Can a charter city like Tulsa refuse to set up a leave-sharing program for firefighters and police on the ground that it would unconstitutionally use public funds, and can a charter city ban such programs by ordinance?

Plain-English summary

Two Oklahoma House members asked about a longstanding dispute between IAFF Local No. 176 and the City of Tulsa over leave-sharing programs for firefighters. Tulsa had refused to establish such a program since 1986, citing Article X, § 14 of the Oklahoma Constitution (the "public purpose" requirement for use of public funds). The legislators asked:

1. Does a leave-sharing policy violate Article X, § 14 (or any other Oklahoma law)?
2. Can a charter municipality enact an ordinance that conflicts with the statutory right of fire and police personnel to collectively bargain?

The Attorney General said:

Question 1: No. Leave-sharing for paid fire and police personnel is a valid public purpose. Three reasons:

• "Public purpose" is broadly interpreted with great deference to the Legislature. The Oklahoma Legislature has declared collective bargaining rights for fire and police to be a matter of statewide concern (11 O.S. § 51-101), in exchange for the public's guarantee of uninterrupted public safety services (no strikes, no slowdowns).
• The Oklahoma Supreme Court has repeatedly held that benefits and funds for firefighters and police are "generally sustained as a proper public purpose" (Wallace v. Childers, 1947).
• Article X, § 15 (no gifts to private entities) does not apply because (a) the State is not "conferring" anything (the employee earned the leave and is donating it to a colleague), (b) leave sharing serves a public purpose with proper controls, and (c) § 15 applies only to the State, not municipalities. Article X, § 17 (the municipal version of § 15) does not apply because the program is for a public purpose.

The opinion acknowledges that any leave-sharing program must include reasonable controls (eligibility criteria, exhaustion of regular leave, supervisor approval, caps) similar to the State's existing employee leave-sharing law (74 O.S. § 840-2.23).

Question 2: No. A charter municipality cannot enact an ordinance that irreconcilably conflicts with the statutory right of fire and police to collectively bargain. Reasons:

• Charter cities can supersede state law only on matters of "purely local concern." Firefighter and police labor relations are matters of statewide concern (Reed v. City of Tulsa, 1977; City of Tulsa v. Taylor, 1976).
• Section 51-101 declares "the public policy of this state to accord to the permanent members of any paid fire department or police department in any municipality all of the rights of labor."
• An ordinance that bars leave-sharing prevents the parties from even negotiating a leave-sharing term, which is unlawfully limiting the bargaining rights state law guarantees.

The opinion includes important nuance. The decision does not strip charter cities of all control. The municipality retains the right to make the final decision on employment issues, as long as it bargains in good faith (Midwest City v. Cravens, 1975). The municipality is not compelled to agree to a leave-sharing proposal. It just cannot ban the topic from the bargaining table or refuse to negotiate it.

What this means for you

If you are a Tulsa Fire Department firefighter or IAFF Local 176

The opinion supports your position. Tulsa's blanket refusal to establish a leave-sharing program based on Article X, § 14 is not legally defensible. The City must come to the bargaining table on leave-sharing in good faith. The City does not have to agree to any specific terms, but it cannot categorically refuse to discuss the topic.

If your collective bargaining agreement is up for renegotiation, leave-sharing is a permissible topic. If the City refuses to engage, you can use this opinion as authority for an unfair-labor-practice charge or a writ to compel good-faith bargaining.

If you are at the City of Tulsa or another charter city

You can no longer rely on Article X, § 14 to refuse leave-sharing programs for fire and police personnel. The opinion is binding on state officials and persuasive against charter cities. You should:

1. Review existing personnel ordinances and charter provisions for any that ban leave-sharing or limit collective bargaining topics for fire/police. Those provisions are vulnerable to challenge.
2. Engage in good-faith bargaining when leave-sharing is proposed during contract negotiations.
3. If you adopt a leave-sharing program, build in reasonable controls (eligibility, exhaustion of regular leave, supervisor approval, caps) consistent with the State's program at 74 O.S. § 840-2.23.

