The Open Meeting Act should be liberally construed in order to effectuate its purpose ... [and] should be interpreted in such a way as to avoid establishing potential evasion loopholes. (1982 OK AG 212, ¶ 13)
Thursday, September 2, 2010
Tulsa City Council considering private meetings with mayor to set ground rules, topics for public discussions
Less than a week after voting not to mediate disputes with the mayor in an executive session, members of the Tulsa City Council are saying they’ll divide into smaller groups to meet privately with him and a facilitator on Tuesday at the request of the Tulsa Metro Chamber, the Tulsa World reported today.
The closed-door meetings are to “set the ground rules and discuss how we are going to go about all of this” to hold chamber-facilitated public meetings later, a council member said.
Tuesday's meetings reportedly would include deciding which topics will be discussed during the public meetings.
Councilors Roscoe Turner, Maria Barnes and Jim Mautino said they likely would not participate unless the meetings are open from the beginning, the Tulsa World reported.
Good. Because setting ground rules and agreeing to topics will require council members to vote or otherwise come to a consensus regarding public business -- something they are not entitled to do outside of a public meeting.
In the proposed meetings Tuesday, the facilitator hired by the chamber essentially becomes a go-between for the city councilors.
But a 1981 state attorney general opinion prohibits such serial meetings among the members of a public body.
“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)
In other words, members of a public body cannot meet secretly in groups smaller than a quorum to decide public business.
That prohibition on obtaining a consensus through informal discussions also applies to the assistants of members of public bodies, Oklahoma County commissioners were warned in 2005.
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,” then-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,” Lane said.
That reasoning would apply to Tulsa city councilors telling the facilitator what ground rules and topics they will agree to for public meetings.
The persistent belief by some council members that they can meet in small groups to decide the public’s business is an absolute outrage. Their admission that they’re using this ploy in an attempt to avoid the Open Meeting Act’s requirements shows a willful intent to violate the law.
Even Councilor G.T. Bynum’s attorney, Ronald E. Durbin II, had 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.
Council members are using the Open Meeting Act's definition of a meeting as a loophole. The statute defines a meeting as “the conducting of business of a public body by a majority of its members being personally together or . . . together pursuant to a videoconference." (Okla. Stat. tit. 25, § 304(2))
So council members -- as other public bodies have done -- figure that they can meet in groups of less than a quorum to conduct -- or at least discuss -- the public's business.
But they should keep in mind this admonition from then-Attorney General Jan Eric Cartwright:
Better yet, state legislators should improve the Open Meeting Act by simply prohibiting two members of a public body from even discussing public business outside of a public meeting of that body.
Announcing these closed meetings on Tuesday with the mayor does not absolve the council members of their obligations under the law.
And the concern is about more than the city council making decisions behind closed doors.
“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, 577 P.2d 1310, 1313-14)
The stated purpose of the Open Meeting Act is “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (Okla. Stat. tit. 25, § 302)
A 1980 attorney general opinion requires that the statute "be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken.” (1980 OK AG 215, ¶ 12)
Only an open deliberative process reveals which alternatives are rejected and why, both of which the public is entitled to know. (See 1982 OK AG 212, ¶ 5)
If Tulsa City Council members and the mayor can’t abide by not only the letter but also the spirit of our open government laws, then they should quit public office and stick with the private sector.
It’s a heaping pile of horse excrement to claim that elected officials must meet in secret because otherwise some would not be candid or others would posture in front of the public. That they cannot act like responsible adults is not an exemption to our Open Meeting Act.
Political cowardice on the part of elected officials is not an excuse for secret discussions of the public’s business.
If these elected officials are afraid to speak openly, honestly and candidly in front of the public, then Tulsa voters should hire replacements in the next election – or sooner.
Joey Senat, Ph.D.
OSU School of Media and Strategic Communications