Tuesday, December 21, 2010

State legislative caucuses would be required to meet in public under bill planned by Rep. Murphey


State legislative caucuses would be prohibited from "discussing issues behind closed doors," under a bill that Rep. Jason Murphey says he will sponsor.

The Guthrie Republican this week reiterated his intention to file a bill that would require the Legislature to comply with the state Open Meeting and Open Records laws.

"This is not a ground-breaking proposal. Other state governments already require that their legislative bodies follow their respective state’s open record and open meeting laws," Murphey wrote in a column published in The Edmond Sun.

"One of the most important aspects of this law would be the cessation of legislative caucuses discussing issues behind closed doors," Murphey wrote. "An important principle of open meeting laws is the concept that dictates that a majority of a governing body should never meet behind closed doors to discuss business. This concept helps keep policy makers from taking a public stand different from the position taken in private."

Having the Legislature comply with the Open Records Act "would establish a clear set of criteria that would govern which legislative records should be kept private and which should be made public," Murphey wrote.

"Passing this particular proposal will be a difficult challenge, but I am convinced that it is the right thing to do," said Murphey, who is chairman of the House Government Modernization, Accountability and Transparency Committee.

In July, then-legislative leaders Glen Coffee and Chris Benge defended the need for secrecy at the state Capitol, arguing that legislators must be able to "deliberate and communicate in confidence."

They also contended that the self-imposed exemption from our open government laws is necessary to protect the privacy of constituents who contact legislators.

But legislators could abide by the Open Records Act while exempting truly confidential information from disclosure. In fact, medical records and many others are already exempted from the otherwise public documents of state and local agencies.

Murphey should find support for his bill from incoming Gov. Mary Fallin, who last spring said she supports removing the Legislature's exemption from the open records and meeting laws.

Murphey also should be supported by fellow representatives
and state Sens. Roger Ballenger, D-Okmulgee, and Andrew Rice, D-Oklahoma City.
 
Along with Murphey, each promised to support the public's right to know at every opportunity once elected and to "support legislation to strengthen the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws."
 
As Murphey noted in this column:
These two important laws require Oklahoma governing bodies to conduct business according to a set of rules that are designed to ensure your right as a citizen to know that what happens in government is upheld. However, the Legislature is exempted from these laws. In my view this is wrong, and I believe the Legislature should abide by the same laws they ask other Oklahoma governing bodies to abide by.

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Friday, December 17, 2010

File complaint against lawyers on public bodies that violate Open Meeting Act and against government attorneys whose advice clearly contradicts open government laws


District attorneys don’t seem especially interested in prosecuting violations of our open government laws. And the expense of suing public agencies over meeting and records violations is prohibitive for most folks.

But another option exists for persuading at least some of those public officials to respect Oklahomans’ right to know what their government is doing.

File a complaint with the Oklahoma Bar Association against lawyers serving on public bodies that violate the Open Meeting Act and against those government attorneys providing advice that clearly contradicts the Open Meeting and Open Records laws.

“Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers,” according to the Oklahoma Rules of Professional Conduct for lawyers. (OKLA. STAT. tit. 5 app. 3-A, § 8.4 cmt. 5)

Protecting the public is the primary purpose of the lawyer discipline system, the Oklahoma Bar Association notes.

The OBA investigates complaints of unethical conduct by lawyers practicing in the state. Lawyers found guilty of serious misconduct may be suspended or disbarred.

The rules "apply to lawyers who are not active in the practice of law" and to "practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." (OKLA. STAT. tit. 5 app. 3-A, § Preamble(3))

"A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs." (Id. 5)

The OBA's examples of unethical conduct include when "a lawyer doesn’t tell the truth."

Lawyers may serve on public bodies as either elected or appointed members.

A complaint against a lawyer serving on a public body that clearly violates the Open Meeting Act would seem justified under the following Rules of Professional Conduct:
It is professional misconduct for a lawyer to:
    (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
     
    (d) engage in conduct that is prejudicial to the administration of justice; (OKLA. STAT. tit. 5 app. 3-A, § 8.4)
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. (OKLA. STAT. tit. 5 app. 3-A, § 8.4 cmt. 2)
Those rules also would seem to justify a complaint against attorneys whose advice to public bodies and agencies clearly contradicts our state's Open Records and Open Meeting laws.

Such advice by these attorneys -- whether employed directly by a government body to render it legal advice or a private attorney hired as an independent contractor to render legal advice to a government body or agency -- would also seem to violate another Rule of Professional Conduct:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent....(Rule 1.2. (d))
(["A] lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." Id.)

When any of these lawyers -- whether as members of public bodies or as government attorneys -- try to cover up their wrongdoing, they would likely violate the rules by:
  • Engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation; (OKLA. STAT. tit. 5 app. 3-A, § 8.4(c))
  • Knowingly making "a false statement of material fact or law to a third person"; or
  • Knowlingly failing to "disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." (OKLA. STAT. tit. 5 app. 3-A, § 4.1(a-b))
A complaint filed against lawyers serving on public bodies or those hired to provide legal advice should note which of the specific Rules of Professional Conduct that the attorney has violated.

The complaint must be in writing and signed. A form is not required, but an OBA complaint form is available.

The complaint must be an original document mailed or delivered to the Oklahoma Bar Association:
    ATTN: General Counsel P.O. Box 53036 Oklahoma City, OK 73152
Faxed or e-mailed complaints will not be accepted.

The nature of the complaint should be described in full detail, including dates. Include copies, not originals, of any documents that could help the Office of the General Counsel understand the complaint.

The Office of the General Counsel will review the information and may decide to:
  • Open an investigation
  • Ask you to provide more information
  • Notify you that the office can take no action
The OBA cautions that "because of the large number of complaints received," several weeks might pass from the time your complaint is received to the time you are contacted.
 
