Skiatook trustees not listing specific items of business for executive sessions to discuss economic development

 
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.