FOI Oklahoma official chosen for empty Edmond City Council seat

FOI Oklahoma Executive Director Kay Bickham was chosen Tuesday to serve the vacated Ward 1 seat on the Edmond City Council.

The primary election for Edmond mayor and Wards 1 and 2 is slated for March 1. The general election is set for April 5.

Bickham indicted to The Edmond Sun that she is not interested in running for election to the seat in March but believed she had the necessary experience to fill in until voters chose a replacement.

Bickham served as Ward 1 councilwoman from 1991 to 1995.

"So I'm going to the same chair. And I’ve served on most of the committees and have been keeping touch through the years on various other city committees," she told the newspaper.

Bickham will be sworn in on Dec. 13. She was one of 10 applicants for the Ward 1 seat vacated in October when Wayne Page resigned from the council to move to Vancouver, Wash.

Candidates for the Edmond municipal offices this spring will be asked to sign FOI Oklahoma's Open Government Pledge.


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

Open Government Pledge signer named to House panel looking to make legislative process more transparent

A two-time signer of FOI Oklahoma's Open Government Pledge was named on Friday to a House panel told to make the legislative process more open for the public.

Rep. David Dank of Oklahoma City has twice publicly pledged to support the inherent right of Oklahomans "to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Dank is joined on the House working group by fellow Republicans Jeff Hickman of Dacoma, Gary Banz of Midwest City, Jason Nelson of Oklahoma City and Dan Sullivan of Tulsa.

House Speaker-elect Kris Steele said he is "serious about bold reform" and expects the group to "develop proposals that significantly change the way things are done at the Oklahoma Capitol."

Among the rules changes to be considered:

• Open the conference committee process to allow actual meetings and public votes on conference committee reports.
  
• Put in place even during the final two days of the session a 24-hour rule that requires a House conference committee report to be filed and posted online for a full day before it can be considered on the House floor.
  
• Post conference committee reports online for member and public review with a link to previous versions of the bill available so changes can be more easily spotted.
  

The current conference committee system has created a situation fertile for abuse. Despite the name "committee," as KWTV noted in July, most don't actually meet to reconcile the differences between House and Senate versions of bills.
 
"No, it's a piece of paper that has signature lines on it," said Rep. Ryan Kiesel, D-Seminole.
 
KWTV noted that the author of a bill sent to a conference committee needs only to get signatures from a majority of the committee members to bring it back for a floor vote.
 
Kiesel said the system allows unscrupulous legislators to insert self-serving language and then use personal or political persuasion to get enough committee members to agree.
 
Any notion of real legislative transparency is "out the window," he told the station.
 
Steele said he believes "increased public scrutiny and oversight is vital to a healthy democracy, and technological advances now allow us to be more user-friendly than ever."
 
"For the public to have confidence in our political system, they must have the ability to both follow and scrutinize legislative activity, and I am committed to opening up the process," he said.
 
Coverage of working group:

• Legislative transparency group created, by Barbara Hoberock, Tulsa World, 11.20.10

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

OSBI commissioners vote again to hire director -- this time in front of public

OSBI commissioners this week voted again to hire a director after their attorney suggested it to "cover your bases," The Oklahoman reported Wednesday.

“I don't believe that doing so is an admission that you willfully violated the [Open Meeting] act,” said Jimmy Bunn Jr., OSBI's chief legal counsel. “It's merely just covering your bases and making sure the appointment is done appropriately.”

Earlier this month, commissioners concluded an executive session and hired a director without telling the waiting reporter that the closed-door session was not only completed but also that the entire special meeting had ended. (Read FOI Oklahoma Blog posting.)

Reporter Michael Baker said he and his photographer were the only members of the public in the room before the closed session began. They had even signed in prior to the meeting, and their names were read aloud at the start.

Somehow, the commissioners and staff didn't question why the journalists were not present when the open meeting resumed and commissioners voted to hire the director -- which was the journalists' reason for being there because it was the sole purpose of the special meeting.