According to the OBA:
If an investigation is opened, you will be notified in writing and when necessary will be contacted by an investigator or attorney.
 
A copy of your complaint will be sent to the attorney, who will be asked to respond in writing.
 
Even if an investigation is not opened, you will still be notified. A copy of your complaint will be forwarded to the attorney for his or her information.
 
If an investigation is conducted and the state bar decides there is probable cause to think the attorney violated ethics rules and there is clear and convincing evidence to show the violation, formal disciplinary action may be initiated. All state bar investigations are confidential. A hearing may be held, and you may be required to appear as a witness.
If you file such a complaint, please let me know.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Thursday, December 16, 2010

Interim state medical examiner says he would rather go to jail than abide by the state Open Records Act


Interim Chief Medical Examiner Andrew Sibley said Thursday he won't release unfinished autopsy reports even if disclosure is required by state law, News9 reports.

"If there is a problem with that and I have to go to jail over it, so be it," said Sibley. "I would have no problem going to jail with a clear conscious."

Earlier this month, Sibley refused to release to KOCO and The Oklahoman the autopsy report in the slaying of an Oklahoma City mother.

"It is my belief that the premature release of further details may interfere with the ongoing investigation and subsequent prosecution," Sibley told KOCO.

Sibley refused to cite an statutory provision exempting the autopsy.

Apparently, he doesn't care that one doesn't exist.

According to News9, medical examiner spokeswoman Cherokee Ballard, a former television reporter, said releasing documents early became an issue after the murder of an Anadarko pastor. Pressure from the state attorney general forced the medical examiner to release the body diagrams.

(The Oklahoman reported Friday that it and other news organizations last year began getting diagrams in homicide cases before autopsy reports were finalized. The attorney general's office advised the medical examiner's office those initial reports were public under the Open Records Act.)

Autopsy reports are a government record to which the public is entitled. That should not change.

This blog has pointed out since April that the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

State legislators have twice rejected limiting what the public may know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown.

The most recent attempt was withdrawn in May because of stiff opposition on the House floor.

Among those critical of the bill was state Rep. Lucky Lamons, a former Tulsa police officer. He said autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.

Lamons pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information.

In the meantime, two open government advocates in the state tell me they hope a prosector will oblige Sibley and throw him in jail.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Sunday, December 5, 2010

State higher education board agenda doesn't identify purpose of executive session in apparent violation of Open Meeting Act


Oklahoma higher education regents last week met behind closed doors with their attorney, but their staff refused to explain to a reporter the specific item of public business being discussed.

Under the Open Meeting Act, the agenda item for an executive session must “contain sufficient information for the public to ascertain that an executive session will be proposed, identify the items of business and purposes of the executive session,” and state the specific statutory authorization for the executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

However, the agenda for the Oklahoma State Regents for Higher Education special meeting on Wednesday included only the statutory authorization, stating:
Possible vote to go into executive session pursuant to Title 25, Oklahoma Statutes, Section 307(B)(4), for confidential communications between a public body and its attorneys concerning pending investigations, claims or actions.
Return to open session.
A 1997 attorney general opinion said public bodies have an "absolute" duty under the Open Meeting Act to specify the purpose of an executive session beyond simply stating the statutory authorization. (1997 OK AG 61)

The opinion dealt with whether a public body had to reveal the specific purpose of an executive session under the personnel exemption. But Attorney General Drew Edmondson's answer was not dependent upon the personnel exemption. Rather, his reasoning was based on the statutory requirements applying to all the exemptions.

To meet in executive session, Edmondson said, the public body must the criteria set forth in the statute:
1. All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act.

2. If a public body proposes to conduct an executive session, the agenda shall:

a. contain sufficient information for the public to ascertain that an executive session will be proposed;

b. identify the items of business and purposes of the executive session; and

c. state specifically the provision of Section 307 of this title authorizing the executive session.
The bold italics were Edmondson's emphasis.

"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," he said. (¶ 3.)

Relying upon appellate court interpretations of the statutory requirements, Edmondson said, "It is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion."

In the instance of a personnel issue, the AG agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, he said:
We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)
Despite Edmondson's binding opinion and the clear statutory requirement, the higher education board's staff refused to tell a reporter what the state regents were discussing behind closed doors.

The nine state regents for higher education are:
  • Chair Joseph L. Parker Jr., Businessman, Tulsa;
  • Vice Chair Julie Carson, Attorney, Claremore;
  • Secretary Marlin "Ike" Glass Jr., Businessman, Newkirk;
  • Assistant Secretary James D. "Jimmy" Harrel, Banker, Leedey;
  • Don Davis, Attorney, Lawton;
  • John Massey, Banker, Durant;
  • William Stuart Price, Business Owner, Tulsa;
  • Michael C. Turpen, Attorney, Oklahoma City;
  • Ronald H. White, M.D., Internal Medicine, Oklahoma City;

Unfortunately, the public doesn't elect them. But we do elect the governor, who appoints them to their nine-year terms.

Gov.-Elect Mary Fallin last spring said she expects her appointees to public bodies to abide by the Open Meeting and Open Records laws. She also signed FOI Oklahoma's Open Government Pledge in which she promised, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

Let's hope that early in her governorship, Fallin will tell all appointees to state boards to either follow our state's open government laws or resign and make way for Oklahomans who will.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Friday, December 3, 2010

Lone Grove committee met secretly to narrow list of candidates for city manager


The Lone Grove City Council likely will select a city manager tonight from a list of three candidates recommended by a committee that met secretly to winnow the list from 31 applicants, says Gary Hicks, owner of The Lone Grove Ledger.

The committee, composed of two councilors, the city clerk and two residents, was appointed by the council to screen applicants for the city manager position.

Under Oklahoma law, a committee that exercises actual or de facto decision-making power is subject to the Open Meeting Act.

