Thursday, October 14, 2010

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

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