Tuesday, June 21, 2011

McAlester City Council to do the right thing

A wrongly worded McAlester City Council agenda item will be reposted with the correct information and voted on again, the mayor told the McAlester News-Capital.

The newspaper's James Beaty had questioned the validity of the council's original vote last week.

The agenda item was labeled "Consider and act upon change in zoning from R-1B (Single Family Residential) to C-5 (Highway Commercial)."

However, the summary in smaller print explained the item concerned closing streets and alleys, not a rezoning.

Turns out, the incorrect label was a clerical error that simply repeated the label from the previous item on the agenda.

City Attorney Joe Ervin told Beaty the council's approval of the street and alley closings was valid because the summary was correct.

"As long as any element is correct," it doesn’t matter if another part is not, Ervin said.

Beaty contended that Ervin’s interpretation sets a dangerous precedent for future councils.

For example, Beaty wrote, what would then prevent a future council from listing Item 6 as a resolution supporting Flag Day — but then stating in smaller print under an Executive Summary as actually being about a water bill increase?

I agreed with Beaty that Ervin's explanation opens the door to abuses of the Open Meeting Act.

Also, a reasonable legal argument can be made that the City Council should not have approved the incorrect item but instead should have pulled it or tabled it.

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)

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the Court of Civil Appeals said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)

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. (Id. ¶ 8)

Based on those statements, the McAlester City Council shouldn't have voted on the agenda item.

But why should Beaty or I have to make any legal argument? The issue is as much about ethics and the principle of conducting an open government as it is about the letter of the statute.

Why couldn't the City Council just do the right thing without arguing over it?

The Legislature's goal 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," said then-Attorney General Jan Eric Cartwright in 1982. (1982 OK AG 212, ¶ 11)

How does the city attorney's defense of the City Council's action inspire public confidence in McAlester's city government?

Why not just admit there was a mistake and pull the item until it could be corrected for the next meeting's agenda? If it needed to be dealt with before the next regular meeting, they could call a special meeting.

McAlester city officials could take a lesson from the way Muskogee County District Larry Moore handled a similar situation in July 2009. The wrong date had been listed on the agenda for the county commission's regular meeting. Moore refused to allow the commission to conduct the meeting as an "emergency meeting," saying a special meeting could be called without sustaining any financial loss.

"We’re going to follow the law. It’s as simple as that," Moore told the county clerk and commissioners.

My point: Mistakes happen. But make the right choice when they do.

McAlester Mayor Kevin Priddle seems to have gotten the message.

"You don't want to set the precedent about something not being covered at any level of government — whether it's the city, or state or federal," he told Beaty.

Priddle said he will have the item placed on the agenda again to ensure it has been properly posted before the council votes on it.

Now was that so hard?

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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