Thursday, May 5, 2011

BRTA refuses to settle open government lawsuits

The Bartlesville Redevelopment Trust Authority has refused two offers to settle open government lawsuits filed against it, the local newspaper reported Wednesday.

The BRTA filed an amended motion Wednesday to dismiss the Open Meeting Act lawsuit, according to court records.

The Bartlesville Examiner-Enterprise reported that under the settlement offer, the BRTA would issue a statement fully describing what occurred during an Aug. 11 executive session and would hold a meeting during which the public could ask what was discussed during that closed session.

The lawsuit, filed by Joel Rabin and Sharon Hurst, alleges that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA does not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).

In addition to the Open Meeting Act lawsuit, Hurst and Rabin also filed an Open Records Act lawsuit against the BRTA in October.

The Bartlesville Examiner-Enterprise reported that the BRTA did not take action on a settlement offer at its meeting Monday and rejected a previous offer during its April 13 meeting.

McMahan told the newspaper that the settlement offers would require BRTA trustees to say "they did things that they didn’t do.”

"It’s not something the trustees were willing to do," he said.

McMahan said the settlement offers also "asks for attorneys’ fees in the Open Records case, as well as the Open Meetings case, in amounts that are greater than what a court could order."

The court could not authorize any attorney fees in the Open Meeting Act lawsuit, he said.

That's correct. Unlike the Open Records Act, the Open Meeting Act lacks a specific provision authorizing successful plaintiffs to recover reasonable attorney fees. Thus, such plaintiffs are not entitled to payment for attorney fees because the state follows the American rule regarding their recovery. (Crutchfield v. Marine Power Engine Co., 2009 OK 27, ¶ 26)

“It provides that each litigant pay for legal representation and that courts are without authority to assess attorney fees in the absence of a specific statute or contract. Exceptions to this rule are narrowly defined because attorney fee awards against the non-prevailing party have a chilling effect on open access to the courts. For an award of attorney fees to be authorized under a particular statute, the authorization must be found within the strict confines of the statute,” the state Supreme Court explained in 2009. (Id.)

A successful plaintiff, though, could recover court costs at the discretion of the judge.

In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.

In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses in the lawsuits.

Also of interest in the Examiner-Enterprise story Wednesday was McMahan's claim that attorneys’ billing statements may be kept secret under the Open Records Act as part of a litigation file.

"With the exception of a dispute of attorneys' billing statements, we believe that we have 100 percent delivered every record that's been requested by the plaintiffs," McMahan told the newspaper.

McMahan said the BRTA may keep any attorney records as confidential in its litigation file and noted that billing statements are a way attorneys communicate with a client.

"If the lawsuit were to go away, we would have no basis for objecting to turning over our attorneys' records," he said.

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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