Friday, January 27, 2012

Okemah city attorney tells council that appointing new member is emergency and can be done even though agenda doesn't list such an action

The Okemah City Council appointed a new member Monday night even though such an action wasn't on the agenda, the Okemah News Leader reported.

Council members took that action after City Attorney Bruce Coker said they could declare an "emergency" based on the possibility of not having a quorum to conduct business at their next meeting if one was absent, the newspaper reported.

The five-member council was already down to four before the mayor resigned last week.

Monday night's agenda listed the "discussion and possible action to begin search and application process to appoint a new council member for Ward #2 to fill the vacancy created by the resignation" of the mayor.

The city had 60 days to fill the vacancy, the newspaper reported.

Ron Gott, who was elected mayor by his two colleagues at the start of the meeting, raised a concern that if one councilman were sick, the council would be without a quorum at a meeting and therefore unable to conduct business, the newspaper reported.

So instead of following the agenda, the council appointed Ken Lee, a resident of Ward 2, to fill the seat. Gott and Vice Mayor Lloyd Raimer voted for the appointment; Councilman Bobby Coplin opposed it.

The vote should not have occurred Monday night.

A public body cannot take an action unless it's on the agenda or meets the definition of "new business" -- assuming that the agenda includes "new business" as an item.

The Okemah City Council agenda didn't include "new business."

Even if it had, appointing a new councilman in this situation didn't meet the Open Meeting Act's definition of "new business."

The Okemah News Leader reported that City Manager Jerry Turner questioned whether the council could fill the vacancy because the agenda did not list the possibility of appointing a councilman.

According to the newspaper, Coker said the emergency clause usually applies to emergency meetings but could "overlap" in this area.

No, it couldn't. The Open Meeting Act requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

The only exception is for "new business."

But the council could have called an "emergency meeting" once it adjourned the regular meeting.

The Open Meeting Act allows public bodies to call emergency meetings because of
a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. (OKLA. STAT. tit. 25, § 304(5))
Therein lies another serious problem for the council.

There was no emergency that necessitated the council appointing a new member at that moment. The council should have called a special meeting for 48 hours later.

How would delaying the vote for 48 hours have increased "the likelihood of injury or damage or immediate financial loss"?

The council's next regular meeting isn't until Feb. 13.

The council should take note of a 2009 decision in which the Court of Civil Appeals said that acting on the advice of an attorney does not excuse a public body’s violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)

"Any construction of the OMA which would permit a public body's consideration of an item not listed on its posted agenda, apart from 'new business' ... totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider," the court said. (Id. ¶ 17)

The court considered the violation by the Beggs Public Works Authority to be "willful" and "conscious" even though its attorney had advised that a water purchasing contract "could be properly considered and approved as an unlisted item of 'old business.'" (Id. ¶ 18)

"The plain language of §303 [of the Open Meeting Act] mandates the posting of a notice of the matters to be considered at a meeting of a public body," the court said. (Id.)

"The failure of Beggs' governing board to post proper notice of its intent to consider the execution and approval of the water contract with Okmulgee, although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act,'" the court said. (Id.)

How is the situation in Okemah any different?

Joey Senat, Ph.D.
Associate Professor
Oklahoma State University

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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