Hicks says Lone Grove officials, however, will likely try to slip through the same loophole used by other public bodies. The same one used by the OSU A&M Board of Regents when it chose Burn Hargis as OSU president.

For all intents and purposes, a committee cuts the list of applicants. But the full board officially is able to consider all the applicants.

For example, almost three years ago today, OSU regents selected Hargis after he was unanimously referred by a 33-member search committee. To defend that committee's secret meetings, the governing board's attorney said the regents alone had the responsibility to choose and employ a president, reject all candidates or reopen the search.

But this was the regents spokesman's explanation of the committee's process:
  • 102 “potential candidates,” including 53 nominees, were in contact with the search committee.
  • The committee considered whether applicants and nominees were qualified and narrowed the pool to 27 applicants.
  • Six candidates interviewed with the committee.
  • Three were interviewed.
  • The committee unanimously referred Burns Hargis to OSU’s governing board “for further consideration.”

Seems like the committee made several decisions.

Even so, the regents went into executive session supposedly to consider all the applicants. The closed-door session lasted about 15 minutes -- including the time regents spent walking to and from another room.

It was a sham. During the executive session, OSU spokesman Gary Shutt handed out news releases announcing the regents had voted unanimously to choose Hargis. The news release even included quotes from state officials about the selection of Hargis.

Remember: The board was still behind closed doors and hadn't returned to vote in public.

Unlike the OSU regents, Lone Grove council members might not have already made up their minds. Councilors are slated to interview all three recommended candidates in executive session tonight.

The public never learned who else the search committee had considered for the OSU job. At least in Lone Grove, the names of the three applicants are on the agenda for tonight.

So why was it necessary for the committee to meet secretly? To abide by the Open Meeting Act, the committee would only have had to notify the public of its meetings and posted agendas for those meetings. It could have gone into executive session to discuss and review applicants. Only votes to select the finalists would have had to be conducted in open session. And the public learned those names when the agenda was posted.

More important, how does this loophole exist when the Open Meeting Act clearly says the definition of public body “shall include all committees or subcommittees of any public body”? (OKLA. STAT. tit. 25, § 304(1))

We can thank our state Supreme Court. In 1978, justices carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)

A subordinate entity with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton.

Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the advisory committee at issue had met.

The statutory language adding “all committees or subcommittees of any public body” to the definition of public body was enacted in 1977.

A 1981 attorney general relied upon that “expanded definition” to decide that Job Content Evaluation Committees were “the subcommittees of a public body, the State Personnel Board.” Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:

In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.
 

Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law. Under the new Open Meeting Act, the term ‘public body’ was enlarged to include, ‘. . . all committees or subcommittees of any public body.’ The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (1981 OK AG 214, ¶ 7)

Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the “1977 changes merely added several new categories to the definition of ‘public body.’” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)

Its reasoning emphasized that when the Open Meeting Act was revised, the House in Conference Committee had rejected a Senate amendment that would have changed the definition of public body to include “advisory groups, advisory committees, or persons appointed to advise, consult or make recommendations for any board, bureau, commission, agency, task force or study group….” (Id. ¶ 11-12) In the court’s view, that language would have “broaden[ed] the coverage of the Open Meeting Law to groups, committees, etc.” (Id. ¶ 11)

However, an equally plausible explanation is that the amendment was rejected because legislators did not intend for the Open Meeting Act to apply to individuals. The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body “shall include all committee or subcommittees of any public body.” Had legislators intended to override the rule set forth in Sanders? Attorney General Cartwright seemed to believe so in 1981.

Only a more thorough investigation of legislative records would shed light on the Legislature’s intent. In the meantime, it should be assumed that the Sanders doctrine applies: An advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Open Meeting Act.

“Not making decisions means not making any decisions,” Edmondson reminded Oklahoma public school boards in late 2004. “If you’re looking for a new superintendent or a new coach and you appoint a subcommittee to go through all the resumes and then come back and make a recommendation, that’s fine. But if the subcommittee can cull out some of the applicants, then they’re making decisions. That makes them in breach of the Open Meeting law.” (Becky Tiernan, Attorney general clarifies Open Meeting Act rules, THE DAILY OKLAHOMAN, Nov. 18, 2004, at 15A)

In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

Unfortunately, some government officials in this state have ignored these warnings and twisted Sanders to avoid the Open Meeting Act.

The only solution is to have our state legislators make clear in the statute that all advisory committees, even those with no decision-making power, are subject to the Open Meeting Act. Because, unfortunately, we cannot trust our government officials to abide by anything less.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Thursday, December 2, 2010

State medical examiner refuses to release autopsy report in slaying of OKC mother


The Oklahoma Medical Examiner's Office won't release the autopsy report in the slaying of an Oklahoma City mother, KOCO reported Thursday.

"It is my belief that the premature release of further details may interfere with the ongoing investigation and subsequent prosecution," Interim Chief Medical Examiner Andrew Sibley told the station.

But Oklahoma County District Attorney David Prater last week seemed to contradict that claim, telling KOCO that the public has the right to know the information.

On Thursday, Sibley refused to cite an statutory provision exempting the autopsy.

But if Sibley and the ME's Office can't cite a clearly applicable exemption, the autopsy is open under Oklahoma's Open Records Act.

As the Oklahoma Supreme Court said in 2003, “The public body urging an exemption has the burden to establish the applicability of such exemption.” (Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶ 12)

This, of course, concerns the public's right to know the information. What about the public's need to know what is in an autopsy report?

This blog pointed out last April that the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

Even so this past spring, state legislators for a second consecutive session debated limiting what the public could know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown.

The bill was withdrawn in May because of stiff opposition on the House floor.

Among those critical of the bill was state Rep. Lucky Lamons, a former Tulsa police officer. He said autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.

Lamons pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information.

