Medical Marijuana - Regulatory Update - January 6, 2020

The regulatory framework within which medical marijuana is allowed in Oklahoma has taken shape in the 2019 legislative session after the voters of the state passed State Question 788 (SQ788) in the summer of 2018.  In August 2018, OMAG provided information on its website based on the regulatory efforts of the State Department of Health and others.  These attempts, through regulation, to add details to SQ788 were met with much opposition resulting in some of the earlier efforts being withdrawn.  Then a working group of state legislators and others began meeting in the fall of 2018 to discuss the parameters of legislation that could be sponsored and supported to fill in some of the unknown gaps in the regulatory framework for medical marijuana in the State of Oklahoma. 

The 2019 legislative session resulted in the passage of House Bill 2612, the Oklahoma Medical Marijuana and Patient Protection Act, more commonly called the “Unity Bill”, Senate Bill 1030, Senate Bill 31, Senate Bill 162, and House Bill 2601 that provided additional clarity.  The provisions for these bills are codified in the Oklahoma Medical Marijuana Act - 63 Okla. Stat. §420 through §427; and the Oklahoma Medical Marijuana and Patient Protection Act - 63 Okla. Stat. §427.1 through §427.23.   Those provisions, collectively, contain the following parameters:

• State issued patient or caregiver license only.  Municipal and county governing bodies may not enact medical marijuana guidelines which restrict or interfere with the rights of a licensed patient or caregiver to possess, purchase, cultivate or transport medical marijuana within the legal limits set forth in Oklahoma Medical Marijuana Act. 63 Okla. Stat. §420.  Counties, Cities, or towns may not require patients or caregivers to obtain permits or licenses in addition to the state-required licenses provided herein.

• Requires licensed physician recommendation. Only licensed Oklahoma allopathic, osteopathic and podiatric physicians may provide a medical marijuana recommendation for a medical marijuana patient license.  A physician signing an application is not required to be Board Certified.

• No imprisonment – cite and release.  Persons eligible to be in possession of up to 1.5 ounces of marijuana but are not in possession of a state-issued medical marijuana license shall be punishable by a fine of not more than $400, but not subject to imprisonment for the offense.  Officers are authorized to cite offenders and then release them upon their own recognizance to appear later in court in certain circumstances.

• Caregiver must hold patient license to use.  A marijuana caregiver has the same rights of a medical marijuana patient license holder to possess marijuana, except for use, unless the caregiver also has a medical marijuana patient license.

• Patient or caregiver license holder not subject to prosecution. A medical marijuana patient or caregiver in actual possession of a medical marijuana license shall not be subject to arrest, prosecution or penalty in any manner or denied any right, privilege or public assistance, under state law or municipal or county ordinance or resolution including without limitation a civil penalty or disciplinary action by a business, occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.

• Municipal regulatory authority recognized. For issuance of a license or permit from the State, all relevant local licenses and permits must be issued by the municipality, including but not limited to, an occupancy permit or certificate of compliance.

  • A licensed medical marijuana business premises shall be subject to and responsible for compliance with applicable provisions for medical marijuana business facilities as described in the most recent versions of the Oklahoma Uniform Building Code, the International Building Code and the International Fire Code, unless granted an exemption by the Authority or municipality.

• Municipal Planning and Zoning.   Municipalities may follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured.

• Zoning may not ban retail dispensaries.  No city or local municipality may unduly change or restrict zoning laws to prevent the opening within its boundaries as a matter of law of a retail marijuana establishment licensed by the State Department of Health as a medical marijuana dispensary.

• The location of any retail marijuana establishment is specifically prohibited within one thousand (1,000) feet from any public or private school entrance.

• Rights to firearms protected. A medical marijuana patient or caregiver licensee shall not be denied the right to own, purchase or possess a firearm, ammunition, or firearm accessory based solely on his or her status as a medical marijuana patient or caregiver licensee. No state or local agency, municipal or county governing authority shall restrict, revoke, suspend or otherwise infringe upon the right of a person to own, purchase or possess a firearm, ammunition, or firearm accessory or any related firearms license or certification based solely on their status as a medical marijuana patient or caregiver licensee.