If you are at another Oklahoma municipal fire or police department

The opinion is good news for you too. If your collective bargaining agreement is up for renegotiation, leave-sharing is fair game. If your charter or city ordinance has been used to block it, the AG's opinion is your defense.

If you are a city attorney or municipal HR director

Audit your current ordinance and charter framework. Look for:

• Express bans on leave-sharing for any city employees (charter or ordinance).
• Limitations on what topics fire/police bargaining can cover.
• Any provision that conflicts with 11 O.S. § 51-103's broad scope of bargaining ("wages, salaries, hours, rates of pay, grievances, working conditions and all other terms and conditions of employment").

If you find conflicts, plan for the ordinance/charter provisions to give way to state law for fire and police personnel.

If you are an Oklahoma legislator

The opinion confirms the existing § 51-101 framework. If you want to clarify or extend leave-sharing authority, you could:

• Add an explicit leave-sharing authorization for fire and police that mirrors the State employee program (74 O.S. § 840-2.23).
• Codify the safeguards (eligibility, exhaustion, caps) for leave-sharing programs that flow through CBAs.

If you want to allow charter cities more freedom to limit collective bargaining topics, you would have to amend § 51-101 (which is unlikely to survive constitutional challenge given the no-strike quid pro quo).

Common questions

Q: What is leave-sharing?
A: A program where one employee can donate accrued leave (vacation, sick, etc.) to a coworker who has a documented need (typically a serious medical issue, family emergency, or similar). Oklahoma already has a State employee leave-sharing program at 74 O.S. § 840-2.23.

Q: Why is firefighter and police collective bargaining a "matter of statewide concern"?
A: Because the Legislature said so in 11 O.S. § 51-101. The statewide concern flows from the public's interest in uninterrupted fire and police services. The State guarantees no strikes in exchange for full collective bargaining rights. The trade-off is statewide because it applies in every Oklahoma municipality.

Q: Can charter cities make any rules about firefighter/police pay?
A: They can negotiate. They cannot unilaterally cap or limit topics. They must come to the table in good faith. The municipal employer retains the right to make the final decision after negotiation, but cannot circumvent the bargaining process.

Q: What if a city charter explicitly says no leave-sharing?
A: That charter provision is invalid as to fire and police personnel. State law on collective bargaining trumps. The city must still negotiate the topic.

Q: Do other municipal employees (non-fire, non-police) have the same rights?
A: This opinion focuses on the fire/police statutory framework (11 O.S. §§ 51-101 et seq.). General municipal employees do not have the same statutory bargaining rights, so charter provisions might have more force for them. But Article X, § 14's public purpose analysis still applies.

Q: What kinds of "reasonable controls" should a leave-sharing program include?
A: Following the State employee model: eligible employee must demonstrate need (medical certificate from a licensed physician), employee must exhaust their own paid leave first, chief administrative officer must approve, and caps on the amount of donated leave that can be used. The opinion's footnote 14 also discusses Washington State's dollar-value-based approach (donor's dollar value transfers, purchases shared leave at donee's rate).

Q: Does this apply to leave that has not yet been earned?
A: The opinion focuses on leave that has been earned, treating donation as the employee's discretion. Pre-accrual donations would raise additional questions outside the scope.

Q: What about police chiefs and fire chiefs?
A: Section 51-101 covers "permanent members of any paid fire department or police department," which generally includes leadership. Specific high-rank exclusions can be negotiated.

Background and statutory framework

Oklahoma's fire and police collective bargaining statute (11 O.S. §§ 51-101 et seq.) was enacted to balance two public interests: uninterrupted public safety services and recognized labor rights for fire and police personnel. The trade-off:

• No strikes, work stoppages, or slowdowns.
• Right to organize, be represented by a chosen bargaining representative, bargain collectively over wages, hours, and "all other terms and conditions of employment."