KOCO said it will continue pushing for the autopsy report.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Tuesday, November 23, 2010

FOI Oklahoma official chosen for empty Edmond City Council seat


FOI Oklahoma Executive Director Kay Bickham was chosen Tuesday to serve the vacated Ward 1 seat on the Edmond City Council.

The primary election for Edmond mayor and Wards 1 and 2 is slated for March 1. The general election is set for April 5.

Bickham indicted to The Edmond Sun that she is not interested in running for election to the seat in March but believed she had the necessary experience to fill in until voters chose a replacement.

Bickham served as Ward 1 councilwoman from 1991 to 1995.

"So I'm going to the same chair. And I’ve served on most of the committees and have been keeping touch through the years on various other city committees," she told the newspaper.

Bickham will be sworn in on Dec. 13. She was one of 10 applicants for the Ward 1 seat vacated in October when Wayne Page resigned from the council to move to Vancouver, Wash.

Candidates for the Edmond municipal offices this spring will be asked to sign FOI Oklahoma's Open Government Pledge.


Joey Senat, Ph.D.
Associate Professor
School of Media & Strategic Communications

Saturday, November 20, 2010

Open Government Pledge signer named to House panel looking to make legislative process more transparent


A two-time signer of FOI Oklahoma's Open Government Pledge was named on Friday to a House panel told to make the legislative process more open for the public.

Rep. David Dank of Oklahoma City has twice publicly pledged to support the inherent right of Oklahomans "to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Dank is joined on the House working group by fellow Republicans Jeff Hickman of Dacoma, Gary Banz of Midwest City, Jason Nelson of Oklahoma City and Dan Sullivan of Tulsa.

House Speaker-elect Kris Steele said he is "serious about bold reform" and expects the group to "develop proposals that significantly change the way things are done at the Oklahoma Capitol."

Among the rules changes to be considered:
  • Open the conference committee process to allow actual meetings and public votes on conference committee reports.
  • Put in place even during the final two days of the session a 24-hour rule that requires a House conference committee report to be filed and posted online for a full day before it can be considered on the House floor.
  • Post conference committee reports online for member and public review with a link to previous versions of the bill available so changes can be more easily spotted.
The current conference committee system has created a situation fertile for abuse. Despite the name "committee," as KWTV noted in July, most don't actually meet to reconcile the differences between House and Senate versions of bills.
 
"No, it's a piece of paper that has signature lines on it," said Rep. Ryan Kiesel, D-Seminole.
 
KWTV noted that the author of a bill sent to a conference committee needs only to get signatures from a majority of the committee members to bring it back for a floor vote.
 
Kiesel said the system allows unscrupulous legislators to insert self-serving language and then use personal or political persuasion to get enough committee members to agree.
 
Any notion of real legislative transparency is "out the window," he told the station.
 
Steele said he believes "increased public scrutiny and oversight is vital to a healthy democracy, and technological advances now allow us to be more user-friendly than ever."
 
"For the public to have confidence in our political system, they must have the ability to both follow and scrutinize legislative activity, and I am committed to opening up the process," he said.
 
Coverage of working group:
 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Thursday, November 18, 2010

OSBI commissioners vote again to hire director -- this time in front of public


OSBI commissioners this week voted again to hire a director after their attorney suggested it to "cover your bases," The Oklahoman reported Wednesday.

“I don't believe that doing so is an admission that you willfully violated the [Open Meeting] act,” said Jimmy Bunn Jr., OSBI's chief legal counsel. “It's merely just covering your bases and making sure the appointment is done appropriately.”

Earlier this month, commissioners concluded an executive session and hired a director without telling the waiting reporter that the closed-door session was not only completed but also that the entire special meeting had ended. (Read FOI Oklahoma Blog posting.)

Reporter Michael Baker said he and his photographer were the only members of the public in the room before the closed session began. They had even signed in prior to the meeting, and their names were read aloud at the start.

Somehow, the commissioners and staff didn't question why the journalists were not present when the open meeting resumed and commissioners voted to hire the director -- which was the journalists' reason for being there because it was the sole purpose of the special meeting.

Baker hadn't wandered off during the executive session. He was right where OSBI officials had told him to wait -- in the lobby. The commission meeting room is in a secure part of the OSBI headquarters. Getting to the second-floor room requires an OSBI escort from the first-floor lobby.

When commissioners went into executive session, Baker and photographer were escorted from the conference room back to the lobby. "No one ever returned to the lobby to say the meeting was back in session and offer an escort for media or the public to the conference room," Baker wrote in his original story.

Bunn on Tuesday told OSBI commissioners he is "convinced that was not a willful violation of the Open Meeting Act." (Watch the video of Bunn's advice to commissioners.)

But willfulness does not require that commissioners had acted in bad faith, maliciously or with an intent to violate the law during the earlier vote. Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)

"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless 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,” the court explained. (Id. at ¶ 26)

“While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act’s requirements and blatantly or deliberately disregarded the law,” the court concluded in that case. (Id. at ¶ 30)

(See also 1981 OK AG 214, ¶ 15: “[T]he Administrator of the State Personnel Board was under a duty to (1), see that the Committee members were briefed and told of their responsibilities and duties and (2), see that the Committees were furnished with copies of statutes pertaining to their duties. Accordingly, the Committee members most likely knew or should have known of their duty to comply with the Open Meeting Act.”)

The state Supreme Court adopted the lower court's reasoning in 1984, saying, “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.” (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)

Given the OSBI Commission's meeting location, it had an obligation to make sure that those members of the public who were in the room prior to the closed-door session are notified and given time to return before the open meeting resumes. Not doing so conflicted with the letter and the basic premise of the state Open Meeting Act.

The OSBI commissioners' do-over vote on Tuesday did not absolve them of any possible earlier violation. The Court of Civil Appeals in 1981 rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation. In the case before the court, school boards had violated the statute while acting on an annexation later ratified by county voters.

