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Skiatook's Board of Trustees has discussed economic development behind closed doors in three of its four most recent meetings.
None of the agendas specified an item of business for the executive sessions even though an attorney general opinion in late November indicated that they should. (2011 OK AG 22)
In the opinion, Attorney General Scott Pruitt said city councils and other public bodies, not just nonprofit foundations, could conduct executive sessions to discuss economic development. (See OKLA. STAT. tit. 25, § 307(B)(10))
But, Pruitt added, "This does not end our discussion." (2011 OK AG 22, ¶ 5)
He emphasized that the statutory requirements to conduct an executive session still applied.
For example, he said the vote to enter into such an executive session "must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business.'" (Id.)
"In addition," Pruitt said, "the public body must give proper notice of the proposed executive session on the meeting agenda." (Id.)
He then quoted from the Open Meeting Act:
B. 2. If a public body proposes to conduct an executive session, the agenda shall:
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
b. identify the items of business and purposes of the executive session; and
c. state specifically the provision of Section 307 of this title authorizing the executive session. (OKLA. STAT. tit. 25, § 311(B)(2))
So why are Skiatook trustees listing on meeting agendas only the statutory authorization, not the item of business to be discussed?
- March 27: "Consideration and appropriate action relating to a request for Trustee approval of an executive session for the purpose of discussing matters pertaining to economic development in accordance with Title 25 O.S., Section 307(C), paragraph 10."
- April 4: "Consideration and appropriate action relating to a request for Trustee approval of an executive session for the purpose of discussing matters pertaining to economic development in accordance with Title 25 O.S., Section 307(C), paragraph 10."
- April 24: "Discussing matters pertaining to economic development in accordance with Title 25 OS, Section 307(C), paragraph 10."
After all, Pruitt's opinion wasn't the first to say that all statutory requirements for an executive session must be followed regardless of the topic.
A 1997 attorney general opinion had said public bodies have an "absolute" duty under the Open Meeting Act to specify the purpose of an executive session beyond simply stating the statutory authorization. (1997 OK AG 61)
That opinion dealt with whether a public body had to reveal the specific purpose of an executive session to discuss personnel. But then-Attorney General Drew Edmondson's answer was not dependent upon the wording of the personnel exemption. Rather, his reasoning was based on the statutory requirements applying to all executive sessions.
To meet in executive session, Edmondson said, the public body must the criteria set forth in the statute:
1. All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act.
2. If a public body proposes to conduct an executive session, the agenda shall:
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
b. identify the items of business and purposes of the executive session; and
c. state specifically the provision of Section 307 of this title authorizing the executive session. (OKLA. STAT. tit. 25, § 311(B)(1)(2)
The bold italics were Edmondson's emphasis.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," he said. (¶ 3.)
Relying upon appellate court interpretations of the statutory requirements, Edmondson said, "It is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion."
In the instance of a personnel issue, the AG agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, he said:
We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)
This past September, Pruitt told a state agency that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
At least the nature of an impending lawsuit or claim should be listed on the agenda item for such an executive session, said Rob Hudson, first assistant attorney general.
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
He said listing only the specific statutory authorization for the proposed executive session would violate the Open Meeting Act. The agenda item should list information such as the name of the parties in the lawsuit.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
These attorney general opinions and other pronouncements boil down to one conclusion: Whether the executive session is to discuss litigation with an attorney, or a personnel issue, or economic development, the agenda must identify the specific item of business to be discussed.
Skiatook trustees may meet behind closed doors to deliberate on "economic development," but they are ignoring Pruitt's admonition that proper notice must be given on the meeting agenda. That means identifying what the trustees intend to discuss. Taxpayers are entitled to know beforehand just as they are when the topic is a pending investigation or a government employee.
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.
Oklahoma City Community College's campus newspaper has detailed in a two-part series several apparent violations of the state Open Records Act and the federal Clery Act by school officials.
Last week, The Pioneer reported that OCCC officials have cited three federal statutes -- the Family Educational Rights & Privacy Act, the Health Insurance Portability & Accountability Act, and the Americans with Disabilities Act -- as reasons for not releasing police records.
National experts disagreed that those statute prohibit the release of information by campus police.
For example, FERPA exempts law enforcement records, which the statute defines as records created by the law enforcement unit for a law enforcement purpose and maintained by the law enforcement unit.
Such records "are not 'education records' subject to the privacy protections of FERPA," says the U.S. Department of Education. "As such, the law enforcement unit ... may disclose law enforcement unit records to third parties without the eligible student's prior written consent."
Meanwhile, the Open Records Act requires that police records provide the name, date of birth, address, race, sex, physical description, and occupation of people arrested. (OKLA. STAT. tit. 51, § 24A.8(A)(1))
Yet, the newspaper reported, OCCC officials blacked out on a police report the name and other identifying information for a student arrested after he was reported to be sharpening a knife in class and then threatening classmates and the professor.
According to the newspaper, OCCC Media Relations Coordinator Cordell Jordan also has cited HIPAA and the ADA as reasons to redact information or withhold reports when campus police respond to accidents and injuries. OCCC attorney Nancy Gerrity defended that reasoning.
But the Student Press Law Center's attorney said campus officials are "misinformed, lying, or both" if they cite FERPA, HIPAA and the ADA as reasons not to release information in police reports.
"HIPAA applies to organizations that have a primary business of providing health care, insurance, or electronic records transactions for those companies; obviously, law enforcement has a primary business of enforcing the law and thus, none of its records are HIPAA records,” Adam Goldstein told the newspaper.
"The ADA isn't a privacy statute at all," he said. "It’s an anti-discrimination statute.
"It requires employers to treat individuals with qualified disabilities fairly and make reasonable accommodations for their disabilities.
"It has nothing whatsoever to do with records of any kind or the release of those records. If someone is citing the ADA as a basis for not releasing records, they're not even misinterpreting the law, they're just saying the names of laws they’ve heard that sound kind of official."
Student Press Law Center Executive Director Frank D. LoMonte agreed that HIPAA, FERPA and the ADA are not valid reasons for withholding campus police reports.
"First of all, HIPAA is almost always a false justification for refusing to turn over public records. HIPAA applies only to two types of people: Health care professionals, or insurers," LoMonte told the newspaper.
"If the college has someone's medical information because that person, for example, committed a crime or was injured in an accident, the college is in no way restricted by HIPAA from releasing that information. HIPAA is not a blanket health care secrecy law — it applies only to your doctor or your medical insurance carrier, not to colleges.
"FERPA is never, ever a valid reason for a college to withhold or redact crime reports, period," he said.
LoMonte told The Pioneer that citing the ADA as a "justification for withholding public records is so frivolous that it almost seems like it must be a joke."
This week, The Pioneer also reported that OCCC officials have taken weeks and months to provide public records.
For example, the newspaper said, the police report regarding the student arrested for sharpening a knife in class and threatening others was provided three weeks after the incident.
The Clery Act, however, requires that such incidences be reported on a publicly available crime log within two business days of their initial report to the campus police or the campus security department.
The Pioneer also provided examples of lengthy delays for non-police records.
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)
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)
In a 2005 public records training video for police, Edmondson acknowledged that the time in which agencies must respond "varies with the circumstances."
But he also distinguished between "a detailed request for records that's going to require looking back over the past 12 months and pulling files that may already be in storage" and one for records "that are sitting right there on your desk and all you have to do is go to the copy machine."
"In most instances," he said, "open records requests should be responded to on the spot."
The Pioneer also noted that all records requests must be made to the OCCC Marketing and Public Relations office, a process that only delays access.
Funneling all media requests for records through one office runs contrary to a 2005 attorney general opinion requiring that government documents be made available where they "are located in the ordinary course of business."
"If a public body has more than one office location, its records must be maintained and made available to the public at the office where the records are located in the ordinary course of business," Edmondson said. (2005 OK AG 3, ¶ 10)
"The Act does not expressly address at what office location records must be maintained and made available to the public if a public body has more than one office location. It is our opinion that the 'prompt, reasonable access' to records that the public must be provided under the Act indicates the Legislature's intent that the public body's records shall be maintained and available at the office where the records are located in the ordinary course of business,” he said. (Id. ¶ 8)
LoMonte told the newspaper that delayed access indicates the low level of importance that OCCC officials place on being held accountable to the public.
It also indicates how little respect OCCC officials have for students, faculty, staff and the general public.
OCCC administrators act as though they are running a high school or a private college. But this is a publicly funded college.
Students, faculty and other taxpayers are entitled to know about what happens on campus, particularly when it involves police.
OCCC officials, however, are treating college journalists with the same disrespect that many high school administrators show for their students.
Kudos to The Pioneer editors and reporters for standing up for the public's right and need to know. But they'll need help if OCCC officials' attitudes and practices are to change.
Local and federal officials have an obligation to investigate what the newspaper has reported and to hold OCCC officials accountable for violations of state and federal law.
Local media also have an obligation to help by spreading the word to a larger audience. Back up these college journalists. Don't stand by while they are bullied by government officials.
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 Bernice Board of Trustees violated several of the Open Meeting Act's requirements for executive sessions and abused the statute's "new business" provision, according to findings in a state audit released Wednesday.
"A review of town records and interviews with town officials indicated a variety of actions and issues that were at least questionable as to compliance with the Open Meeting Act," the audit said.
Mayor Bill Raven told auditors "that he sometimes talks to other trustees outside of meetings so
that they can 'all have an idea of what will be done' so that they 'are not surprised by issues' at meetings."
State Auditor Gary Jones recommended that Delaware County District Attorney Eddie Wyant "review and address the town trustees’ possible violations of the Open Meeting Act."
The 53-page audit, which was petitioned for by town residents and was conducted over the course of nearly a year, addresses a number of other complaints against town officials.
In a 12-page response on behalf of the town, attorney David E. Jones downplayed the Open Meeting Act findings.
"You indicate that a review of town records and interviews with town officials indicated certain actions and issues that were at least questionable as to compliance with the Oklahoma Open Meeting Act," wrote Jones. "The Town appreciates your efforts in this regard and endeavors to eliminate any action that could even be characterized as 'questionable.'"
"Questionable" is an understatement. Specifically, the state auditor’s special investigations unit found instances between July 1, 2008, and June 30, 2011, in which the town trustees unquestionably violated the Open Meeting Act by:
- Discussing contracts of independent contractors in executive session;
- Almost never taking minutes of executive sessions;
- Not listing the statutory authorization for executive sessions or listing the wrong one;
- Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
- Voting in an executive session; and
- Discussing the creation of a job, rather than hiring a specific person, in executive sessions. (A violation that was pointed out on this blog last April.)
The audit also criticized the five town trustees for taking action under "new business" on items that "frequently appeared to be more 'routine' and able to be specified as ordinary agenda items at subsequent meetings."
The Open Meeting Act defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting" the agenda.
But the audit said, "At least some, if not most, of the decisions and transactions ... were dubious applications and/or abuses of the 'new business' language."
The audit also described a meeting in which the board gave the appearance of having already decided an issue privately. "There was no discussion, a quick motion, and a quick vote to terminate the former town attorney's services," the audit said of the December 2010 meeting.
The meeting was videotaped by a resident. According to the audit:
During the meeting, immediately after Raven read the agenda item, he looked at [David] Dennis, who, appearing to read from a piece of paper, made a motion to change the Town’s law firm. Immediately after Dennis made the motion, he looked at Raven, who nodded and then looked over toward another trustee. [DeWayne] Langley then seconded Dennis’ motion, and Raven immediately called for a vote. The vote was unanimous ([Byron ] Anderson was absent).
