Thursday, April 28, 2011
Wagoner County Commission chairman defends unposted meetings, says assistant district attorney gave OK
Unposted meetings attended by Wagoner County commissioners were called by residents to discuss Coweta's decision to scale back its fire protection district, the County Commission chairman told a newspaper Wednesday.
"I am also a citizen, and this does affect me," James Hanning told the Muskogee Phoenix. "We (the commissioners) were there, if anything, for moral support — my concern is that the people have the power and knowledge they need to make an informed decision."
So why not post public notices and agendas for the meetings?
The Broken Arrow Ledger reported Tuesday that because Coweta is pulling back on its fire service area, the meetings concerned a possible ad valorem tax on county residents to fund a rural fire district.
No public notices and agendas were given for the meetings, which were held in Coweta churches on Feb. 17, March 10 and 24, the Broken Arrow Ledger reported. All three commissioners attended the first meeting, and two attended the March ones.
The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))
"At least one county commissioner at each of these meetings actively took part in the discussion," the Broken Arrow Ledger's executive editor said in a letter to District Attorney Brian Kuester.
"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," said William Swaim, Oklahoma Neighbor Newspaper executive editor.
"Commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal," Swaim said.
Hanning told the Phoenix the topics discussed during those meetings were not county issues. However, he conceded that the commission would have to vote to approve an election to pass an ad valorem tax.
The Coweta-American reported April 11 that Wagoner County officials want Coweta to pull the city’s fire service to the city limits and let rural fire districts cover the surrounding area.
According to the newspaper, Hanning told a meeting of some 500 people that the way to solve the rural fire service issue would be to vote on an ad valorem tax, a property tax assessed by the county.
The newspaper reported that Hanning explained how the tax would be assessed and the mechanism for calling an election on the ad valorem tax.
"No matter what proposal comes to the table, our need is not a fire station, it is a fire district," Hanning said. "Our goal is to create options to have a fire district that will sustain a station."
At the same meeting, the newspaper reported, a member of the Wagoner County Excise Board said he appreciated the "great amount of effort" the county commissioners had put in to coming up with solutions.
Sure sounds like a county issue involving the commissioners despite Hanning's characterization to the Muskogee Phoenix.
Hanning also defended the unposted meetings as permissible because no decisions were made at them. However, that is irrelevant under the Open Meeting Act.
In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body can gather informally as long as "no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))
Judicial and attorney general opinions, though, had made clear for the previous 25 years that members of a public body are prohibited from discussing the public's business during social gatherings.
"Sunshine legislation reaches, not just ‘formal’ meetings, but the 'entire decision-making process,'" the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)
Hanning also told the Phoenix that Assistant District Attorney John David Luton assured him the commissioners could attend the three unposted meetings without violating the Open Meeting Act.
The newspaper said a telephone call to Luton was not returned Wednesday.
Oklahoma's public policy, as stated in the Open Meeting Act, is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Therefore,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (2000 OK AG 7, ¶ 30)
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, 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 said that year: "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)
That didn't happen in Wagoner County.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communiations
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.