"The election did not rectify the harm to the public because the harm did not lie in the annexation itself," said the court. "The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose. The election did not ‘cure’ these violations." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)

The best news from Tuesday's meeting was the apparent recognition that the previous vote was not in the best interest of an open government.

"There was a mistake made," Bunn told commissioners. "In the interest both of transparency and being completely open and to ensure that the appointment ... is effective, my recommendation was that essentially vote on it again, reappoint him and then that takes care of any potential claims or allegations that your prior appointment was ineffective or inappropriate."

This blog previously noted that the OSBI is sometimes called upon by district attorneys to investigate violations of our Open Meeting law. As such, its governing body should be held to the highest standard of compliance.

One commissioner seemed to agree on Tuesday. "If anybody should be doing things right, it's the OSBI," said Rob Hudson, district attorney for Payne and Logan counties.

Amen to that.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Monday, November 15, 2010

Tulsa Development Authority group likely to meet in public to redo screening process


A Tulsa Development Authority advisory committee will likely meet in public to hear all 10 proposals for a vacant fire station, the Tulsa World reported today.

The newspaper reported last week that the committee overseen by Tulsa City Councilor Maria Barnes had met secretly to winnow the field of 10 to three without hearing presentations from the other seven.

Today's story says Authority Executive Director O.C. Walker recommended in a memorandum sent Friday that the authority tell the advisory committee to hear presentations from all 10 bidders in an open meeting.

The issue is set for discussion at the authority's Dec. 2 meeting, the newspaper reported.

TDA attorney Jot Hartley told the Tulsa World that although the authority had done nothing wrong, redoing the process in an open meeting would provide full transparency.

Good thinking. But Barnes' committee, created by the TDA at her urging, seems to have violated the Open Meeting Act by meeting secretly.

An ad hoc committee or citizens advisory committee that "exercises actual or de facto decision-making authority" must comply with the Open Meeting Act, the state Supreme Court said in 1978. (Sanders v. Benton, 1978 OK 53, ¶ 16)

A 1984 attorney general opinion said, "[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

That reasoning seems to apply to Barnes' advisory group.

Hartley said last week that the TDA was not bound by the recommendations of Barnes' committee. But if the TDA had considered only the three proposals ranked and forwarded by the committee, then that committee would have exercised decision-making authority.

Still, the good news is that Tulsans' need to know will be served if the TDA requires the advisory group to redo the process in the open.

But legislators should strengthen the public's right to know by declaring that all citizens advisory committees and ad hoc committees -- regardless of decision-making power -- are subject to the Open Meeting Act.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Saturday, November 13, 2010

Tulsa Development Authority committee headed by city council member held secret meetings in apparent violation of Open Meeting Act


Tulsa City Councilor Maria Barnes oversaw secret meetings by a Tulsa Development Authority committee that screened proposals to buy and redevelop a vacant fire station in the Cherry Street neighborhood, the Tulsa World reported this week.

Barnes told the newspaper that her advisory committee narrowed the field of 10 offers to three, heard presentations from those bidders, and then ranked them. The TDA is scheduled is to hear the three finalists' presentations Dec. 2.

The committee's meeting were not publicly posted, the newspaper reported.

One applicant, still expecting to make his presentation, didn't learn he had already been eliminated until told by the Tulsa World.

Given this scenario, those meetings violated the Open Meeting Act.

According to the statute, the definition of public body “shall include all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1)) However, the state Supreme Court has carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)

(The court's decision was based on language found in the 1971 Open Meeting Act. The current statutory language including “all committees or subcommittees of any public body” in the definition of public body was added in 1977. However, the court has persisted in recognizing the exception is created based on old statutory language.)

But if “the subordinate entity in the performance of its assigned duties and responsibilities exercises actual or de facto decision-making authority, it must comply with the open meetings law,” the court said in Sanders.

In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

That reasoning would seem to apply to the TDA committee headed by Barnes and created by the TDA at her urging.

The Tulsa World reported that TDA attorney Jot Hartley said the authority is not bound by the recommendations of the advisory committee.

But if the committee winnowed the list of applicants being reviewed by the TDA -- as it appears to have done -- then its meetings were subject to the Open Meeting Act.

Even if the committee's meeting weren't technically required to be open, the process described by the Tulsa World is anything but a good governmental practice. As a Tulsa World editorial said today:
In a word, the way this screening process was conducted stinks. It is indefensible. If the authority won't scrap the results and start over, someone higher up ought to take some steps to make that happen.
The TDA is staffed by the City of Tulsa's Economic Development and Real Estate Management Division. The TDA Board of Commissioners are:
  • Julius Pegues, chairman
  • Paula Bryant-Ellis, vice chairman
  • Carl Bracy
  • John D. Clayman
  • Roy Peters

Casting doubt over whether the committee should have met publicly would be another example of a government body using a loophole created by the court in Sanders: A public body creates a committee to do the work of eliminating applicants. When challenged about the committee's secret meetings, the public body claims it isn't technically required to abide by those decisions.

Our state legislators should end this charade by reiterating this coming session that the statute means what it says: ALL committees or subcommittees are subject to the Open Meeting Act.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

11 candidates who promised open government were elected Nov. 2


Voters last week elected 11 candidates who signed FOI Oklahoma's Open Government Pledge prior to the Nov. 2 election.

Pledge signers were sure to win in three races because both choices on the ballot for governor, House District 44 and Senate District 46 had promised to support the public's right to know at every opportunity if elected.

The candidates for local and statewide offices, such as governor, promised that they and the public bodies that they are “elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws.”

Legislative candidates pledged to “support legislation to strengthen the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws.”

Pledge signers elected on Nov. 2 were:

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

List of signers for 2010, 2009 and 2008 elections can be found on FOI Oklahoma's website.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Tuesday, November 2, 2010

OSBI Commission hires director, ends meeting without inviting waiting public back into room after closed executive session


OSBI commissioners concluded an executive session and hired a new director Monday without telling the waiting reporter that the closed-door session was not only completed but also that the entire special meeting had ended.

After having waited about six hours to be called back into the meeting, The Oklahoman reporter realized it was over when he saw commissioners leaving the building.

Commission Chairman Ted Farris said commissioners believed everyone had been told the meeting was resuming. "I'm sorry that happened, but we didn't understand there was a problem," he said.

The OSBI Commission later provided the reporter with an audio recording of the meeting and the vote. But that doesn't excuse the commission's apparent oversight. If an audio recording were sufficient, then the Open Meeting Act, and related judicial and attorney general opinions, would not be so adamant that the public is entitled to be present during public meetings.

Reporter Michael Baker says he and his photographer were the only members of the public in the room before the closed session began. They had even signed in prior to the meeting, and their names were read aloud at the start.

Yet, Farris and the other commissioners apparently didn't question why the journalists were not present when the open meeting resumed and commissioners voted to hire the new director -- which was the journalists' reason for being there because it was the only agenda item and the sole purpose of the special meeting.

If Baker had just wandered off and wasn't there when the meeting room was reopened, then this wouldn't be an open meeting issue.

But that's not how the OSBI Commission conducts its meeting. As Baker explained in the newspaper this morning, the commission meeting room is in a secure part of the OSBI headquarters. Getting to the second-floor room requires an OSBI escort from the first-floor lobby.

When commissioners went into executive session, Baker and photographer were escorted from the conference room back to the lobby. "No one ever returned to the lobby to say the meeting was back in session and offer an escort for media or the public to the conference room," Baker wrote.

Given its meeting location, the commission has an obligation to make sure that those members of the public -- and that includes reporters -- who were in the room prior to the closed-door session are notified and given time to return before the open meeting resumes.

Not doing so conflicts with the letter and the basic premise of the state Open Meeting Act.

The statute requires that meetings be held at “specified times and places which are convenient to the public.” (OKLA. STAT. tit 25, § 303)

Why? Because it is the public policy of the state “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (OKLA. STAT. tit. 25, § 302)

What occurred at the OSBI Commission meeting Monday was hardly encouraging or facilitating. Instead, intentionally or not, commissioners appeared to thumb their collective nose at the public's right to know.

The irony, of course, is that the OSBI is sometimes called upon by district attorneys to investigate violations of our Open Meeting law. As such, its governing body should be held to the highest standard of compliance. Any thing less undermines the agency's moral authority in such investigations.

So whom does the public hold accountable when political appointees don't comply with the Open Meeting law? Answer: The elected officials who appoint them.

Two members of the OSBI Commission, Tulsa County Sheriff Stanley Glanz and Rob Hudson, district attorney for Payne and Logan counties, are elected officials. But all seven members are appointed by the governor.

(The other commissioners are Anne Holzberlein, Russell Noble, Mickey Perry and Mike Wilkerson.)

Regardless of today's election, the next governor has publicly said she expects her appointees to public bodies to abide by the Open Meeting and Open Records laws. Republican Mary Fallin and Democrat Jeri Askins made that promise at FOI Oklahoma's Sunshine Conference in March.

They also signed FOI Oklahoma's Open Government Pledge in which they promised, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

Let's hold the next governor to those promises the first time her political appointees to a public body seem unwilling to understand or to comply with our open government laws.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Democratic candidate for House District 93 seat signs Open Government Pledge


Wanda Jo Peltier has pledged to support legislation to strengthen the letter and spirit of Oklahoma’s open government laws if elected to the House District 93 seat today.

The Oklahoma City Democrat represented the district from 1986 to 1996.

Peltier's signed Open Government Pledge was dated Oct. 22 but was not received until late Monday.

In signing the pledge, Peltier also promised to “support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power.”

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Sunday, October 31, 2010

State representative signs Open Government Pledge


State Rep. Seneca Scott, D-Tulsa, has promised to support the public's right to know at every opportunity if re-elected Tuesday.

In signing FOI Oklahoma's Open Government Pledge, Scott also promised to "support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws."

Scott also signed the pledge when FOI Oklahoma introduced it for the 2008 election.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Saturday, October 30, 2010

Stillwater Medical Center Authority says disclosing hospital officials’ salaries would be clearly unwarranted invasion of privacy, sues requester for $3,000 cost of copying records, held ‘retreats’ in Tulsa, OKC


The Stillwater Medical Center Authority says disclosing the salaries of the hospital’s top officials would put it at a hiring disadvantage and “would constitute a clearly unwarranted invasion” of the employees’ privacy, according to documents filed in an open records lawsuit against the public authority.

Last week, the hospital authority filed a counterclaim, seeking the $3,038.25 cost of copying 12,153 pages that the requester has not picked up.

The requester, former Stillwater commissioner Henry “Hank” Moore Jr., sued the hospital authority in late August. He was seeking, among other information, the salaries for the medical center’s top five senior management officials. (See Moore v. Stillwater Medical Center Authority, No. CJ-2010-408 (Payne County) (Aug. 24, 2010))

The Stillwater Medical Center Authority refused to disclose the salaries based on advice from the law firm McAfee & Taft in Oklahoma City.

That advice, written by a summer associate, relied upon a 2009 attorney general opinion on whether the birth dates of government employees are public records when contained in their personnel files. (2009 OK AG 33)

In that opinion, Attorney Drew Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (¶ 11)

Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy,” Edmondson said.

Relying upon that opinion, McAfee & Taft concluded that the hospital authority would be required to make the salary information public unless the board designated "salary and payroll information as confidential" because disclosure "would result in a clearly unwarranted invasion of the employee's privacy."

On July 27, the Stillwater Medical Center Authority voted that "disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy of Hospital employees." The agenda item was "Determination if Disclosure of Certain Information Would Constitute a Clearly Unwarranted Invasion of Privacy."

