State representative signs Open Government Pledge

State Rep. Seneca Scott, D-Tulsa, has promised to support the public's right to know at every opportunity if re-elected Tuesday.

In signing FOI Oklahoma's Open Government Pledge, Scott also promised to "support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws."

Scott also signed the pledge when FOI Oklahoma introduced it for the 2008 election.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


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

Stillwater Medical Center Authority says disclosing hospital officials’ salaries would be clearly unwarranted invasion of privacy, sues requester for $3,000 cost of copying records, held ‘retreats’ in Tulsa, OKC

The Stillwater Medical Center Authority says disclosing the salaries of the hospital’s top officials would put it at a hiring disadvantage and “would constitute a clearly unwarranted invasion” of the employees’ privacy, according to documents filed in an open records lawsuit against the public authority.

Last week, the hospital authority filed a counterclaim, seeking the $3,038.25 cost of copying 12,153 pages that the requester has not picked up.

The requester, former Stillwater commissioner Henry “Hank” Moore Jr., sued the hospital authority in late August. He was seeking, among other information, the salaries for the medical center’s top five senior management officials. (See Moore v. Stillwater Medical Center Authority, No. CJ-2010-408 (Payne County) (Aug. 24, 2010))

The Stillwater Medical Center Authority refused to disclose the salaries based on advice from the law firm McAfee & Taft in Oklahoma City.

That advice, written by a summer associate, relied upon a 2009 attorney general opinion on whether the birth dates of government employees are public records when contained in their personnel files. (2009 OK AG 33)

In that opinion, Attorney Drew Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (¶ 11)

Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy,” Edmondson said.

Relying upon that opinion, McAfee & Taft concluded that the hospital authority would be required to make the salary information public unless the board designated "salary and payroll information as confidential" because disclosure "would result in a clearly unwarranted invasion of the employee's privacy."

On July 27, the Stillwater Medical Center Authority voted that "disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy of Hospital employees." The agenda item was "Determination if Disclosure of Certain Information Would Constitute a Clearly Unwarranted Invasion of Privacy."

If the board determined that release of ALL employees' salaries would constitute an invasion of privacy, then the board's action violated the attorney general opinion. Edmondson had said such determinations must be made on an individual basis. "A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body," he said. (¶ 11)

To make the determination on an individual basis, the public body would have to weigh the public's interest in disclosure against the employee's interest in non-disclosure, Edmondson said. (¶ 31)

Describing this weighing of competing values, McAfee & Taft's memo said:

The Attorney General considered whether knowledge of a birth date would in any way assist the public in evaluating a public employee and determined that the information would not be helpful to the public. The privacy interest of employees outweighed the public interest.

However, that is not what the final AG opinion states.

The opinion originally said, “Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

But that was deleted from the revised opinion after Edmondson told The Oklahoman:

My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy. My view is that the conditions under which birth dates would be confidential would be rare.

To the new opinion, Edmondson added:

It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. (¶ 11)

Shortly after issuing the revised opinion, Edmondson released the names and birth dates of his employees.

Even so, McAfee & Taft had no trouble determining that employee privacy outweighs the public interest, saying:

On the one hand, knowing the salary amounts paid by a public body to its employees could assist the public in judging the efficiency of a public body and of its employees. On the other hand, it is likely that most employees would prefer that their salary information remain private. Animosity among public employees could also arise if employee-specific salary information becomes available, especially if significant variations in compensation exist among employees.

Overall, it would be reasonable for the trustees of the Authority to determine that the public interest in obtaining general salary information does not outweigh the interest of the employees in maintaining the confidentiality of such information and that the disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy.

I disagree with that conclusion. First, that determination in favor of employee privacy is not an individual application but rather a blanket policy, which the attorney general opinion said is prohibited.

Second, public employees' possible preference for secrecy does not outweigh the inherent right of Oklahomans "to know and be fully informed about their government." (See OKLA. STAT. tit. 51, § 24A.2)

Third, "animosity among public employees" because of "significant variations in compensation" is unrelated to privacy. It's a reason why the trustees and hospital officials want to keep employees in the dark. Which supports the public interest in disclosure. Why should "significant variations in compensation exist among [government] employees" doing the same or similar jobs?

