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State legislative caucuses would be prohibited from "discussing issues behind closed doors," under a bill that Rep. Jason Murphey says he will sponsor.
The Guthrie Republican this week reiterated his intention to file a bill that would require the Legislature to comply with the state Open Meeting and Open Records laws.
"This is not a ground-breaking proposal. Other state governments already require that their legislative bodies follow their respective state’s open record and open meeting laws," Murphey wrote in a column published in The Edmond Sun.
"One of the most important aspects of this law would be the cessation of legislative caucuses discussing issues behind closed doors," Murphey wrote. "An important principle of open meeting laws is the concept that dictates that a majority of a governing body should never meet behind closed doors to discuss business. This concept helps keep policy makers from taking a public stand different from the position taken in private."
Having the Legislature comply with the Open Records Act "would establish a clear set of criteria that would govern which legislative records should be kept private and which should be made public," Murphey wrote.
"Passing this particular proposal will be a difficult challenge, but I am convinced that it is the right thing to do," said Murphey, who is chairman of the House Government Modernization, Accountability and Transparency Committee.
In July, then-legislative leaders Glen Coffee and Chris Benge defended the need for secrecy at the state Capitol, arguing that legislators must be able to "deliberate and communicate in confidence."
They also contended that the self-imposed exemption from our open government laws is necessary to protect the privacy of constituents who contact legislators.
But legislators could abide by the Open Records Act while exempting truly confidential information from disclosure. In fact, medical records and many others are already exempted from the otherwise public documents of state and local agencies.
Murphey should find support for his bill from incoming Gov. Mary Fallin, who last spring said she supports removing the Legislature's exemption from the open records and meeting laws.
Murphey also should be supported by fellow representatives
- John Bennett, R-Sallisaw
- David Dank, R-Oklahoma City
- Sally Kern, R-Oklahoma City
- Al McAffrey, D-Oklahoma City
- Jeannie McDaniel, D-Tulsa
- Randy McDaniel, R-Oklahoma City
- Todd Russ, R-Cordell
- Mike Sanders, R-Kingfisher
- Seneca Scott, D-Tulsa
- Emily Virgin, D-Norman
- Weldon Watson, R-Tulsa
- Harold Wright, R-Weatherford
and state Sens. Roger Ballenger, D-Okmulgee, and Andrew Rice, D-Oklahoma City.
Along with Murphey, each promised to support the public's right to know at every opportunity once elected and to "support legislation to strengthen the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws."
As Murphey noted in this column: These two important laws require Oklahoma governing bodies to conduct business according to a set of rules that are designed to ensure your right as a citizen to know that what happens in government is upheld. However, the Legislature is exempted from these laws. In my view this is wrong, and I believe the Legislature should abide by the same laws they ask other Oklahoma governing bodies to abide by.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
District attorneys don’t seem especially interested in prosecuting violations of our open government laws. And the expense of suing public agencies over meeting and records violations is prohibitive for most folks.
But another option exists for persuading at least some of those public officials to respect Oklahomans’ right to know what their government is doing.
File a complaint with the Oklahoma Bar Association against lawyers serving on public bodies that violate the Open Meeting Act and against those government attorneys providing advice that clearly contradicts the Open Meeting and Open Records laws.
“Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers,” according to the Oklahoma Rules of Professional Conduct for lawyers. (OKLA. STAT. tit. 5 app. 3-A, § 8.4 cmt. 5)
Protecting the public is the primary purpose of the lawyer discipline system, the Oklahoma Bar Association notes.
The OBA investigates complaints of unethical conduct by lawyers practicing in the state. Lawyers found guilty of serious misconduct may be suspended or disbarred.
The rules "apply to lawyers who are not active in the practice of law" and to "practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." (OKLA. STAT. tit. 5 app. 3-A, § Preamble(3))
"A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs." (Id. 5)
The OBA's examples of unethical conduct include when "a lawyer doesn’t tell the truth."
Lawyers may serve on public bodies as either elected or appointed members.
A complaint against a lawyer serving on a public body that clearly violates the Open Meeting Act would seem justified under the following Rules of Professional Conduct:
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(d) engage in conduct that is prejudicial to the administration of justice; (OKLA. STAT. tit. 5 app. 3-A, § 8.4)
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. (OKLA. STAT. tit. 5 app. 3-A, § 8.4 cmt. 2)
Those rules also would seem to justify a complaint against attorneys whose advice to public bodies and agencies clearly contradicts our state's Open Records and Open Meeting laws.
Such advice by these attorneys -- whether employed directly by a government body to render it legal advice or a private attorney hired as an independent contractor to render legal advice to a government body or agency -- would also seem to violate another Rule of Professional Conduct:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent....(Rule 1.2. (d))
(["A] lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." Id.)
When any of these lawyers -- whether as members of public bodies or as government attorneys -- try to cover up their wrongdoing, they would likely violate the rules by:
- Engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation; (OKLA. STAT. tit. 5 app. 3-A, § 8.4(c))
- Knowingly making "a false statement of material fact or law to a third person"; or
- Knowlingly failing to "disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." (OKLA. STAT. tit. 5 app. 3-A, § 4.1(a-b))
A complaint filed against lawyers serving on public bodies or those hired to provide legal advice should note which of the specific Rules of Professional Conduct that the attorney has violated.
The complaint must be in writing and signed. A form is not required, but an OBA complaint form is available.
The complaint must be an original document mailed or delivered to the Oklahoma Bar Association:
ATTN: General Counsel P.O. Box 53036 Oklahoma City, OK 73152
Faxed or e-mailed complaints will not be accepted.
The nature of the complaint should be described in full detail, including dates. Include copies, not originals, of any documents that could help the Office of the General Counsel understand the complaint.
The Office of the General Counsel will review the information and may decide to:
- Open an investigation
- Ask you to provide more information
- Notify you that the office can take no action
The OBA cautions that "because of the large number of complaints received," several weeks might pass from the time your complaint is received to the time you are contacted.
According to the OBA: If an investigation is opened, you will be notified in writing and when necessary will be contacted by an investigator or attorney.
A copy of your complaint will be sent to the attorney, who will be asked to respond in writing.
Even if an investigation is not opened, you will still be notified. A copy of your complaint will be forwarded to the attorney for his or her information.
If an investigation is conducted and the state bar decides there is probable cause to think the attorney violated ethics rules and there is clear and convincing evidence to show the violation, formal disciplinary action may be initiated. All state bar investigations are confidential. A hearing may be held, and you may be required to appear as a witness.
If you file such a complaint, please let me know.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Interim Chief Medical Examiner Andrew Sibley said Thursday he won't release unfinished autopsy reports even if disclosure is required by state law, News9 reports.
"If there is a problem with that and I have to go to jail over it, so be it," said Sibley. "I would have no problem going to jail with a clear conscious."
Earlier this month, Sibley refused to release to KOCO and The Oklahoman the autopsy report in the slaying of an Oklahoma City mother.
"It is my belief that the premature release of further details may interfere with the ongoing investigation and subsequent prosecution," Sibley told KOCO.
Sibley refused to cite an statutory provision exempting the autopsy.
Apparently, he doesn't care that one doesn't exist.
According to News9, medical examiner spokeswoman Cherokee Ballard, a former television reporter, said releasing documents early became an issue after the murder of an Anadarko pastor. Pressure from the state attorney general forced the medical examiner to release the body diagrams.
(The Oklahoman reported Friday that it and other news organizations last year began getting diagrams in homicide cases before autopsy reports were finalized. The attorney general's office advised the medical examiner's office those initial reports were public under the Open Records Act.)
Autopsy reports are a government record to which the public is entitled. That should not change.
This blog has pointed out since April that the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.
State legislators have twice rejected limiting what the public may know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown.
The most recent attempt was withdrawn in May because of stiff opposition on the House floor.
Among those critical of the bill was state Rep. Lucky Lamons, a former Tulsa police officer. He said autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.
Lamons pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information.
In the meantime, two open government advocates in the state tell me they hope a prosector will oblige Sibley and throw him in jail.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Oklahoma higher education regents last week met behind closed doors with their attorney, but their staff refused to explain to a reporter the specific item of public business being discussed.
Under the Open Meeting Act, the agenda item for an executive session must “contain sufficient information for the public to ascertain that an executive session will be proposed, identify the items of business and purposes of the executive session,” and state the specific statutory authorization for the executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
However, the agenda for the Oklahoma State Regents for Higher Education special meeting on Wednesday included only the statutory authorization, stating:
Possible vote to go into executive session pursuant to Title 25, Oklahoma Statutes, Section 307(B)(4), for confidential communications between a public body and its attorneys concerning pending investigations, claims or actions.
