Thursday, November 18, 2010

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

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