Monday, March 1, 2010

Legislative Alert: Letting county commissioners employ same aide could lead to violations of Open Meeting Act, says county assessor

State legislation allowing county commissioners to employ the same top aide would open the door for scandal and likely lead to violations of the Open Meeting Act, says Tulsa County Assessor Ken Yazel.

Yazel has sent an e-mail to all House members in which he opposed HB 3055.

The bill was originally authored by House Speaker Chris Benge, R-Tulsa. Last week, Rep. Dan Kirby, R-Tulsa, was substituted for Benge as the principal author.

The bill would allow "two or more county commissioners of the same county" to employ "the same person as their first or chief deputy or assistant.”

In his e-mail, Yazel said:

Where this has been done in the past, there is a clear pattern and history of abuse. And that abuse led to the first deputy being forced to resign in the midst of a scandal.

1. The people elected three county commissioners, not one first deputy?

The commissioner’s first deputy represents him at various meetings. If this law passed, how can the public possibly know which commissioner district that first deputy is speaking for?

How can a single first deputy, when acting as the commissioner, possibly represent the values of three different commissioners, commissioners who may be from different parts of the county, from different political parties, each of whom having made specific and differing representations to their constituents when they ran for office?

How can any public minded legislator think that the public is being fairly served by this?

2. A single person can’t be two people at the same time.

The AG’s opinion states that when a county commissioner is out of the county or becomes incapacitated, his first deputy “automatically” becomes the acting commissioner. So when two commissioners sharing the same first deputy are out of the county, that first deputy
becomes two county commissioners. How does this make any sense? How is this serving the public interest?

3. A quorum exists in violation of the statute.

The law says two commissioners can’t discuss public business unless it is done in a properly called public meeting because two commissioners represent a quorum. So if three commissioners employ a single first deputy to work for them, and a commissioner goes out of the county, then the first deputy (the employee) instantly becomes the acting commissioner (the employer). He is their employee, but he can’t talk to either of the other commissioners - he can’t email them and can’t talk to them on the telephone. To do so constitutes a quorum and a violation of the open meeting act.

Let me emphasize again. Where this has been tried before it led to abuse and scandal, and the first deputy was forced to resign. Why, in light of a clear history of abuse, would any legislator go out of his way to allow that to happen again?

Yazel's concerns regarding the Open Meeting Act reflect what Oklahoma County commissioners were told in 2005. The prohibition on obtaining a consensus through informal discussions applies to the assistants of members of public bodies.

While there was “nothing inherently wrong with [the commissioners’] chief deputies getting together with one another in order to acquaint themselves with” agenda items, “there is a clear prohibition of any chief deputy binding his or her commissioner to how he or she will vote on the matter,” District Attorney C. Wesley Lane II told commissioners.

Chief deputies cannot promise, bind or commit their commissioner to any action on any particular agenda item or public business decision. To do so would be in violation of the [Open Meeting] Act. Thus, no chief deputy can announce at any gathering held between other chief deputies that his or her commissioner will vote a particular way on an issue.

(Letter from C. Wesley Lane II, Oklahoma County District Attorney, Oklahoma City, to Jim Roth, District 1 Commissioner, 2-3 (Mar. 14, 2005) (on file with the Oklahoma County Board of Commissioners))

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

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