Wednesday, September 22, 2010

Decision to drop investigation of mayor's aide comes after Tulsa City Council chairman meets privately with other councilors

Tulsa City Council Chairman Rick Westcott says a decision to end an investigation into a mayor's aide came after he met individually with other councilors, the Tulsa World reported Wednesday afternoon.

Westcott told a reporter he met one-on-one with a majority of the council.

(So who among the nine councilors was left out of the decision-making process?)

One-on-one discussions by a majority of the council to come to that decision would be a serious violation of the Open Meeting Act.

A 1981 state attorney general opinion prohibits such serial meetings among the members of a public body – and for good reason.

“Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed,” said then-Attorney General Jan Eric Cartwright. (1981 OK AG 69, ¶ 17)

Even Councilor G.T. Bynum’s attorney, Ronald E. Durbin II, recently warned the council against using small group meetings to mediate issues with the mayor, saying such meetings would be "not only inadvisable but would also result in a clear violation of the OMA.”

“In this situation, it is obvious that any plan to use smaller numbers of Councilors would inevitably result in the need for those Councilors in attendance to share information and discuss settlement proposals with those Councilors not in attendance. This activity would be a clear violation of the OMA, and thus, only an executive session including a quorum of the Councilors should be utilized if any mediation session is to be closed to the public,” he told them.

The same principle applies to the decision to drop the investigation into the mayor’s aide. That was a decision reached after, the council chairman told the newspaper, he had met individually with a majority of his fellow council members.

The council should not have come to any such decision outside of a public meeting abiding by the notice and agenda requirements of the Open Meeting Act.
“If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed,” the Oklahoma Supreme Court said in 1978. (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)

Or, as the Oklahoma Court of Civil Appeals reiterated in 1981, “Sunshine legislation reaches, not just ‘formal’ meetings, but the ‘entire decision-making process.’” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 6 )
Or, as Cartwright explained a year later:
[I]f government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere ‘rubber stamp’ vote is all but useless. (1982 OK AG 212, ¶ 7)
Cartwright said legislators clearly intended for the “discussion stage” to be covered by the Open Meeting Act.
“[I]t is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act,” he concluded. (Id. ¶ 11)

Despite these admonitions, some Tulsa city councilors persist in the belief that they may meet one-on-one or in small groups to decide the public’s business.

In late July, six of the nine councilors jointly filed a response to a lawsuit accusing them of violating the Open Meeting Act during an executive session in June. A Tulsa reporter was told that an attorney spoke to some of the six council members individually and some in groups of three.

In other words, they purposefully met in groups smaller than a majority with the intent of not triggering the Open Meeting Act. Westcott and the other five council members must have thought they were conducting public business if they thought it necessary to avoid meeting as one group.

The defense put forth by Westcott and the others against that lawsuit was that Oklahomans have no right to file lawsuits to enforce their state's Open Meeting Act. A nonsensical – and insulting – claim given that just a month earlier the state Supreme Court had ruled in favor of Pitcher residents in their Open Meeting Act lawsuit against the Tar Creek relocation trust.

But let’s humor Westcott and the other councilors this time. No lawsuit. After all, members of the public shouldn’t have to dig into their pocketbooks to pay for what their tax dollars already pay the police and county district attorney to do: Enforce the law.

Violating the Open Meeting Act is a crime – a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500.

So it’s up to you, Tulsans. File a complaint with the police and demand an investigation, or get comfortable with your elected representatives deciding your business in private.

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

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