• Reimbursement as medical expense not required.  A government medical assistance program shall not be required to reimburse a person for costs associated with the medical use of marijuana unless federal law requires reimbursement.

• Statutes do not require an employer, a government medical assistance program, private health insurer, worker's compensation carrier or self-insured employer providing worker's compensation benefits to reimburse a person for costs associated with the use of medical marijuana. 

• Medical marijuana licensee job protections.  No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant's or employee's status as a medical marijuana licensee; and

• No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless: a. the applicant or employee is not in possession of a valid medical marijuana license, b. the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or c. the position is one involving safety-sensitive job duties.

• Employers are not required to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment;

• Statute does not prevent an employer from having written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, Section 551 et seq. of Title 40 of the Oklahoma Statutes.

• An applicant or employee aggrieved by a willful violation of this section shall have, as his or her exclusive remedy, the same remedies as provided for in the Oklahoma Standards for Workplace Drug and Alcohol Testing Act set forth in Section 563 of Title 40 of the Oklahoma Statutes.

• "Safety-sensitive" means any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:

  • the handling, packaging, processing, storage, disposal or transport of hazardous materials,

  • the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,

  • repairing, maintaining or monitoring the performance or operation of any equipment, machinery or

    manufacturing process, the malfunction or disruption of which could result in injury or property

    damage,

  • performing firefighting duties,

  • the operation, maintenance or oversight of critical services and infrastructure including, but not

    limited to, electric, gas, and water utilities, power generation or distribution,

  • the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal,

    treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals

    or any other highly regulated component,

  • dispensing pharmaceuticals,

  • carrying a firearm, or

  • direct patient care or direct child care; and

• A "positive test for marijuana components or metabolites" means a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.

• Smoking in Public Places and Indoor Workplaces. All smokable, vaporized, vapable and e-cigarette medical marijuana product inhaled through vaporization or smoked by a medical marijuana licensee are subject to the same restrictions for tobacco under Section 1-1521 of Title 63 of the Oklahoma Statutes, commonly referred to as the "Smoking in Public Places and Indoor Workplaces Act".

• Potential Federal impacts may be considered.  A school, or landlord, or employer can consider the status of one holding a marijuana license in relation to admission, leasing, or workplace rules based on potential impacts to the school, landlord, or employer under federal law or regulations.

There may still be additional tweaking to the Oklahoma Regulatory Framework in during the 2020 session.  Updates will be provided accordingly.

OMAG Grants Programs

Reminder, OMAG grants are available to our members – learn more by going to www.omag.org.  Once there, click on “Free Services” in the upper righthand corner of the home page, then click on “Grants and Scholarships”.  The title of each grant takes you to a separate page to better explain the purpose of each grant. The following is a list of grants available to your municipality: 

•          Police Body-Worn Video Camera Grant  

•           Public Works Safety Equipment Grant  

•           Sanitary Sewer Camera Purchase Grant  

•          Sanitary Sewer CCTV Inspection Grant  

•           Sanitary Sewer Root Control Grant  

•         SL-Rat (sewer line rapid assessment tool) 

•         Municipal Natural Gas System Grant  

OMAG grant applications are very simple to fill out.  Grants are all available throughout the year.  We hope you will take the time to go to our webpage and read more about these grants. 

Inspecting and Maintaining Lake and Pond Docks

Just like any other structure, docks need to be maintained due to weather changes, general wear-and-tear, mildew, and decay. By maintaining boat and fishing docks, you can ensure the favor of recreational users by providing them with an attractive and safe structure to enhance their experience at your local lake or pond.  

