COULDA – WOULDA – SHOULDA
Town of Buffalo Board Meeting Consists Mainly of Hypothetical’s and Hoaxes
Sit down, grab a cup of coffee, we’re going to be here a while! You may wish to take a bathroom break before you read this article.
Some information you should know:
Not unlike many other small towns, the Town of Buffalo has an elected treasurer and clerk who receive a small salary. (around 12 or 13 hundred a month in Buffalo) Towns are typically in need of employees for some of the treasurer and clerk's duties. $1,200.00 a month is not enough to pay a full time employee at their positions. Although we know of many towns larger than Buffalo that get by swimmingly without a full time treasurer or clerk, Buffalo wants to employ these same elected officials as employees. For that they receive additional pay. The added pay is referred to as: 'at-will' or 'non-statutory', 'employee' wages or 'extra duty'.
Statutory pay is what is paid to the person for their elected position as treasurer and/or clerk. Many Towns combine the two positions into one full-time, paid position. That's something the Town of Buffalo should consider. It would $ave Thousands!
Onto the purpose of this chronicle...
The Town of Buffalo hired an auditor who was paid to determine the “statutory salaries for the town clerk and town treasurer” based on an article written about a problem with pay at www.InsideBuffalo.net - later bantered about on www.OnsideBuffalo.blogspot.com.
The question is: What would have been their salaries, since 1998, had the Town of Buffalo followed Ordinance 329 Section 4?
#329 Found Here
Furthermore, what was the original intent of that ordinance?
If you read the previous article here on Inside Buffalo, then you know that the Town owes the Clerk and Treasurer over $16,000.00 because of internal errors, ommissions or mistakes.
No one, meaning the auditor or Buffalo’s Town Lawyer, or Trustees, or any elected official, questioned why Buffalo’s Town Clerk and Town Treasurer didn’t take their “automatic” annual percentage pay raise every year which is what caused this dilemma.
(Automatic - that’s the word used by the auditor in his, “I’m not a lawyer” statement regarding Ordinance #329 and based on the Town attorney’s comment that "it’s automatic - there’s no ordinance required.") No one questioned what the salaries coulda, woulda, shoulda been had Ordinance #329 Section 4 been followed for the past 12 years.
Oh no!
Not another Ordinance that wasn’t enforced and followed! Not in Buffalo! Seriously?
By the way, Ordinance #329 Section 4 has never been used or followed since its passing in 1997, so we ask, why did the auditor - audit something that never happened? Could it be because he was instructed by the Town Treasurer and/or Clerk to do so?
There was no annual July 1st automatically calculated figures generated or provided by the “automatic calculator” (awaiting to be purchased by the Town of Buffalo) and/or included in the annual Town of Buffalo budget for approval by the esteemed Town Board of Trustees. No one noticed this? For 10+ Years? Not one Trustee ever bothered to read the Town's Ordinance/Law?
Since the Town Clerk and Town Treasurer are not at liberty to calculate the annual percentage increase (or they forgot) they are to receive and the “automatic calculator” (not yet purchased) isn’t in operation, whose task or job is it to calculate and bring this to the Town Board and Town of Buffalo for budgetary consideration?
Could it be… the Town Treasurer or Clerk?
No one knows why the Town Clerk and Town Treasurer have chosen not to request, receive, or accept these annual “automatic” statutory pay raises that have been available to them for nearly 12 years.
Answer us taxpayers please, why haven’t you taken them?
No one in their right mind, left mind, or no mind, would turn down a pay raise except for Buffalo’s Town Clerk and Treasurer!?
Is that sensible?Had the raises which are being referenced herein been the only raises the Town Clerk and Town Treasurer actually received, there’d be no issue, however, another issue still has not been addressed:
Were the raises that were given by the Town Board specifically to the Town Clerk and Town Treasurer, not passed by Ordinance as required, and taken and received illegally, allegedly, (not at re-election but immediately) upon the Town Board’s approval of said raises illegal or unconstitutional? The opinion of our Town Attorney is, No. We tend to disagree.
Then answer the question as to why they
never calculated or took their “automatic”
pay increases?
Inside Buffalo speculates because they knew the intent of the Town Board, way, way back in 1997, when ordinance #329 was initiated and enacted, that it was in reference to their “at-will” or "extra Duty", or "employment" part of their Town pay. Inside Buffalo brought this issue up at the Town Board meeting when they passed the 'across the board' 5% pay raise. The clerk said it herself... Our Town Clerk said, in the Board meeting in December, 2008, and again at a later meeting, that they never took those raises, referred to in section 4 of Ordinance #329, because it referred to their "extra duty" - Their "employment" NOT STATUTORY pay. That was the intent of the ordinance in the beginning - to honor them with pay raises for their employment pay and not the statutory part of their pay.
