Thursday, July 5, 2012

Healdton City Council agenda lists wrong statutory exemption, no item of business for executive session

The Healdton City Council met behind closed doors Monday night under the statutory exemption to discuss terrorism-related issues, The Ardmoreite reported.
But in the executive session, the council actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma, the newspaper said.
The meeting agenda had not specified a reason for the executive session. It listed only, "Discuss with City Attorney pending investigation disclosure of which City Attorney has advised will impair the ability to proceed with pending investigation as provided by the Oklahoma Open Meeting Act (Title 25 307.B.9)."
Listing the wrong statutory authorization and not listing an item of business are apparent violations of the state Open Meeting Act.
Carter County District Attorney Craig Ladd told the newspaper he would wait to review information on the executive session before commenting.
The Open Meeting Act permits executive sessions for nine topics. The one listed on the agenda, OKLA. STAT. tit. 25, § 307(B)(9), is to discuss terrorism, e.g., "the investigation of a plan or scheme to commit an act of terrorism."
The agenda apparently should have cited Okla. Stat. tit. 25, § 307(B)(4), which allows confidential communications between a public body and its attorney "concerning a pending investigation, claim, or action."
Before the council entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
City Attorney Bob Pinkerton dismissed it as a misprint and the council proceeded on his advice, Pineda reported.
But the Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are "strictly complied with." (§ 307(E))
For example, the agenda must "state specifically the provision ... authorizing the executive session." (§ 311(B)(2)(c))
The Healdton City Council agenda didn't state the correct statutory authorization for the executive session.
The Open Meeting Act also requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said publicly since September that government bodies must comply with this provision by citing more than attorney-client privilege.
For example, Attorney General Scott Pruitt told a state board 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.
Rob Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
For example, at least the nature of an impending lawsuit or claim should be listed, Hudson said.
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
The agenda item should list information such as the name of the parties in the lawsuit, he explained.
"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."
Headlton officials should have listed the reason for the executive session.
After the meeting, Mayor David Smith confirmed for Pineda that a months-long investigation has found discrepancies in the town's finances. City Treasurer Karen Kardaleff was relieved of her duties Tuesday morning and placed on paid leave, Pineda reported.
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)
The Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
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 prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
The state Supreme Court has said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
In November, Hudson simply warned officials: "The Open Meeting Act is the law. Don't break the law."

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.

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