Saturday, April 30, 2011

Wagoner DA OKs unposted meetings by county commissioners after he narrowly interprets definition of 'conducting public business'

Wagoner County commissioners didn't violate the state Open Meeting Act when they met with residents in unposted meetings to discuss a possible ad valorem tax on county residents, District Attorney Brian Kuester told the Broken Arrow Ledger on Thursday.

"It was not public business. They were not conducting business. They were not deliberating, they were not making decisions, and they were not taking formal action," Kuester told Neighbor Newspapers Executive Editor William Swaim.

"As I understand it, there was one commissioner fielding questions from the crowd," Kuester said. "And that was extent of the commissioners' involvement in the discussion."

Swaim disagrees with Kuester's interpretation of the Open Meeting Act -- and for good reason.

The Open Meeting Act defines a meeting as "the conduct of business of a public body by a majority of its members being personally together" or by videoconference. A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))

Swaim contends the majority of commissioners were discussing the public's business at the meetings.

"When you clear away the excuses, at the heart of the issue is that you have a topic that is a matter of public concern being discussed without making all county residents aware of the issue," Swaim wrote in a column published online Friday.

"They were fielding questions, which were asked of them because they are county commissioners and not just county residents," wrote Swaim. "The commissioners, in their official capacity, discussed and took input on the possible petition and proposal for a 'county' ad valorem tax in a public place about an issue they will be deciding in their 'official' capacity at some point. Presumably if the petition gathers enough signatures."

Undisputed is that no public notices and agendas were posted for the meetings held in Coweta churches on Feb. 17, March 10 and 24. All three commissioners attended the first meeting, and two attended the March ones.

The meetings have been described as a grassroots effort to come up with suggestions for fire coverage once Coweta's rural fire service area is adjusted. 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, Wagoner County Commissioner James Hanning that night 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.

Hanning and fellow Commissioner Tim Kelley attended the February and March meetings.

Kuester said he had known about these meetings "due to the fact I had an assistant DA at two of the three meetings."

Kuester contends those meetings didn't violate the Open Meeting Act because the commissioners didn't conduct public business.

"These meetings were scheduled by concerned citizens out there, concerned about losing their fire protection. And they invited the commissioners to come," Kuester said. "The simple fact is they were not conducting business.

"Although two or three of the commissioners were present, one of them spoke, fielding questions from the crowd. There were certainly no decisions to be made that night. It was really informative for the public if they had questions," Kuester said.

"There were no decisions that could be made that night," Kuester said. "In order for this fire protection district to be created, it requires a petition by the citizens, not the commissioners. So there was nothing those commissioners could have done that night with regards to the fire protection district."

However, county commissioners would have to approve the election for the public to vote on the ad valorem tax.

And does it matter under the Open Meeting Act that commissioners didn't take formal action at those meetings?

Kuester points to a 1982 attorney general opinion to support his narrow interpretation of what constitutes conducting public business.

In the opinion, then-Attorney General Jan Eric Cartwright said:
Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
That sentence says the entire decision-making process includes deliberation, decision or formal action. It doesn't exclude other discussions by a majority of the public body about the public's business. To the contrary. Cartwright's opinion expands the definition of conducting public business.

For example, in the sentence immediately preceding the one seemingly relied upon by Kuester, Cartwright said, "'Business,' not having been defined in the Open Meeting Act, must be given a construction in consonance with the ordinary meaning of the term and in harmony with the purposes of the Open Meeting Act; and as stated, supra, a liberal interpretation must be indulged. (Id.)

And in the sentence immediately following it, he said, "Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act."

Cartwright began the opinion by noting the state Supreme Court in 1978 had "recognized that one of the policies sought to be advanced by the Legislature in adopting the Open Meeting Act was to facilitate an informed citizenry's right to participate in government and understand why government acts affecting their lives are taken." (Id. ¶ 1)

Elsewhere in the opinion, Cartwright also made the following points:
Statutes are to be construed with reason to accomplish the Legislature's purpose, as opposed to construing them in a manner to encourage the evil against which such statutes are directed. The Open Meeting Law, because it is enacted for the public's benefit, is to be construed liberally in favor of the public. (Id. ¶ 2)

The Oklahoma Supreme Court in Oklahoma Ass'n of Mun. Att'ys v. State stated that the process of decision making as well as the end results must be conducted in full view of the governed. (Id. ¶ 7)

No open meeting legislation should open to public scrutiny purely private conduct. However, if government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere "rubber stamp" vote is all but useless. (Id. ¶ 7)

The goal of the Oklahoma Legislature in enacting the Open Meeting Act was not simply to prevent or punish deliberate violations, but to restore sadly sagging public confidence in government, a goal which is hurt by every noncomplying meeting regardless of whether or not the noncompliance resulted from evil motives. (Id. ¶ 11)

The Open Meeting Act should be liberally construed in order to effectuate its purpose. Also, the Act should be interpreted in such a way as to avoid establishing potential evasion loopholes." (1982 OK AG 212, ¶ 13)(Id. ¶ 13)
To answer the specific questions asked of him, Cartwright concluded that the requirements of the Open Meeting Act must be complied with when:
  • "Members of a public body meet among themselves to discuss the appropriation of funds,"
  • "A public body meets with a group of experts in order to gain insight into a particular matter," and
  • "A majority of members of a public body are together in an informal setting and begin discussing matters concerning the business of the public body." (Id. ¶ 7)
"Each situation is part of the 'deliberation process,'" Carwright said. (Id. ¶ 13)
He had relied upon earlier decisions by the state appellate courts: Furthermore, providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (1981 OK CIV APP 57, ¶ 19)
The principle is "very simple," the court said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State."
Why does it matter that Wagoner County commissioners didn't let everyone know about the meetings by posting public notices?
Because, as Swaim wrote:
There is so much misinformation being peddled out there right now about the [possible ad valorem tax] (one only has to look at the message boards to see it), that county residents were robbed of the opportunity to become more informed by not having posted notice of these meetings and having the opportunity to discuss, with their elected leaders, a topic that concerns the public.
"At the very least," as Swaim pointed out, "commissioners should have erred on the side of the public’s best interest to be informed."

Joey Senat, Ph.D.
Associate Professor
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.

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.