 Inspect Docks Frequently 

Docks get damaged, especially during rough weather. You should inspect your docks at least quarterly (at each season change). That way you become aware of repair needs and can determine a plan for maintenance. Pressure-treated wood docks need to be inspected more frequently than other types of docks. Though they are affordable, they are more subject to damage. Inspect your pressure-treated wood docks after any harsh weather. Hardwood and composite wood don’t require inspection as frequently but still need to be checked seasonally. Your inspections should include deck, handrails, walkways, anchorage, flotation, steel connections, and electrical lights/outlets. Look for broken or warped lumber, broken welds, protruding nails or screws, pinch points, and entrapment hazards. Make sure the approach surface is clear of hazards like washouts and sharp rocks and metal parts. 

 Clean Docks Annually 

Power wash docks every year to remove ground-in dirt. Cleaning a dock is a good time to look for signs of mold, mildew, and rot. If you spot rotting boards or rusting, decaying nuts, bolts, or other fasteners, you need to act fast; the longer these issues persist the more damage to the structure of the dock and a greater risk of a liability claim. After the dock is clean and dried, consider staining or weatherproofing the lumber. This is best done when water levels are low, and the best time is right after the dock is cleaned, because stain will adhere more easily. 

If your dock is stained and not painted, consider sealing it every few years. Sealant improves the attractiveness of the dock as well as protecting the wood from rot and mildew. Sealing is a fairly easy process; just spray on a few layers of sealant and allow time for each layer to thoroughly dry. The more active the use on the dock, the more attention you need to give to maintaining the dock. Inspecting, cleaning, and repairing your docks will increase the life of the dock and make it safer for users. Reducing the risk of slips, trips, and falls on the dock and other injuries that can occur reduces the chance of a liability claim filed against the municipality. 

 For an example of a Dock Inspection Check List go to our webpage: www.omag.org and click on “free services” then “public works”. Keep all inspection logs on file for at least 2 years. 

Municipal Safety Program

According to Title 40 O.S. 403e – Every employer having twenty-five (25) or more full- or part-time employees shall:

• Designate an employee who shall coordinate all safety programs of the employer;

• Provide safety classes to each type or class of employee no less than quarterly.

 What this means is if your city or town employs 25 full and part-time employees, you must have a designated safety coordinator who provides or plans safety meetings for all the employees for your municipality on topics that are relevant to their work.

 This is how OMAG Risk Management Services sees your Safety Program work:

• First, the municipality’s City Manager, Town Administrator, or Mayor (depending on the form of government) hires or assigns a designated Safety Coordinator. This should be a person that has an interest in “Safety”. They should be devoted and dedicated to keeping people safe.

• Second, the designated Safety Coordinator holds safety meetings for municipal employees at least quarterly each year. These meetings need to be pertinent to the employee’s specific work duties.

• Finally, the municipality’s department supervisors must make sure the employees under their supervision attend these training classes. Employees are responsible for attending the classes because the meetings are for their benefit and safety.

 The Safety Coordinator designation must be in writing. This can be accomplished through, memo, letter, or in the written safety program (Safety and Health Policy and Procedure Manual) for the municipality. The following are duties and responsibilities of the designated Safety Coordinator:

• Ensure the development, implementation, and updating of the required written safety and health programs.

• Ensure that periodic safety and health walk-through inspections of all workplace facilities are completed and identified hazards are corrected.

• Ensure quarterly safety training and all specifically required training is provided for all employees.

• Ensure that accident/injury investigations are completed.

• Conduct investigations into employee inquiries, suggestions, and complaints.

• Maintain health and safety documents/files.

• Ensure periodic inspections of all motorized vehicles.

• Establish and monitor a program for reporting and investigating “near miss” situations (someone was almost injured due to a hazardous condition).

• Ensure each department is correctly maintaining OK300 log information and posting the annual summary from February 1st thru April 30th at each department location.

 This is a lot of responsibility for one person. It must take some careful deliberation by the City Manager, Town Administrator, or Mayor when designating their municipality’s Safety Coordinator. We all face risk in our jobs every day. The position of Safety Coordinator is not a job to be taken lightly. Please make good choices when assigning this position and support and encourage those you choose to facilitate this very important job.

