Saturday, November 13, 2010

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

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.