An Oklahoma court seems unlikely to rule that the salaries of public hospital employees should be kept secret from the public. Courts in other states have consistently ruled that disclosure of public employee salaries does not constitute an unwarranted invasion of privacy and that the public has a right to know what those employees earn. (I will discuss examples of such cases soon on the blog.)

But here's the most important reason why an Oklahoma court will side with the public's need to know: The Oklahoma Open Records Act requires that the salaries of public employees be made public.

The balancing of privacy and public interests prescribed by the attorney general for birth dates came about only because birth dates are not mentioned in the Open Records Act. In contrast, the statute says:

All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying including, but not limited to, records of: ... the gross receipts of public funds. (OKLA. STAT. tit 51, § 24A.7(B)(2))

McAfee & Taft's memo says the Open Records Act "does not address salary information." I believe that is incorrect. Although the statute doesn't use the word "salary," salaries are included in the gross receipts paid to the employees.

After the lawsuit was filed, Stillwater Medical Center President and CEO Jerry Moeller disclosed his salary to Moore, The Stillwater NewsPress reported.

Moeller said his salary is $276,261 with a bonus last year of $11,050. Moeller receives a car allowance of $7,200 and the use of a Karsten Creek membership valued at $7,600, the newspaper reported.

Certainly seems like information the public should know about a public employee.

In a court document filed on Oct. 18, the hospital authority cited other reasons for not releasing the salary information, including:

• Releasing the information may give other hospitals an unfair competitive advantage
  
• Disclosure was detrimental to the competitive interests and advantage of the Hospital
  

The hospital authority also contended that the salary information doesn’t have to be disclosed because the medical center is “owned and operated by a public trust, not supported by tax dollars, unlike governmental agencies and subdivisions.”

However, as the hospital authority conceded in its response to the lawsuit, the Oklahoma Court of Civil Appeals held in 2003 that the Stillwater Medical Center is “a political subdivision for the purposes of the Oklahoma Governmental Torts Claim Act.” (See Elledge v. Stillwater Medical Center, 2003 OK CIV APP 6)

More importantly, the hospital authority also conceded that as a political subdivision of the state, it is subject to the Open Records and Open Meeting laws.

The hospital authority also said in its court filing that it would not conduct meetings outside of Stillwater. Moeller had told The Stillwater NewsPress in August that the board had in years past conducted “retreats” in Tulsa and Oklahoma City until City Attorney John Dorman “advised us that it might not keep with the spirit of the law.”


That's an understatement considering the Open Meeting Act requires that public meetings "be held at specified times and places which are convenient to the public." (OKLA. STAT. tit. 25, § 303)

The Stillwater Medical Center Authority also seems to be violating the Open Meeting Act by not keeping minutes of its executive committee meetings.

Among the exhibits filed by Moore is a letter to him from Moeller in which Moeller writes, "There is no problem with [providing] the agendas and minutes of the regular and special Board meetings, but we do not keep minutes at any Executive Committee meetings."

But the Open Meeting Act's definition of public body includes "all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1))

The statute also requires that each public body keep minutes of its meetings. (OKLA. STAT. tit. 25, § 312)

So why aren't minutes kept of the board's executive committee meetings?

The Stillwater Medical Center Authority would do well to keep in mind these admonitions by our state appellate courts:

Because the Open Meeting Act was “enacted for the public’s benefit,” the statute “is to be construed liberally in favor of the public,” the state Supreme Court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple,” the state Court of Civil Appeals said that year. “When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57)

That includes even the Stillwater Medical Center Authority.

 

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

Democratic candidate for House District 87 pledges to support open government

Dana Orwig, Democratic candidate for House District 87, has promised to support legislation to strengthen the letter and spirit of Oklahoma’s open government laws if elected on Nov. 2.

In signing FOI Oklahoma’s Open Government Pledge, the Oklahoma City resident said she also would “support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


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

Boynton trustee pleads guilty to Open Meeting Act violation

A Boynton trustee pleaded guilty Tuesday to violating the state Open Meeting Act when he voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Trustee Elmer Claiborne Lang received a suspended one-year sentence and a $500 fine, according to news reports.

Lang also forfeited his office effective Tuesday because the guilty plea led the revocation of his probation on a 2009 nepotism charge.

All three town trustees were charged earlier this month with violating the Open Meeting Act on Sept. 27. The OSBI also is investigating whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

News coverage of Lang's guilty plea:

• Boynton official pleads guilty, loses his post, by Susan Hylton, Tulsa World, 10.27.10.
• Boynton trustee pleads guilty, by Muskogee Phoenix, 10.26.10.

