Sunday, December 5, 2010

State higher education board agenda doesn't identify purpose of executive session in apparent violation of Open Meeting Act

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

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