Monday, April 18, 2011
Complaints that public bodies in Bernice, Mannford conducted executive sessions in apparent violations of Open Meeting Act
The Bernice Board of Trustees and the Mannford School Board are each accused of recently conducting executive sessions that violated the state Open Meeting Act.
Prior to each session, the elected officials dismissed warnings that the closed-door sessions failed to meet the statutory requirements, according to complaints sent to FOI Oklahoma Inc.
In Bernice, the Board of Trustees held executive sessions on March 14 and April 11 to discuss "a town maintenance person" under the personnel exemption. (OKLA. STAT. tit. 25, § 307(B)(1))
No other information regarding the executive sessions was listed on the agendas.
Resident Steve Miller said the board is creating the position and voted after the March 14 executive session to post advertisements for a part-time maintenance person.
Miller told the FOI Oklahoma Blog that he pointed out to the trustees prior to the April 11 executive session that a 2006 attorney general opinion prohibits such sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)
The exemption applies only "to discussing particular current or prospective public officers or employees," then-Attorney General Drew Edmondson said in the opinion. (Id.)
"The legislative history of this exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," according to Edmondson. (Id. ¶ 8)
"Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes," he said. (Id. ¶ 9)
A 1997 opinion by Edmondson says agenda items for an executive session under the personnel exemption must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
In a letter (pages 1 & 2) that Miller said he gave to the Bernice mayor and trustees on April 11, he objected to the executive session scheduled for that night. Miller said he also sent the letter to Delaware County District Attorney Eddie Wyant.
Another problem: The April 11 agenda listed the wrong statutory authorization for the executive session. The item said the topic was "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of a town maintenance person as authorized by Title 25 O.S. 307(B)(2)." However, that exemption is for "negotiations concerning employees and representatives of employee groups."
In Mannford, attorney Ronald E. Durbin II said he told the Board of Education during an April 11 meeting that its executive session involving the personnel exemption would violate the Open Meeting Act.
The agenda listed a "Proposed executive session to consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."
Durbin said he pointed out to the board that the 1997 attorney general opinion requires that the employee's name or unique title be included on the agenda.
Durbin said the superintendent replied that the school board was free to discuss "any personnel" and refused to identify which employees would be the subject of the closed-door session. Durbin said he was told to contact the school district's attorney, Bryan K. Drummond of Rosenstein, Fist & Ringold in Tulsa.
In a letter to Drummond on Friday, Durbin said the agenda "clearly violates the public notice provisions of the Open Meeting Act."
Durbin said the board's refusal to provide the names "was not out of ignorance but rather a willful disobedience" of the Open Meeting Act. He asked Drummond for not only the employee names but also for "all minutes, tape recordings, and all other records, notes and/or documents which [were] reviewed during that executive session."
Durbin of Moyers, Martin, Santee & Imel in Tulsa served as Tulsa Councilor G.T. Bynum’s attorney during open meeting issues involving the council last summer. Durbin warned the council against using small group meetings to mediate issues with the mayor, saying such meetings would be "not only inadvisable but would also result in a clear violation of the OMA.”
Both Durbin and Miller seem to have valid complaints regarding the respective executive sessions. The question is whether the local district attorneys will treat these apparent violations seriously.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.