Baker hadn't wandered off during the executive session. He was right where OSBI officials had told him to wait -- in the lobby. The commission meeting room is in a secure part of the OSBI headquarters. Getting to the second-floor room requires an OSBI escort from the first-floor lobby.

When commissioners went into executive session, Baker and photographer were escorted from the conference room back to the lobby. "No one ever returned to the lobby to say the meeting was back in session and offer an escort for media or the public to the conference room," Baker wrote in his original story.

Bunn on Tuesday told OSBI commissioners he is "convinced that was not a willful violation of the Open Meeting Act." (Watch the video of Bunn's advice to commissioners.)

But willfulness does not require that commissioners had acted in bad faith, maliciously or with an intent to violate the law during the earlier vote. Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)

"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act,” the court explained. (Id. at ¶ 26)

“While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act’s requirements and blatantly or deliberately disregarded the law,” the court concluded in that case. (Id. at ¶ 30)

(See also 1981 OK AG 214, ¶ 15: “[T]he Administrator of the State Personnel Board was under a duty to (1), see that the Committee members were briefed and told of their responsibilities and duties and (2), see that the Committees were furnished with copies of statutes pertaining to their duties. Accordingly, the Committee members most likely knew or should have known of their duty to comply with the Open Meeting Act.”)

The state Supreme Court adopted the lower court's reasoning in 1984, saying, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.” (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)

Given the OSBI Commission's meeting location, it had an obligation to make sure that those members of the public who were in the room prior to the closed-door session are notified and given time to return before the open meeting resumes. Not doing so conflicted with the letter and the basic premise of the state Open Meeting Act.

The OSBI commissioners' do-over vote on Tuesday did not absolve them of any possible earlier violation. The Court of Civil Appeals in 1981 rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation. In the case before the court, school boards had violated the statute while acting on an annexation later ratified by county voters.

"The election did not rectify the harm to the public because the harm did not lie in the annexation itself," said the court. "The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose. The election did not ‘cure’ these violations." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)

The best news from Tuesday's meeting was the apparent recognition that the previous vote was not in the best interest of an open government.

"There was a mistake made," Bunn told commissioners. "In the interest both of transparency and being completely open and to ensure that the appointment ... is effective, my recommendation was that essentially vote on it again, reappoint him and then that takes care of any potential claims or allegations that your prior appointment was ineffective or inappropriate."

This blog previously noted that the OSBI is sometimes called upon by district attorneys to investigate violations of our Open Meeting law. As such, its governing body should be held to the highest standard of compliance.

One commissioner seemed to agree on Tuesday. "If anybody should be doing things right, it's the OSBI," said Rob Hudson, district attorney for Payne and Logan counties.

Amen to that.


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

Tulsa Development Authority group likely to meet in public to redo screening process

A Tulsa Development Authority advisory committee will likely meet in public to hear all 10 proposals for a vacant fire station, the Tulsa World reported today.

The newspaper reported last week that the committee overseen by Tulsa City Councilor Maria Barnes had met secretly to winnow the field of 10 to three without hearing presentations from the other seven.

Today's story says Authority Executive Director O.C. Walker recommended in a memorandum sent Friday that the authority tell the advisory committee to hear presentations from all 10 bidders in an open meeting.

The issue is set for discussion at the authority's Dec. 2 meeting, the newspaper reported.

TDA attorney Jot Hartley told the Tulsa World that although the authority had done nothing wrong, redoing the process in an open meeting would provide full transparency.

Good thinking. But Barnes' committee, created by the TDA at her urging, seems to have violated the Open Meeting Act by meeting secretly.

An ad hoc committee or citizens advisory committee that "exercises actual or de facto decision-making authority" must comply with the Open Meeting Act, the state Supreme Court said in 1978. (Sanders v. Benton, 1978 OK 53, ¶ 16)

A 1984 attorney general opinion said, "[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

That reasoning seems to apply to Barnes' advisory group.