A resident asked why the Town Board took that action, and Dennis said, "We just felt like maybe we could be better represented with another law firm." The resident asked if the new firm had agreed to represent the Town, and Raven said that it had. The resident said, "So it was all planned; you knew before you came in tonight," and Raven said, "Well, that would seem kind of foolish, wouldn't it, to hire a law firm if we had not talked to them?
According to Raven, all of the trustees wanted to terminate the Town's use of the now former town attorney's services and had previously "made comments to" him (Raven) about doing so.
The audit also was critical of the town trustees being polled by Town Clerk Connie King outside of a meeting. A resident had asked King to include some issues on the April 11, 2011, agenda.
According to the audit, "King wrote to the town trustees prior to the meeting that the issues would not be included on the agenda because she had, according to her, talked to three trustees, and they did not want the items included."
But, the audit said, "The informal 'poll' of a quorum of trustees and the de facto 'decision' to not include the issues requested by the citizen would seem contrary to 25 O.S. § 305."
Yes, it certainly would. That provision of the statute states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded."
And a 1981 attorney general opinion said the statute prohibits a member from obtaining a consensus upon an item of business through a series of private one-on-one meetings.
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed," the opinion said.
The audit acknowledged that town employees "can speak separately with a majority of the trustees about specific town business" but also warned "trustees should be careful not to informally make any decisions among themselves through those communications (e.g., a majority of trustees knowingly making a decision through separate conversations with the town clerk-treasurer)."
Among the other recommendations were:
- "No town trustee should discuss town business with a quorum present or, in sequential fashion, separately with enough other trustees to make a quorum, outside of Town Board meetings."
- "The Town Board should hold executive sessions only when absolutely necessary and only in the specific instances allowed by" the Open Meeting Act.
- "Board agendas should clearly and specifically describe the matter to be discussed during the executive session and list the specific statutory authority for the session."
- "If the matter to be discussed in an executive session is an employment matter, the agenda should identify a specific current or prospective employee, and the employee’s name or unique position should be specified on the agenda."
- "During the 'new business' section of meetings, the Town Board should address matters only when town officials did not know about the matters or could not have reasonably foreseen them prior to the posting of the meeting agendas and when the matters are significant enough that they cannot wait until the next meeting to be addressed."
- "The Town Board should not vote during executive sessions, and written minutes should be taken while in executive sessions."
None of these requirements is new. And, as the audit pointed out, the Oklahoma Court of Civil Appeals has said:
The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes [sic]. Lack of familiarity is no excuse.
The audit also warned, "It is important for elected officials to take it upon themselves to become
aware of the requirements and prohibitions of the Open Meeting Act because the political subdivisions that they serve are not authorized to legally defend them against criminal charges of violating the act."
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
In at least one instance, the Bernice trustees were warned by a resident that an executive session would be illegal under the particular circumstances. But they did it anyway.
If a Washington County judge is correct, then that same resident may not sue to enforce the Open Meeting Act without having been specifically harmed by the public body's alleged violation.
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," said Associate District Judge Russell Vaclaw said in November.
So what will District Attorney Eddie Wyant do with the audit's findings? Will he treat these obvious violations seriously by prosecuting?
The public must rely on him to uphold the Open Meeting Act.
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.
Norman Councilman Tom Kovach was re-elected to the Ward 2 seat in the city's municipal election on Tuesday.
Kovach and Steve Lucas, a candidate for the Ward 8 seat, had signed FOI Oklahoma's Open Government Pledge.
Lucas, a Cleveland County deputy sheriff, lost in his election.
Kovach was the first candidate in a 2012 election to sign the pledge this year. He also signed the pledge when he ran for re-election to the Ward 2 seat in 2010.
Kovach is a member of FOI Oklahoma Inc.
This past summer, Kovach's fellow council members approved his proposals to make Norman city government more transparent.
Under what became Norman's first records retention policy, all city emails and other records must be "retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."
Also, all committees, sub committees and ad hoc committees must abide by the state Open Meeting Act and a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.
Kovach said that provision covers advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.
By signing the Open Government Pledge, candidates promise, "I and the public bodies that I am 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 promise “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 spring 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