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

BRTA misled public about purpose of executive session, violated Open Meeting Act, lawsuit alleges

The Bartlesville Redevelopment Trust Authority purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session, according to a lawsuit filed last week against the BRTA.

The agenda for the meeting said the closed-door session would be to “Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA.”

But in an e-mail sent a day earlier, a BRTA official told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

BRTA Downtown Development Director Patrick Treadway’s e-mail to the trustees is included in the lawsuit filed Thursday accusing BRTA members of violating the state Open Meeting Act.

Plaintiffs Joel Rabin and Sharon Hurst want a Washington County judge to order the minutes and other documents from the executive session to be made public.

Rabin and Hurst also filed a lawsuit earlier this month seeking information packets and other documents given to the BRTA board members for regular and special meetings.

The latest lawsuit notes the statutory exemption cited on the BRTA meeting agenda allows executive sessions for

Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))

The lawsuit accuses the BRTA board of entering into the executive session “without first determining that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.”

The BRTA members voted to go into the closed-door session even though they knew or reasonably should have known that the purpose was not to discuss pending and/or impending investigations, claims or actions affecting the BRTA “but rather to allow Dan McMahan to convey – through an illegal and misleadingly-noticed executive session – information he believed would be needed for future projects,” according to the lawsuit.

The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.

Rabin and Hurst are FOI Oklahoma members. They are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.


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

2 Independents, 2 Republicans promise to support open government

Four more challengers have pledged to support open government in Oklahoma if elected on Nov. 2.

Signing FOI Oklahoma’s Open Government Pledge are

• Republican John Bennett, who is running for House District 2
  
• Republican Joshua Jantz, who is seeking the Senate District 46 seat
  
• Richard Prawdzienski, an independent running for lieutenant governor
  
• Daniel N. Stankiewicz, an independent candidate for House District 97
  

In signing the pledge, each candidate said he would “support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
The three legislative candidates also specifically promised to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws.
 
FOI Oklahoma began the Open Government Pledge as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.
 
Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.
 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

2 state senators, state representative pledge to support open government legislation

State Sens. Roger Ballenger of Okmulgee and Andrew Rice of Oklahoma City this week pledged to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws if re-elected in November.

The two Democrats are the first incumbents in the Senate to sign the Open Government Pledge since FOI Oklahoma began distributing it prior to the 2008 elections.

State Rep. David Dank, R-Oklahoma City, also became the first House incumbent to sign the pledge for a second time, having done so in 2008.

In signing the pledge, Dank, Ballenger and Rice promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

FOI Oklahoma began the Open Government Pledge as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


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

State Board of Education meets in questionable executive session

The state Board of Education met in executive session Thursday to investigate its “legal powers and duties” to implement a state law that some school districts are refusing to comply with, the Tulsa World reported today.

The meeting agenda cited a state Open Meeting Act exemption permitting executive sessions for

Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))

When Kay Harley, the board’s attorney, was asked what pending investigation, claim or action the board discussed during the closed-door session, she said it was to have "a confidential conversation with their attorney about the implementation of the Lindsey Nicole Henry Scholarships," which she said was an investigation, the Tulsa World reported.

The newspaper added:

When asked who was being investigated, Harley said, "We are investigating our legal powers and duties."

Based on that explanation, the board violated the Open Meeting Act. A public body determining its “legal powers and duties” does not constitute the kind of investigation covered by the exemption. If it did, then every discussion about research into an issue would constitute an investigation. Say good-bye to open government.

And how would a public discussion "seriously impair" the board's actual authority to implement the statute?

Just because an attorney was involved in the discussion did not automatically justify an executive session. Not every discussion between a public body and its attorney – even about a lawsuit – is exempted from public scrutiny, state Attorney General Drew Edmondson said in 2005.

Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will ‘seriously impair’ the body’s ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest. (2005 OK AG 29, ¶ 11)

In other words, the exemption for a confidential discussion between a public body and its attorney does not exist so that public bodies can do an end run around the Open Meeting Act. It was not intended to allow public bodies to discuss in secret what they should be discussing in front of the public.

Unfortunately, we don’t vote for the members of the state Board of Education with the exception of the state school superintendent of public instruction. But we do vote for the governor, who appoints the other six members of the board.

Regardless of whom we hire on Nov. 2 as governor, let’s hope she will demand her appointees abide by the letter and the spirit of our Open Meeting law or replace them with those who will.

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

2 state representatives, House GOP candidate sign Open Government Pledge

State Reps. Sally Kern, R-OKC, and Al McAffrey, D-OKC, have pledged to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws if re-elected in November.

Patent attorney Molly McKay, a Republican challenger for House District 78 in Tulsa, also has agreed to FOI Oklahoma’s Open Government Pledge. Her opponent, Democratic incumbent Jeannie McDaniel, signed the pledge when it was introduced for the 2008 elections.

FOI Oklahoma this week asked 127 candidates for legislative and statewide offices to sign the pledge.

Several candidates on the Nov. 2 ballot took the pledge earlier this year. They are the Democratic and Republican gubernatorial nominees, the Democratic contender for state attorney general, Democratic candidate for House District 36, and both candidates for the House District 44 seat.

By signing the pledge, McKay, Kern and McAfrey joined them in promising "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s website.

Founded in 1990, FOI Oklahoma Inc. is a statewide organization actively supporting those organizations and individuals working to open records or provide access to meetings illegally closed. The organization's Board of Directors includes attorneys, educators, elected officials, journalists, librarians and private citizens.


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

FOI Oklahoma seeks nominations for at large directors

Freedom of Information Oklahoma Inc. is seeking applicants to serve in at large positions on its board of directors for 2011.

FOI Oklahoma is a statewide organization that promotes open government through seminars and school programs and encourages state and local officials to comply with the state's Open Meeting and Open Records laws. It also advocates for citizens denied access to government records and proceedings.

Its members include teachers, politicians, journalists, librarians and other citizens who believe government of the people means that citizens must have access to their government to have the power to affect it.

Those who wish to apply for an at large board position should contact Mark Hanebutt, nominating chair, at 100 N. University Drive, Edmond, OK 73034, or by e-mail at mhanebutt@yahoo.com, before Monday, Nov. 8.

Under the Open Meeting Act, is the Pawnee County Commission permitted to consider items of 'unfinished business' not specifically listed on the posted agenda?

Agendas for Pawnee County Commission regular meetings routinely list “Unfinished Business” as an item.

But discussing -- let alone acting upon -- public business under such a vague agenda item would seem to violate the state Open Meeting Act.

Public bodies are not permitted to consider items of “old business” not specifically listed on the agenda, the state Court of Civil Appeals said in May 2009. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51)

Any construction of the statute that would allow a public body to consider an item not listed on its posted agenda -- apart from “new business” -- “totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider,” said the three-member panel of the court. (¶17)

Any reading of the OMA notice provisions to permit consideration of unspecified "old business," in our opinion, "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting," and invites "agency action which exceeds the scope of action defined by the notice. (Id.) (emphasis included)

The court considered the violation by the Beggs Public Works Authority to be “willful” and “conscious” even though its attorney had advised that a water purchasing contract "could be properly considered and approved as an unlisted item of 'old business.'" (Id.)

“The plain language of §303 [of the Open Meeting Act] mandates the posting of a notice of the matters to be considered at a meeting of a public body,” the court said. (¶18)

“The failure of Beggs' governing board to post proper notice of its intent to consider the execution and approval of the water contract with Okmulgee, although based on advice of counsel, constitutes a ‘willful,’ ‘conscious’ violation of the OMA ‘by those who know, or should know the requirements of the Act,’” the court said. (Id.)

The court declared the contract invalid because its consideration and approval had exceeded the scope of action defined in the agenda. (Id.)

There seems no practical difference between the terms “old business” and “unfinished business.”

Under “unfinished business,” for example, Pawnee County Commissioners Dale Vance, Dale Carter and Gary Pogue on Aug. 16 apparently approved a contract leasing the county’s mineral rights under a one-acre section of land. According to the meeting minutes:

Clerk reported Jeff Jones, Assistant District Attorney, had returned the offer from Pablo Energy II, LLC, regarding Well Proposal Section 6, Township 21 North, Range 4 East, to lease the County’s mineral interest within the 1.04 acres. Advised Commissioners could only choose between the last two options. Discussion. Motion by Pogue to select the third option “Lease my interest to Palo for a primary term of 3 years for $175.00 per net mineral acre, reserving a One-eighth (1/8th) royalty, delivering an 87.5% net revenue interest to Pablo”, Seconded – Carter

No vote was recorded.

