of fact 1-9. They listed four additional 
statements of undisputed facts: 1) Mayor failed to make an appointment to the 
utility board prior to June 1, 2011; 2) Neil Morton's term on the utility board 
expired June 1, 2011, resulting in a vacancy on the board; 3) Authority 
recommended re-appointing Morton to fill the vacant seat; and 4) Mayor attempted 
to veto Council Members' repeal of Ordinance 183. Isaacs and Thompson posited 
three issues of law presented by the undisputed facts: 1) whether Section 36 of 
the city charter controls the selection and appointment of a city attorney 
(resulting in Ordinance 183 being void); 2) whether the mayor may veto an act of 
the city council; and 3) whether Morton was properly appointed and confirmed to 
the utility board.
¶11 Mayor filed a response in which he admitted the first, third and fourth 
facts asserted by Isaacs and Thompson, and asserted the second was a legal 
conclusion, which Mayor denied.
¶12 Following a hearing held August 17, 2012, the trial court filed its 
Journal Entry of Judgment March 21, 2013. The trial court found that Ordinance 
183 authorized the mayor to appoint the city attorney and was a valid ordinance 
at the time Council Members purported to appoint Cole as city attorney July 5, 
2011, and that such act violated the ordinance and was invalid. The trial court 
noted that Stilwell operates under a charter form of municipal government and 
its charter does not include a provision allowing the mayor to veto a duly 
enacted ordinance. The court concluded that Mayor does not have authority to 
veto an ordinance. The court noted the charter also provides that all officers 
and employees, other than elected officials and except as otherwise specifically 
provided, shall be appointed by and serve at the pleasure of the council. The 
court held that after the council repealed Ordinance 183, the charter included 
no reference to a city attorney, and therefore pursuant to the charter, the 
council had the authority to appoint a city attorney without prior appointment 
by Mayor.
¶13 The court also noted that the city charter provides for the mayor to make 
appointments to the utility board, with confirmation by the council, and that 
when Morton's term expired it was Mayor's responsibility to name a successor. 
The court found that the charter also provides that vacancies in offices are to 
be filled by the council. The court noted the general rule that a public officer 
holds his position until a successor is named, so there was no vacancy on the 
board. The court found that the council's purported appointment to the board was 
therefore invalid. The court held that Morton remained in his position on the 
board until a successor is confirmed by the procedure established in the 
charter.
¶14 Mayor appeals the declaratory judgment. The material facts are 
undisputed; the issues presented are questions of law, which we review de 
novo. Panhandle Producers & Royalty Owners Ass'n v. Oklahoma Tax 
Com'n, 2007 OK CIV APP 68, 
¶7, 162 P.3d 960. The legal 
questions presented by these facts are whether Mayor has authority to veto an 
ordinance, whether Mayor or the council may appoint a city attorney, and which 
party may name a member of the utility board and whether there was a vacancy on 
that board when the council did not approve Mayor's appointment.
¶15 We address the veto question first. There is no dispute that Ordinance 
183 provided for Stilwell to have a city attorney and directed that the city 
attorney would be appointed by the mayor with the consent of the governing body. 
There is also no dispute that after Mayor and Council Members disagreed on the 
city attorney appointment, the council voted to approve an ordinance repealing 
Ordinance 183. Mayor signed the repealing ordinance, but he marked through the 
word "passed" and wrote "veto" above it. The effect of the repeal of Ordinance 
183 would be that the council would select and appoint the city attorney. 
Stilwell Charter, Art. IX, §36.
¶16 Mayor contends Stilwell has an aldermanic form of government, and he 
notes that in the Oklahoma Municipal Code, the powers and duties of a mayor of 
an aldermanic city include the power to veto ordinances.2 While Stilwell's government 
is similar to the statutory aldermanic form, the key distinction is that 
Stilwell has a charter. In Oklahoma, municipalities are divided into two 
categories: charter and non-charter (or statutory) municipalities. Section 9-106 
applies to statutory municipalities.


A 'statutory' municipality is one organized and governed in accordance 
    with the provisions of 11 O.S. 9-101 through 11 O.S. 9-118 (1981) 
    (aldermanic); 11 O.S. 10-101 through 11 O.S. 10-121 (council-manager); 11 
    O.S. 11-101 through 11 O.S. 11-125 (strong mayor-council); or 11 O.S. 12-101 
    through 11 O.S. 12-114 (town board of trustees).
A 'statutory' municipality has no inherent power or authority. It 
    possesses and can exercise only those powers expressly granted, or 
    incidental to powers expressly granted, by the state. . . .
In Morehead v. Dyer, 1973 OK 121, 518 P.2d 1105, the Court held 
    that a 'statutory' city had no power to hold recall elections because no 
    constitutional or statutory provision authorized such recall elections. . . 
    .
The power of non-charter i.e. 'statutory' municipalities are such 
    as are expressly granted or necessarily implied from a 
  statute.
19 Okl. Op. Atty. Gen. 215, Okl. A.G. Opin. No. 87-112 (citations partly 
omitted).3
As a charter city, Stilwell is governed by its charter, which acts as its 
constitution.