What You Eat May Help Beat Back Pain

Could what you eat be contributing to your back pain? Maybe. Many foods have been shown to reduce (or increase) inflammation, a known cause of back pain. If you are having back pain, changing your diet may help you relieve it.

Left unchecked, inflammation will run rampant through your body, causing all kinds of problems including back pain. That is why creating an anti-inflammatory diet with foods that help you maintain good nutrition is important to managing back pain. Here are some diet tips to assist you in fighting back pain:

Eat your Veggies

A mostly plant-based diet that includes such things as flax and chia seeds, is probably your best bet to avoid inflammation, especially when eaten in combination with omega-3 rich fish like salmon, cod, tuna, and trout.

Deeply colored fruits and vegetables are another key part of an anti-inflammatory diet. Try carrots, beets, sweet potatoes, cherries, berries, grapes, and melons. Herbs and spices like basil, ginger, rosemary, garlic, cumin, onions, and oregano are rich in anti-inflammatory agents. Also, drinking herb teas like green, oolong, and white can be beneficial. Use olive oil rather than blended or animal-based cooking oils. When eating vegetables, think the greener the better (kale, spinach, and broccoli are list toppers). Some other good choices are avocados, nuts, and lean proteins like chicken, turkey, beans, and dark chocolate.

Avoid These Foods to Reduce Back Pain

Some people avoid nightshade vegetables like tomatoes, eggplant, white potatoes, and peppers to relieve back pain, but there is no research that supports their effects on an anti-inflammatory diet. To find out if these vegetables contribute to inflammation in your body, don’t eat them for 2 weeks and see if your symptoms disappear – just as you should do any potentially sensitive foods. Other foods to avoid include processed foods, fast foods, and saturated fats. All of these fuel inflammation. Things like breads, pasta, rice, sugary drinks and snacks, fried foods, and anything with partially hydrogenated oil in the ingredients (often found in preservative-packed products with a long shelf-life, such as chips, crackers, cookies, and pastries) should be avoided or limited. Avoid caffeinated drinks and alcohol as well. I know the nutritionists are killing our party, but if you are experiencing debilitating back pain, you might want to give it a try.

The Calcium Factor

Another way to keep pain at bay is to make sure you are getting enough of the right nutrients, such as calcium and vitamin D. Bones are our body’s storage reservoir for calcium. As we age it becomes difficult to maintain bone mass, which can lead to conditions like osteopenia and osteoporosis. These diseases can weaken the vertebrae in our spine. However, according to the Institute of Medicine (IOM), we shouldn’t consume more than 2,000 milligrams of calcium per day. High doses of calcium supplements can increase the risk for heart problems and atherosclerosis (increases plaque in our arteries). Calcium should come from natural sources (milk, cheese, yogurt, and leafy green vegetables). If you are not able to obtain enough calcium from your diet, then talk to your doctor about whether supplements are right for you.

If you are having problems with back pain or joint pain, it might be beneficial to explore some changes in your daily diet. Be aware of what you are eating, watch your calorie intake, and read the labels on foods you are eating. Try to eat more fresh vegetables and meats, rather than processed pre-cooked microwave foods. Get more activity in your daily life, and get a checkup at least annually from your doctor, and heed their advice.

Good & Bad Exercises for Low Back Pain

When you experience low back pain, you might think resting is the best remedy, but moving is good for your back. Exercises for lower back pain can strengthen back, leg, and stomach muscles. They help support your spine, relieving back pain. Before starting an exercise regimen, always talk to your doctor for advice as to the benefits and which activities will be best for your condition. Depending on the cause and intensity of your pain, some exercises may not be recommended and can be harmful. The following are some exercises to try or avoid when dealing with low back pain.

Avoid: Toe Touches - standing toe touches put greater stress on the disks and ligaments in your spine. They can also overstretch lower back muscles and hamstrings.