Section 51-103 sweeps "all other terms and conditions of employment" broadly. The Oklahoma Supreme Court and Court of Civil Appeals have read the scope to include things like leave policies, military leave, pension benefits, and similar.

Constitutional law on charter cities is well-developed:

• Article XVIII, § 3(a) authorizes charter cities of 2,000+.
• Charters can supersede state statutes on matters of purely local concern.
• They cannot supersede state statutes on matters of statewide concern.

Oklahoma cases have classified labor relations for fire/police as statewide concerns (Reed v. Tulsa, 1977; City of Tulsa v. Taylor, 1976; City of Tulsa v. PERB, 1990). Other matters classified as local concerns include municipal court personnel, street parking, recall elections of municipal officers, and the form of city government.

The opinion's Article X analysis follows established public-purpose doctrine. Public-purpose review is highly deferential to legislative determinations (Helm v. Childers, 1938; State ex rel. Brown v. Warr Acres, 1997). With proper controls, employee benefits programs almost always satisfy public purpose. The "gift" prohibitions in §§ 15 and 17 do not apply to programs where (a) the state isn't actually conferring anything, (b) the program serves a public purpose with proper controls, and (c) for § 15, the entity is a municipality rather than the State.

The opinion is binding on state officials and serves as strong persuasive authority for cities and courts.

Citations and references

Statutes:
- 11 O.S. § 51-101 (Public policy on fire/police bargaining)
- 11 O.S. § 51-103 (Scope of bargaining)
- Okla. Const. art. X, §§ 14, 15, 17 (Public funds restrictions)

Cases:
- Reed v. City of Tulsa, 1977 OK 159, 569 P.2d 451 (firefighter pay during reserve service is statewide concern)
- City of Tulsa v. Taylor, 1976 OK CIV APP 42, 555 P.2d 885 (military leave is statewide benefit)
- Midwest City v. Cravens, 1975 OK 22, 532 P.2d 829 (good faith bargaining required; no compelled agreement)
- Wallace v. Childers, 1947 OK 171, 180 P.2d 1005 (firefighter benefits as public purpose)
- Helm v. Childers, 1938 OK 34, 75 P.2d 398 (public purpose deference)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-15.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opin_2023-15.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL
STATE OF OKLAHOMA
ATTORNEY GENERAL OPINION
2023-15

The Honorable Chris Kannady
Oklahoma House of Representatives, District 91
2300 N. Lincoln Boulevard, Room 240
Oklahoma City, OK 73105-4885

The Honorable Stan May
Oklahoma House of Representatives, District 80
2300 N. Lincoln Boulevard, Room 300
Oklahoma City, OK 73105-4885

December 27, 2023

Dear Representatives Kannady and May:

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

1. Does a leave-sharing policy violate any provision of Oklahoma law, including article 10, section 14 of the Oklahoma Constitution?
2. May a municipality enact an ordinance that conflicts with the statutory right of members of a paid fire or police department to collectively bargain for the terms and conditions of their employment?

I. SUMMARY

Neither the Oklahoma Constitution nor any other provision of law prohibit a charter municipality from establishing a leave-sharing program for members of a paid fire department or police department. Article X, section 14 requires public funds to be used for public purposes. The Legislature has declared, as a matter of statewide concern, that members of a paid fire department have a statutory right to collectively bargain for all terms of labor. Authorized leave-sharing programs for members of a municipal fire department do not violate the Oklahoma Constitution's prohibition on "gifts" (article X, section 15). Because the rights of fire and police members to collectively bargain is a matter of statewide concern, a charter municipality may not enact or construe an ordinance which irreconcilably conflicts with these rights. While the members of the fire and police department are vested with the right to bargain collectively, the parties are required to come to the table in good faith negotiations. The municipal employer retains the right to make the final decision on all employment issues so long as it bargains in good faith.

II. BACKGROUND

The questions presented stem from the International Association of Firefighters Local No. 176 having a longstanding request for the city of Tulsa to establish a leave-sharing program. Beginning in 1986 and continuing to this date, the City asserts that a leave-sharing policy violates article X, section 14 of the Oklahoma Constitution.