A 'charter' municipality is a municipality which has adopted a charter in 
    accordance with Okla. Const. Article XVIII , Section 3(a) and the laws of 
    Oklahoma and, at the time of adoption of the charter, had a population of 
    2,000 inhabitants or more. . . .
It is well established that 'a city charter which is adopted and approved 
    in accordance with the Constitution Okla. Const. Article XVIII, Section 3(a) 
    and which is not inconsistent therewith becomes the organic law of the city 
    and supersedes all laws of the state in conflict therewith insofar as such 
    laws relate to merely municipal matters.' . . . .
If the exercise of municipal power conflicts with state law, the conflict 
    is resolved by determining whether the exercise of municipal power pertains 
    to purely municipal affairs. . . .
Id. (citations omitted).
¶17 Article VI, Section 76 of Stilwell's charter establishes the mayor's 
powers and duties.4 Mayor acknowledges that where a charter and state 
law conflict, the charter will prevail on matters of purely municipal concern. 
Mayor contends there is no conflict; instead, he urges § 76 is silent on the 
question of a veto power and that we must therefore look to state law, 
specifically § 9-106 to determine whether a mayor has authority to veto 
ordinances. Mayor contends § 9-106 supplements the allegedly silent 
charter. For this argument, Mayor relies on Development Industries, Inc. v. 
City of Norman, 1966 OK 59, 
412 P.2d 953, in which the 
Oklahoma Supreme Court stated "it should be noted that while the City of Norman 
has a charter, the same is silent insofar as authorizing the City Commission to 
enact zoning ordinances. The City Charter not expressly providing for zoning 
ordinances, the power to enact such ordinances is derived from legislative 
enactments." Id. at 955. Mayor also relies on City of Muskogee v. 
Senter, 1939 OK 375, 96 P.2d 534, 186 Okla. 174, in which the charter 
stated the mayor "shall sign all contracts, bonds, or other instruments 
requiring assent of the City and take care that the same are duly performed." 
There the mayor signed a contract for an architect's services without approval 
by the city counsel. The architect urged that the charter allowed the mayor to 
bind the city unilaterally. The Oklahoma Supreme Court disagreed, noting that 
state law provided that a mayor could not bind a city to a contract without the 
approval of the council.
¶18 We are not persuaded that either of these cases support a finding that 
the mayor of Stilwell has a veto power. We disagree that the charter is silent 
on this question because the charter expressly states the mayor's rights and 
duties--particularly that the mayor "shall see to the faithful execution of all 
laws and ordinances" and that the mayor shall not have a vote (unless there is a 
tie). Whether a mayor may veto ordinances is a matter of local concern; to the 
extent there is a conflict, the local charter prevails. We find Mayor's powers 
and duties are limited to those acts expressed in the charter. There is no 
indication that the charter's provision for repealing an ordinance was not 
followed in this case. Accordingly, Mayor's duty is to see to the faithful 
execution of the repealing ordinance.
¶19 Following the repeal of Ordinance 183, the authority to appoint a city 
attorney was found in §36 of the charter. That section provides:


All officers and employees of the City of Stilwell, other than elective 
    officers and except as hereinafter specifically provided, shall be selected 
    and appointed by the Council. Their term of office, conditions of servitude, 
    and compensation shall be fixed by the Council and they shall hold office 
    during the pleasure of the Council.
This charter provision authorizes the council to name a city attorney. At the 
time Council Members purported to appoint a city attorney in July 2011, 
Ordinance 183 remained in effect and Council Members violated that provision 
then. After the repealing ordinance was passed by a majority of the council, the 
council was free to name a city attorney under §36.
¶20 Lastly we consider the parties' dispute over appointments to the utility 
board. Article IX, Section 99 of the Charter creates a "municipal utility board 
which shall consist of five members possessing the same qualifications as 
members of the City Council and who shall be appointed by the mayor with the 
confirmation of the Council." Section 100 of the charter provides that members 
of the utility board shall be appointed on the 1st day of June or the first 
Monday thereafter. Council Members argue that because Mayor did not name a 
successor to fill the expiring seat of Neil Morton by June 1, 2011, the seat 
became vacant. Council Members assert they rightly named a successor under 
Section 103 of the charter, which states:


Vacancies in the membership of said Utility Board by reason of death, 
    resignation, removal or any other cause, shall be filled by the 
    recommendation of the remaining Board members of the Utility Board and the 
    approval of the City Council, and said appointee shall serve during the 
    unexpired term . . . , of such appointments.
Council Members alternatively contend that if there was no vacancy due to 
Mayor's failure to make an appointment by June 1, then Morton was held over in 
the office. We disagree with Council Members and the trial court that Section 
103 allows the council to name a person to fill a vacancy on the utility board. 
That section provides that the remaining board members recommend a new member 
subject to the council's approval. Nevertheless, we agree that there was no 
vacancy simply because a successor was not named by June 1. We agree with the 
trial court's reliance on the general rule that a person whose term is expiring 
holds over until his successor has been duly appointed under the terms of the 
charter. See Okla. Const. Art. 6, §12; 51 O.S.2011 § 15 ("Every appointed 
officer shall hold his office until the end of the term for which the officer 
whom he succeeds was elected or appointed, and until his successor is elected 
and qualified."). Were we to adopt Council Members' argument, they could subvert 
the charter's intended method of selecting utility board members simply by 
rejecting the mayor's nominees until after June 1. Council members violated the 
charter in purporting to appoint Morton to the utility board. We agree with the 
trial court that Morton remains in his position until a successor is named by 
Mayor and approved by the council, as directed by the charter. AFFIRMED.

JOPLIN, C.J., and BELL, J., concur.

FOOTNOTES

1 Mayor 
asserted there was no dispute that: 1) he was the mayor of Stilwell; 2) Isaacs, 
Mink, and Thomas were members of the Stilwell City Council; 3) Stilwell adopted 
a City Charter October 29, 1946; 4) Stilwell adopted Ordinance 183 on June 4, 
1987, which provided for the mayor to appoint a city attorney; 5) Council 
Members named Lloyd Cole as city attorney July 5, 2011, without Mayor's prior 
appointment; 6) Mayor appointed Bill Garrett to the Stilwell Municipal Utility 
Board June 21, 2011, and Council Members rejected the appointment; 7) Mayor 
withdrew the appointment of Garrett and appointed Ross Roye to the Stilwell 
Municipal Utility Board November 4, 2011; 8) Council Members rejected the 
appointment of Roye November 7, 2011, and appointed W. Neil Morton to the 
Utility Board without him first being appointed by Mayor; 9) Council Members 
voted to repeal Ordinance 183 November 7, 2011; and 10) Mayor vetoed the repeal 
of Ordinance 183 and gave Council Members notice of the veto November 14, 
2011.

2 11 O.S.2011 §9-106 provides:
The mayor may sign or veto any city ordinance or resolution passed by the 
city council. Any ordinance or resolution vetoed by the mayor may be passed over 
his veto by a vote of two-thirds () of all the members of the council. If the 
mayor neglects or refuses to sign any ordinance or return it with his objections 
in writing at the next regular meeting of the council, the ordinance shall 
become law without his signature.

3 
Attorney General opinions are persuasive authority. National Cowboy Hall of 
Fame & Western Heritage Ctr. v. State ex rel. Okla. Human Rights Comm., 
1978 OK 76, 579 P.2d 1276.

4 That 
section provides:
(A) The Mayor shall sign all contracts, bonds, or other instruments requiring 
the assent of the City and take care that the same are duly performed.(B) 
The Mayor shall call all special municipal elections as in this Charter or the 
laws of the State provides.(C) He shall perform such other duties not 
inconsistent with the purposes and provisions of the Charter, as the Council may 
assign to him.(D) He shall be the chief administrative officer of the city 
and shall have charge and supervision of all branches of the City service except 
as otherwise provided in this Charter.(E) He shall see to the faithful 
execution of all laws and ordinances of the City and State.(F) He shall have 
power to dismiss any officer or employee appointed by him whenever in his 
judgment the interests of the City service so requires, except as herein 
provided.(G) He shall control and direct the several officers and 
departments of the City administration except as hereinafter provided.(H) He 
shall have power at any time to investigate the affairs of any department. He or 
any persons appointed by him for the purpose shall have the power to compel the 
attendance of witnesses and production of books, papers, and other 
evidence.(I) He shall attend all meetings of the Council and may take part 
in the discussions but shall not vote except in case of a tie when he may cast 
the deciding vote.(J) He shall keep the Council advised of all the needs of 
the City and shall recommend measures for its adoption.(K) He shall perform 
all such other duties as may be imposed on him by this Charter or by 
ordinance.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2007 OK CIV APP 68, 162 P.3d 960, PANHANDLE PRODUCERS v. OKLAHOMA TAX COMMISSIONDiscussedOklahoma Supreme Court Cases CiteNameLevel 1939 OK 375, 96 P.2d 534, 186 Okla. 174, CITY OF MUSKOGEE v. SENTERDiscussed at Length 1966 OK 59, 412 P.2d 953, DEVELOPMENT INDUSTRIES, INC. v. CITY OF NORMANDiscussed 1973 OK 121, 518 P.2d 1105, MOREHEAD v. DYERDiscussed 1978 OK 76, 579 P.2d 1276, NATIONAL COWBOY HALL OF FAME v. STATE ex rel. OKLA. HUMAN RIGHTS COMM.DiscussedTitle 11. Cities and Towns CiteNameLevel 11 O.S. 9-106, Mayor - Signing Ordinances - Veto PowerCitedTitle 51. Officers CiteNameLevel 51 O.S. 15, Term of Appointed OfficerCited










