Saturday, October 1, 2011

Washington County judge hears arguments on motion to dismiss Open Meeting Act lawsuit against Bartlesville Redevelopment Trust Authority

Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.

Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.

An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.

"We should not even be here," said J. Schaad Titus.

Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.

(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)

Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, 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 did not keep minutes of its executive sessions.

In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response, Rabin and Hurst's attorney said the Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act.

In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.

The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision."

The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action."

Attorneys for Hurst and Rabin also point to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.

"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.

At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."

But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.

But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.

McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?

McMahan's interpretation contradicts the language of the Open Meeting Act, which states:
If a public body proposes to conduct an executive session, the agenda shall:
  • Contain sufficient information for the public to ascertain that an executive session will be proposed;
  • Identify the items of business and purposes of the executive session; and
  • State specifically the provision of Section 307 of this title authorizing the executive session."(OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.

Given the BRTA executive session at issue, perhaps that's what McMahan wants.

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.

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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