An investigative audit of the Yukon Public Schools is not protected by attorney-client privilege, a Canadian County judge ruled Friday.
The district had not hired investigator Mark Patzkowski in his capacity as an attorney, Judge Gary E. Miller said in granting summary judgment for the plaintiffs in an Open Records Act lawsuit against the district.
Miller gave the district 30 days to file a motion for a stay of his order if it chooses to appeal his decision.
The open records lawsuit, filed in January by Randy and Debra Wright of Yukon, revealed apparent Open Meeting Act violations by the Yukon Board of Education, including that the:
- School board members decided through a series of non-public, individual private conversations with the superintendent to hire someone to investigate the school district’s FFA program.
- School board didn't publicly post its consent docket;
- Meeting agenda for May 2, 2011, did not provide the public sufficient actual notice that the board intended to hire Patzkowski to conduct an investigation; and
- Meeting agendas for Aug. 1, Aug. 23 and Oct. 3, 2011, did not identify items of business for executive sessions to discuss personnel, negotiations and litigation.
I also reviewed school board meeting agendas and minutes for May 2, 2011; Aug. 23, 2011; Sept. 6, 2011; Oct. 3, 2011; and Nov. 7, 2011.
The Wrights had requested Patzkowski's audit of the school district's Future Farmers of America program. Denton denied the request, claiming it fell under attorney-client privilege.
But Denton said in his deposition that he did not consider the hiring of Patzkowski to be the hiring of an attorney for the district.
"I hired Mr. Patzkowski to be an investigator. And it really wasn’t even in my thought process about he also being an attorney," testified Denton. "What I thought we were hiring him for were his services as a fraud investigator."
Denton testified that he did not consider Patzkowski's reports to be confidential under an attorney-client privilege until seeing that the reports were labeled as such.
Board Member John Nail testified that Patzkowski had been hired as an attorney "to investigate it so we can improve our vo-ag program. That was the extent of the investigation."
Denton also testified that the Yukon Board of Education members decided through a series of private conversations with him prior to April 8, 2011, to hire someone to investigate the school district’s FFA program.
Denton testified that he had spoken individually with the school board members by telephone or in person about the hiring of an investigator and that to the best of his recollection, "all the board members were in favor of securing an outside investigator."
Denton testified that following those conversations with the individual school board members, he signed a contract with Patzkowski on behalf of the district on April 12, 2011.
Nail's testimony supported Denton's account of a decision being made through conversations with individual members prior to April 12, 2011, and separate from a public meeting.
"[Denton] told us he was going to hire an attorney to represent us, to investigate the program," Nail testified. "So it had to be before he [Denton] signed the contract because he told us he was going to go find someone."
However, the Oklahoma Open Meeting Act prohibits members of a public body from reaching a decision through a series of non-public discussions.
"Informal gatherings among a majority of the members to decide on any course of action or to vote on any matter is prohibited by the Act," the Oklahoma Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
This means that one member of a public body may not obtain a consensus upon an item of business through a series of private one-on-one meetings, according to a 1981 Oklahoma Attorney General Opinion. (1981 OK AG 69, ¶ 17)
"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," said the opinion.
"The Open Meeting Act's prohibition against this type of decision making is not dependent upon whether a majority of the members of a governing body gather together at the same place at the same time in the presence of each other," the opinion said. (Id. ¶ 18)
In contrast to Denton's description of private conversations, Board Member David Gene Moore testified that the board gave Denton permission during an executive session to enter into a contact with Patzkowski.
"I do not know when it was discussed, but I'm sure it was done in an executive session," Moore testified.
If true, then the Yukon Board of Education violated the Open Meeting Act because it is not statutorily authorized to vote in an executive session. The statute also requires that each member's vote "be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)
At an open government workshop for public officials in November, the Oklahoma Attorney General's Office warned public bodies not to even take "straw polls" in executive sessions.
Denton and Board Members Jeffrey Deckard, Nail and Karen Youngblood testified that the board approved the hiring of Patzkowski during the regular meeting on May 2, 2011.
However, they conceded that the meeting agenda contained no separate item listing a discussion and possible action on hiring Patzkowski to investigate the school district's FFA program.
Instead of being listed on the publicly posted meeting agenda, an encumbrance to Patzkowski was approved by the board as part of the consent agenda that had not been publicly posted.
The Open Meeting Act, however, contains no provision allowing for a separate consent agenda that is not publicly posted.
Under the statute, "All agendas … shall identify all items of business to be transacted by a public body at a meeting." (OKLA. STAT. tit. 25, § 311(B)(1))
Without proper notice on an agenda, a 2000 Oklahoma Attorney General Opinion emphasized, "the public is deprived of its right to be present and to know when decisions affecting the public are being made." (2000 OK AG 7, ¶ 27)
Denton testified that Patzkowski presented a preliminary report to the Yukon Board of Education during an executive session held during a special meeting on Aug. 23, 2011. He was unsure of the date when the final report was presented.
The five board members, even after reviewing several of their meeting agendas, were unsure or had no idea of the dates for the executive sessions when Patzkowski had presented his preliminary and final reports to them.
The inability of the board members to know from reading their own agendas what they had discussed in executive sessions further illustrates violations of the Open Meeting Act's requirements regarding agendas.
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.