Hartley said last week that the TDA was not bound by the recommendations of Barnes' committee. But if the TDA had considered only the three proposals ranked and forwarded by the committee, then that committee would have exercised decision-making authority.

Still, the good news is that Tulsans' need to know will be served if the TDA requires the advisory group to redo the process in the open.

But legislators should strengthen the public's right to know by declaring that all citizens advisory committees and ad hoc committees -- regardless of decision-making power -- are subject to the Open Meeting Act.


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

Tulsa Development Authority committee headed by city council member held secret meetings in apparent violation of Open Meeting Act

Tulsa City Councilor Maria Barnes oversaw secret meetings by a Tulsa Development Authority committee that screened proposals to buy and redevelop a vacant fire station in the Cherry Street neighborhood, the Tulsa World reported this week.

Barnes told the newspaper that her advisory committee narrowed the field of 10 offers to three, heard presentations from those bidders, and then ranked them. The TDA is scheduled is to hear the three finalists' presentations Dec. 2.

The committee's meeting were not publicly posted, the newspaper reported.

One applicant, still expecting to make his presentation, didn't learn he had already been eliminated until told by the Tulsa World.

Given this scenario, those meetings violated the Open Meeting Act.

According to the statute, the definition of public body “shall include all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1)) However, the state Supreme Court has carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)

(The court's decision was based on language found in the 1971 Open Meeting Act. The current statutory language including “all committees or subcommittees of any public body” in the definition of public body was added in 1977. However, the court has persisted in recognizing the exception is created based on old statutory language.)

But if “the subordinate entity in the performance of its assigned duties and responsibilities exercises actual or de facto decision-making authority, it must comply with the open meetings law,” the court said in Sanders.

In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

That reasoning would seem to apply to the TDA committee headed by Barnes and created by the TDA at her urging.

The Tulsa World reported that TDA attorney Jot Hartley said the authority is not bound by the recommendations of the advisory committee.

But if the committee winnowed the list of applicants being reviewed by the TDA -- as it appears to have done -- then its meetings were subject to the Open Meeting Act.

Even if the committee's meeting weren't technically required to be open, the process described by the Tulsa World is anything but a good governmental practice. As a Tulsa World editorial said today:

In a word, the way this screening process was conducted stinks. It is indefensible. If the authority won't scrap the results and start over, someone higher up ought to take some steps to make that happen.

The TDA is staffed by the City of Tulsa's Economic Development and Real Estate Management Division. The TDA Board of Commissioners are:

• Julius Pegues, chairman
• Paula Bryant-Ellis, vice chairman
• Carl Bracy
• John D. Clayman
• Roy Peters

Casting doubt over whether the committee should have met publicly would be another example of a government body using a loophole created by the court in Sanders: A public body creates a committee to do the work of eliminating applicants. When challenged about the committee's secret meetings, the public body claims it isn't technically required to abide by those decisions.

Our state legislators should end this charade by reiterating this coming session that the statute means what it says: ALL committees or subcommittees are subject to the Open Meeting Act.


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

11 candidates who promised open government were elected Nov. 2

Voters last week elected 11 candidates who signed FOI Oklahoma's Open Government Pledge prior to the Nov. 2 election.

Pledge signers were sure to win in three races because both choices on the ballot for governor, House District 44 and Senate District 46 had promised to support the public's right to know at every opportunity if elected.

The candidates for local and statewide offices, such as governor, promised that they and the public bodies that they are “elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws.”

Legislative candidates pledged to “support legislation to strengthen the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws.”

Pledge signers elected on Nov. 2 were:

• Governor: Mary Fallin
• Senate Dist. 6: Josh Breechen
• Senate Dist. 8: Roger Ballenger
• Senate Dist. 46: Andrew Rice
• House Dist. 2: John Bennett
• House Dist. 44: Emily Virgin
• House Dist. 72: Seneca Scott
• House Dist. 84: Sally Kern
• House Dist. 85: David Dank
• House Dist. 88: Al McAffrey
• Tulsa County Assessor: Ken Yazel

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.