So far the auditor has been paid nearly $1500.00 to perform a hypothetical analysis of what the Town Clerk and Town Treasurer statutory pay coulda, woulda, and shoulda been had Ordinance 329 Section 4 been correctly implemented and followed. This is what was presented to the Town Board on Wednesday, June 3, 2009.
The auditor, appears to have been given audit information by the Town Board, or possibly at the request of the Town Clerk and Town Treasurer. The auditor did this with the smidgen of information provided to him. What the auditor didn’t and still hasn’t addressed is the illegal raises that are not part of Section 4 in Ordinance 329.
It is entirely possible that the accountant’s figures could be correct - IF the proper procedures had been followed annually based solely on Section 4 of Ordinance 329 but, once again, the numbers he provided are coulda, woulda, shoulda – hypothetical amounts.
Since this is not how it was or has always been done in the Town of Buffalo, there's another problem caused by this - they cannot go back and retroactively change the amounts due them - from as far back as 1998.
Conceivably, if the Treasurer and Town Clerk were to hire an attorney and file suit against the Town of Buffalo all of this would or could come out. Inside Buffalo's attorneys would be filing briefs, others would be involved and the actual intent of the ordinance and other matters would come “out of the darkness and into the light” through discovery. We would eagerly wager a hefty amount that they will not pursue such action. We surmise, the Town would look even more brainless than they currently do over this entire matter.
However, as advised by the Town of Buffalo attorney, appearing to onlookers of not representing the Town of Buffalo during the meeting, but instead representing the Town Clerk and Town Treasurer as individuals, (who pays her?), provided unsolicited legal advice, in open meeting, to the Town Clerk and Town Treasurer. She commented that they (Town Clerk & Town Treasurer) can hire legal counsel and seek back pay for possibly the last 3 years of “Annual Automatic Statutory Pay Raises”. That is - they statutorily, by limitations, are unable to seek redress for their miscalculations prior to 2006. She commented: “It’s up to them.”
Oh Yeah! This is absolutely in the best interest of the Town of Buffalo. Isn't it the Town whom Ms. Bolles represents and from whom she receives her stipend? Any lawsuit by the Clerk or Treasurer would be against the Town. As representative legal counsel of the Town who would get the extra money defending the Town? The Town lawyer perhaps? Go ahead Clerk. Go ahead Treasurer. Please file suit against the Town of Buffalo - Buffalo's lawyer will defend Buffalo for all it's worth and send Buffalo taxpayers a big bill for that defense! Who gains? Yup! The lawyer. Whatever.
Back to the auditor…
If the Town Clerk and Town Treasurer have a statute of limitations of 3 years and can only seek back wages for that period of time, as so aptly pointed out to them by the Town of Buffalo attorney, then why did the auditor go back to 1998?
Anything they coulda, woulda, shoulda received prior to 2006 is null and void making his calculations inaccurate and incorrect. By law, (now at this time the Town attorney is representing the Town and Board and not the individuals as mentioned above) he would only be able to use the numbers from 2006 to punch into the proverbial “Automatic Calculator” to come up with an accurate figure.
That means current statutory pay (current -meaning 2006 – what they actually received at that time) plus any new annual percentage increases, effective 2007 (and 2007 effective 2008, and 2008 effective 2009) should be the only numbers he needed to rely upon for his, uh-hum, automatic statutory pay calculations. Geesh, almost $1500.00 for that? My 11 year old son could have done it in about an hour for FREE!
Now that the hypothetical analysis has been calculated, and accepted by the Town Board of Buffalo OK, (Yup! They voted to accept the 4 page, $1,500.00 report with nary a question as to its applicability or accuracy - that doesn't mean diddly squat - they accepted the report, that doesn't mean they trust it, believe it, need to act upon it or anything - just accept it)
Inside Buffalo still has numerable unanswered questions.
We want answers to these questions:
1. Why did the auditor calculate back to 1998 when the stature of limitations would only allow the Town Clerk and Town Treasurer to go back 3 years?
2. Who was the auditor representing at the Town Board meeting on Wednesday, June 3, 2009? (the Town or the Clerk and Treasurer respectively)
3. Who was the Town of Buffalo attorney representing at the Town Board meeting on Wednesday, June 3, 2009? (the Town or the Clerk and Treasurer respectively)
4. Whose task or job is it to calculate and bring this to the Town Board and Town of Buffalo budget? (the Town or the Clerk or Treasurer respectively)
We move on to the actual issue which doesn’t appear to have been addressed nor presented by either the auditor or Town of Buffalo attorney. The issue is not about statutory pay that coulda, woulda, shoulda
The issue is about actual statutory pay that was and is specifically voted on and approved by the Town Board for the Town Clerk and Town Treasurer.
