Saturday, August 13, 2011

DHS commission falls short of Open Meeting Act requirements, DA says

The statewide commission overseeing the Oklahoma Department of Human Services may have violated the Open Meeting Act, Oklahoma County's district attorney said Friday.

The commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act," said David Prater in a five-page letter to Commission Chairman Richard L. DeVaughn.

Prater asked DeVaughn for a "written reply to provide any needed explanation or clarification of the ... issues and to show why these two issues should not be viewed as willful violations of the Oklahoma Open Meeting Act."

Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)

The state Supreme Court has said that for the purposes of the Open Meeting Act:
Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act. (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)
DeVaughn told the Tulsa World, "I’m very, very confident that we have never violated the Open Meetings Act in any form."

DeVaughn, a commissioner since 2004, better read the Open Meeting Act again because they certainly have violated it.

At their June meeting, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, Oklahoma Watchdog Editor Peter J. Rudy reported at the time.

Rudy and Commissioner Steven Dow complained to Prater about the commission's practice to "never officially return from executive session and publicly vote in open meeting about the matters discussed in executive session."

The Open Meeting Act prohibits the commission from voting in executive session. The statute also requires that all votes be publicly cast.

Dow complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."

Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.

Commission records showed Commissioner George Young Sr. voting to return from an executive session and to adjourn the meeting June 14 even though Young wasn't present for most of the executive session or for the adjournment, the Tulsa World later reported.

Prater said the commission clearly "has not properly come back into open session after having convened and gone into executive session."

He said telephoning commissioners for their votes on executive sessions and on adjournment "falls short of what is required under the Act."

"The practice ... is careless at best and falls short of what the public has a right to expect from its public servants," Prater said. "This office condemns any action, purposeful or unintentional, which has the intent or effect of circumventing the Open Meeting Act in regard to executive session matters."

Prater rejected the notion that not publicly voting to adjourn would be a "de minimis violation."

"I would submit there are no de minimis violations of the Open Meeting Act," Prater wrote. "Oklahoma's laws on openness in government serve an important and noble purpose. Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."

Prater commended the commission for properly reconvening in open session to adjourn at its July 26 meeting.

But Prater told the Tulsa World he is looking "real hard" at whether the commission purposefully places no more than four of its nine members on its Budget Committee in an attempt to avoid the requirements of the Open Meeting Act. That loophole only applies, however, if the committee has no actual or de facto decision-making power.

"Part of the problem looking into these committees is there are no minutes and nothing is recorded so it is hard to determine what has been considered," Prater told the newspaper.

(For a detailed explanation of how public bodies try to exploit the loophole, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.)

Dow has said the Budget Committee "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 said.

Dow also had complained that when the commission approved the Department of Human Services budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.

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

Prater said the omission was not a "willful violation of the law that would render null and void the action taken by the Commission."

An agenda item concerning a $500 million budget "could never spell out each and every detail," wrote Prater.

"However, the core purposes of the Open Meetings Act dictate that the public be able to ascertain what actions are to be considered or taken by its governing bodies, and my concern is that with very little effort on the part of the Commission, this particular agenda item could have been made to far better advance the purposes of openness in government," Prater wrote.

Prater warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."

In June, DeVaughn had 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.

Seems as though Prater has done just that.

(For more news coverage of Prater's letter, read DHS commission may have violated openness laws, DA says by Bryan Dean of The Oklahoman.

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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