If the board determined that release of ALL employees' salaries would constitute an invasion of privacy, then the board's action violated the attorney general opinion. Edmondson had said such determinations must be made on an individual basis. "A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body," he said. (¶ 11)

To make the determination on an individual basis, the public body would have to weigh the public's interest in disclosure against the employee's interest in non-disclosure, Edmondson said. (¶ 31)

Describing this weighing of competing values, McAfee & Taft's memo said:
The Attorney General considered whether knowledge of a birth date would in any way assist the public in evaluating a public employee and determined that the information would not be helpful to the public. The privacy interest of employees outweighed the public interest.
However, that is not what the final AG opinion states.

The opinion originally said, “Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

But that was deleted from the revised opinion after Edmondson told The Oklahoman:
My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy. My view is that the conditions under which birth dates would be confidential would be rare.
To the new opinion, Edmondson added:
It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. (¶ 11)
Shortly after issuing the revised opinion, Edmondson released the names and birth dates of his employees.

Even so, McAfee & Taft had no trouble determining that employee privacy outweighs the public interest, saying:
On the one hand, knowing the salary amounts paid by a public body to its employees could assist the public in judging the efficiency of a public body and of its employees. On the other hand, it is likely that most employees would prefer that their salary information remain private. Animosity among public employees could also arise if employee-specific salary information becomes available, especially if significant variations in compensation exist among employees.

Overall, it would be reasonable for the trustees of the Authority to determine that the public interest in obtaining general salary information does not outweigh the interest of the employees in maintaining the confidentiality of such information and that the disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy.
I disagree with that conclusion. First, that determination in favor of employee privacy is not an individual application but rather a blanket policy, which the attorney general opinion said is prohibited.

Second, public employees' possible preference for secrecy does not outweigh the inherent right of Oklahomans "to know and be fully informed about their government." (See OKLA. STAT. tit. 51, § 24A.2)

Third, "animosity among public employees" because of "significant variations in compensation" is unrelated to privacy. It's a reason why the trustees and hospital officials want to keep employees in the dark. Which supports the public interest in disclosure. Why should "significant variations in compensation exist among [government] employees" doing the same or similar jobs?

An Oklahoma court seems unlikely to rule that the salaries of public hospital employees should be kept secret from the public. Courts in other states have consistently ruled that disclosure of public employee salaries does not constitute an unwarranted invasion of privacy and that the public has a right to know what those employees earn. (I will discuss examples of such cases soon on the blog.)

But here's the most important reason why an Oklahoma court will side with the public's need to know: The Oklahoma Open Records Act requires that the salaries of public employees be made public.

The balancing of privacy and public interests prescribed by the attorney general for birth dates came about only because birth dates are not mentioned in the Open Records Act. In contrast, the statute says:
All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying including, but not limited to, records of: ... the gross receipts of public funds. (OKLA. STAT. tit 51, § 24A.7(B)(2))
McAfee & Taft's memo says the Open Records Act "does not address salary information." I believe that is incorrect. Although the statute doesn't use the word "salary," salaries are included in the gross receipts paid to the employees.

After the lawsuit was filed, Stillwater Medical Center President and CEO Jerry Moeller disclosed his salary to Moore, The Stillwater NewsPress reported.

Moeller said his salary is $276,261 with a bonus last year of $11,050. Moeller receives a car allowance of $7,200 and the use of a Karsten Creek membership valued at $7,600, the newspaper reported.

Certainly seems like information the public should know about a public employee.

In a court document filed on Oct. 18, the hospital authority cited other reasons for not releasing the salary information, including:
  • Releasing the information may give other hospitals an unfair competitive advantage
  • Disclosure was detrimental to the competitive interests and advantage of the Hospital
The hospital authority also contended that the salary information doesn’t have to be disclosed because the medical center is “owned and operated by a public trust, not supported by tax dollars, unlike governmental agencies and subdivisions.”

However, as the hospital authority conceded in its response to the lawsuit, the Oklahoma Court of Civil Appeals held in 2003 that the Stillwater Medical Center is “a political subdivision for the purposes of the Oklahoma Governmental Torts Claim Act.” (See Elledge v. Stillwater Medical Center, 2003 OK CIV APP 6)

More importantly, the hospital authority also conceded that as a political subdivision of the state, it is subject to the Open Records and Open Meeting laws.

The hospital authority also said in its court filing that it would not conduct meetings outside of Stillwater. Moeller had told The Stillwater NewsPress in August that the board had in years past conducted “retreats” in Tulsa and Oklahoma City until City Attorney John Dorman “advised us that it might not keep with the spirit of the law.”


That's an understatement considering the Open Meeting Act requires that public meetings "be held at specified times and places which are convenient to the public." (OKLA. STAT. tit. 25, § 303)

The Stillwater Medical Center Authority also seems to be violating the Open Meeting Act by not keeping minutes of its executive committee meetings.

Among the exhibits filed by Moore is a letter to him from Moeller in which Moeller writes, "There is no problem with [providing] the agendas and minutes of the regular and special Board meetings, but we do not keep minutes at any Executive Committee meetings."

But the Open Meeting Act's definition of public body includes "all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1))

The statute also requires that each public body keep minutes of its meetings. (OKLA. STAT. tit. 25, § 312)

So why aren't minutes kept of the board's executive committee meetings?

The Stillwater Medical Center Authority would do well to keep in mind these admonitions by our state appellate courts:

Because the Open Meeting Act was “enacted for the public’s benefit,” the statute “is to be construed liberally in favor of the public,” the state Supreme Court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple,” the state Court of Civil Appeals said that year. “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)

That includes even the Stillwater Medical Center Authority.

 

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Friday, October 29, 2010

Democratic candidate for House District 87 pledges to support open government


Dana Orwig, Democratic candidate for House District 87, has promised to support legislation to strengthen the letter and spirit of Oklahoma’s open government laws if elected on Nov. 2.