Try: Partial Crunches - can strengthen your back and stomach muscles. Lie with knees bent and feet flat on the floor. Cross your arms over your chest, tighten your stomach muscles, and raise your shoulders off the floor. Breath out as you raise your shoulders, hold for a couple of seconds, then slowly lower back down. Repeat 8-12 times. Proper form prevents excessive stress on your lower back. Your feet, tailbone, and lower back should remain in contact with the floor. Any mild discomfort felt at the start of exercises should disappear as muscles become stronger, but if pain is more than mild and lasts longer than 15 minutes during exercise, stop the exercise and contact your doctor.

Avoid: Sit-Ups - although you might think sit-ups can strengthen your core or abdominal muscles, most people tend to use muscles in the hips when doing sit-ups. They may also put a lot of pressure on the discs in your spine.

Try: Hamstring Stretches - lie on your back and bend one knee with your foot flat on the floor. Loop a towel under the ball of your opposite foot, straighten that knee and slowly pull back on the towel, extending the leg up toward your head. You should feel a gentle stretch down the back of your leg. Hold this pose for 15-30 seconds. Do the stretch 2-4 times with each leg.

Avoid: Leg Lifts - they are sometimes suggested to strengthen your core or abdominal muscles. Lifting both legs together while lying on your back is a very demanding exercise on the core. If back and stomach muscles are weak this activity can make back pain worse. Instead, try lying on your back with one leg straight and the other leg bent at the knee. Keep your back flat on the floor. Slowly lift the straight leg up to about 6 inches and hold a few seconds, lower the leg slowly. Repeat this activity 10 times, then switch legs.

Try: Wall-sits - stand 10-12 inches from the wall, then lean back until your back is flat against the wall. Slowly slide down until your knees are slightly bent, pressing your lower back into the wall. Hold for a count of 10, then carefully slide back up the wall. Repeat this activity 8-12 times.

Try: Press-up Back Extensions - lie on your stomach with your hands under your shoulders. Push your hands so your shoulders begin to lift off the floor. If it’s comfortable for you, slide your elbows on the floor directly under your shoulders and hold this position for about 10 seconds. Repeat activity 8-10 times.

Try: Bird Dog Pose - start on your hands and knees, and tighten your stomach muscles. Lift and extend one leg behind you. Keep your hips level, hold for 5 seconds and then switch to the other leg. Repeat 8-12 times for each leg, then try to lengthen the time you hold the position. As you gain strengthen and balance attempt to lift and extend your opposite arm in front of you for each repetition. This exercise is a great way to learn how to stabilize the low back during movement of the arms and legs. While doing this exercise don’t let the lower back muscles sag. Only raise the limbs to heights where the low back position can be kept steady and maintained.

Try: Bridging - lie on your back with knees bent and just your heels on the floor. Push your heels into the floor, squeeze your buttocks, and lift your hips off the floor until shoulders, hips, and knees are in a straight line. Hold for 6 seconds, then slowly lower your hips to the floor and rest 10 seconds. Repeat this exercise 8-12 times. Avoid arching your lower back as your hips move upward. Avoid overarching by tightening your abdominal muscles prior to and throughout the lift.

Spending just a few minutes each day doing some basic exercises will strengthen muscles in your back, stomach, arms, and legs. Movement is good for the back and making a lifestyle choice to be more active can lessen back strains and pains.

Back Basics: An Ounce of Prevention

Back strains are one of the nation’s most common types of workplace injuries. Approximately 80% of the American population will have a back injury in their lifetime. Back injuries are painful and have the potential to significantly impact daily activities. They are seldom the result of a single event but are usually caused by years of not maintaining a healthy lifestyle. There are a number of ways to lessen your chance of a back injury: using proper lifting and handling techniques, being more active in your daily life (walking more, taking stairs, exercising), eating properly (watching what you eat and how much), and being aware of your posture (how you stand, sit, and even sleep).

Maintaining A Healthy Back

Back health involves more than just using proper lifting techniques. Other contributing factors include:

• Good posture, whether at home or work, reduces back, neck, and shoulder strain.

• A well-balanced diet will keep your weight under control. Carrying extra weight can alter the back’s natural curves and place unnecessary stress on the lower back.

