Saturday, April 30, 2011

Wagoner DA OKs unposted meetings by county commissioners after he narrowly interprets definition of 'conducting public business'


Wagoner County commissioners didn't violate the state Open Meeting Act when they met with residents in unposted meetings to discuss a possible ad valorem tax on county residents, District Attorney Brian Kuester told the Broken Arrow Ledger on Thursday.

"It was not public business. They were not conducting business. They were not deliberating, they were not making decisions, and they were not taking formal action," Kuester told Neighbor Newspapers Executive Editor William Swaim.

"As I understand it, there was one commissioner fielding questions from the crowd," Kuester said. "And that was extent of the commissioners' involvement in the discussion."

Swaim disagrees with Kuester's interpretation of the Open Meeting Act -- and for good reason.

The Open Meeting Act defines a meeting as "the conduct of business of a public body by a majority of its members being personally together" or by videoconference. A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))

Swaim contends the majority of commissioners were discussing the public's business at the meetings.

"When you clear away the excuses, at the heart of the issue is that you have a topic that is a matter of public concern being discussed without making all county residents aware of the issue," Swaim wrote in a column published online Friday.

"They were fielding questions, which were asked of them because they are county commissioners and not just county residents," wrote Swaim. "The commissioners, in their official capacity, discussed and took input on the possible petition and proposal for a 'county' ad valorem tax in a public place about an issue they will be deciding in their 'official' capacity at some point. Presumably if the petition gathers enough signatures."

Undisputed is that no public notices and agendas were posted for the meetings held in Coweta churches on Feb. 17, March 10 and 24. All three commissioners attended the first meeting, and two attended the March ones.

The meetings have been described as a grassroots effort to come up with suggestions for fire coverage once Coweta's rural fire service area is adjusted. The Coweta-American reported April 11 that Wagoner County officials want Coweta to pull the city’s fire service to the city limits and let rural fire districts cover the surrounding area.

According to the newspaper, Wagoner County Commissioner James Hanning that night told a meeting of some 500 people that the way to solve the rural fire service issue would be to vote on an ad valorem tax, a property tax assessed by the county.

Hanning and fellow Commissioner Tim Kelley attended the February and March meetings.

Kuester said he had known about these meetings "due to the fact I had an assistant DA at two of the three meetings."

Kuester contends those meetings didn't violate the Open Meeting Act because the commissioners didn't conduct public business.

"These meetings were scheduled by concerned citizens out there, concerned about losing their fire protection. And they invited the commissioners to come," Kuester said. "The simple fact is they were not conducting business.

"Although two or three of the commissioners were present, one of them spoke, fielding questions from the crowd. There were certainly no decisions to be made that night. It was really informative for the public if they had questions," Kuester said.

"There were no decisions that could be made that night," Kuester said. "In order for this fire protection district to be created, it requires a petition by the citizens, not the commissioners. So there was nothing those commissioners could have done that night with regards to the fire protection district."

However, county commissioners would have to approve the election for the public to vote on the ad valorem tax.

And does it matter under the Open Meeting Act that commissioners didn't take formal action at those meetings?

Kuester points to a 1982 attorney general opinion to support his narrow interpretation of what constitutes conducting public business.

In the opinion, then-Attorney General Jan Eric Cartwright said:
Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
That sentence says the entire decision-making process includes deliberation, decision or formal action. It doesn't exclude other discussions by a majority of the public body about the public's business. To the contrary. Cartwright's opinion expands the definition of conducting public business.

For example, in the sentence immediately preceding the one seemingly relied upon by Kuester, Cartwright said, "'Business,' not having been defined in the Open Meeting Act, must be given a construction in consonance with the ordinary meaning of the term and in harmony with the purposes of the Open Meeting Act; and as stated, supra, a liberal interpretation must be indulged. (Id.)

And in the sentence immediately following it, he said, "Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act."

Cartwright began the opinion by noting the state Supreme Court in 1978 had "recognized that one of the policies sought to be advanced by the Legislature in adopting the Open Meeting Act was to facilitate an informed citizenry's right to participate in government and understand why government acts affecting their lives are taken." (Id. ¶ 1)

Elsewhere in the opinion, Cartwright also made the following points:
Statutes are to be construed with reason to accomplish the Legislature's purpose, as opposed to construing them in a manner to encourage the evil against which such statutes are directed. The Open Meeting Law, because it is enacted for the public's benefit, is to be construed liberally in favor of the public. (Id. ¶ 2)

The Oklahoma Supreme Court in Oklahoma Ass'n of Mun. Att'ys v. State stated that the process of decision making as well as the end results must be conducted in full view of the governed. (Id. ¶ 7)

No open meeting legislation should open to public scrutiny purely private conduct. However, if government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere "rubber stamp" vote is all but useless. (Id. ¶ 7)

The goal of the Oklahoma Legislature 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. (Id. ¶ 11)

The Open Meeting Act should be liberally construed in order to effectuate its purpose. Also, the Act should be interpreted in such a way as to avoid establishing potential evasion loopholes." (1982 OK AG 212, ¶ 13)(Id. ¶ 13)
To answer the specific questions asked of him, Cartwright concluded that the requirements of the Open Meeting Act must be complied with when:
  • "Members of a public body meet among themselves to discuss the appropriation of funds,"
  • "A public body meets with a group of experts in order to gain insight into a particular matter," and
  • "A majority of members of a public body are together in an informal setting and begin discussing matters concerning the business of the public body." (Id. ¶ 7)
"Each situation is part of the 'deliberation process,'" Carwright said. (Id. ¶ 13)
 
He had relied upon earlier decisions by the state appellate courts: Furthermore, providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (1981 OK CIV APP 57, ¶ 19)
 
The principle is "very simple," the court said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State."
 