List of signers for 2010, 2009 and 2008 elections can be found on FOI Oklahoma's website.


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

OSBI Commission hires director, ends meeting without inviting waiting public back into room after closed executive session

OSBI commissioners concluded an executive session and hired a new director Monday without telling the waiting reporter that the closed-door session was not only completed but also that the entire special meeting had ended.

After having waited about six hours to be called back into the meeting, The Oklahoman reporter realized it was over when he saw commissioners leaving the building.

Commission Chairman Ted Farris said commissioners believed everyone had been told the meeting was resuming. "I'm sorry that happened, but we didn't understand there was a problem," he said.

The OSBI Commission later provided the reporter with an audio recording of the meeting and the vote. But that doesn't excuse the commission's apparent oversight. If an audio recording were sufficient, then the Open Meeting Act, and related judicial and attorney general opinions, would not be so adamant that the public is entitled to be present during public meetings.

Reporter Michael Baker says he and his photographer were the only members of the public in the room before the closed session began. They had even signed in prior to the meeting, and their names were read aloud at the start.

Yet, Farris and the other commissioners apparently didn't question why the journalists were not present when the open meeting resumed and commissioners voted to hire the new director -- which was the journalists' reason for being there because it was the only agenda item and the sole purpose of the special meeting.

If Baker had just wandered off and wasn't there when the meeting room was reopened, then this wouldn't be an open meeting issue.

But that's not how the OSBI Commission conducts its meeting. As Baker explained in the newspaper this morning, the commission meeting room is in a secure part of the OSBI headquarters. Getting to the second-floor room requires an OSBI escort from the first-floor lobby.

When commissioners went into executive session, Baker and photographer were escorted from the conference room back to the lobby. "No one ever returned to the lobby to say the meeting was back in session and offer an escort for media or the public to the conference room," Baker wrote.

Given its meeting location, the commission has an obligation to make sure that those members of the public -- and that includes reporters -- who were in the room prior to the closed-door session are notified and given time to return before the open meeting resumes.

Not doing so conflicts with the letter and the basic premise of the state Open Meeting Act.

The statute requires that meetings be held at “specified times and places which are convenient to the public.” (OKLA. STAT. tit 25, § 303)

Why? Because it is the public policy of the state “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (OKLA. STAT. tit. 25, § 302)

What occurred at the OSBI Commission meeting Monday was hardly encouraging or facilitating. Instead, intentionally or not, commissioners appeared to thumb their collective nose at the public's right to know.

The irony, of course, is that the OSBI is sometimes called upon by district attorneys to investigate violations of our Open Meeting law. As such, its governing body should be held to the highest standard of compliance. Any thing less undermines the agency's moral authority in such investigations.

So whom does the public hold accountable when political appointees don't comply with the Open Meeting law? Answer: The elected officials who appoint them.

Two members of the OSBI Commission, Tulsa County Sheriff Stanley Glanz and Rob Hudson, district attorney for Payne and Logan counties, are elected officials. But all seven members are appointed by the governor.

(The other commissioners are Anne Holzberlein, Russell Noble, Mickey Perry and Mike Wilkerson.)

Regardless of today's election, the next governor has publicly said she expects her appointees to public bodies to abide by the Open Meeting and Open Records laws. Republican Mary Fallin and Democrat Jeri Askins made that promise at FOI Oklahoma's Sunshine Conference in March.

They also signed FOI Oklahoma's Open Government Pledge in which they promised, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

Let's hold the next governor to those promises the first time her political appointees to a public body seem unwilling to understand or to comply with our open government laws.


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

Democratic candidate for House District 93 seat signs Open Government Pledge

Wanda Jo Peltier has pledged to support legislation to strengthen the letter and spirit of Oklahoma’s open government laws if elected to the House District 93 seat today.

The Oklahoma City Democrat represented the district from 1986 to 1996.

Peltier's signed Open Government Pledge was dated Oct. 22 but was not received until late Monday.

In signing the pledge, Peltier also 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 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