Thursday, January 27, 2011

OU Regents claim loopholes in Open Meeting Act to bar student reporter from committee meetings

A reporter for The Oklahoma Daily was prohibited by the legal counsel for The University of Oklahoma Board of Regents on Wednesday from attending four committee meetings where, as the student newspaper points out, "public business regarding university building plans and fees were discussed."

The reporter was barred from meetings of the board's audit and finance, Norman campus, Health Sciences Center campus and athletics committees, the newspaper reports today .

In an e-mail to the newspaper, OU regents legal counsel Anil Gollahalli called the meetings "informational subcommittee meetings to allow members of the Board to more fully find facts relevant to items that may considered by the full Board in public session."

The Open Meeting Act clearly states that the definition of public body "shall include all committees or subcommittees of any public body." (OKLA. STAT. tit. 25, § 304(1))

But Gollahalli told the newspaper, "To ensure that the entire Board always gathers in meetings open to the public, subcommittees are composed of no more than three members of the Board such that subcommittees lack a quorum."

In other words, the regents purposefully meet in groups smaller than a quorum of the full board as a way to avoid discussing the public's business in front of the public.

A loophole in the Open Meeting Act's definition of "meeting" allows a group smaller than the majority of a public body to meet secretly to discuss the public’s business.

But does that apply if the three members of a public body constitute the entire membership for a committee of that public body? A quorum of the committee is meeting to discuss public business.

So how does Gollahalli attempt to bypass that problem? By saying the committees have no independent decision-making authority.

"The informational nature of the subcommittees are such that no subcommittee has independent decision-making authority, ensuring that no decision of the Board ever occurs without participation of the full Board and the public's knowledge," he told the newspaper.

That relies on an exception the state Supreme Court carved out for sub-entities -- typically ad hoc committees or citizens advisory committees -- empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity.

A subordinate entity -- a Citizen's Advisory Committee in that case -- with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton, 1978 OK 53.

HOWEVER, Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the Citizen’s Advisory Committee met.

The current statutory language including "all committees or subcommittees of any public body" in the definition of public body was added 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." (1981 OK AG 214)

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. (¶¶ 7-8)

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)

But the key question in International Association of Firefighters was whether the Sanders rule on subordinate entities applied to "an individual."

The court concluded that the Legislature had not intended for the 1977 revisions to expand the Sanders doctrine to include an individual.

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 overridden the rule set forth in Sanders? Attorney General Cartwright believed so in 1981.

So we're back to asking what the OU regents' committees do? If they make recommendations, do they cull options from the list? That would be making a decision and require them to comply with the Open Meeting Act.

And does the Sanders rule apply to standing committees of a public body?

But the real question here is why shouldn't the public be allowed to attend "informational subcommittee meetings" in which members of a public body "more fully find facts relevant to items that may considered by the full Board in public session."

It is, after all, the public's business.

Our state Court of Civil Appeals has said the "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 12)

Our state Supreme Court has said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)

Because the Open Meeting Act was "enacted for the public’s benefit," the Oklahoma Supreme Court has said, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is "very simple," the state Court of Civil Appeals has said, "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)

Gollahalli said, "The University and its governing Board are committed to openness and transparency and endeavor to ensure full compliance with all applicable laws."

But the OU regents and their legal counsel are using a strict compliance with the letter of the law to defeat its purpose, which is "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."

When a public body does the legal equivalent of the limbo to avoid the Open Meeting Act, it doesn’t build the public's trust or confidence in government. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. And it certainly doesn't demonstrate a commitment to openness and transparency.

Unfortunately, OU regents aren't alone among university and college administrators in this regard. But perhaps OU's regents will reconsider. One can only hope.

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.