Why does it matter that Wagoner County commissioners didn't let everyone know about the meetings by posting public notices?
 
Because, as Swaim wrote:
There is so much misinformation being peddled out there right now about the [possible ad valorem tax] (one only has to look at the message boards to see it), that county residents were robbed of the opportunity to become more informed by not having posted notice of these meetings and having the opportunity to discuss, with their elected leaders, a topic that concerns the public.
"At the very least," as Swaim pointed out, "commissioners should have erred on the side of the public’s best interest to be informed."
 

 
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.

Thursday, April 28, 2011

Wagoner County Commission chairman defends unposted meetings, says assistant district attorney gave OK


Unposted meetings attended by Wagoner County commissioners were called by residents to discuss Coweta's decision to scale back its fire protection district, the County Commission chairman told a newspaper Wednesday.

"I am also a citizen, and this does affect me," James Hanning told the Muskogee Phoenix. "We (the commissioners) were there, if anything, for moral support — my concern is that the people have the power and knowledge they need to make an informed decision."

So why not post public notices and agendas for the meetings?

The Broken Arrow Ledger reported Tuesday that because Coweta is pulling back on its fire service area, the meetings concerned a possible ad valorem tax on county residents to fund a rural fire district.

No public notices and agendas were given for the meetings, which were held in Coweta churches on Feb. 17, March 10 and 24, the Broken Arrow Ledger reported. All three commissioners attended the first meeting, and two attended the March ones.

The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))

"At least one county commissioner at each of these meetings actively took part in the discussion," the Broken Arrow Ledger's executive editor said in a letter to District Attorney Brian Kuester.

"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," said William Swaim, Oklahoma Neighbor Newspaper executive editor.

"Commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal," Swaim said.

Hanning told the Phoenix the topics discussed during those meetings were not county issues. However, he conceded that the commission would have to vote to approve an election to pass an ad valorem tax.

The Coweta-American reported April 11 that Wagoner County officials want Coweta to pull the city’s fire service to the city limits and let rural fire districts cover the surrounding area.

According to the newspaper, Hanning told a meeting of some 500 people that the way to solve the rural fire service issue would be to vote on an ad valorem tax, a property tax assessed by the county.

The newspaper reported that Hanning explained how the tax would be assessed and the mechanism for calling an election on the ad valorem tax.

"No matter what proposal comes to the table, our need is not a fire station, it is a fire district," Hanning said. "Our goal is to create options to have a fire district that will sustain a station."

At the same meeting, the newspaper reported, a member of the Wagoner County Excise Board said he appreciated the "great amount of effort" the county commissioners had put in to coming up with solutions.

Sure sounds like a county issue involving the commissioners despite Hanning's characterization to the Muskogee Phoenix.

Hanning also defended the unposted meetings as permissible because no decisions were made at them. However, that is irrelevant under the Open Meeting Act.

In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body can gather informally as long as "no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))

Judicial and attorney general opinions, though, had made clear for the previous 25 years that members of a public body are prohibited from discussing the public's business during social gatherings.

"Sunshine legislation reaches, not just ‘formal’ meetings, but the 'entire decision-making process,'" the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)

Hanning also told the Phoenix that Assistant District Attorney John David Luton assured him the commissioners could attend the three unposted meetings without violating the Open Meeting Act.

The newspaper said a telephone call to Luton was not returned Wednesday.

Oklahoma's public policy, as stated in the Open Meeting Act, is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

Therefore,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (2000 OK AG 7, ¶ 30)

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, ¶ 7)

The principle is "very simple," the state Court of Civil Appeals said that year: "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57)

That didn't happen in Wagoner County.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communiations


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.

Wednesday, April 27, 2011

Wagoner County commissioners met without public notice in apparent violation of state Open Meeting Act


Wagoner County commissioners met three times to discuss a possible ad valorem tax on county residents to fund a rural fire district but didn't post public notices and agendas for the meetings, the Broken Arrow Ledger reports.

The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))

Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)

Yet, Wagoner County commissioners failed to post notices and agendas for meetings Feb. 17 at the First Baptist Church in Coweta, and March 10 and 24 at the First United Methodist Church in Coweta, according to a letter from Oklahoma Neighbor Newspaper Executive Editor William Swaim to a number of public officials.

Swaim said at least two of the three commissioners were at each meeting and discussed a proposed county ad valorem tax for the funding of a county rural fire district.

"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," Swaim said.

