Thursday, June 30, 2011

Votes recorded for DHS commissioner who wasn't present; DA investigation into apparent Open Meeting Act violations by commission likely finished in about two weeks

DHS Commissioner George Young Sr. voted to return from an executive session and to adjourn the meeting June 14, according to commission records.

But Young wasn't present for most of the executive session or for the adjournment, the Tulsa World reported today.

The statewide commission overseeing the Oklahoma Department of Human Services is being investigated for apparent Open Meeting Act violations at the meeting.

For example, members of the Oklahoma Commission for Human Services left after the closed executive session on June 14 without a public vote to adjourn.

Oklahoma Watchdog Editor Peter J. Rudy provided information about that apparent violation of the Open Meeting Act to the Oklahoma County district attorney.

Assistant District Attorney Scott Roland says his investigation will likely be finished in about two weeks, the Tulsa World reported today.

Commissioner Steven Dow, who has complained publicly about the lack of openness by the public body, has said a staff person asked each member individually for a vote on whether to adjourn.

DHS spokeswoman Sheree Powell told the Tulsa World that the roll-call vote was taken "in a public area of the room."

That doesn't comply with the Open Meeting Act, which states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

Under the commission's procedure, a staff person could collect votes on any measure while members of the public body milled about in a public hallway or lobby.

That defeats the purpose of requiring a public roll-call vote. The public would have no idea who voted which way until the meeting minutes were available.

The commission's haphazard method also makes more likely the kind of mistake that Powell says occurred when votes were recorded for Young. She told the Tulsa World that the recorded votes were a "scrivener's error" and would be corrected in the minutes up for approval at the July 26 meeting.

Rowland's investigation should go beyond whether the commission cast public votes to return from the executive session and subsequently to adjourn.

When the commission approved the DHS budget on June 14, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.

But no mention of that important decision was made on the meeting agenda.

Chairman Richard L. DeVaughn later told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.

If Pruitt won't, hopefully Oklahoma County District Attorney David Prater will.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the Court of Civil Appeals has said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)

The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," 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, the court said. (Id. ¶ 8)

The commission's June 14 agenda failed to give the public actual notice and materially obscured the scope of matters commissioners would consider.

Rowland also should be investigating Dow's claim that the commission's Budget Committee made decisions when it met secretly.

The commission relies on loopholes in the Open Meeting Act to avoid having the Budget Committee meet publicly and post meeting notices and agendas. No more than four of the commission's nine members are on the Budget Committee. But that avoids the Open Meeting Act's requirements only if the committee has no actual or de facto decision-making power.

But Dow, who said he was barred from the Budget Committee's meetings, said the commmittee "has de facto decision-making authority."

"They did not decide to approve the overall budget, but it did decide the details of that budget," he told the Tulsa World.

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in jail and a $500 fine.

Will DHS commissioners face charges, a stern finger-wagging, or be allowed to go merrily on their way? That will depend on what Rowland says he found and what Prater decides to do based on those findings.

Joey Senat, Ph.D.
OSU Associate Professor
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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