We believe that Section 4 of Ordinance 329 original intention is plain and simple. It is not intended, once more for emphasis, is not intended to apply to the statutory pay increases that were given by the Town Board and immediately taken by the Town Clerk and Town Treasurer.
The statutory raises in question and at issue were not and are not “annual automatic percentage increases” calculated by the “automatic calculator”.
The statutory raises in question were calculated, voted on and passed by real living people. The raises were addressed as an agenda item, the raises were specific in nature to the Town Clerk and Town Treasurer’s elected positions. These statutory pay raises were taken immediately by the Town Clerk and Town Treasurer in their paychecks.
Why the hell do they have to make an agenda entry, vote upon, enter into the minutes and adjust their pay if it’s supposed to be AUTO-VULCAN-MATIC? There’s no vulcan reason for this crap! And that was succinctly stated by Town Trustee Susan Harper, the lone common sense advocate in all of Buffalo politics. There is no reason to have an agenda entry, as happened for years, for pay increases. They get it auto-vulcan-matically! There’s no reason to vote on them, no reason to do any-goshdarn-thing!
This is where we are today.
The statutory pay raises that were calculated, voted on, and passed by living, breathing, human beings, real people, not the “automatic calculator”, were not lawful, were they?
1. Oklahoma Statute Title 11, Chapter 1, Article XII, section 12-113
The compensation of all elective town officers shall be fixed by ordinance.
Yes, there is an original ordinance, dated January 2, 1997 establishing compensation of all "elected" town officers.
NO, there is not an amended ordinance, approved when the town board calculated, voted on and passed increased statutory pay raises, as required by law.
NO, there is not an amended ordinance, stating the effective date of the calculated, voted on and passed increase of statutory pay, as required by the Oklahoma Constitution.
This being the points addressed in the ruling based on: State ex rel. Edmondson v. Oklahoma Corporation Commission, Mandate Issued: 12/30/1998
¶23 The Oklahoma legislature lacked authority under Article 9, section 35 to amend Article 9, section 18a to increase the salaries of Corporation Commissioners during their current terms of office. The amendment violates Article 23 section 10 of the Oklahoma Constitution which prohibits change in the salary of any public official during his or her term of office unless otherwise provided in the Constitution. We pay an attorney to refuse to accept the Attorney General's opinion, which in Oklahoma is to be considered Law? Okey-Dokey then.
So does this apply?:
¶24 Article 23 § 10 does not prohibit any or all increases in the compensation of public officials, but only such increases as are intended to take effect during the current term of office. Their salaries can only be raised according to the strictures of Article 23 § 10: when a new term of office begins.
- 2. Oklahoma Constitution - Article 23-10
Section XXIII-10:
Change of salary during term - Extension of term - Continuance until qualification of successor.
Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment; nor shall the term of any public official be extended beyond the period for which he was elected or appointed: Provided, That all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.
Please note the following: "unless by operation of law enacted prior to such election or appointment"…
and this one... "only such increases as are intended to take effect during the current term of office" - Uh, didn't that say - CURRENT TERM?
The statutory pay raise’s given by the town board to the Town Clerk and Town Treasurer, we believe, do not fall under Section 4 of Ordinance 329.
Again, the only ordinance on record for the Town Clerk and Town Treasurer Statutory pay is Ordinance 329 and it has not been amended with the raises given by the Town Board over the last 10-12 years (we are not discussing “annual automatic percentage increases”) which is required by law. Nor has the original Ordinance ever been followed.
Oklahoma Statute Title 11, Chapter 1, Article XII, section 12-113
The compensation of all elective town officers shall be fixed by ordinance.
These statutory pay raises at issue (not annual automatic percentage raises) are subject to the requirements of the Oklahoma Constitution and Oklahoma Statutes. Which means they are not effective immediately, nor, we opine, are they effective annually on July 1 of the following year.
These statutory pay raises at issue do not appear to be in the hypothetical analysis presented by the auditor and accepted by the Town Board. These statutory pay raises at issue do not fall under the scope of Section 4 of Ordinance 329.
These statutory pay raises at issue still have not been addressed.
Hey Town of Buffalo Trustees - Why not call the auditor, request that the correct issue be investigated, and pay him another $1,500.00?
Note: The auditor did enlighten us as to this: When the Town Clerk and Town Treasurer receive a raise from the Board, such as the 5% increase approved and passed in December 2008, effective December 1, 2008, then on July 1st of the next year (this would be July 1, 2009) the Town Clerk and Town Treasurer will receive an additional “annual automatic percentage increase” as allowed by Section 4 of Ordinance 329, because all other employees received a raise. At least that’s the way he calculated their statutory pay as was presented on Wednesday, June 3, 2009.
In other words: Not only do the Town Clerk and Town Treasurer receive a 5% Pay INCREASE, effective by Ordinance, December 1, 2008 for their “at will’ portion of their pay, THEY ALSO GET ANOTHER 5% INCREASE ON STATUTORY PAY JULY 1, 2009. That’s going to be another 200.00+ INCREASE!
