Friday, July 20, 2012

DHS commission still using vague agenda items for meetings despite DA's warning to be more specific

DHS' attorney said 10 months ago that agenda items for meetings of the statewide commission overseeing the agency would be more specific when major policy changes are contemplated.
So much for that assurance, according to a story in The Oklahoman today.
Last month, Commissioner Michael Peck presented a lengthy proposal to close a Pauls Valley residential center for developmentally disabled adults under an agenda item labeled "property committee report," the newspaper reported.
The head of a nonprofit concerned with the future of the Southern Oklahoma Resource Center said Peck had assured him that he "would not be presenting anything" regarding its closure at the meeting.
Peck told the newspaper he didn't try to mislead the SORC Parent Guardian Association and hadn't planned to make the presentation.
"I did not know I was going to say anything about my idea until the moment came," Peck said.
Peck and Commissioner Brad Yarbrough, who was still commission chairman in June, claim the state Open Meeting Act wasn't violated because no action was taken.
The purpose of the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
As such, the statute requires agendas to include "the subject matter or matters to be considered." (OKLA. STAT. tit. 25, § 303)
The state Supreme Court has said agendas must "be worded in plain language, directly stating the purpose of the meeting . . . [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." (Andrews v. Indep. Sch. Dist. No. 29 of Cleveland County, 1987 OK 40, ¶ 7)
"To require otherwise would defeat the purpose of the Act," the unanimous court said. (Id.)
And because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public," the court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7))
The state Court of Civil Appeals said 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." (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8)
Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. (Id. ¶ 10)
Or as a 1980 attorney general opinion said:
The Open Meeting Act must be given a construction, which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken. (1980 OK AG 215, ¶ 12)
And at an open government workshop nearly three years ago, public officials were cautioned not to use "cryptic" agenda language.
"Don’t try to hide items of business by putting it under 'report,'" warned Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
The Attorney General's Office prefers for such reports "to have bulleted points for items under the report," said Tudor.
Contrary to that advice, the June 12 agenda for the Oklahoma Commission for Human Services has seven items listing nothing more than "report."
The commission's agenda materially obscured the scope of matters that would be considered. It failed to give the public actual notice of what would be discussed. Members of the Parent Guardian Association were denied the opportunity to hear for themselves Peck's plan to close the center.
Aside from what the Open Meeting Act requires, vague agenda items are just not good government. As another author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."
But DHS commissioners seem hell bent on keeping Oklahomans in the dark.
After complaints last summer that the commissioners were violating the Open Meeting Act, Oklahoma County District Attorney David Prater warned them that there are no minimal violations.
"Oklahoma's laws on openness in government serve an important and noble purpose," Prater wrote. "Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."
Prater specifically warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
Prater chose not to prosecute commissioners then for violating the Open Meeting Act.
What will he do now?

Joey Senat
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.

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.