According to Swaim:
  • Commissioners James Hanning, Tim Kelley and Chris Edwards attended the Feb. 17 meeting with people comprising a grassroots effort to come up with suggestions for fire coverage once Coweta's rural fire service area is adjusted.
  • Hanning and Kelley attended the March 10 meeting with 80-90 people. Hanning told a reporter that an assistant district attorney had said no meeting notice or agenda was required.
  • Hanning and Kelley also attended the March 24 meeting that included about 200 people.
A notice and agenda weren't posted until an April 7 meeting at the Coweta High School gymnasium in which all three commissioners again attended, Swaim said.

"These meetings, concerning what has developed into a volatile topic, did not keep Wagoner County residents properly informed of the discussion of an ad valorem tax to fund a fire district in the county," said Swaim in the letter. "At least one county commissioner at each of these meetings actively took part in the discussion.

"Because of these violations, commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal. Residents now may not fully understand the issue or other reasonable options available as they were not properly notified of these public meetings that may effect them," said Swaim.

"These are issues we take seriously and believe the county commissioners should follow the law and should be held accountable for the specific violations that occurred," Swaim said in the letter, which was sent to Wagoner County District Attorney Brian Kuester.

Indeed, these would be outrageous violations of the Open Meeting Act. Absolutely criminal violations if they occurred as described. If true, then those commissioners stole from Wagoner County residents their right to understand and participate in their county government.

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

The public policy stated in the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

Therefore,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (2000 OK AG 7, ¶ 30)

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, ¶ 7)

The principle is "very simple," the state Court of Civil Appeals said that year: "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57)

Unfortunately, Wagoner County Commissioners Hanning, Kelley and Edwards didn't follow Oklahoma's open-meeting policy.

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

These meetings by Hanning, Kelley and Edwards warrant the fullest investigation and prosecution by the district attorney. What is Kuester going to do?


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.

Saturday, April 23, 2011

Broken Arrow school district's explanation indicates school board violated Open Meeting Act


I criticized the Broken Arrow School Board on Wednesday for apparently violating the Open Meeting Act. The school district's subsequent responses to The Broken Arrow Ledger validate that condemnation.

The school board's agenda for Monday night had cited the personnel exception as the authorization for an executive session.

Under the personnel exception, an executive session is "permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1)) (emphasis added)

But a district official told the newspaper that the school board only discussed reorganizing the district's administration -- not specific personnel -- during that closed-door session.

That means the board violated the Open Meeting Act because it wasn't entitled to conduct such a discussion behind closed doors. A 2006 attorney general opinion, for example, prohibits closed sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

"The legislative history of [the personnel] exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," the opinion said. (Id. ¶ 8) (emphasis added)

The agenda item for the school board's executive session failed to list any specific employees to be discussed -- another apparent violation of the Open Meeting Act.

In 1997, the state Attorney General was asked if a public body could "keep confidential the purpose of an executive session" under the personnel exception. The answer was NO. Agenda items for such a closed session must include either the name of the person or the person's position 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)

So based on the statutory language and the attorney general decisions, the Broken Arrow School Board was not entitled to discuss just reorganizing the positions. And if it actually discussed individual salaried employees with personnel changes in mind, then the names or unique titles of just those employees should have been listed on the agenda.

The board's agenda said only that the purpose of the executive session was to discuss "organization of district administration." On Wednesday, a district official explained to The Broken Arrow Ledger in an e-mail:
The meaning of that phrase was that any and all administrators were possible conversation topics during the executive session. The organizational chart that is posted on our website - click on "Departments" and then "BAPS Organizational Chart 2010-2011" - was the document that guided the executive session discussion. You will see that the chart contains some names, but mostly positions. The positions that were announced on Monday are on this chart.

With all that said, the last thing we want to do with any board agenda item is to cause confusion for the press or the public, so we can be more specific in future agenda wording. If listing all district administrators by name and title is a more efficient way to indicate that all district administrators are part of a conversation about "district administration," then we can list all district administrators by name and/or title. That seems to be a reasonable way to avoid any confusion.
According to that explanation, the board discussed individual administrators.

Furthermore, The Broken Arrow Ledger reported that after returning to the open session from the executive session, the school board approved five personnel changes:
  • Appointing new high school and middle school principals;
  • Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
  • Moving a principal to director of instructional services; and
  • Naming the Performing Arts Center director as the executive director of fine arts.
On Thursday, district spokeswoman Tara Thompson told the newspaper that the school board discussed the organizational chart in executive session and later voted for three changes to the chart in open session. Those changes were in the form of personnel actions promoting district employees to new jobs.

So based on this explanation, the superintendent went into that closed-door session with specific personnel actions in mind, but those employees weren't listed on the agenda under the executive session.

Thompson said two principals appointed during the open meeting at the same time the board approved the three personnel actions had not been part of the executive session discussion. Instead, she told the newspaper, those principals were listed under a general consent agenda item where other routine employment actions are considered.

However, the newspaper noted that the supplemental document to the general consent item listed only one of the principals.

The school board and district officials are either being disingenuous or simply don’t understand the law.

