Wednesday, September 21, 2011

Fox 25 reporter files complaint against Washington Town Board

Fox 25 News reporter Phil Cross filed a complaint with the McClain County Sheriff's Office on Tuesday, accusing Washington's mayor of violating the state's Town Meeting Act the previous night.

Cross also said that when he and videographer Billy Dry arrived at the meeting, Mayor Paul Ratliff "attempted to have our camera removed from the meeting saying we could not record video of the meeting and if we insisted they would simply not have the meeting."

Cross said they were allowed to videotape the public meeting only after showing Ratliff the Open Meeting Act provision that permits anyone to record such a meeting by "videotape, audiotape or by any other method" as long as the recording does "not interfere with the conduct of the meeting." (OKLA. STAT. tit. 25, § 312(C))

Washington, about 30 miles south of Oklahoma City, has just over 600 residents, according to the 2010 census.

Ratliff was the sole Washington trustee going into the Monday night meeting because one died in June and another resigned in August.

The Oklahoma City television station aired a story Monday night in which Cross explained why he believes Ratliff likely violated state law by appointing replacements to the town's two vacant trustee positions.

State law required a special town meeting to fill the positions, Cross said.

Oklahoma's Town Meeting Act requires that officials elected at town meetings "be nominated and elected at large by the registered voters present from nominations taken from the floor."
Prior to accepting any nominations the presiding officer shall state the number of governing body offices to be elected for four-year terms and the number of governing body offices to be elected to fill unexpired terms, if any. There shall be separate nominations and balloting for each designated term." (OKLA. STAT. tit. 11, § 16-306)
But, Cross said in his complaint: "There was no nomination, in fact members of the public were expressly forbidden to speak during the meeting. There was no vote. There was simply an appointment."

In Cross' complaint, he also noted that under the state Town Meeting Act:
If the governing body fails or refuses to hold a biennial or special town meeting for the purpose of electing officers, the board of county commissioners of the county in which the municipality is located shall call a town meeting for the purpose of electing officers. The sheriff, or his deputy, of the county in which the municipality is located shall attend any town meeting called by the board of county commissioners, and if the municipal officers fail to conduct the meeting, shall moderate the meeting. (OKLA. STAT. tit. 11, § 16-305(B))
Cross said he was told the sheriff's office would begin to investigate his complaint but also might send it to the Oklahoma State Bureau of Investigation.

Earlier this month, John D. Montgomery, editor/publisher of The Purcell Register, called for an outside audit of Washington's finances to "put an end to disruptive chatter."

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, September 19, 2011

DHS took six months to respond to Tulsa World request for records

The state Department of Human Services took half a year to provide the Tulsa World with information about lawsuit settlements related to child abuse and neglect, the newspaper noted today.

The newspaper made three requests March 8, each related to records of legal costs and lawsuit settlements.

DHS did not provide information on two requests until the newspaper told officials it was preparing to publish a story about the department's failure to comply with the records request.

The records revealed that DHS has settled 24 lawsuits related to child abuse and neglect since 2005 for more than $3.4 million - $1.4 million from the agency and $2 million from insurance, the Tulsa World reported Sunday.

The amount paid in a 2010 case is being kept secret from the public because the settlement was sealed by a district judge.

DHS officials told the Tulsa World that the records request took six months to answer because legal staff had to search past files in storage to cull the information requested and because cases are not separated by category such as child welfare.

DHS officials apparently didn't already know how much the department has spent on outside legal counsel and has paid to settle child abuse-related lawsuits since 2005.

Meaning the department apparently has no tracking system for legal settlements and attorney costs.

That raises doubts about how efficiently and how effectively DHS officials are handling the public's money.

Moreover, this kind of scattered record-keeping is a breeding ground for incompetence and corruption.

Also questionable is whether DHS officials complied with the state Open Records Act by taking six months to respond to the records request.

Under the Open Records Act, "A public body must provide prompt, reasonable access to its records...." (OKLA. STAT. tit. 51, § 24A.5(5))

A 1999 attorney general opinion stated succinctly that "prompt, reasonable access" generally means "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)

DHS officials told the Tulsa World that much of the legal staff's resources and time were being used to defend the class-action lawsuit. So why were records made available only after the newspaper threatened to publicize how long DHS was taking to provide the information?

Oklahoma public agencies and officials have a "duty" to provide public records to the public. Then-Attorney General Drew Edmondson said:
The purpose of the Act is 'to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)

That purpose is defeated if government officials can deny access by delaying access.

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, September 17, 2011

AG says agenda item for executive session with attorney must list name of lawsuit being settled

A state agency'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)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.

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

This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.

The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
But the statute also 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))
However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.

Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.

In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.

Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)

In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, Wilson pointed out.

That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))

Another attorney with experience in open government cases said identifying the claim "is extremely important."

"Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.

Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.

"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.

(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)

In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.

"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.

Attorney General Scott Pruitt seems to agree.

The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.

A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.

(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)

Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.

On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:
The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.
Pruitt's advice apparently will improve the commission's future agendas as well.

"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.

Other public bodies should take note of Pruitt's opinion and do so as well.

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, September 14, 2011

Assistant DA: Prosecution of DHS commission not likely

Commissioners overseeing the state Department of Human Services apparently won't face charges of violating the Open Meeting Act.

An assistant district attorney for Oklahoma County told the Tulsa World that the DHS response to allegations of meeting violations will be taken under advisement.

"I don't think filing charges will be necessary to accomplish our goal, but no firm decision has been made," said Scott Rowland. "I think with each passing meeting, we will see how things are being worked out."

Rowland told the newspaper that prosecutors met with DHS officials last week for the first time and discussed how the commission's committees are being used.

The soon-to-be-former chairman of the Oklahoma Commission for Human Services recently testified that the committees are limited to four members to avoid the Open Meeting Act's requirements for public notices and agendas, The Oklahoman reported Sunday.

Like some other public bodies in the state, the commission exploits a loophole created by the state Supreme Court to avoid committee meetings being open to taxpayers even though the Open Meeting Act definition of public body includes "all committees or subcommittees of any public body."

However, as I've pointed out on this blog several times, nothing in the Open Meeting Act prohibits these committee meetings from being open to the public. Rowland echoed that point in the Tulsa World.

"It would remove any room for argument if they would just post an agenda and open it up," Rowland said.

Sure would.

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.

Tuesday, September 13, 2011

DHS response to Prater denies Open Meeting Act violation, defends committee structure intended to avoid Open Meeting Act

The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.

But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.

Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.

However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.

In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.

Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.

Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."

"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.
Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.
Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.

In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."

Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."

The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.

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

Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))

And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.

But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.

DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.

One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.

DeVaughn 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.

Prater has done just that, warning 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."

Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."

Dow had also 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.

However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."

As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."

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.