• Learning to relax (participating in a leisure activity or hobby) can reduce stress and muscular tension that builds up in the back during the day.

• Smoking negatively impacts your back by reducing the amount of oxygen and nutrients available to spinal discs that are needed for good health and healing.

• Regular exercise appears to be more effective at preventing back injuries than lifting training programs, smoking cessation, and losing weight. Exercising strengthens and improves flexibility of the back and abdominal muscles. Exercise also lessens the severity of back injury and promotes the healing process. Having a daily exercise routine is good, but for some it is hard to discipline yourself to do it. Try just getting more movement in your day – walk more, take the stairs, take mini-breaks and walk around the office or outside for just a few minutes at a time. Doing a little something is better than doing nothing.

• Using proper lifting techniques lowers stress placed on the back. No single lifting technique works in all situations. Sometimes you have to make the best of a difficult situation. Think before you lift, have a plan of action, and if it is more than you can handle on your own ask for help or use a mechanical lift (a cart, hoist, etc.). Always lift properly using multiple muscle groups, not just your back muscles. Do this whether you are at work, at home, or at play.

Basic Lifting & Lowering Techniques

• Plan the lift, including the route, obstacles, doors, and stairs.

• Estimate the weight of the object by tilting the corner.

• Spread your feet about shoulder width apart.

• Bend your knees.

• Securely grip the load.

• Keep the load close to your body.

• Tighten your stomach muscles before you lift.

• Lift slowly and evenly; avoid rapid jerky motions or simultaneously lifting and twisting.

• When changing directions, step in the direction of the intended travel, turning your entire body at the hips, pivot your feet, don’t twist at the waist.

Other Back Stressors

Prolonged sitting or standing can lead to back strain. If sitting for long periods of time, it is important to use good posture, frequently change your position, and take regular walk breaks. When standing, use good posture, wear soft-soled shoes, use arch supports, and do not lock your legs in position. Do isometric exercises to lessen the tension on muscles that have been overworked and stretch muscles that have not been being used.

Slips, trips, and falls are a leading cause of back injuries. Proper housekeeping of spills and debris and keeping aisle-ways clear of materials and equipment can significantly reduce the potential for back injuries caused by falls.

Using ergonomically designed lifting and moving tools can also reduce back injuries. Take the time to get and use carts, pallet movers, and lift trucks to lift and move heavy or awkward loads. Finally remember if the load is too heavy or awkward don’t be afraid to ask for help.

OMAG's Position on UM/UIM Coverage

The Oklahoma Insurance Code requires commercial insurance carriers providing auto liability coverage to also offer Uninsured and Underinsured Motorist (UM/UIM) coverage. 36 O.S. §3636. From time to time, OMAG receives inquiries from attorneys representing injured employees as to the availability of UM/UIM coverage as part of OMAG’s liability indemnification for its municipalities. The purpose of this notice is to explain why OMAG does not provide UM/UIM coverage as part of its indemnification of its municipalities for their automobile liability exposure.

The requirement to offer UM/UIM coverage only applies to entities subject to the Oklahoma Insurance Code when offering auto liability coverage. OMAG’s auto liability indemnification is not subject to the Oklahoma Insurance Code. Oklahoma municipalities formed OMAG through interlocal agreement to allow them to pool various risk exposures. The auto liability exposure of those municipalities is governed by the Oklahoma Governmental Tort Claims Act (GTCA). Section 167(C) of the GTCA expressly provides that the pooling of GTCA risk through entities like OMAG is not an activity that subjects OMAG to the requirements of the Insurance Code:

Notwithstanding any other provision of law, two or more municipalities or public agencies who are affiliated in an insurance program which was originated prior to January 1, 2006, by interlocal agreement made pursuant to Section 1001 et seq. of Title 74 of the Oklahoma Statutes, may provide insurance for any purpose by any one or more of the methods specified in this section. The pooling of self-insured reserves, claims or losses among governments as authorized in this act shall not be construed to be transacting insurance nor otherwise subject to the provisions of the laws of this state regulating insurance or insurance companies.