Thompson reiterated to the newspaper:
If we can be more efficient in our procedures, we will be happy to make those improvements, because ultimately, it's about customer service. If specifically naming all the administrators represented on the organizational chart will help the public better understand the topic of discussion during executive session, we will list, by title and name, all the administrators represented on the organizational chart and attach that to the agenda.
It’s awful nice of the school board to want to be more efficient. But based on attorney general decisions, the school board may not list all the district administrators and then discuss behind closed doors whomever they choose from that list.

Listing all the district’s administrators would serve only to camouflage from Broken Arrow taxpayers which ones the superintendent and school board intend to discuss. That's why the attorney general didn't provide it as an alternative to keeping secret the names of the employees who will be the subject of a closed meeting.

Simply put: The school board can't have it both ways. If it's going to discuss reorganizing positions regardless of which employees hold those jobs, then that discussion must be in front of the public. If it's going to discuss personnel changes involving individual salaried employees, then only those employee names or unique titles must be on the agenda.

The school district’s explanation is terribly disappointing but not surprising given this school board and district’s lack of transparency over the years. A culture of government secrecy can be difficult to change.

This is not just a matter of being more efficient; it’s a matter of complying with the Open Meeting Act’s requirements and respecting the right of Broken Arrow parents and other taxpayers to know what their government is doing beforehand.

Last July, Superintendent Jarod Mendenhall promised a commitment to the "spirit of full transparency and openness" by his new administration. "Transparency's got to be there," he said.

But the meeting agenda and the district's subsequent explanation don't live up to that promise. I sincerely hope that Mendenhall and the school board will reconsider how they conduct the public's business.


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.

Friday, April 22, 2011

Oklahoma City, Cherokee elected officials pledge to comply with spirit, letter of state open government laws


Two more recently elected municipal officials have signed FOI Oklahoma's Open Government Pledge.

Ed Shadid was elected to the Oklahoma City Council's Ward 2 seat. He is the first member of the council to sign the pledge.

Donna Irvin won the Ward 2 position on the Cherokee City Commission. She joins Ward 1 Commissioner Diana Williamson in having signed the pledge.

Each promised that they and the public bodies they were elected to govern "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

They also promised "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."

The addition of Irvin and Shadid brings the number of pledge signers elected to municipal offices this year to 18.

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Wednesday, April 20, 2011

N.C. judge: Parking tickets issued to state university students aren't education records protected by FERPA


A North Carolina judge on Tuesday ruled that parking tickets issued to UNC athletes are not education records protected by a federal student privacy law, the Student Press Law Center reports.

Why does this matter in Oklahoma?

Because a year ago, officials of Oklahoma State University and the University of Oklahoma refused to release names of ticket recipients, saying disclosure would violate the Family Educational Rights and Privacy Act.

OSU and OU officials argued that the parking citations are not created for law enforcement purposes, which would make them public under FERPA. Instead, the tickets are processed administratively and therefore, officials contended, are education records protected by FERPA.

University of North Carolina officials apparently made the same argument. But the North Carolina judge didn't buy it, saying:

The parking tickets issued by UNC Public Safety, if any, to 11 players are not education records protected by FERPA.

While section 6-3 of Article VI, Parking Control of the UNC Ordinance relating to parking on the campus of UNC permits, after repeated offenses, may result in referral to an appropriate agency for disciplinary action, the receipt of a parking ticket, in and of itself, is not subject to disciplinary action and thus, is not protected educational information under FERPA.

If a parking scofflaw were to reach the repeated, repeated stage and was referred to disciplinary action, such disciplinary action would be covered under FERPA.

However, this remote possibility does not constitute a sufficient "threat" to cloak every student with invisibility about the number of parking tickets he or she receives. Parking tickets are subject to civil not criminal penalties.

UNC will have 30 days to appeal after the judge issues a formal written order, the SPLC said.

SPLC Executive Director Frank LoMonte said the decision is another indication from courts that "FERPA is to be applied in a common sense manner that recognizes the importance of disclosure and transparency."

"Court after court has told schools that FERPA is not to be applied in an absurd way to conceal information that is not educational and this is yet another affirmation that FERPA can't be abused to conceal newsworthy and non-confidential information," LoMonte said.

Unfortunately, OSU and OU officials aren't likely to release their parking citation information based on anything short of a clarification by the U.S. Department of Education or an Oklahoma court order.


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.

Mannford school superintendent claims Open Meeting Act complied with by listing all district employees on agenda for executive session; Concerns also raised about closed sessions in Norman, Broken Arrow


Mannford School Superintendent Steve Waldvogel told the local newspaper on Monday that the Open Meeting Act may be complied with by listing all district employees on the agenda for an executive session to discuss personnel even if only a few would actually be discussed.

Meanwhile, the Broken Arrow School Board on Monday night discussed behind closed doors the "organization of district administration" without listing specific employees on the agenda.

Then in Norman on Tuesday, the City Council was scheduled to discuss "various workers' compensation cases" in an executive session during a special meeting. No information regarding the cases was listed on the agenda.

These executive sessions seem to violate the Open Meeting Act for the same reason: The agendas fail to provide the public with sufficient advance notice of what will be discussed in the closed-door sessions.

In Mannford, the agenda for the school board's April 11 meeting did not include the names of any district employees even though an executive session was listed to "consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Waldvogel told the Mannford Eagle on Monday that the school board had offered a list of all district employees and contended that any one of those could be discussed in the executive session.

