Sunday, November 15, 2009
State mental health board agenda doesn’t mention plan to lay off 100 employees, close centers and eliminate state’s mental health beds for children
Public bodies were cautioned in September not to use “cryptic” agenda language to hide what they will do in a meeting.
“Don’t try to hide items of business by putting it under ‘report,’” warned the head of the state Attorney General's General Counsel Section.
The Attorney General’s Office prefers for such reports “to have bulleted points for items under the report,” said Gay Tudor during an open government workshop for public officials in September.
Members of the board governing the state’s mental health department must have missed that workshop. So must have the staff for the Department of Mental Health and Substance Abuse Services.
An agenda item for the board’s meeting Friday read, "Discussion and possible action regarding monthly financial report.”
In that report – but not mentioned on the agenda – were proposals to cut the department’s budget by $7.3 million, The Oklahoman reported Saturday.
The plan includes closing a men’s treatment center in Tahlequah, merging facilities in Norman, and eliminating all 40 of the department’s mental health beds for children.
So how did department officials justify not listing those details on the meeting agenda?
"This is something simply that we were proposing to the board,” said Dewayne Moore, the department’s general counsel. "They understand the financial report, and that’s what they voted to accept.”
“What they voted on was, they accepted our financial report, which was indicating the budget cuts,” he told The Oklahoman.
The department’s chief operating officer reasoned that board members weren’t taking any action with the vote.
"They’re not doing the reduction, they’re telling us, ‘You’re on the right path,’” Durand Crosby told the newspaper.
However, the Tulsa World reported the board voted separately on the reduction plan.
The comments by Moore and Crosby are another example of Oklahoma officials torturing logic to explain why they weren’t upfront with the public in the first place.
According to the department’s Web site, “A governing board provides oversight regarding Department functions and activity related to the care, treatment, and recovery of persons suffering from mental illness and substance abuse.”
The board members “set broad departmental policy” and “ensure the quality of mental health and substance abuse programs across Oklahoma,” according to the Web site.
Wouldn’t the decision to close facilities, lay off employees and eliminate the state’s entire complement of mental health beds for children fit within that job description?
But even assuming that the board isn’t charged with making that decision, why would that preclude listing on the agenda the details of the proposed cuts?
The Oklahoma Public Employees Association will investigate whether to file a complaint alleging a violation of the state Open Meeting Act, the organization’s director of policy and research told The Oklahoman. (Read OPEA blog.)
The employees might have a worthwhile case.
Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice,” the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 9)
The purpose of the Open Meeting Act “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting,” the Court of Civil Appeals said. (Haworth, ¶ 8)
“[A]ny act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting” would be a “willful” violation of the Open Meeting Act. “This also includes agency action which exceeds the scope of action defined by the notice,” the court said. (Id. at ¶ 10)
The board’s Friday agenda certainly didn’t give the public actual notice.
The governor appoints the 11 members of the board. They are Chairman Joel Carson of Oklahoma City, Dr. Brent Bell of OKC; Bruce Fisher of OKC; Henry Haynes, Ed.D., of Vinita; Dr. Mary Anne McCaffree of OKC; Larry McCauley, Ed.D., of OKC; Robert McDonald of Norman; Dr. J. Andy Sullivan of OKC; Jack Turner of OKC; Ronna Vanderslice, Ed.D., of Weatherford; and Gail Wood of Stonewall.
As members of a public body entrusted with expending public funds and administering public property, they are expected to abide by the letter and spirit of the Open Meeting Act.
Because the Open Meeting Act was “enacted for the public’s benefit,” the Oklahoma Supreme Court said in 1981, the statute “is to be construed liberally in favor of the public.” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7, 632 P.2d 408, 411)
Oklahoma attorneys general have said repeatedly, “The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken.” (See, e.g., 1980 OK AG 215, ¶12)
The principle is “very simple,” the state Court of Civil Appeals said in 1981. “When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
In less than a year, we’ll have voted in a new governor. Between now and then, the gubernatorial candidates will have the opportunity to sign FOI Oklahoma Inc.’s Open Government Pledge and lay out their vision for a more open state government.
A commitment to abide by the letter and spirit of the Open Meeting Act should be an important criterion for the next governor’s appointees to public bodies.
Joey Senat, Ph.D.
OSU School of Journalism