Sunday, August 21, 2011

Edmond school board's promise of transparency echoes Open Government Pledge; But board agendas fall short

Edmond's Board of Education will "comply with both the letter and the spirit of Oklahoma's Open Meeting and Open Records laws," Board President Kathleen Duncan recently promised.

“We have been criticized somewhat in the past year for not being as transparent as we could be as far as the operations of our school system,” Duncan said at a board meeting July 21.

In February, a candidate for the board's District 1 seat signed FOI Oklahoma's Open Government Pledge, promising to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws" if elected.

Ann Cameron also pledged to "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Cameron, married to FOI Oklahoma Inc. board member Alex Cameron of KWTV NEWS9, lost to Lee Ann Kuhlman by 51 votes.

But she seems to have succeeded in making open government an important issue for the board. At the July 21 meeting, according to the Edmond Sun, Duncan read an Open Government Statement to the other school board members:
I think it is important for us to assure the public that we have taken steps to keep the public better informed such as hiring a PR person and by posting a monthly newsletter on the EPS website.

We also want our patrons to know that we fully support and will do our best to comply with Oklahoma’s Open records Act and Open Meeting Act and have recently received the Sunny Award for our efforts to keep the public informed regarding school business.

We fully support the notion that the people are vested with the inherent right to know and be fully informed about their school government and we will continue to comply with both the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws.
The Open Government Statement doesn't seem to be on the school district's website.

Looking for it, however, revealed board agendas that don't live up to that promise.

Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice. (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 state Court of Civil Appeals said.

And 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)

Or as a 1980 attorney general opinion said, "The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken." (1980 OK AG 215, ¶ 12)

But the school board's July 21 agenda made no mention of an Open Government Statement. The newspaper article gave no indication of when or how the statement was endorsed by the other school board members, so perhaps the "we" was rhetorical.

The same agenda also failed to give the public actual notice of what the board would discuss under item No. 1, which read: "Board Member Continuing Education and planning sessions with superintendent and staff."

The meeting was labeled as "Continuing Education." No such meeting category is provided for in the Open Meeting Act. Because the meeting was not listed among the board's regular meetings for the year, it must be treated as a special meeting -- meaning the board may consider only items listed on the agenda. (OKLA. STAT. tit. 25, § 311(A)(11))

Public bodies were cautioned in September 2009 not to use "cryptic" agenda language to hide what they will do in a meeting.

"Don’t try to hide items of business by putting it under 'report,'" warned the head of the state Attorney General's General Counsel Section.

The Attorney General's Office prefers for such reports "to have bulleted points for items under the report," said Gay Tudor during an open government workshop for public officials.

The Edmond school board's agenda item doesn't seem any different from "report by staff."

The public was clearly entitled to be at the board's July 21 meeting. So the agenda should have listed the specific topics for the "continuing education and planning sessions with superintendent and staff."

The same agenda also called for an executive session to discuss negotiations with employee groups.

But the agenda did not specify which employee organization negotiations would be discussed in executive session. The statute requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

The board's Aug. 1 agenda called for an executive session under the statute's personnel exemption. But the agenda itself didn't list the names or unique titles. Instead the information was listed separately and not included online with the agenda.

However, a 1997 attorney general opinion says agenda items for an executive session under the personnel exemption must include either the employee's name or job title if it "is so unique as to allow adequate identification." The purpose is to give the public actual advance notice. (1997 OK AG 61, ¶ 5)

That purpose is defeated if a public body such as the Edmond school board lists the information separately from the agenda.

The Aug. 1 agenda also cited attorney-client privilege as a reason for the executive session. But it didn't reveal the "pending claim, investigation or litigation" for which a closed-door discussion was necessary to protect the public's interest.

This blog has long contended that agendas must identify the nature of the claim, investigation or litigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.

The district attorney for the Oklahoma Panhandle agreed in June, reminding a public hospital board that the agenda item for any executive session must "identify the items of business and purposes of the executive session."

"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.

The Edmond school board's agendas for July 21 and Aug. 1 did not provide enough information to give the public actual notice.

These omissions contradict the letter and spirit of the Oklahoma Open Meeting Act and Duncan's Open Government Statement.

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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