Return to open session.
A 1997 attorney general opinion said public bodies have an "absolute" duty under the Open Meeting Act to specify the purpose of an executive session beyond simply stating the statutory authorization. (1997 OK AG 61)
The opinion dealt with whether a public body had to reveal the specific purpose of an executive session under the personnel exemption. But Attorney General Drew Edmondson's answer was not dependent upon the personnel exemption. Rather, his reasoning was based on the statutory requirements applying to all the exemptions.
To meet in executive session, Edmondson said, the public body must the criteria set forth in the statute:
1. All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act.
2. If a public body proposes to conduct an executive session, the agenda shall:
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
b. identify the items of business and purposes of the executive session; and
c. state specifically the provision of Section 307 of this title authorizing the executive session.
The bold italics were Edmondson's emphasis.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," he said. (¶ 3.)
Relying upon appellate court interpretations of the statutory requirements, Edmondson said, "It is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion."
In the instance of a personnel issue, the AG agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, he said:
We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)
Despite Edmondson's binding opinion and the clear statutory requirement, the higher education board's staff refused to tell a reporter what the state regents were discussing behind closed doors.
The nine state regents for higher education are:
- Chair Joseph L. Parker Jr., Businessman, Tulsa;
- Vice Chair Julie Carson, Attorney, Claremore;
- Secretary Marlin "Ike" Glass Jr., Businessman, Newkirk;
- Assistant Secretary James D. "Jimmy" Harrel, Banker, Leedey;
- Don Davis, Attorney, Lawton;
- John Massey, Banker, Durant;
- William Stuart Price, Business Owner, Tulsa;
- Michael C. Turpen, Attorney, Oklahoma City;
- Ronald H. White, M.D., Internal Medicine, Oklahoma City;
Unfortunately, the public doesn't elect them. But we do elect the governor, who appoints them to their nine-year terms.
Gov.-Elect Mary Fallin last spring said she expects her appointees to public bodies to abide by the Open Meeting and Open Records laws. She also signed FOI Oklahoma's Open Government Pledge in which she 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 hope that early in her governorship, Fallin will tell all appointees to state boards to either follow our state's open government laws or resign and make way for Oklahomans who will.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The Lone Grove City Council likely will select a city manager tonight from a list of three candidates recommended by a committee that met secretly to winnow the list from 31 applicants, says Gary Hicks, owner of The Lone Grove Ledger.
The committee, composed of two councilors, the city clerk and two residents, was appointed by the council to screen applicants for the city manager position.
Under Oklahoma law, a committee that exercises actual or de facto decision-making power is subject to the Open Meeting Act.
Hicks says Lone Grove officials, however, will likely try to slip through the same loophole used by other public bodies. The same one used by the OSU A&M Board of Regents when it chose Burn Hargis as OSU president.
For all intents and purposes, a committee cuts the list of applicants. But the full board officially is able to consider all the applicants.
For example, almost three years ago today, OSU regents selected Hargis after he was unanimously referred by a 33-member search committee. To defend that committee's secret meetings, the governing board's attorney said the regents alone had the responsibility to choose and employ a president, reject all candidates or reopen the search.
But this was the regents spokesman's explanation of the committee's process:
- 102 “potential candidates,” including 53 nominees, were in contact with the search committee.
- The committee considered whether applicants and nominees were qualified and narrowed the pool to 27 applicants.
- Six candidates interviewed with the committee.
- Three were interviewed.
- The committee unanimously referred Burns Hargis to OSU’s governing board “for further consideration.”
Seems like the committee made several decisions.
Even so, the regents went into executive session supposedly to consider all the applicants. The closed-door session lasted about 15 minutes -- including the time regents spent walking to and from another room.
It was a sham. During the executive session, OSU spokesman Gary Shutt handed out news releases announcing the regents had voted unanimously to choose Hargis. The news release even included quotes from state officials about the selection of Hargis.
Remember: The board was still behind closed doors and hadn't returned to vote in public.
Unlike the OSU regents, Lone Grove council members might not have already made up their minds. Councilors are slated to interview all three recommended candidates in executive session tonight.
