Thursday, January 7, 2010
Washington County DA won't prosecute Open Meeting Act violation, says it was unintentional
Washington County District Attorney Rick Esser won't prosecute three members of a Bartlesville city committee, saying an Open Meeting Act violation was a clerical error and not intentional, the Tulsa World reported.
But Esser's reason ignores a warning by the state attorney general's office that proving a willful violation of the state Open Meeting Act requires showing only that the official knew or should have known the law, not that the official intended to violate the law.
The FOI Oklahoma blog two weeks ago reported that the agenda for the Design Review Committee's special meeting on Dec. 15 did not specify that action could be taken on two project applications that the committee approved during the meeting.
In contrast, the agenda said the committee would "discuss and take possible actions to develop Residential Design Guidelines for the Downtown Redevelopment District."
Joel Rabin, an FOI Oklahoma member, filed a police complaint accusing the committee's three members who were present of violating the Open Meeting Act.
But Esser told the Tulsa World he won't file charges.
"It looked like from the information obtained there was no intention to violate the Open Meeting Act," Esser said. "I can't find that the Design Review Committee, from what the report indicates, intended to violate the law. The statue clearly says you have to have intention to purposefully violate the act."
No. As this blog has emphasized repeatedly and the state attorney general's office reminded officials in August, 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.
The state Supreme Court in 1984 said proving that a violation was willful "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." (emphasis added) (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 court had said if willful were 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.” (emphasis added) (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 26, 637 P.2d 1270)
Esser's public comments encourage that kind of willful ignorance on the part of officials.
Esser told the Tulsa World the agenda "could have been made a little bit clearer, but I think the secretary just forgot to carry it forward, and she's going to make changes in how she writes the agenda in the future."
Try that excuse if you are caught cruising through downtown Bartlesville at 70 mph: Sorry, officer, I forgot the speed limit.
The Open Meeting Act requires that each agenda “identify all items of business to be transacted” by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
The Oklahoma Court of Civil Appeals has said agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
The purpose of the statute “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 said.
Any act or omission that "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, the court said. That includes any action exceeding the scope of action defined by the agenda.
Violating the Open Meeting Act is a misdemeanor that carries a fine of up to $500 and up to one year in the county jail. (OKLA. STAT. tit. 25, § 314)
Esser apparently didn't want to jail the committee members. But he could have filed charges and then negotiated a plea agreement in which the members apologized and promised to abide by the Open Meeting Act in return for the charges being dismissed after a certain amount of time.
Short of that, Esser could have served the public's interest by issuing a stern public warning not only to the Design Review Committee but also to all other city committees that future violations will not be tolerated. Then he could live up to that warning.
Joey Senat, Ph.D.
OSU School of Journalism