Buffalo Town Board minutes indicate that the Board voted on October 7, 1998 the following:
“Upon motion made by Richard, seconded by Lake, the Board voted to go into executive session to discuss employee benefits and salaries as authorized by Section 307 (b) 1, Title 25 of the Oklahoma Statutes. The vote to go into executive Session was Richard, aye; Lake, aye; and McCord, aye.”
At 10:48 p.m., the three Trustees went into executive Session.
At 11:40 p.m. the Board reconvened to regular session.
Upon motion made by Lake, seconded by Richard, the Board voted to give Chief Kirkhart a 6% raise, Erwin, Ball, Adkins, Lucas, Morgan, McVicker, Buss, and Johnson a 3% raise effective October 1, 1998.
Johnson and Buss, should have also received the same 6% Pay Raise TOO! Where are you Mr. Auditor? You missed that one! They should have received a 3% raise immediately and on July 1st, they should have gotten another 6%. That’s what the Town attorney suggests in her, ummm, ruling.
Also, every employee is to have, on their birthday, a paid day off. If the employee’s birthday falls on a weekend or holiday, then they will get the nearest working day off.
The vote was Richard, aye; Lake, aye; and McCord, aye.
The 3% referenced above is only on their “extra duty” pay, not on statutory pay. The statutory pay was not included -
BUT! the following July 1 the “annual automatic percentage pay raise” which comes to more than the 3% - voted and approved - went into effect – automatically – without an amended Ordinance and the required effective date for elected positions.
That’s what the Town attorney said!
Since this is the case … - let’s progress to December 2008 Board Minutes:
“Discussion was held regarding a cost of living increase for all salaried employees.* Brown, seconded by Buss, made the motion to grant a 5% cost of living increase effective December 3, 2008 to all salaried employees. The vote was Brown, aye; Buss, aye; Bishop, aye; Harper, nay.” So the 5% referenced above is only on their “extra duty” pay as EMPLOYEES
NOT! Repeated in hopes the Trustees of Buffalo read this, NOT on ELECTED STATUTORY PAY!
E-M-P-L-O-Y-E-E-S
Here is how they usurp the Oklahoma Constitution:
The statutory pay was not included – BUT! On July 1st of this year the “annual automatic percentage pay raise” which comes to more than another 5% - voted and approved goes into effect – automatically – without an amended Ordinance and the required effective date for elected positions. Ooops! There’s just one problem... On all occasions wherein a raise was given, as explained above, the Town Clerk and Town Treasurer pay was (purportedly) adjusted immediately including the “statutory pay”. They adjusted it this past December but then recalculated it to be taken again on July 1, 2009 when they were notified that what they did was wrong.
Remember last year? Inside Buffalo reported about Joe McVicker getting a temporary raise for extra duty “Golf Course Manager” work? According to the Ordinance, as the attorney suggests, erroneously we believe, the Town Clerk and Town Treasurer are due the SAME PERCENTAGE as what Joe got, effective July 1st This Year!
Then they took Joe’s raise away when they hired the Golf Course Manager but, did the Town Clerk and Town Treasurer receive the “annual automatic percentage raise” based on the temporary raise that Joe received? After all, the auditor did the calculations based on w-2s and Joe is still an employee. Terribly unfair to Joe or any other employee out there busting their butt and breaking a sweat in the summer or freezing their tails off in the winter while the elected/employees in the front of City Hall can possibly collect over $8,000.00 each plus a bunch of other raises based on the other Town emplyee benefits and raises. What a crock of...
OKAY? Okay!….
I am sure that the intentions of the board that approved Section 4 of Ordinance 329 was to make sure that the Town Clerk and Town Treasurer received double pay raises, aren’t you? Yeah, sure! NOT
If asked, a prior Board member, one who was there when the original ordinance was enacted, would respond: “That’s not what the intention of that Ordinance #329 was. The lawyer and us board dudes or dudettes back then musta &*$#@! (messed) that one up”
So now the raise approved by the Town Board on December 3, 2008 which was calculated to be $1297.80 per month statutory pay is actually $1348.13 statutory pay (based on the auditor’s calculations).
While the town laborers received a measly $17.10 per week - The Town Clerk and Town Treasurer are each due to receive an additional $35.54 per week (statutory pay increase) Another $142.00 Month! That’s more than what Joe, the Town Manager and laborer received!
$70.00 per month for Town employee laborers - $141.40 per month City Manager - Town Clerk $205.54 (statutory and extra duty) per month and Town Treasurer $205.54 per month (statutory and extra duty)
Now that’s the way uh-huh, uh-huh, we like it, uh-huh, uh-huh.
*Emphasis added