In signing FOI Oklahoma’s Open Government Pledge, the Oklahoma City resident said she also would “support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power.”

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Wednesday, October 27, 2010

Boynton trustee pleads guilty to Open Meeting Act violation


A Boynton trustee pleaded guilty Tuesday to violating the state Open Meeting Act when he voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Trustee Elmer Claiborne Lang received a suspended one-year sentence and a $500 fine, according to news reports.

Lang also forfeited his office effective Tuesday because the guilty plea led the revocation of his probation on a 2009 nepotism charge.

All three town trustees were charged earlier this month with violating the Open Meeting Act on Sept. 27. The OSBI also is investigating whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

News coverage of Lang's guilty plea:

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Tuesday, October 26, 2010

BRTA misled public about purpose of executive session, violated Open Meeting Act, lawsuit alleges



The Bartlesville Redevelopment Trust Authority purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session, according to a lawsuit filed last week against the BRTA.

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.”

But in an e-mail sent a day earlier, a BRTA official 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.

BRTA Downtown Development Director Patrick Treadway’s e-mail to the trustees is included in the lawsuit filed Thursday accusing BRTA members of violating the state Open Meeting Act.

Plaintiffs Joel Rabin and Sharon Hurst want a Washington County judge to order the minutes and other documents from the executive session to be made public.

Rabin and Hurst also filed a lawsuit earlier this month seeking information packets and other documents given to the BRTA board members for regular and special meetings.

The latest lawsuit notes the statutory exemption cited on the BRTA meeting agenda allows executive sessions for

Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))

The lawsuit accuses the BRTA board of entering into the executive session “without first determining that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.”

The BRTA members voted to go into the closed-door session even though they knew or reasonably should have known that the purpose was not to discuss pending and/or impending investigations, claims or actions affecting the BRTA “but rather to allow Dan McMahan to convey – through an illegal and misleadingly-noticed executive session – information he believed would be needed for future projects,” according to the lawsuit.

The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.

Rabin and Hurst are FOI Oklahoma members. They are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

2 Independents, 2 Republicans promise to support open government


Four more challengers have pledged to support open government in Oklahoma if elected on Nov. 2.

Signing FOI Oklahoma’s Open Government Pledge are
In signing the pledge, each candidate said he would “support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."
 
The three legislative candidates also specifically promised to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws.
 
FOI Oklahoma began the Open Government Pledge as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.
 
Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.
 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Saturday, October 23, 2010

2 state senators, state representative pledge to support open government legislation


State Sens. Roger Ballenger of Okmulgee and Andrew Rice of Oklahoma City this week pledged to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws if re-elected in November.

The two Democrats are the first incumbents in the Senate to sign the Open Government Pledge since FOI Oklahoma began distributing it prior to the 2008 elections.

State Rep. David Dank, R-Oklahoma City, also became the first House incumbent to sign the pledge for a second time, having done so in 2008.

In signing the pledge, Dank, Ballenger and Rice promised "to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."

FOI Oklahoma began the Open Government Pledge as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Friday, October 22, 2010

State Board of Education meets in questionable executive session


The state Board of Education met in executive session Thursday to investigate its “legal powers and duties” to implement a state law that some school districts are refusing to comply with, the Tulsa World reported today.

The meeting agenda cited a state Open Meeting Act exemption permitting executive sessions for
Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))
When Kay Harley, the board’s attorney, was asked what pending investigation, claim or action the board discussed during the closed-door session, she said it was to have "a confidential conversation with their attorney about the implementation of the Lindsey Nicole Henry Scholarships," which she said was an investigation, the Tulsa World reported.

The newspaper added:
When asked who was being investigated, Harley said, "We are investigating our legal powers and duties."
Based on that explanation, the board violated the Open Meeting Act. A public body determining its “legal powers and duties” does not constitute the kind of investigation covered by the exemption. If it did, then every discussion about research into an issue would constitute an investigation. Say good-bye to open government.

And how would a public discussion "seriously impair" the board's actual authority to implement the statute?

Just because an attorney was involved in the discussion did not automatically justify an executive session. Not every discussion between a public body and its attorney – even about a lawsuit – is exempted from public scrutiny, state Attorney General Drew Edmondson said in 2005.
Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will ‘seriously impair’ the body’s ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest. (2005 OK AG 29, ¶ 11)
In other words, the exemption for a confidential discussion between a public body and its attorney does not exist so that public bodies can do an end run around the Open Meeting Act. It was not intended to allow public bodies to discuss in secret what they should be discussing in front of the public.

Unfortunately, we don’t vote for the members of the state Board of Education with the exception of the state school superintendent of public instruction. But we do vote for the governor, who appoints the other six members of the board.

Regardless of whom we hire on Nov. 2 as governor, let’s hope she will demand her appointees abide by the letter and the spirit of our Open Meeting law or replace them with those who will.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Thursday, October 21, 2010

2 state representatives, House GOP candidate sign Open Government Pledge


State Reps. Sally Kern, R-OKC, and Al McAffrey, D-OKC, have pledged to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws if re-elected in November.

Patent attorney Molly McKay, a Republican challenger for House District 78 in Tulsa, also has agreed to FOI Oklahoma’s Open Government Pledge. Her opponent, Democratic incumbent Jeannie McDaniel, signed the pledge when it was introduced for the 2008 elections.

FOI Oklahoma this week asked 127 candidates for legislative and statewide offices to sign the pledge.

Several candidates on the Nov. 2 ballot took the pledge earlier this year. They are the Democratic and Republican gubernatorial nominees, the Democratic contender for state attorney general, Democratic candidate for House District 36, and both candidates for the House District 44 seat.

By signing the pledge, McKay, Kern and McAfrey joined them in promising "to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications