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The Okemah City Council appointed a new member Monday night even though such an action wasn't on the agenda, the Okemah News Leader reported.
Council members took that action after City Attorney Bruce Coker said they could declare an "emergency" based on the possibility of not having a quorum to conduct business at their next meeting if one was absent, the newspaper reported.
The five-member council was already down to four before the mayor resigned last week.
Monday night's agenda listed the "discussion and possible action to begin search and application process to appoint a new council member for Ward #2 to fill the vacancy created by the resignation" of the mayor.
The city had 60 days to fill the vacancy, the newspaper reported.
Ron Gott, who was elected mayor by his two colleagues at the start of the meeting, raised a concern that if one councilman were sick, the council would be without a quorum at a meeting and therefore unable to conduct business, the newspaper reported.
So instead of following the agenda, the council appointed Ken Lee, a resident of Ward 2, to fill the seat. Gott and Vice Mayor Lloyd Raimer voted for the appointment; Councilman Bobby Coplin opposed it.
The vote should not have occurred Monday night.
A public body cannot take an action unless it's on the agenda or meets the definition of "new business" -- assuming that the agenda includes "new business" as an item.
The Okemah City Council agenda didn't include "new business."
Even if it had, appointing a new councilman in this situation didn't meet the Open Meeting Act's definition of "new business."
The Okemah News Leader reported that City Manager Jerry Turner questioned whether the council could fill the vacancy because the agenda did not list the possibility of appointing a councilman.
According to the newspaper, Coker said the emergency clause usually applies to emergency meetings but could "overlap" in this area.
No, it couldn't. The Open Meeting Act requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
The only exception is for "new business."
But the council could have called an "emergency meeting" once it adjourned the regular meeting.
The Open Meeting Act allows public bodies to call emergency meetings because of
a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. (OKLA. STAT. tit. 25, § 304(5))
Therein lies another serious problem for the council.
There was no emergency that necessitated the council appointing a new member at that moment. The council should have called a special meeting for 48 hours later.
How would delaying the vote for 48 hours have increased "the likelihood of injury or damage or immediate financial loss"?
The council's next regular meeting isn't until Feb. 13.
The council should take note of a 2009 decision in which the Court of Civil Appeals said that acting on the advice of an attorney does not excuse a public body’s violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
"Any construction of the OMA which would permit a public body's consideration of an item not listed on its posted agenda, apart from 'new business' ... totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider," the court said. (Id. ¶ 17)
The court considered the violation by the Beggs Public Works Authority to be "willful" and "conscious" even though its attorney had advised that a water purchasing contract "could be properly considered and approved as an unlisted item of 'old business.'" (Id. ¶ 18)
"The plain language of §303 [of the Open Meeting Act] mandates the posting of a notice of the matters to be considered at a meeting of a public body," the court said. (Id.)
"The failure of Beggs' governing board to post proper notice of its intent to consider the execution and approval of the water contract with Okmulgee, although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act,'" the court said. (Id.)
How is the situation in Okemah any different?
Joey Senat, Ph.D.
Associate Professor
Oklahoma State University
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
The Budget and Rules committees of the statewide commission overseeing the state Department of Human Services will meet publicly and comply with Open Meeting Act requirements, the Tulsa World reported Monday.
"We are a public agency serving more of the public than any other agency and need to be as open as possible. It's all about the public, not about us," said Brad Yarbrough, chairman of the Oklahoma Commission for Human Services.
That's a big step forward for a public body that wasn't too keen on open government until Yarbrough was appointed chairman by Gov. Mary Fallin in the fall.
But the story indicates that public notices and agendas won't be posted for two of the commission's six standing committees.
Yarbrough told the Tulsa World that the Special Review Committee and the Evaluation and Compensation Review Committee will be closed because of separate statutory exemptions for confidential child- and adult-welfare information and for considering pending personnel actions.
Why shouldn't public notice and agendas be posted for those committees as well?
This is especially true for the Evaluation and Compensation Review Committee, which seems to act as the commission's personnel committee.
Under the Open Meeting Act, a public body may meet in executive session to discuss "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1))
But such closed-door discussions may occur only if the executive session is listed with sufficient information on the publicly posted agenda and only after the officials vote in open session to go into executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
And an AG opinion requires that the names or unique titles of those employees be listed on the meeting agenda. (1997 OK AG 61, ¶ 5)
On Tuesday, I sent emails to DHS spokeswoman Sheree Powell and Diane Clay of the state Attorney General's Office asking whether another state statute requires the evaluation committee to meet without posting public notice and an agenda.
They haven't responded.
Yarbrough had told the Tulsa World his first action as chairman was to contact Attorney General Scott Pruitt's office for help.
"I asked for help in determining what might be the best process for building and posting the agenda," he said. "They are now reviewing those before they are posted to ensure we are complying with the Oklahoma Open Meeting Act.
"Because the commission was being looked at by the district attorney of Oklahoma County for alleged violations of the Open Meeting Act, I felt it was very important to work with officials outside the agency to make sure we are doing things by the law."
That's commendable.
But more openness is called for.
In lieu of a state statute requiring complete secrecy, all the commission's committees should meet publicly and follow the Open Meeting Act requirements for entering into executive sessions.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Oklahoma's Supreme Court is being asked to decide if residents may sue to enforce the state Open Meeting Act without having been specifically harmed by the public body's alleged violation.
Joel Rabin and Sharon Hurst are appealing a Washington County judge's dismissal of their lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Authority.
In November, Associate District Judge Russell Vaclaw said Rabin and Hurst made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
Vaclaw reiterated that ruling in another decision on Jan. 3.
Vaclaw ruled that plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA."
The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual," he said.
The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury."
Rabin and Hurst alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.
The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.
And in an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
The lawsuit also uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.
Vaclaw did not rule on whether the BRTA violated the Open Meeting Act. Instead, he decided that Hurst and Rabin had no right to sue.
Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:
- The plaintiff is one of the class for whose special benefit the statute was enacted;
- There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
- Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.
It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:
It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)
Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."
Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.
But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."
He agreed that the Open Meeting Act "exists for the benefit of the general public."
"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.
"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said.
Yes, the Legislature could resolve the issue this session by explicitly stating that Oklahomans have a private right to sue to enforce the Open Meeting Act.
I receive a steady stream of complaints about Open Meeting Act violations -- a number of which have been publicized on this blog. Unfortunately, police and district attorneys have shown little interest in pursuing complaints of government officials breaking this law.
But our legislators have the power to remedy this problem. Please clearly give your constituents another tool to enforce a law intended "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Oklahoma college students are invited to enter FOI Oklahoma’s second annual freedom of information essay contest.
Any college student may enter by writing an essay of about 500 words on one of the following topics:
- How have you used Oklahoma’s Open Meeting and Open Records laws to encourage and facilitate an informed citizenry’s participation in government?
- How do violations of Oklahoma’s Open Meeting and Open Records laws by public universities and colleges diminish public confidence in higher education?
- Are Oklahoma’s Open Meeting and Open Records laws adequately enforced to protect the public’s need to know?
Students should research the topic as well as write creatively and personally.
Entries must be typed and double-spaced.
Essay winners will be recognized and receive their prizes during FOI Oklahoma’s fifth annual Sunshine Week Conference on March 10 in Oklahoma City.
Winning essays will be distributed at the conference and published on FOI Oklahoma’s website.
Entries must be received by 5 p.m., Feb. 22.
E-mail entries as attachments to Joey Senat, OSU School of Media & Strategic Communications, at joey.senat@okstate.edu.
Each entry must include at the top (single-spaced) the STUDENT’S:
- Name
- School
- Mailing address
- Phone number
- Email address
If you have questions about the contest, please contact Joey Senat at (405) 744-8277 or joey.senat@okstate.edu.
Oklahoma's county clerks would no longer have to provide electronic records in that format, under a House bill filed Thursday.
House Bill 2605 is from Rep. Gus Blackwell, a Republican representing the Oklahoma Panhandle.
The bill amends a 1989 statute applying to county clerks by adding, "Nothing in this section shall require the clerk to provide any record by electronic means."
That covers a lot of important public records. County clerks keep the records of proceedings of the county commissions, county excise boards, county boards of equalizations and county boards overseeing tax roll corrections.
County clerks also keep records of the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.
And they keep land records such as plats, deeds, oil and gas leases, real estate liens, and other liens against property in the county.
I'm told that county clerks are mad at oil companies and at private companies that buy large amounts of land records to sell on websites. That threatens the clerks' "copy money" they use to run their offices.
But public records aren't supposed to be money-makers for government agencies.
Twenty years ago, the Oklahoma Supreme Court said that for computer tapes, the "reasonable, direct costs" for copying should be "based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data." (Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, ¶13)
And since 2000, a $5 fee has been added to each land instrument recorded with each county clerk solely to "increase the net funding level available to the county clerk to maintain and preserve public records." (OKLA. STAT. tit. 28, § 32(D))
The "County Clerk's Records Management and Preservation Fund" is "for the purpose of preserving, maintaining, and archiving recorded instruments including, but not limited to, records management, records preservation, automation, modernization, and related lawful expenditures." (OKLA. STAT. tit. 28, § 32(C))
For those of you just joining the 21st century, let me explain that access to records in an electronic format increases significantly the public’s ability to make sense of government information. The format is as critical as the disclosure itself because the format can render the data very useful or practically useless.
Without access to computerized government records from county clerks, Oklahomans will lose a meaningful way to oversee a great deal of government activity.
House Bill 2605 is a bad idea that should be buried.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
A Republican state senator says the Legislature should comply with the same open government laws that other state agencies and local governments must follow.
"I spent five years serving in the Oklahoma City government, where we were subject to the Open Meetings and Open Records Acts," said Sen. David Holt of Oklahoma City. "I believe it is time the Legislature embraced these acts."
Holt has introduced Senate bills 1243 and 1244, which remove the Legislature's self-imposed exemptions from the Open Meeting and Open Records acts respectively.
Not bad for a guy about to start only his second legislative session.
Meanwhile, Rep. Jason Murphey is drafting a bill that would create a separate open records and meeting statute for the Legislature. In November, Murphey oversaw a House interim study on the application of open records and meetings laws to legislative proceedings.
The Guthrie Republican requested the study after his bill requiring the Legislature to abide by the Open Meeting and Open Records laws died in a House committee during the last legislative session.
The new legislative session begins Feb. 6.
Holt's 1243 would require the full Senate and House and their standing committees to comply with the Open Meeting Act but only during regular and special sessions.
During the legislative interim, the committees would conduct open meetings in accordance with rules adopted by each house.
But why not conduct such meetings under the Open Meeting Act regardless of whether the Legislature is in session?
Ironically, Holt was one of seven members of the Senate’s eight-member delegation to the Joint Legislative Water Committee who met secretly in December to see if they could agree on legislation to allow the sale of water to out-of-state interests, The Journal Record reported Tuesday.
Under SB 1243, political caucuses could remain closed, but public notice of the meetings would be required at least 12 hours in advance. Legislators couldn't vote on pending legislation during a caucus unless the meeting was open to the public.
Holt's 1244 would add the Legislature to the Open Records Act. Under current law, only the Legislature's financial records are public. (OKLA. STAT. tit. 51, § 24A.4)
SB 1244 would specifically require records relating to legislation filed for consideration in a particular session to be open beginning on July 1 following a regular session and beginning 21 days following a special session.
But access to those records would benefit the public more during the session when the legislation at issue is being considered.
Under the bill, the names of registered lobbyists and of public officers acting in their official capacity would be available in the records. But legislative officials could redact the names of other people, including those of public employees acting pursuant to the Whistleblower Act.
The bill would make public only those records related to legislation filed for the 2013 regular session and afterward.
Holt told the Tulsa World that he thinks the Legislature should be ashamed if it made itself subject to the Open Records and Open Meeting laws, only to begin carving out exemptions that could water down the statutes for all public bodies.
"I think Republicans ran on the kind of principles that are enshrined in the Open Meeting and Open Records acts," he said.
"It is just hard for me to imagine a Republican elected official standing up and saying in public he can't support this type of transparency, but we shall see and the process will play out."
While I believe Holt's bills could be a bit stronger, they still represent another opportunity for our state legislators to live up to the same principles of openness and transparency rightfully expected of other public servants.
I commend him for challenging the status quo at the state Capitol.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
I sincerely appreciate the basic message of The Oklahoman's editorial on Monday that police departments must follow the state Open Records Act.
The editorial, however, indicates that release of incident reports is subject to judicial review under the Open Records Act.
It is not.
The Open Records Act requires law enforcement agencies to make incident reports and other specified information available for public inspection. (Okla. Stat. tit. 51, § 24A.8(A)(1-8))
Police departments are given no leeway regarding these records.
Law enforcement agencies may deny access to other records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (Okla. Stat. tit. 51, § 24A.8(B))
Contrary to the editorial, that is not a step that police have skipped. The burden is on the person seeking the records to ask a court to rule in favor of access.
The problem in Edmond and elsewhere involved police departments claiming that incident reports are part of investigatory files that may be withheld from the public at the discretion of the law enforcement agencies.
Incident reports are not part of such investigatory files.
As Attorney General Scott Pruitt recently agreed, the Open Records Act clearly distinguishes between incident report information that must be made available for inspection when requested and investigatory files that may be closed to the public
The Open Records Act states, "Access to records which, under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (Okla. Stat. tit. 51, § 24A.20)
As Pruitt agreed, incident reports must be made available to the public when requested.
The Open Records Act does not empower law enforcement agencies to ask a court to block public access to incident reports.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