See also 36 O.S. §607.1(A) (interlocal entities created pursuant to the above GTCA authorization are not considered insurers under Title 36). OMAG is therefore not subject to the requirements of the Oklahoma Insurance Code to offer UM/UIM coverage.

Further, OMAG does not voluntarily offer UM/UIM coverage since Oklahoma municipalities have no risk exposure which could be secured by a UM/UIM policy. As to third parties seeking UM/UIM proceeds, the risk exposure for OMAG’s municipalities is limited to the GTCA and fully covered to the extent there is exposure under the GTCA. As to municipal employee-operators of a motor vehicle, the risk exposure to the municipalities is governed by the Oklahoma Workers Compensation Act. Under the GTCA, Section 155(14), a municipality legally has no liability exposure for any loss which is covered by the Workers’ Compensation Act. There is, therefore, no exposure under the GTCA which the municipalities could pool through the voluntary offering of UM/UIM coverage as part of OMAG’s auto liability indemnification.

Contracts for Services Other Than Public Construction

Is a Competitive Bidding process required for purchases other that Public Construction Contracts?  The Oklahoma Competitive Bidding Act (61 O.S. 101 et seq) applies to public construction contracts and public improvements to public buildings.  Those definitions are as follows:

6. "Public construction contract" or "contract" means any contract, exceeding Fifty Thousand Dollars ($50,000.00) in amount, awarded by any public agency for the purpose of making any public improvements or constructing any public building or making repairs to or performing maintenance on the same . . . .;

7. "Public improvement" means any beneficial or valuable change or addition, betterment, enhancement or amelioration of or upon any real property, or interest therein, belonging to a public agency, intended to enhance its value, beauty or utility or to adapt it to new or further purposes. The term does not include the direct purchase of materials, equipment or supplies by a public agency, or any personal property, . . .;

Application the State Competitive bidding act to Oklahoma statutory cities and towns is specific to public construction contracts or public improvements.  Charter cities may establish their own competitive bidding processes that relate to public construction contracts or public improvements as a matter of local concern.[i] 

For all other contracts for expenditure of public monies, other legal authority should be consulted.  For example, many cities and towns have enacted local ordinances to govern the purchase of supplies, materials, professional services, and other contract services such as Codification, publication of Ordinances, purchase of insurance, hiring of consultants, architects, engineers, or attorneys.  Some cities require competitive bidding for supplies and materials.  Some cities allow the purchase of such items from vendors who are successful bidders on state purchasing contracts. 

For professional services, request for qualification processes are often used, or request for proposal processes are used.  Some specialized areas such as insurance services, bond counsel, economic development advisors, employee training consultants, etc . . . do not often lend themselves to competitive bidding processes and are more suited toward a staff negotiation and recommendation process in order to be able to match the individual city’s service needs to what can be offered by a particular consultant or service provider. 

. . .  where some other building might not; and where professional and personal services of a specialized nature are required, the municipality may better safeguard the public interest by negotiation rather than competitive bidding, because the low bidder might cause the municipality untold damage and loss. The problem is to contract with individuals who are best qualified to and who give promise of, best serving the interest of the municipality and the public.[ii]

 For city purchases, other than those specifically covered by the Oklahoma Competitive Bidding Act, each city should refer to their local ordinances and consult with their City Attorney to establish the appropriate purchasing process.

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[i] U.S. Elevator v. City of Tulsa, 1980 OK 69, 610 P.2d 791 (Okla. 1980)

[ii] Emerald Enterprises LTD v. City of Oklahoma City, 1997 OK 19, 939 P. 2d 27 (Okla. Civ. App. 1997)

City of Weatherford: A CMOM Success Story

The Oklahoma Supreme Court has stated that “The maintenance and repair of [city] sewers is a corporate or proprietary function of a city and the city is liable for injuries sustained because of its failure to maintain and repair sewers properly.”  Oklahoma law requires municipalities “to use reasonable diligence and care to see that such sewer is not clogged ... and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of its sewer.”[1] 

During 2004, the City of Weatherford had 48 sanitary sewer overflow claims resulting in a Consent Order from the Oklahoma Department of Environmental Quality (DEQ). Included in the Consent Order was the development of a CMOM (Capacity, Management, Operations, and Maintenance) Program to control their sanitary sewer overflows (SSOs).  