That contention is nonsense.

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."(1997 OK AG 61, ¶ 5)

A 2006 attorney general opinion emphasized, "Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes." (2006 OK AG 17, ¶ 9)

The purpose of listing the name or unique title is to identify the specific employee to be discussed. That requirement wouldn't be necessary if a public body could simply list ALL employees, as Waldvogel contends, to camouflage who actually will be discussed behind closed doors.

Listing all employees provides the public with no more actual advance notice than not listing any would. That's why the 1997 attorney general opinion didn't provide it as an alternative to keeping secret the names of those who would be discussed.

In Broken Arrow on Monday, the school board's agenda did not list employees to be discussed even though one statutory authorization listed for the executive session was the personnel exception.

The other statutory authorization listed was the Open Meeting Act's exception for "Discussing any matter where disclosure of information would violate confidentiality requirements of state or federal law." (OKLA. STAT. tit. 25, § 307(B)(7))

How that exception applied wasn't explained on the agenda and isn't obvious.

According to The Broken Arrow Ledger, the school board approved reorganizing the administration by:
  • Appointing new high school and middle school principals;
  • Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
  • Moving a principal to director of instructional services; and
  • Naming the Performing Arts Center director as the executive director of fine arts.

Those are all personnel actions. The names of those employees should have been listed on the agenda.

In Norman, the City Council's agenda did not list the specific workers' compensation cases. The exception cited was attorney-client privilege. However, the agenda listed five cases involving the city of Norman. Why weren't the compensation cases specified?

(Click here for a previous posting regarding the attorney-client exemption under OKLA. STAT. tit. 25, § 307(B)(4).)

And don't forget that the Bernice Board of Trustees held executive sessions on March 14 and April 11 to discuss creating "a town maintenance" position even though the 2006 attorney general opinion prohibits closed-door sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed."

These attorney general opinions aren't new. The elected officials -- school board and city council members alike -- are expected to know the state Open Meeting law.

In Mannford, Waldvogel told the newspaper that if the school board violated any laws they would deal with it.

More important, however, is what the district attorneys for each of these towns will do about it. Violating the Open Meeting Act is a crime. The public must rely on the district attorneys to uphold that law.


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.

Monday, April 18, 2011

Complaints that public bodies in Bernice, Mannford conducted executive sessions in apparent violations of Open Meeting Act


The Bernice Board of Trustees and the Mannford School Board are each accused of recently conducting executive sessions that violated the state Open Meeting Act.

Prior to each session, the elected officials dismissed warnings that the closed-door sessions failed to meet the statutory requirements, according to complaints sent to FOI Oklahoma Inc.

In Bernice, the Board of Trustees held executive sessions on March 14 and April 11 to discuss "a town maintenance person" under the personnel exemption. (OKLA. STAT. tit. 25, § 307(B)(1))

No other information regarding the executive sessions was listed on the agendas.

Resident Steve Miller said the board is creating the position and voted after the March 14 executive session to post advertisements for a part-time maintenance person.

Miller told the FOI Oklahoma Blog that he pointed out to the trustees prior to the April 11 executive session that a 2006 attorney general opinion prohibits such sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

The exemption applies only "to discussing particular current or prospective public officers or employees," then-Attorney General Drew Edmondson said in the opinion. (Id.)

"The legislative history of this exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," according to Edmondson. (Id. ¶ 8)

"Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes," he said. (Id. ¶ 9)

A 1997 opinion by Edmondson says agenda items for an executive session under the personnel exemption must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)

In a letter (pages 1 & 2) that Miller said he gave to the Bernice mayor and trustees on April 11, he objected to the executive session scheduled for that night. Miller said he also sent the letter to Delaware County District Attorney Eddie Wyant.

Another problem: The April 11 agenda listed the wrong statutory authorization for the executive session. The item said the topic was "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of a town maintenance person as authorized by Title 25 O.S. 307(B)(2)." However, that exemption is for "negotiations concerning employees and representatives of employee groups."

In Mannford, attorney Ronald E. Durbin II said he told the Board of Education during an April 11 meeting that its executive session involving the personnel exemption would violate the Open Meeting Act.

The agenda listed a "Proposed executive session to consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Durbin said he pointed out to the board that the 1997 attorney general opinion requires that the employee's name or unique title be included on the agenda.

Durbin said the superintendent replied that the school board was free to discuss "any personnel" and refused to identify which employees would be the subject of the closed-door session. Durbin said he was told to contact the school district's attorney, Bryan K. Drummond of Rosenstein, Fist & Ringold in Tulsa.

In a letter to Drummond on Friday, Durbin said the agenda "clearly violates the public notice provisions of the Open Meeting Act."

Durbin said the board's refusal to provide the names "was not out of ignorance but rather a willful disobedience" of the Open Meeting Act. He asked Drummond for not only the employee names but also for "all minutes, tape recordings, and all other records, notes and/or documents which [were] reviewed during that executive session."

Durbin of Moyers, Martin, Santee & Imel in Tulsa served as Tulsa Councilor G.T. Bynum’s attorney during open meeting issues involving the council last summer. Durbin warned the council against using small group meetings to mediate issues with the mayor, saying such meetings would be "not only inadvisable but would also result in a clear violation of the OMA.”

Both Durbin and Miller seem to have valid complaints regarding the respective executive sessions. The question is whether the local district attorneys will treat these apparent violations seriously.


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.

Sunday, April 17, 2011

Jet Town Board member promises to comply with state's open government laws


Jim Blackledge signed FOI Oklahoma's Open Government Pledge last week after having been re-elected to the Jet Town Board.

Blackledge was the only incumbent on the Town Board retained by voters on April 5. Also elected to the board was challenger Carolyn Crossette, who had signed the pledge just days before the election.

Jet Clerk-Treasurer Donna Keller also had signed the pledge and was re-elected.

By signing the pledge, each promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

Each also promised "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."

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

This year, 16 pledge signers have been elected to municipal offices, with 14 winning on April 5.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Monday, April 11, 2011

OSU Student Government Association amends bylaws to abide by Open Meeting Act


OSU's Student Government Association last week amended its bylaws, apparently as a reminder to future members that it must comply with the state Open Meeting Act.

The Daily O'Collegian reported in early March that the SGA didn't send meeting notices to the county clerk as required by the Open Meeting Act and didn't post agendas for regularly scheduled meetings on its website as required by another state statute.

Most troubling was that once again an SGA official was adamant that the public body didn't have to comply with the Open Meeting Act.

A fallacy that OSU legal counsel Doug Price once again had to correct.

A reminder wouldn't seem necessary given that a 1979 attorney general opinion specifically says that OSU's SGA and Residence Hall Association must comply with the Open Meeting Act. (1979 OK AG 134)

But four times since 2002, The Daily O'Collegian has reported on open meeting violations by SGA officials. (Read this blog posting for a listing.)

This time, however, the SGA amended its bylaws so that:
  • "All agendas and minutes of the SGA Senate shall be posted to the SGA website. All agendas must be posted 24 hours before Senate convenes, and minutes must be posted following the final edit made by the SGA Senate secretary.
  • "Notice shall be given to the county clerk of all regularly scheduled meetings of the SGA Senate.
  • "The Senate chair shall give notice in writing the meeting dates, times and places for the following calendar year by Dec. 15 of the current year."
The Daily O'Collegian reported that the bill passed and went into effect immediately.

Good.


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.

Sunday, April 10, 2011

Tulsa Technology Center superintendent criticizes state Senate for lack of transparency after 'under-the-table move' for gun bill


A last-minute committee switcheroo for a controversial gun bill last week prompted the Tulsa Technology Center superintendent to question the state Senate's commitment to transparency, the Tulsa World reported.

"It is a case where the sun needed to shine, and it didn't," said Kara Gae Neal, who told the newspaper that she was "stunned by the lack of moral leadership."

Why does Neal care? Because HB 1652 would allow anyone age 21 or older and having a concealed-carry permit to leave guns locked in their cars on CareerTech campuses.

HB 1652 had been assigned to the Senate Public Safety Committee, but the committee chairman refused to hear it. The bill was reassigned to the Senate Rules Committee less than 15 minutes before it met Wednesday. Meaning that the bill wasn't on the committee's original meeting agenda.

The Rules Committee approved HB 1652, which advanced to the Senate floor without CareerTech input, the Tulsa World reported. The vote was 11-0. All cast by Republicans.

Neal, who was at the Capitol for another event, told the newspaper that the committee switch was an "under-the-table move."

The bill's co-author, Sen. Steve Russell, R-Oklahoma City, justified the last-minute switch because Thursday was the deadline for House bills to leave the Senate, so when one committee chairman wouldn't hear the bill, he had to find one who would.

Even if that meant leaving CareerTech officials and the rest of the public in the dark.

As the Tulsa World editorialized Saturday, "This was an issue that cried out for transparency, for free and open discussion. Is this any way to conduct the people's business?"

No, it sure ain't.

So where were the Democrats during this? Sen. Judy Eason McIntyre of Tulsa told the newspaper that she and some other Democrats on the committee chose not to attend after learning that HB 1652 would be heard. Procedural moves used by the Republicans cut off discussion and would not allow amendments, she said.

"It says very little about transparency," McIntyre said about the way the bill was transferred between committees and passed. "It is empty rhetoric by Republicans."

Given that comment, the public should be able to count on the support of McIntyre and all other Democrats the next time Rep. Jason Murphey, R-Guthrie, introduces a bill forcing the state Legislature to comply with the Open Meeting Act.

Because under the Open Meeting Act, this last-minute switch would have been illegal -- and for good reason.

Without advance knowledge of what measures a government body will discuss and vote on, the
the public is deprived of its right to witness such decisions being made.

The public must have the opportunity to watch firsthand the debate in which alternatives are weighed, accepted or rejected. The reasoning of our elected officials is as important as their vote.

The Open Meeting Act serves to encourage and facilitate an informed citizenry's understanding of its governmental processes and problems, and ultimately, to restore public confidence in government.

But what happened in the state Senate on Wednesday only discourages our faith in government.


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.

Saturday, April 9, 2011

14 municipal candidates who promised open government were elected Tuesday


Voters on Tuesday elected 14 municipal candidates had who signed FOI Oklahoma's Open Government Pledge.

The candidates had promised that they and the public bodies that they are "elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

They also pledged "to support at every opportunity ... the inherent right [of Oklahomans] to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Now it's up to their constituents to hold them to that pledge.

Twenty-one municipal candidates have signed the pledge this year, with 15 being elected.

The pledge signers winning on Tuesday were in:
  • Blanchard: City Council, Ward 4: Frank Broyles

  • Cherokee: City Commission, Ward I: Diana Williamson

  • Edmond: City Council, Ward 2: Elizabeth Waner

  • Glenpool: City Council, At-Large: Alyce Korb
  • Glenpool: City Council, Ward 4: Tommy Carner

  • Jet: Board of Trustees: Carolyn Crossette
  • Jet: Clerk-Treasurer: Donna Keller

  • Minco: Mayor: Watson Mitchell
  • Minco: City Council, Ward 1, Position 1: Rick Anthony
  • Minco: City Council, Ward 3, Position 1: Jim Rice

  • Piedmont: Mayor: Valerie Thomerson
  • Piedmont: City Council, Ward 3: Bill Sharp
  • Piedmont: City Council, Ward 5: Wade Johnson

  • Vinita: City Council, Ward 2: Carol Austin

Another pledge signer, Roger Gallagher, was elected to the Norman City Council, Ward 1 seat, in the March 1 primary.

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Thursday, April 7, 2011

District attorney asks police to investigate apparent open meeting violation by Pittsburg County Expo Authority


District Attorney Farley Ward has asked the McAlester Police Department to investigate an apparent violation of the Open Meeting Act by the Pittsburg County Expo Authority, the McAlester News-Capital reports this afternoon.

The FOI Oklahoma Blog on Sunday called on Ward to look into the Expo Authority's closed executive session not listed on its agenda last week.

Expo Authority President Anthony Drizness called for the executive session to discuss leasing the clubhouse at the old Thundercreek golf course to someone, the newspaper had reported last week.

Under the state Open Meeting Act, an executive session must be listed on the agenda unless the subject meets the definition of "new business," which the statute defines as "not known about or . . . could not have been reasonably foreseen' prior to the posting of the agenda and topic is one for which executive sessions are permitted."

It's unclear if discussing "whether or not to lease the club house" to someone met the definition of "new business" or fit within one of the nine permitted topics for an executive session.

Thank you to Ward for asking the police to investigate. That's a step in the right direction by the new district attorney.


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.

The Oklahoma Daily: OU might have overcharged by more than $11,000 for copies of public records


The University of Oklahoma might have overcharged the public for copies of records by more than $11,000 during the past three years, The Oklahoma Daily reported today.

The student newspaper based that number on the university charging 25 cents per page when its costs amount to 8 cents per page.

OU officials told the newspaper that each copy actually costs the university 32 cents, including 27 cents per page for labor.

“We calculated labor at a rate of $25,000 plus benefits at 34 percent and assumed that each copy takes one minute of someone’s time,” said Rachel McCombs, OU Open Records Office director.

The newspaper's reporter, Nicholas Harrison, noted that the slowest copier meeting state agency specifications must make at least 10 copies per minute. Based on that number, the newspaper calculated that the most that OU officials could justify in direct costs was 8 cents per page.

Harrison also noted that Norman commercial copy shops profit from 4 to 10 cents per page. While on campus, the Bizzell Memorial Library charges cost 7 cents per page and the Oklahoma Memorial Union’s Crimson & Cream Copy Center charges 10 cents.

The full story is worth reading.

In an editorial, the newspaper called on the university to lower the copy fee and noted that it has been waiting for more than 16 weeks for records related to OU's purchase of a monastery in Arezzo, Italy, to create residence halls for students and faculty abroad.

Kudos to Harrison and The Oklahoma Daily editors for not meekly accepting what OU was charging for the public's documents and instead challenging the numbers with good reporting, common sense and a calculator.


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.

Wednesday, April 6, 2011

State Senate committee passes bill to expand attorney-client privilege for public bodies


The state Senate Judiciary Committee on Tuesday voted 6-3 for a bill that would expand the attorney-client privilege between public bodies and their lawyers.

The Oklahoma Press Association opposes HB 1559, which heads to the full Senate for a vote.

"Public bodies currently have a limited attorney-client privilege. We think that limitation should stay in place. This bill removes the limitation. Public bodies could hide anything behind their attorney-client privilege," OPA's executive vice president told the Tulsa World.

"This bill puts attorneys in charge of everything," said Mark Thomas. "That is bad public policy, and we are opposed to it."

On Monday, Thomas noted on the FOI Oklahoma Blog that public bodies already have a broad attorney-client privilege for a "pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest."

The bill by Tulsa Republicans Rep. Fred Jordan and Sen. Dan Newberry was requested by Jenks officials.

"I ought to be able to talk in confidence with my client about a personnel matter without that being exposed," Jenks City Attorney Stephen Oakley told the Tulsa World. "I ought to be able to talk with the city manager or planner about a potential economic development project without that being disclosed until there was a report that was prepared and went before the council. At that point, it is an open record."

Thomas has called for open government advocates to contact their state senators to oppose HB 1559.

Three senators -- Roger Ballenger, D-Okmulgee; Josh Brecheen, R-Coalgate; and minority leader Andrew Rice, D-Oklahoma City -- signed FOI Oklahoma's Open Government Pledge in 2010.

Each man promised "to support at every opportunity ... the inherent right [of Oklahomans] to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

The vote on HB 1559 is one of those opportunities.


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.

Monday, April 4, 2011

OPA: OPPOSE HB 1559 that EXPANDS the attorney-client privilege for public bodies!


OPPOSE HB 1559 by Tulsa Republicans Rep. Fred Jordan and Sen. Dan Newberry.

This bill would EXPAND the attorney-client privilege for public bodies! (We want to LIMIT this privilege.) Do not allow public bodies to hide behind their attorney!

HB 1559 goes before the Senate Judiciary Committee at 9 a.m. Tuesday.

Senators on the Judiciary Committee are: Chairman Anthony Sykes, Vice Chair Rob Johnson, Josh Brecheen, Brian Crain, Judy Eason McIntyre, Charlie Laster, Richard Lerblance, Jonathan Nichols and Ralph Shortey.

Call your State Senator today!

This bill does not amend the Open Meeting Act but amends another title of law (12) that deals with all types of attorney-client privilege. If this becomes law it will create a conflict, and this language will prevail.

WHY DO WE OPPOSE HB 1559?

Public bodies currently only have attorney-client privilege for a “pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.” THAT IS ALREADY A VERY BROAD EXCEPTION.

HB 1559 eliminates the limiting language – which means public bodies can hide behind conversations with their attorney over anything! The ONLY exception in the bill – public bodies can’t use the privilege when called before a grand jury!

If any questions, contact Mark Thomas at 405-659-3966.


Mark Thomas
Executive Vice President
Oklahoma Press Association


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.

Candidate for Jet Board of Trustees signs Open Government Pledge


Carolyn Crossette has promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws" if elected to the Jet Board of Trustees on Tuesday.

Crossette is one of five candidates for the board. The top three vote-getters win four-year terms.

By signing FOI Oklahoma's Open Government Pledge, Crossette also promised "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."

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Eighteen candidates in Oklahoma have signed the pledge this year.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Sunday, April 3, 2011

Pittsburg County Regional Expo Authority apparently violated Open Meeting Act by conducting executive session not listed on agenda; What will district attorney do about it?


The Pittsburg County Regional Expo Authority met behind closed doors on Thursday in an executive session not listed on the agenda for its meeting, the McAlester News-Capital reported.

Expo Authority President Anthony Drizness called for the executive session to discuss leasing the clubhouse at the old Thundercreek golf course to someone, the newspaper said.

The Expo Authority owns 13 acres that includes the golf course’s clubhouse, cart barn, highway access and some of the highway frontage. The 18-hole golf course, west of McAlester on U.S. Highway 270, has been closed to the public for years, the newspaper noted in 2008.

After the executive session Thursday, Drizness told the newspaper, "We needed to discuss whether or not to lease the clubhouse."

However, the Oklahoma Open Meeting Act 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))
Public bodies are permitted to meet in executive session under "new business" provided the subject was 'not known about or . . . could not have been reasonably foreseen' prior to the posting of the agenda and topic is one for which executive sessions are permitted,” according to a 1982 attorney general opinion. (1982 OK AG 114, ¶ 15. See also OKLA. STAT. tit. 25, § 311(A)(9))

It's also unclear how discussing "whether or not to lease the club house" to someone fit within one of the nine permitted topics for an executive session. (OKLA. STAT. tit. 25, § 307)

After the executive session, according to the print version of the newspaper's story, the Expo Authority voted to lease the clubhouse to Pam Shirley for $1,250 per month for two years.

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)

What will Farley Ward, who serves as district attorney for Pittsburg and Haskell counties, do about this apparent violation reported in the McAlester newspaper? Will he investigate? Will he file charges and prosecute if an investigation confirms that the Expo Authority conducted an executive session that should have been listed on the meeting agenda and/or the topic was not permissible under the Open Meeting Act?

Ward was elected in July and took office in January after serving as an assistant district attorney in Muskogee County.

On his campaign website, Ward described himself as a "career prosecutor and not a career politician," adding:
I know how important the integrity of our legal system is for not only dispensing justice but in protecting its citizens, and I believe that the people in Pittsburg and Haskell counties want a DA who has high regard for upholding the integrity of the system.

Responsible prosecution does not mean filing a charge to get positive publicity. It means following the law, investigating the circumstances and then proceeding with charges whether the defendant is rich or poor, politically connected or not.
Time for him to live up to those promises. When a public body violates the Open Meeting Act, it steals away the right of Oklahomans to understand their government's processes and problems. (See OKLA. STAT. tit. 25, § 302)

The Expo Authority members present Thursday were Drizness, Julie Grant, Joyce Carlson, Sandy Bahe, Bill Derischweiler and Kenny Sherrill, the newspaper said.


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.