III. DISCUSSION

A. Neither article 10, section 14 of the Oklahoma Constitution nor any other provision of Oklahoma law prohibits a charter municipality from establishing a "leave-sharing" policy for members of the municipal fire department.

1. Article X, Section 14

Section 14 of article X requires that "taxes shall be levied and collected by general laws, and for public purposes only." The term "public purpose" is given a deferentially broad interpretation and is not to be construed in a narrow and restricted sense. State ex rel. Brown v. City of Warr Acres, 1997 OK 117, ¶ 18, 946 P.2d 1140, 1144.

Under the prevailing view, providing benefits and funds for firemen is "generally sustained as a proper public purpose." Wallace v. Childers, 1947 OK 171, ¶ 12, 180 P.2d 1005, 1008. The Legislature has established the right of members of any paid fire department or police department to collectively bargain for all terms of labor, except that they may not strike or engage in any work stoppage or slowdown.

The Legislature has directly entwined the right of members of a fire and police department to collectively bargain for all terms and conditions of employment with the public's receipt of guaranteed benefits. The accord of the statutory right to collectively bargain for all terms of labor is essentially a quid pro quo for the prohibition of strikes by police and fire departments.

2. Other relevant provisions of Oklahoma law

Article X, section 15 provides that "the credit of the State shall not be given . . . to any individual . . . nor shall the State . . . make donation by gift . . . to any company, association, or corporation." For three reasons, an employee leave sharing program does not violate section 15. First, the State is not conferring anything. Second, when a legislative body authorizes a public benefit to be for a "public purpose," section 15 is not violated if the program provides controls and safeguards. Finally, section 15 does not apply to municipalities; rather, by its plain language, section 15 solely applies to the State.

B. An ordinance enacted by a charter municipality is invalid if it conflicts with the statutory rights of employees of any paid fire department to collectively bargain.

The Oklahoma Constitution authorizes charter municipalities. Charter provisions serve as the organic law of the municipality. They may supersede conflicting state statutes only regarding matters of purely local concern. However, charter provisions cannot contradict state constitutional provisions and will not prevail over conflicting state statutes that concern matters of statewide public interest.

Two cases involving the city of Tulsa hold that municipality personnel policies are not solely matters of local concern and may involve issues of statewide interest. Reed v. City of Tulsa, 1977 OK 159, 569 P.2d 451; City of Tulsa v. Taylor, 1976 OK CIV APP 42, 555 P.2d 885.

The Legislature has expressly stated:

A. The protection of the public health, safety and welfare demands that the permanent members of any paid fire department or police department in any municipality not be accorded the right to strike or engage in any work stoppage or slowdown. This necessary prohibition does not, however, require the denial to such employees of other well-recognized rights of labor such as the right to organize, to be represented by a collective bargaining representative of their choice and the right to bargain collectively . . . .
B. It is declared to be the public policy of this state to accord to the permanent members of any paid fire department or police department in any municipality all of the rights of labor.

11 O.S.2021, § 51-101.

If a city charter or any other municipal ordinance prohibits the right to collectively bargain, including prohibiting a term or condition from being agreed to in the parties' negotiations, then an irreconcilable conflict exists and the ordinance must cede to the state statutes.

It is, therefore, the official Opinion of the Attorney General that:

1. The Legislature has declared it to be a matter of statewide concern for members of a fire department and police department to have the right to collectively bargain for all terms of labor and all other terms and conditions of employment. Leave-sharing programs established through collective bargaining agreements do not violate any provision of Oklahoma law, including article X, section 14 of the Oklahoma Constitution if properly established with reasonable controls and adequate safeguards relating to the accrual and use of shared leave.

2. Any ordinance adopted or construed by a charter municipality to conflict with these rights must cede to the statutorily vested rights of the officers providing these public health and safety services.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

TRACY E. NEEL
ASSISTANT ATTORNEY GENERAL