Friday, February 18, 2011
DA refuses to prosecute Lone Grove City Council for open meeting violation, says 'no collusion' between members; OSBI report closed to public
The Lone Grove City Council last May fired the city manager and hired a temporary replacement even though neither action was listed on the meeting agenda, The Lone Grove Ledger reported this week.
But the council will not face prosecution for the obvious violation of the state Open Meeting Act because Bryan County District Attorney Emily Redman says no collusion occurred among the councilors, the newspaper said.
However, as the newspaper points out, "collusion" is not required for a violation of the Open Meeting Act to be considered willful and, therefore, to be prosecuted.
Willfulness does not require that the councilors had acted in bad faith, maliciously or with an intent to violate the law during the 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) (emphasis added)
"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)
The Oklahoma 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)
A violation of the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)
Taking actions not listed on an agenda are clear violations of the Open Meeting Act. And the Lone Grove City Council should know the law.
Under the Open Meeting Act, each agenda must "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
The Oklahoma Court of Civil Appeals has said agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
The purpose of the statute "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said.
Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said.
In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."
The "School Board’s actions were limited by its own notice to 'discussion' and 'interviews," the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)
The Lone Grove City Council's meeting agenda listed merely a performance review of the city manager, the newspaper reported.
"There was no mention of any possible action, let alone what that action might be. There was absolutely no mention of the possibility of hiring an acting city manager," wrote Gary Hicks, the newspaper's publisher.
(He noted that the recording of the May 17 meeting was "lost," or "misplaced," or "there was a power surge," or "the recorder wasn't turned on." "Which scenario is chosen depends on which city official was talking at the moment," wrote Hicks.)
Despite the apparent Open Meeting Act violation, the council won't be prosecuted because Redman said she found no willful violation.
In her letter to Carter County District Attorney Craig Ladd, Redman said an OSBI investigation did not show collusion among the three city councilors who voted to fire the city manager.
(Ladd had the case assigned to Redman because one of his staff members is the sister of councilor Chris Young and because the city attorney in May was a former member of his staff, the newspaper reported.)
Without a prosecution, the public will never know what the Oklahoma State Bureau of Investigation found. OSBI officials have refused to release the investigative report to The Lone Grove Ledger.
Under Oklahoma law, OSBI officials noted, "All records relating to any investigation being conducted by the Bureau, including any records of laboratory services provided to law enforcement agencies ... shall be confidential and shall not be open to the public." (OKLA. STAT. tit. 74, § 150.5(D)(1))
"The fact that the investigation is closed does not alter the confidential nature of those records," the state Supreme Court said in 1993. (Hicks v. Thompson, 1993 OK 57)
So bottom line: Taxpayers footed the bill for an investigation into criminal conduct by elected officials, but they will never know what investigators found because a district attorney refuses to prosecute based on a dubious understanding of what constitutes a willful violation.
This situation exemplifies why prosecution of open government violations should be put in the hands of someone else, perhaps at the state level.
That will be a topic of discussion at FOI Oklahoma's fourth annual Sunshine Week Conference on March 12 in Oklahoma City. An internationally recognized expert on open government laws will offer his insight on creating a state agency that Oklahomans can go to for help when public officials wrongly withhold records or restrict access to open meetings.
More information on the conference and a registration form can be found on FOI Oklahoma's website.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications