Sunday, August 2, 2009
OSBI investigating complaint that Norman City Council violated Open Meeting Act
The Oklahoma State Bureau of Investigation is looking into a Norman city councilman's complaint that the Council violated the Open Meeting Act during an executive session on June 9, The Norman Transcript reported Saturday.
Councilman Tom Kovach had contacted FOI Oklahoma on June 18 about the meeting. He believes that the council's discussion about financing the Rock Creek Road overpass at Interstate 35 violated the law because the agenda item for the executive session listed only the acquisition of right-of-way for the construction.
Kovach noted that financing a construction project is not one of the nine topics permitted for executive sessions under the Open Meeting Act.
However, the purchase or appraisal of real property is a permitted topic. The meeting is “limited to members of the public body, the attorney for the public body, and the immediate staff of the public body. No landowner, real estate salesperson, broker, developer, or any other person who may profit directly or indirectly by a proposed transaction concerning real property which is under consideration may be present or participate in the executive session." (OKLA. STAT. tit. 25, § 307(D))
Councilman Doug Cubberley recused himself and left the room during the discussion of the acquistion. But when the discussion moved to paying for the project, Kovach said, Cubberley was brought back into the room "since the financing was a separate issue."
According to The Norman Transcript, Cubberley said he left the executive session because if the Council decided to condemn a certain property, the owner might hire Cubberley's law partner as legal representative. Cubberley said the city's legal staff said he did not need to recuse himself but that he felt uncomfortable staying for the discussion.
He returned to discuss options for purchasing rights of way.
The financing is part of a controversial Tax Increment Financing District.
At the Council's June 23 meeting, Kovach complained publicly that the Council had violated the Open Meeting Act during its executive session on June 9.
City Attorney Jeff Bryant does not believe the Council violated the law.
In a memo obtained by The Norman Transcript, Bryant told the Council, "The question here is whether the description of the business and purpose of the session (to discuss the acquisition of real property associated with the Rock Creek Road Overpass) was sufficient to include discussion of which property would be acquired, the mechanism by which it was proposed to be acquired (purchase) and how the property would be acquired, i.e. funding source."
He said he believes the council complied "with the spirit and intent of the Oklahoma Open Meeting Act," saying the the agenda "contained sufficient information to inform the public that an executive session would be proposed, identified the business and purpose of the session and stated the statute provision that authorized the executive session."
An FOI Oklahoma Blog posting in response to Kovach explained that subsequent public discussion and action would not excuse a violation of the Open Meeting Act.
In the memo, Bryant also addressed whether the law was violated by Councilman-elect Alan Atkins' presence during the executive session.
Bryant said no violation occurred because Atkins, who had not been sworn in, was present as an elected official, not as a private citizen, and did not stand to profit from the property acquisition.
An OSBI official told The Transcript that the investigation is in the "initial stages." The investigation was requested by Cleveland County District Attorney Greg Mashburn, the official said.
Joey Senat, Ph.D.
OSU School of Journalism