Friday, August 7, 2009

Reminder to public officials: Willful violation does not require showing intent, but rather showing the official knew or should have known the law


Public officials were reminded Thursday that proving a willful violation of the state's Open Meeting and Open Records laws requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

Assistant Attorney General Gay Tudor also reminded a packed meeting room in Muskogee that it is illegal for a quorum of a public body to meet via e-mail to discuss or decide public business, The Muskogee Phoenix reported.

Attorney General Drew Edmondson warned the audience that grand juries tend to look more harshly on open government violations than do district attorneys, the newspaper said.

In the audience for the seminar on the state's FOI laws were officials of nonprofit agencies receiving grants from the City of Muskogee Foundation because they are required to comply with the Open Meeting and Records laws, the newspaper reported.

The next seminar will be Tuesday in Woodward. The workshops are free and open to the public.

Criminal violations of the state's open government laws can result in up to one year in jail and/or up to a $500 fine.

The state Supreme Court in 1984 said 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 [Open Meeting] Act."
(Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

The court was relying upon a 1981 Oklahoma Court of Civil Appeals ruling.

The lower appellate court had said if willful were to be narrowly interpreted to include only violations "done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.”
(Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 26, 637 P.2d 1270)

As of Nov. 1, 2007, newly appointed city officials must undergo training that includes the state's FOI laws. Legislators had placed the requirement upon newly elected municipal officials the previous year. Under state law, these officials lose their jobs if they fail to take the training in roughly their first year in office.

(“Each person elected for the first time to a position of a municipality on or after January 1, 2005, or appointed for the first time on or after July 1, 2006, shall be required within one year after taking the oath of office to attend an institute for municipal officials.” (OKLA. STAT. tit. 11, § 8-114(A))

“The curriculum for the Institute shall include, but not be limited to: municipal budget requirements, the Oklahoma Open Meeting Act, the Oklahoma Open Records Act, ethics, procedures for conducting meetings, conflict of interest, and purchasing procedures.” (OKLA. STAT. tit. 11, § 8-114(C)))

Oklahomans should expect all their public officials to know their particular obligations under the state's Open Meeting and Records laws.

And the public shouldn't have to take the grand jury approach to enforcing our FOI laws. We should expect that our elected district attorneys consider violations to be serious breaches of the public trust and that they act accordingly by prosecuting.

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




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