The contract was one of four items not listed on the agenda but dealt with under “unfinished business.”

Any action the Pawnee County Commission has taken on unlisted “unfinished business” could be challenged in court and most likely declared invalid.

Also, in at least one recent meeting, commissioners discussed public business that didn’t seem to be “unfinished business” but rather “new business.” According to the minutes of the Sept. 13 meeting, “Commissioners reported someone had been in their office over night and got on their computers-icons moved. Will put locks on them.”

The Open Meeting Act defines “new business” as “any matter not known about or which could not have been reasonably foreseen prior to the time of posting" the agenda. (OKLA. STAT. tit. 25, § 311(A)(9))

Given the clarity of that language and that the Court of Civil Appeals decision regarding the Beggs Public Works Authority was some 16 months ago, the Pawnee County Commission should know how to comply with the Open Meeting Act.

A violation of the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)


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

Unsealed transcript sheds light on hard feelings between Oklahoma County judge, district attorney's office

In an unsealed transcript of a September criminal hearing, Oklahoma County District Judge Tammy Bass-Lesure says she would step down from the case because she refused to hear any more cases prosecuted by the district attorney and his top two assistants.

Assistant prosecutors had asked Bass-Lesure to step down from the criminal case on Sept. 8 because the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her.

After what appears to have been a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed. On Sept. 20, Judge Lisa Davis signed an order releasing the transcript "to the State of Oklahoma."

FOX 25 News in Oklahoma City reported last week on the transcript being sealed. Even though the transcript had been unsealed, the news station was not able to obtain a copy until Friday.

As the station noted Monday night, the transcript reveals hard feelings between the judge and the district attorney's office.

At one point, Bass-Lesure accused Assistant District Attorney Jennifer Chance of having verbally attacked her after Bass-Lesure was asked to step down from the high-profile murder trial of an Oklahoma City pharmacist.

Chance pointed out to Bass-Lesure that she was out of town when that occurred. It was Chance's boss, District Attorney David Prater, who had made the comments Bass-Lesure complained about.

An investigation by Prater's office had found that Bass-Lesure gave a defendant the names of three attorneys even though he had a drug case assigned to her. The Oklahoman reported:

Prosecutors had the gym trainer wear a hidden microphone July 22 to record a conversation with the judge. Prosecutors told the judge this week they would file a judicial complaint against her, sources have said. One attorney listed by the judge is representing the pharmacist.

A group of black pastors and community leaders then called for a civil rights investigation of Prater for "going after" Bass-Lesure and another black judge.

In response to that criticism, Prater said of Bass-Lesure:

What became obvious to us is that the State of Oklahoma was not going to be able to get a fair trial due to some alleged activities by the judge in [the murder trial of the pharmacist]. It's incredibly unfortunate that this judge did this. It's incredibly irresponsible, it's immoral and it's corrupt. And it's her fault -- her fault, no one else's -- that we're in this situation right now.

A week after the Sept. 8 hearing, it was announced that Bass-Lesure would no longer hear criminal cases as of Jan. 1. Instead, she will take over probate, guardianship and adoption cases.

During the hearing Sept. 8, Bass-Lesure seemed to imply that Chance was incompetent, questioning why every time she appeared before the judge she was accompanied by either Prater or First Assistant District Attorney Scott Rowland.

Chance said they accompanied her only in cases involving the particular defense attorney because he had yelled at her. The defense attorney then interjected that he had yelled her name in a courthouse hallway only after she had been rude and then walked away without acknowledging his request.

As for the argument with Chance and Rowland on Sept. 8, Bass-Lesure told FOX 25 News that she didn't say or do anything inappropriate but wouldn't explain why she sealed the transcript.

The transcript should never have been sealed, and her order doing so would not have survived a legal challenge. Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. No compelling reason existed in this situation.

Instead, reading the transcript reminded me of Daniel Tosh's parody of a childish insult, "I'm
better than you, na-na, na-na, boo-boo, go stick your head in doo-doo."

Better behavior is expected of those responsible for administering justice in our courtrooms.


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

Open records lawsuit seeks information packets, documents from Bartlesville Redevelopment Trust Authority

Two FOI Oklahoma members are suing the Bartlesville Redevelopment Trust Authority for copies of the information packets and other documents given to its seven-member board for regular and special meetings.

Joel Rabin and Sharon Hurst have been requesting the records in writing since late August, according to the lawsuit filed Wednesday in Washington County District Court.

The Osage County residents have received no response to their requests, according to the lawsuit.

The Bartlesville Redevelopment Trust Authority was formed by the Bartlesville City Council to help develop downtown Bartlesville. According to its website:

One way the BRTA seeks to do this is by acquiring properties within or near the downtown area and making those properties available for redevelopment by private parties.

According to the lawsuit, Bartlesville City Clerk/Treasurer and Finance Director Mike Bailey told Rabin on Aug. 23 that attorney Dan McMahan of Oklahoma City would handle open records requests for the BRTA.

Rabin and Hurst are requesting the information packets and other documents distributed at BRTA meetings since Jan. 1.

Information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act, a state trial judge held in April 2004. (See Shero v. City of Grove, No. 05-CV-0137-CVE-PJC, 2006 U.S. Dist. LEXIS 80462, at **4-5 (N.D. Okla. Nov. 2, 2006))

“It is clear that the packets are public records,” said Delaware County District Judge Barry Denney. “The city can keep confidential or delete records they believe to be of confidential nature before distributing them to those who request copies.”

Under the Open Records Act, “A public body must provide prompt, reasonable access to its records....” (OKLA. STAT. tit. 51, § 24A.5(5))

A 1999 attorney general opinion stated succinctly that “prompt, reasonable access” generally means “only the time required to locate and compile” the public records. (1999 OK AG 58, ¶ 15)

“There is no provision in the Open Records Act for a public body to ‘withhold’ records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record,” the opinion said. (Id. ¶ 11)

Rabin and Hurst are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.

The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.




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

Oklahoma County judge seals transcript of her courtroom argument with prosecutors

Oklahoma County District Judge Tammy Bass-LeSure sealed the transcript of an open court hearing in September in which she had a heated argument with prosecutors, FOX 25 in Oklahoma City reported Wednesday.

Bass-LeSure yelled at prosecutors after they asked her to step down from a criminal trial in which the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her, the television station reported.

The district attorney’s complaint about that recommendation led to Bass-LeSure recusing herself in late August from the murder trial of an Oklahoma City pharmacist because one of his defense attorneys also was among those three.

In mid-September, Bass-LeSure announced she would no longer hear criminal cases as of Jan. 1.

Bass-LeSure was presiding over a criminal hearing on Sept. 8 when prosecutors asked that she remove herself from that case as well, FOX 25 reported.

After a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed, the station reported.

On Sept. 20, a court order was issued releasing the transcript “to the State of Oklahoma.” The order was signed by Oklahoma County District Judge Lisa Davis on behalf of Judge Ray C. Elliott, according to the court document.

FOX 25 was not able to obtain a copy of the transcript Wednesday.

Bass-LeSure’s order sealing the transcript – and a court order releasing it to only the district attorney's office – would seem unlikely to survive a legal challenge.

Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. (See, e.g., Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978))

As open government attorney Bob Nelon told FOX 25:

The reason for excluding public access to the transcript of what happened in open court is so rare as to almost be unjustifiable. It is essential that the public be able to watch the justice system under way.

Perhaps someone at the Oklahoma County Courthouse or at the district attorney's office will agree and avoid the need for litigation at taxpayer expense.

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

Boynton trustees charged with Open Meeting Act violation

Boynton's three town trustees were charged Tuesday with violating the state Open Meeting Act when they voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Under way is an OSBI investigation into whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Trustee Elmer Claiborne Lang, 51, was arrested at his home Tuesday and then bonded out of jail. Mayor Susie Marie Wilson, 54, and Trustee Sheila Younger, 50, surrendered themselves this morning and were making arrangements to pay their $2,500 bonds, The Muskogee Phoenix reported today.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

Under the statute, each agenda must “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.

The Open Meeting permits "any person attending a public meeting" to record the proceedings has long as it doesn't "interfere with the conduct of the meeting." (OKLA. STAT. tit. 25,  § 312(c))

News coverage:

• Warrants issued for town officials, Donna Hales, The Muskogee Phoenix, 10.5.10
• 3 Boynton officials charged with Open Meeting Act violations, Susan Hylton, Tulsa World, 10.6.10

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