The 2005 implementation of Weatherford’s CMOM program included the purchase of a trailer-mounted jetter and a dedicated crew of two full-time employees tasked with sanitary sewer collection system maintenance and record keeping for annual reports to OK-DEQ. Today their program has grown to three full-time employees, two trailer-mounted jetters, two vacuums, and a rover CCTV camera complete with a van. Weatherford has gone from having 48 SSOs in 2004 to averaging less than 2 per year from 2005 through 2018. Liability costs are greatly diminished and quality of life for the residents of Weatherford has improved. 

The City of Weatherford’s sewer maintenance crew cleans over 250,000 feet of sewer line per year and video inspects about 3,400 feet per year. Their CCTV camera (OMAG has a grant for CCTV camera purchase assistance) removes the guesswork in determining what obstructs the line (roots, grease, debris, line collapse, etc.) and where exactly the problem is in the line. Then they can develop a plan to fix the problem and service the line. Weatherford uses root foam on about 7,000 feet of line per year (OMAG has a grant for Dukes Roots purchase assistance). Larry McKillip and his crew recommend using a Warthog jetting nozzle when jetting lines especially if they contain root balls. Larry says the Warthog is much more effective than mechanical cutters and saws, because the saws get stuck and are hard to dislodge, resulting in the need to dig up a line and break the pipe to retrieve the tool.  

Trent Perkins, Public Works Director for Weatherford stated, “maps are critical for productivity.” That is why the city contacted their local COG (Council of Government)- SWODA for assistance in locating and mapping their water and sewer lines.  Through a grant (COG provides grant assistance for REAP and CDBG programs provided by the Oklahoma Department of Commerce,) the city has a viable computerized map showing the locations of all their water and sewer lines as well as manhole locations. OMAG can also assist member municipalities in gaining helpful information about their sewer systems using the SL-Rat (Sewer Line -Rapid Assessment Tool). This tool is loaned to cities and towns to quickly assess and map their sewer lines and determine what areas of town need maintenance, repair, or replacement, so municipal leaders can formulate a plan and budget for said infrastructural improvements. It is our belief the SL-Rat is an excellent tool for municipalities to use if they are seeking a REAP or CDBG grant.  

Since sanitary sewer overflows are the most frequent liability claim filed against municipalities and authorities annually, and the cost of SSO claims continues to increase each year, OMAG recommends our cities and towns investigate utilizing resources to rehabilitate their aging sewer infrastructure. 

A CMOM or any sewer line maintenance program is a costly start-up investment in time, staffing, and money, but it will quickly pay for itself by reducing sanitary sewer back-up claims. Citizens like to see capital improvements like new fire trucks, police cars, parks, and ballfields (the stuff we can see), but it’s also true they don’t like to have raw sewage running into their homes and businesses. Oklahoma leaders have been talking about our aging and disintegrating infrastructures for years. It is time to start making plans for major overhauls of these systems. Don’t wait for a consent order from OK-DEQ - take advantage of the resources available to you and start making the changes now.  

According to Trent Perkins, “Personnel is the most important factor in the success of a sewer maintenance program, that and having the proper equipment, but support from the city’s mayor and council is key to our success.” Mike Brown, Mayor of Weatherford stated, “The City of Weatherford is thankful and proud that OMAG recognizes our efforts utilizing the CMOM program. Trent Perkins and his crew do an outstanding job maintaining our water and sewer lines. We appreciate the partnerships with SWODA and OMAG working with Weatherford to provide the best services available to our citizens.”  

[1] Spencer v. City of Bristow, 2007 OK CIV APP 67, ¶ 12, 165 P.3d 361, 364