The public never learned who else the search committee had considered for the OSU job. At least in Lone Grove, the names of the three applicants are on the agenda for tonight.
So why was it necessary for the committee to meet secretly? To abide by the Open Meeting Act, the committee would only have had to notify the public of its meetings and posted agendas for those meetings. It could have gone into executive session to discuss and review applicants. Only votes to select the finalists would have had to be conducted in open session. And the public learned those names when the agenda was posted.
More important, how does this loophole exist when the Open Meeting Act clearly says the definition of public body “shall include all committees or subcommittees of any public body”? (OKLA. STAT. tit. 25, § 304(1))
We can thank our state Supreme Court. In 1978, justices 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)
A subordinate entity with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton.
Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the advisory committee at issue had met.
The statutory language adding “all committees or subcommittees of any public body” to the definition of public body was enacted in 1977.
A 1981 attorney general relied upon that “expanded definition” to decide that Job Content Evaluation Committees were “the subcommittees of a public body, the State Personnel Board.” Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:
In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.
Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law. Under the new Open Meeting Act, the term ‘public body’ was enlarged to include, ‘. . . all committees or subcommittees of any public body.’ The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (1981 OK AG 214, ¶ 7)
Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the “1977 changes merely added several new categories to the definition of ‘public body.’” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)
Its reasoning emphasized that when the Open Meeting Act was revised, the House in Conference Committee had rejected a Senate amendment that would have changed the definition of public body to include “advisory groups, advisory committees, or persons appointed to advise, consult or make recommendations for any board, bureau, commission, agency, task force or study group….” (Id. ¶ 11-12) In the court’s view, that language would have “broaden[ed] the coverage of the Open Meeting Law to groups, committees, etc.” (Id. ¶ 11)
However, an equally plausible explanation is that the amendment was rejected because legislators did not intend for the Open Meeting Act to apply to individuals. The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body “shall include all committee or subcommittees of any public body.” Had legislators intended to override the rule set forth in Sanders? Attorney General Cartwright seemed to believe so in 1981.
Only a more thorough investigation of legislative records would shed light on the Legislature’s intent. In the meantime, it should be assumed that the Sanders doctrine applies: An advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Open Meeting Act.
“Not making decisions means not making any decisions,” Edmondson reminded Oklahoma public school boards in late 2004. “If you’re looking for a new superintendent or a new coach and you appoint a subcommittee to go through all the resumes and then come back and make a recommendation, that’s fine. But if the subcommittee can cull out some of the applicants, then they’re making decisions. That makes them in breach of the Open Meeting law.” (Becky Tiernan, Attorney general clarifies Open Meeting Act rules, THE DAILY OKLAHOMAN, Nov. 18, 2004, at 15A)
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)
Unfortunately, some government officials in this state have ignored these warnings and twisted Sanders to avoid the Open Meeting Act.
The only solution is to have our state legislators make clear in the statute that all advisory committees, even those with no decision-making power, are subject to the Open Meeting Act. Because, unfortunately, we cannot trust our government officials to abide by anything less.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The Oklahoma Medical Examiner's Office won't release the autopsy report in the slaying of an Oklahoma City mother, KOCO reported Thursday.
"It is my belief that the premature release of further details may interfere with the ongoing investigation and subsequent prosecution," Interim Chief Medical Examiner Andrew Sibley told the station.
But Oklahoma County District Attorney David Prater last week seemed to contradict that claim, telling KOCO that the public has the right to know the information.
On Thursday, Sibley refused to cite an statutory provision exempting the autopsy.
But if Sibley and the ME's Office can't cite a clearly applicable exemption, the autopsy is open under Oklahoma's Open Records Act.
As the Oklahoma Supreme Court said in 2003, “The public body urging an exemption has the burden to establish the applicability of such exemption.” (Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶ 12)
This, of course, concerns the public's right to know the information. What about the public's need to know what is in an autopsy report?
This blog pointed out last April that the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.
Even so this past spring, state legislators for a second consecutive session debated limiting what the public could know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown.
The bill was withdrawn in May because of stiff opposition on the House floor.
Among those critical of the bill was state Rep. Lucky Lamons, a former Tulsa police officer. He said autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.
Lamons pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information.
KOCO said it will continue pushing for the autopsy report.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
