Oklahoma's Supreme Court is being asked to decide if residents may sue to enforce the state Open Meeting Act without having been specifically harmed by the public body's alleged violation.
Joel Rabin and Sharon Hurst are appealing a Washington County judge's dismissal of their lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Authority.
In November, Associate District Judge Russell Vaclaw said Rabin and Hurst made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
Vaclaw reiterated that ruling in another decision on Jan. 3.
Vaclaw ruled that plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA."
The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual," he said.
The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury."
Rabin and Hurst alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, 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.
And 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 uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.
Vaclaw did not rule on whether the BRTA violated the Open Meeting Act. Instead, he decided that Hurst and Rabin had no right to sue.
Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:
- The plaintiff is one of the class for whose special benefit the statute was enacted;
- There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
- Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:
It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."
Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.
But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."
He agreed that the Open Meeting Act "exists for the benefit of the general public."
"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.
"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said.
Yes, the Legislature could resolve the issue this session by explicitly stating that Oklahomans have a private right to sue to enforce the Open Meeting Act.
I receive a steady stream of complaints about Open Meeting Act violations -- a number of which have been publicized on this blog. Unfortunately, police and district attorneys have shown little interest in pursuing complaints of government officials breaking this law.
But our legislators have the power to remedy this problem. Please clearly give your constituents another tool to enforce a law intended "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."
Joey Senat, Ph.D.
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.