Wednesday, January 6, 2010

Are Oklahoma's rural electric cooperatives subject to the state's Open Meeting, Records laws?

Questions from the public: Does the Open Meeting Act apply to meetings of the Board of Trustees for a rural electric cooperative? Would a member of the cooperative be entitled to attend meetings of the trustees?

The first answer seems to be that Oklahoma's rural electric cooperatives are not subject to the state's Open Meeting and Open Records laws.

Research didn't locate any court or attorney general opinion interpreting whether rural electric cooperatives are subject to those laws.

However, a 1990 attorney general opinion concluded that rural electric cooperatives "are private corporations and not governmental entities." (1989 OK AG 72, ¶5)

"Rural electric cooperatives are non-profit, private corporations organized for the purpose of supplying electric energy to rural areas. 18 O.S. 437.1 (1989) et seq. Unlike the trustee of a public entity, a rural electric cooperative trustee responds not to the needs of the general public but to the cooperative members and the duties prescribed in the corporate bylaws.

"Although rural electric cooperatives are considered to be public utilities because they provide services considered necessary to the public, they still retain their status as a private cooperative corporation," the opinion reasoned. (Id. at ¶4, citing Public Service Company v. Caddo Electric Cooperative, 1970 OK 219)

In issuing this opinion, the attorney general withdrew a 1984 opinion concluding that "the office of trustee of a rural electric cooperative is clearly a public office." (1983 OK AG 158, ¶5)

At least one rural electric cooperative has interpreted the 1990 opinion as exempting it from the state's sunshine laws. In 2006, the Tahlequah Daily Press paraphrased the Lake Region Electric Cooperative's general counsel as noting that "an Oklahoma attorney general’s opinion that is now several years old states the cooperative is not a public body, and the state’s Open Meeting Act and Open Records Act do not apply to LREC."

In 2002, Attorney General Drew Edmondson issued an opinion concluding that a private for-profit or non-profit organization is subject to the Open Meeting Act if it is a "'subordinate entity' which exercises actual or de facto decision-making authority on behalf of a governmental body; or if the private organization is ‘supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property.’” (2002 OK AG 37, ¶2)

“Electric cooperatives are private, non-profit corporations owned by their consumer-members. They are similar in concept to other consumer-owned businesses; including farm produce marketing co-ops and newsgathering and reporting co-ops, like the Associated Press.

“Essentially, each consumer of the cooperative is a member, with on[e] vote in the affairs of the cooperative. Bylaws, adopted by the members, set forth their rights and responsibilities and lay out the guidelines that assure a democratic organization.”

The association says rural electric cooperatives receive their funding from members' monthly payments for electric service and from loans.

Based on this information, the state Open Meeting and Open Records laws don't seem to apply to Oklahoma's rural electric cooperatives.

A cooperative's bylaws seem to determine whether a member may attend trustee meetings.

Please tell me of any statutory language, court rulings or attorney general opinions to the contrary.

Associate Professor
OSU School of Journalism

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