Tuesday, July 28, 2009

TV stations ask judge to allow cameras in courtroom for pharmacist's murder trial

Television stations in Oklahoma City and Tulsa asked a trial judge Tuesday to permit cameras in the courtroom during the trial of a pharmacist charged with killing a would-be robber.

The motion was filed on behalf of KWTV and KFOR in Oklahoma City and KOTV in Tulsa.

"This is a story that carries with it an enormous amount of public interest," KWTV NEWS 9 P.M. Content Director Jenny Monroe said. "It is our job as journalists to serve the public and do whatever possible to provide the information to the people of Oklahoma. We believe allowing Oklahomans to see firsthand what is being said and decided in this case is in the best interest of everyone."

Under Oklahoma law, the initial decision to allow the cameras into the courtroom rests with Judge Tammy Bass-LeSure, who is presiding over the trial of
Jerome Ersland in Oklahoma City.

In 1958, some 20 years before the U.S. Supreme Court adopted the same philosophy, the Oklahoma Court of Criminal Appeals reasoned that the mere presence of cameras in a courtroom does not inherently interfere with the defendant’s right to a fair trial. (Lyles v. State, 1958 OK CR 79, ¶¶ 21-23, 330 P.2d 734, 742)

Noting that it had allowed television cameras in its courtroom, the state court said, “Our experience is that when properly supervised by the court, there is neither disturbance, distraction, nor lack of dignity or decorum.”

The court contended that television cameras educate the public about the judicial system, explaining:

“There is no field of government about which the people know so little as they do about the courts. There is no field of government about which they should know as much, as about their courts. Those institutions of justice engaged in construing constitutional rights and interpreting legislative acts which will determine our enjoyment of life and liberty and our pursuit of happiness. What is more vital to the people? Many members of the legal profession who advocate the dissemination of knowledge for every purpose in all other fields rebel at the thought of the people being informed concerning the operations of the lawyers’ legal preserve. The courts do not belong to the lawyers but are institutions by, of, and for the people. In this modern age, it is well that the veil of mysticism surrounding our courts be removed and the people be confronted with reality. We are not afraid or ashamed and we must be consistent.”

However, the current standard for permitting cameras in Oklahoma courtrooms came about in 1997 when the Oklahoma Supreme Court adopted Judicial Canon 3(B)(9), which states:

“Except as permitted by the individual judge, the use of cameras, television or other recording or broadcasting equipment is prohibited in a courtroom or in the immediate vicinity of a courtroom.”

Even if the judge allows cameras, Canon 3(B)(9) permits the defendant to nix their use in the courtroom. As recently as 2000, Oklahoma and Alabama were the only states that required the consent of criminal defendants to televise their trials.

Oklahoma law also prohibits the photographing or broadcasting of any witness or juror who objects to the judge in advance.

Here is the rest of Canon 3(B)(9)’s wording:

• Before cameras, television or other recordings or broadcasting equipment are used, express permission of the judge must be obtained.
• The judge shall prescribe the conditions and specific rules under which such equipment may be used.
• Media personnel shall not distract participants or impair the dignity of the proceedings.
• No witness, juror or party who expresses any objection to the judge shall be photographed nor shall the testimony of such a witness, juror or party be broadcast or telecast.
• There shall be no photographing or broadcasting of:
(1) any proceeding which under the laws of this State are required to be held in private; or
(2) any portion of any criminal proceedings until the issues have been submitted to the jury for determination unless all accused persons who are then on trial shall have affirmatively, on the record, given their consent to the photographing or broadcasting.
• No media representative shall offer, nor shall any party, witness or juror accept, consideration in exchange for consent to telecast, broadcast or photograph the judicial proceeding.
• Representatives of the news media shall conduct themselves at all times in a professional manner consistent with the spirit and intent of this rule. In order to insure such conduct, if such conduct of the news media which violates any of these rules is brought to the attention of any judge, the offending person shall be notified to immediately cease and desist such activity. If the offending party refuses to comply with the order, the judge may act to end such activity, including the seizure of the equipment of such person. Any offender may be dealt with for contempt of court.
(Canon 3(B) (9) of the Oklahoma Code of Judicial Conduct, OKLA. STAT. tit. 5, Ch. 1, App. 4)

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Thursday, July 23, 2009

Criminal complaint filed over secret meeting of Atoka County commissioners

Atoka County Times editor Joe McClour has asked for a criminal investigation of the secret meeting held by Atoka County commissioners on July 9 to discuss a pay raise for themselves and other county elected officials.

McClour filed a complaint with Atoka police on July 17, he told the FOI Oklahoma Blog.

McClour said he's been told that the complaint was given to Police Chief John Smithart and would be sent to the OSBI.

The Atoka County Times broke the story about the meeting in its July 15 edition. The newspaper had been tipped off the meeting was occurring, but McClour was barred from attending it.

At the time, commissioners denied that the secret meeting had violated the Open Meeting Act because no roll call or vote was taken.
The newspaper correctly pointed out that the Oklahoma Open Meeting Act defines a meeting as “the conduct of business of a public body by a majority of its members being personally together." ( OKLA. STAT. tit. 25, § 304(2)) (Read an earlier FOI Oklahoma Blog posting on the law related to this secret meeting.)

Commissioner Phillip Culbreath later conceded to The Oklahoman that the meeting might have violated the Open Meeting Act. The newspaper noted that Culbreath, a recently
installed commissioner, admitted to not having had any training on the meeting law.

According to McClour, Culbreath was elected June 9 and sworn in June 15. But before being elected to the commission, Culbreath had spent seven years serving on the county excise board, which also is subject to the Open Meeting Act.

Gilbert Wilson is in his 13th year as an Atoka county commissioner. The third commissioner, Marvin Dale, was elected Feb. 10 and sworn in Feb. 19.

Proving that a violation was willful "does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court said in 1984. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

Shouldn't the three commissioners have known that meeting secretly to discuss pay raises for themselves and other elected officials would violate the state's Open Meeting Act?

For now, the next move is up to law enforcement.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Wednesday, July 22, 2009

Muskogee DA to County Commission: "We're going to follow the law. It's as simple as that."

A fouled-up agenda led to some heated words between Muskogee's district attorney and county clerk on Monday (July 20) regarding Open Meeting Act requirements.

It ended with County Clerk Karen Anderson calling District Attorney Larry Moore an "ass," according to a source who was at the meeting.

The verbal exchange came after Moore refused to allow an emergency meeting of the County Board of Commissioners on Monday, the Muskogee Phoenix reported.

Anderson had tried to call the emergency meeting because the wrong date for Monday's regular meeting was listed on the posted agenda.

Anderson argued that the county could lose some interest on deposits and could have to pay late fees to vendors if purchase orders weren’t approved Monday, the newspaper reported.

However, Moore said an emergency meeting was not justified because Anderson could call a special meeting for Wednesday (July 22) without sustaining any financial loss.

In what the newspaper described as "a heated verbal exchange," Anderson argued that state law allowed her to call a meeting of the county commissioners. Moore countered that such a meeting would still have to comply with the Open Meeting Act.

“I’m tired of catching grief on some of this stuff,” Moore said. “We’re going to follow the law. It’s as simple as that.”

Moore then gathered his papers and left. The newspaper reported that Anderson called Moore a name and said, “I’m not going to be talked to like that.”

The Open Meeting Act allows public bodies to conduct emergency meetings "for the purpose of dealing with an emergency.” An emergency “is defined as 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))

If Moore is "tired of catching grief" over open meeting issues, he might be able to quiet his critics by prosecuting violations. That would make officials think twice before thumbing their noses at the public's right to know, which would leave taxpayers with fewer reasons to fuss at him.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Wednesday, July 15, 2009

Atoka County commissioners met secretly to discuss pay raises for themselves

All three Atoka County commissioners met secretly with other elected county officials on July 9 to discuss granting a pay raise for the entire group, according to the Atoka County Times in its July 15 edition.

The pay raise was placed on the County Commission's agenda for July 13. Commissioners didn't discuss the raise at the meeting prior to voting to approve the salary increase, the newspaper reported.

Commissioners denied that the secret meeting violated the Open Meeting Act because no roll call or vote was taken.

However, as the newspaper correctly points out, the Oklahoma Open Meeting Act defines a meeting as “the conduct of business of a public body by a majority of its members being personally together." ( OKLA. STAT. tit. 25, § 304(2))

In 2007, legislators added language to the statutory definition of “meeting” to clarify that a majority of a public body can gather informally as long as “no business of the public body is discussed.” ( OKLA. STAT. tit. 25, § 304(2))

Judicial and attorney general opinions had made clear for the previous 25 years that members of a public body are prohibited from discussing the public’s business during social gatherings. A pay raise for elected officials is certainly the public's business.

“Sunshine legislation reaches, not just ‘formal’ meetings, but the ‘entire decision-making process,’” the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, 637 P.2d 1270, 1272)

Why is this important?

"If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed. . . ,” the Oklahoma Supreme Court said in 1978. (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, 577 P.2d 1310, 1313-14)

It's not sufficient for the Atoka County Commissioners to just vote publicly after having privately discussed the raises. As then-Attorney General Jan Eric Cartwright said in 1982:

“If government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere ‘rubber stamp’ vote is all but useless.” (1982 OK AG 212, ¶ 7)

The law in this area is clear and well-established. If Atoka County commissioners think it’s permissible to met secretly to discuss pay raises for themselves, what else do they believe is acceptable under the Open Meeting Act?

It’s a crime to violate the Open Meeting Act. Perhaps someone with the authority to do so will hold the commissioners accountable.

Either way, voters should keep it in mind the next time they are asked to cast ballots to rehire these commissioners.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Friday, July 10, 2009

AG's open meeting and records seminars start Aug. 6

Have questions or concerns about Oklahoma's Open Meeting and Records laws?

You can ask state Attorney General Drew Edmondson directly during his biennial statewide series of seminars on the state's freedom of information laws.

Edmondson and Assistant Attorney General Gay Tudor will answer FOI-related questions and explain the requirements on access to public records and the conduct of public meetings.

The seminars are free and open to the public. Registration is not required. Each will be from 1 p.m. to 4 p.m. The first is Aug. 6 at the Indian Capital Technology Center in Muskogee.

The workshops are sponsored by Edmondson, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

Click here for the list of dates and locations. For more information, contact Lisa at OPA, (405) 499-0040, toll-free in Oklahoma at 1-888-815-2672 or lpotts@okpress.com.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism & Broadcasting

Thursday, July 9, 2009

Court battle brewing over request to see Broken Arrow school board's detailed billing records from law firm

Should the public know the details of what law firms do for the state and local government agencies that hire them with taxpayers' money?

"I don't really think the public is entitled to know exactly what we spend our legal bills on,” said a member of the Broken Arrow Public Schools Board of Education in a March meeting.

“I mean, I’m elected to represent the public. This is not a democracy. This is a republic. That means that I am elected and you guys trust me to make decisions and because you all don’t have the time to go into and research everything. That’s what I’m elected to do, to research and study all this stuff,” said Maryanne Flippo, who didn’t seek re-election to the school board this past spring.

In fiscal year 2007-08, the school district spent about $8,500 on legal fees, says Chris Tharp, whose children attend Broken Arrow Public Schools.

That amount increased to more than $200,000 in the 2008-09, says Tharp.

Since September 2008, Tharp and the citizens group Broken Arrow Parents for Truth have been asking for billing records that establish the nature and amount of charges incurred by the school district for legal services provided by the Tulsa firm Rosenstein, Fist & Ringold.

Tharp wants the information to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”

School district officials will tell him how much the law firm has been paid but won’t provide the detailed billing records for the services provided.

Doug Mann of Rosenstein, Fist & Ringold contends that attorney-client privilege shields the information from public view.

Tharp isn’t satisfied with that answer.

“I am just a taxpayer requesting copies of the legal bills per FOI. Me and some others have (been) turned down repeatedly. Well, I went ahead and hired an attorney,” Tharp recently told the FOI Oklahoma Blog.

On June 11, an attorney for Tharp requested documents demonstrating what legal services Rosenstein, Fist & Ringold has provided for the district since being hired on Aug. 6, 2008.

In turn, school board members on June 29 voted 3-2 to hire the Tulsa law firm of Crowe & Dunlevy to advise them whether to release the records.

That prompted a letter from Tharp’s attorney, Marvin Laws of Hayes Magrini & Gatewood in Oklahoma City, asking to see the district’s engagement letter with Crowe & Dunlevy and detailed billing records submitted to the district by the firm.

In Laws' June 11 letter to the school district, he referred to the Oklahoma Open Records Act's preamble:

“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” (OKLA. STAT. tit. 51, § 24A.2)

The purpose of the Oklahoma Open Records Act is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism & Broadcasting

Wednesday, July 8, 2009

Tulsa library panel asks for OMA training

The Tulsa City-County Library Commission met Tuesday to vote in public on what it had illegally decided during an executive session last week, the Tulsa World reported today.

County Commissioner Karen Keith, a member of the library board, said she has asked library administrators to order books on public meetings and records from the Oklahoma Press Association and to schedule a training session for the commissioners.

Keith said the entire board should take responsibility for the violations last week.

"There are others of us who should have known as well," Keith said. "And we had our attorney here, too."

The training will be provided either by attorney Tom Hilborne, who represents the county, or by Attorney General Drew Edmondson in an upcoming open government program in Tulsa..

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Friday, July 3, 2009

Tulsa library board: No minutes of executive session; another OMA violation

The Tulsa City-County Library Commission doesn't keep minutes of its executive sessions, the Tulsa World reported this morning.

So rack up another violation of the state Open Meeting law by this board.

Minutes of executive session discussions must be kept, the state Supreme Court said in 1980.

(Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶12, 611 P.2d 628, 631. (“Although the municipal attorneys' case permits executive sessions on the advice of counsel in certain specified instances, it does not abrogate the statutory requirement that minutes be kept and recorded.”))

State Attorney General Drew Edmondson came to the same conclusion in a 1996 written opinion. (
1996 OK AG 100, ¶ 5)

"The Oklahoma Supreme Court has held that the requirement for minutes to be kept and recorded also applies to executive sessions," Edmondson said.

He also said state legislators had "explicitly recognized that the requirement to keep a summary of the proceedings in the form of written minutes extends to executive sessions."

Edmondson noted that Legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act
(OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public. (OKLA. STAT. tit. 25, § 307(F)).

The penalty for violating the Open Meeting Act is one year in the county jail and/or a $500 fine.

Which public bodies in your area routinely don't keep minutes of their executive sessions? Might be worth asking them.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Thursday, July 2, 2009

Tulsa Library Commission violates Open Meeting Act

In an updated Tulsa World story, the Tulsa City-County Library Commission chairwoman says the panel conducted public business by voting in an executive session, which is a violation of the Open Meeting Act.

Tulsa World: Commission Chairwoman La Verne Ford Wimberly told the Tulsa World today a vote was taken in executive session to review the use of employee flexible time and no vote was taken to return to a public meeting.

"It was an error for not going back into open session, and we are trying to re-schedule a meeting on Tuesday to correct that," Wimberly said. "I didn't expect the meeting to last that long, and in my haste to leave, I made a mistake and now I am going back to clean it up."

Violation No. 1: The use of employee flexible time is not one of the nine topics that may be discussed in executive session. (See OKLA. STAT. tit. 25, § 307)

Violation No. 2: The Library Commission cannot vote in executive session. No motion for a vote should have been made until after the panel resumed its meeting in public.

County Commissioner Karen Keith, a member of the panel, told the newspaper that a motion was made and seconded during the executive session but no action was taken because the library commission became side tracked on other business.

What other business? Discussions are limited to the agenda item, and only certain topics may be discussed in executive session. As an
earlier posting noted, the posted agenda item of "staff employment issues" was not a permissible topic.

Redoing the meeting won't excuse the criminal violation of the Open Meeting Act’s executive session provision. (Read this
earlier posting for an explanation.)

Keith told the Tulsa World that no one had willfully intended to violate the law.

But “willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court said in 1984.

When drivers are pulled over for speeding, they don't get a refresher course on the speeding limit. They most likely get a ticket because they're expected to know the speed limit.

The same is true for public bodies. The library commissioners -- especially Mayor Kathy Taylor and Keith -- and the commission's attorney should know what's required for conducting an executive session before the agenda is posted.

It's a crime to violate the Open Meeting Act. Perhaps someone in Tulsa will take the matter to the police.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Possible open meeting violations by the Tulsa City-County Library Commission

In an FOI version of "Where's Waldo?," can you find the possible open meeting violations committed by the Tulsa City-County Library Commission on Wednesday night?

The Tulsa World reports today:

"The Tulsa City-County Library Commission met in executive session for more than two hours Wednesday to discuss 'staff employment issues.' It is uncertain whether a vote or any public action was taken in open or closed session.

"A Tulsa World reporter and two library staff members who were waiting for any public discussion, possible vote and the meeting's adjournment were not called back into the meeting room after the executive session, and commissioners left the Central Library building immediately.

"Standing in an elevator after leaving the meeting, commission Chairwoman La Verne Ford Wimberly told the Tulsa World that a vote was taken to review some 'internal employee' matters."

Possible Violation No. 1:
Meeting Agenda

It lists:

a) Staff Employment Issues (Action)

The Open Meeting Act, however, does not permit executive sessions for an item as vague as "staff employment issues." Instead, the laws allows closed-door discussions regarding the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee. (OKLA. STAT. tit. 25, § 307(B)(1).

An agenda item for an executive session to discuss such personnel matters “must identify either the position or the individual salaried employee who is the subject of the discussion,” Oklahoma Attorney General Drew Edmondson said in 1997. “The Act does not specify that a person must be identified by name; however, in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification.” (1997 OK AG 61, ¶ 5)

Possible Violation No. 2: Voting in secret

Unless the library commissioners can explain how such a vote was required by state or federal law to be confidential, the Library Commission may not vote during executive session. Any vote or action taken on an item considered in executive session must be publicly cast and recorded.

(OKLA. STAT. tit. 25, § 307(E)(3) “Except for matters considered in executive sessions of the State Banking Board and the Oklahoma Savings and Loan Board, and which are required by state or federal law to be confidential, any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded.”)

Even the vote to adjourn should have been cast and recorded in public.

A willful violation of the Open Meeting Act’s executive session provisions would subject each member to criminal sanctions (up to one year in jail) and cause the minutes and other records of the session, including tape recordings, “to be immediately made public.” (OKLA. STAT. tit. 25,§ 307(F)(1-2))

Any action taken in “willful violation” of the Open Meeting Act is “invalid.” (§ 313)

In 1984, the state Supreme Court said, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.”

The personnel exemption and voting in public are not new requirements under our open meeting laws.

Library commissioners, which that night
included Tulsa Mayor Kathy Taylor and County Commissioner Karen Keith, should know their obligations under the state’s open meeting laws.

The public should also expect such apparent violations to be investigated by the police and prosecuted by the district attorney. Conducting the public's business in secret weakens our faith in government, paves the way for corruption and incompetency by officials, and warrants attention by those we trust and empower to protect us.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism