Wednesday, March 28, 2012
Rogers County Commission hires independent contractor after executive session despite prohibition on such discussions behind closed doors
The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of independent contractors for professional services, the state attorney general said in 2005.
But Rogers County Commissioners Dan DeLozier, Mike Helm and Kirt Thacker did just that on March 5.
They went into executive session under the personnel exception to discuss the hiring of a public information officer as a salaried employee. They came out and hired a PIO as an independent contractor. (Read the meeting minutes.)
So I asked DeLozier, Helm and Thacker how the executive session and subsequent hiring of an independent contractor were permissible given what the attorney general had said.
Their legal adviser, Assistant District Attorney David T. Iski, responded on their behalf.
Iski said it would be "inaccurate" to conclude that the commission intended to "skirt the Act by intentionally confining its discussions to the hiring of the Public Information Officer (PIO) as an Independent Contractor."
Iski says the commissioners "entered an Executive Session to discuss the hiring of a PIO as an employee of the County."
"The resulting action indicates that the Board determined not to proceed with the position as one of an employer/employee relationship and chose to go another route," he said.
"It may also be helpful for you to know that the Board had not had a PIO previously and was not proceeding in a manner of simply filling an open position," Iski added.
I hadn't assumed that the commissioners intended to skirt the Open Meeting Act. My question was whether their actions violated the statute.
In 2005, then-Attorney General Drew Edmondson had been asked whether a public body could "convene in executive session" under the personnel exception to discuss hiring independent contractors. (2005 OK AG 29)
His answer: "A public body may hold an executive session under the Open Meeting Act only to discuss the 'employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee.' Discussing awarding a contract for professional services when the recipient will be an independent contractor, rather than a public officer or employee of the public body, is not a proper subject for an executive session." (¶ 13)
Iski says Rogers County commissioners didn't convene the executive session with the purpose of discussing an independent contractor.
But Edmondson's answer wasn't limited to the intent of the executive session. He said, "If ... the position were found to be that of an independent contractor, rather than an employee, it would be improper ... for the public body to discuss hiring someone to fill that position in an executive session." (¶ 7)
Edmondson's opinion doesn't condone what Rogers County commissioners did, particularly given the state Supreme Court's admonition that the Open Meeting Act "is to be construed liberally in favor of the public" because the statue was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the Oklahoma Court of Civil Appeals also has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 8)
In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."
The "School Board's actions were limited by its own notice to 'discussion' and 'interviews,'" the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)
That Open Meeting Act violation seems no different from the Rogers County Commission hiring an independent contractor after having met in executive session to discuss hiring a salaried employee and having listed on the agenda the hiring of a salaried employee, not an independent contractor.
The Rogers County commissioners could have avoided this Open Meeting Act problem by deciding first whether to hire a public information officer as a county employee or as an independent contractor. That discussion should have been held in public.
But even so, once the commissioners had decided in their March 5 executive session to hire an independent contractor, they should have ended the closed-door session. The hiring of the public information officer as an independent contractor should have been put on the following week's agenda for discussion and action.
Instead, the commissioners voted "to enter into an Independent Contractor's Agreement effective today with a Public Information Officer, Kristen Bergman." (Even though Bergman began working for the county, her contract wasn't approved by the commissioners until Monday.)
Unfortunately, the commission's closed-door discussion of an independent contractor on March 5 wasn't a one-time problem.
On March 19, commissioners went into executive session under the attorney-client privilege exception to discuss "possible official action" regarding a court-ordered $22.5 million judgment (plus attorney fees, court cost and interest that continues to accrue until the debt is paid) against the county.
After the session, they voted to hire a law firm and a financial adviser to provide options to deal with the judgment. The contracts for professional services were approved at this Monday's meeting. (Read the March 19 meeting minutes and the March 26 agenda.)
Johanning & Byrom PC will act as the county's bond attorney, and The Baker Group will serve as its financial adviser, The Claremore Daily Progress reported.
"Our job is to look at all the funding options available for Rogers County," said Greg Nieto of The Baker Group. "We will bring back recommendations and additional information in the next couple of weeks. We are seeking the most economical method to satisfy the ruling."
How could the hiring of these independent contractors have been discussed behind closed doors without violating the Open Meeting Act?
Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could such a discussion fall under the attorney-client exception? That Iski was included in the executive session would not have been sufficient reason.
"The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a 'pending investigation, claim, or action.' Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will 'seriously impair' the body's ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest," said Edmondson in the same 2005 opinion. (¶ 11)
In other words, a public discussion of hiring independent contractors to provide options would had to have "seriously impaired" the ability of the commission to process the claim in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.
Rather than liberally construing the Open Meeting Act to favor openness, some Rogers County officials are interpreting it so as to justify closed-door discussions that appear to violate the statute.
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.