Tuesday, July 17, 2012

McAlester City Council uses code name for economic development project rather than list company on meeting agendas

McAlester City Council members are scheduled to meet behind closed doors tonight, as they did last week, to discuss "Project Spider."
The meeting agendas describe it as "a proposed expansion of an existing McAlester employer/business."
City Manager Pete Stasiak has refused to provide the McAlester News-Capital with more details, saying he couldn’t reveal the company's name because it would disclose too much information that might affect the outcome of the project.
City Councilor Travis Read told the newspaper it's a project the city is working on with MPower Economic Development.
Read said the code name was used to keep secret the name of the business. The intent was not to violate the state Open Meeting Act, he said.
Confusion over what to include on the agenda is created by the wording of the provision allowing executive sessions to discuss economic development.
Public bodies may confer behind closed doors "on matters pertaining to economic development, including the transfer of property, financing, or the creation of a proposal to entice a business to remain or to locate within their jurisdiction if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." ((OKLA. STAT. tit. 25, § 307(C)(10))
However, state legislators didn't exempt economic development discussions from what's required on a meeting agenda for executive sessions.
As Attorney General Scott Prutt emphasized in late November, the statutory requirements to conduct an executive session apply to discussions of economic development. (2011 OK AG 22)
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. ¶ 5)
"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 (OKLA. STAT. tit. 25, § 311(B)(2)):
    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.
Pruitt concluded:
If a public body determines an executive session is necessary to protect the development of products or services or to protect the confidentiality of a business, and if the public body has given proper notice of the proposed executive session under 25 O.S.Supp.2010, § 311(B)(2), then the public body may vote and enter into executive session for purposes of conferring on certain matters of economic development pursuant 25 O.S.Supp.2010, § 307(C)(10). (emphasis added)
Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
Despite those requirements, the Skiatook Board of Trustees in March and April didn't identify the items of business and purposes of their close-door sessions to discuss economic development.
Now, the McAlester City Council is using code names on meeting agendas.
"We have some businesses that do not want to be identified publicly until the deal is made," Read explained.
Well, government employees would like their identity kept secret, too, when city councils discuss them in executive session. Yet a 1998 attorney general opinion requires that the employee’s name or unique title be listed on the agenda.
Why? Because to meet in executive session, said then-Attorney General Drew Edmondson, the public body must satisfy the agenda requirements set forth in the Open Meeting Act. The same requirements pointed out by Pruitt.
Plus, as Edmondson had noted, the statute says, "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." (OKLA. STAT. tit. 25, § 311(B)(1))
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," Edmondson said. (1997 OK AG 61, ¶ 3)
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "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.)
Edmondson noted the state Supreme Court had agreed that 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.” (Id. ¶3) (citing Andrews v. Independent School Dist. No. 29 of Cleveland County, 1987 OK 40)
"In this light," 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." (1997 OK AG 61, ¶ 5)
Although the Open Meeting Act "does not specify that a person must be identified by name," he said, "in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification."
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has 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)
And because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95)
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)
At an open government workshop in September 2009, public officials were cautioned not to use "cryptic" agenda language. A public body should not try to hide what it will be doing at a meeting, said Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
Similarly, Pruitt's office has warned public bodies that they must identify the item of business and purpose of executive sessions for discussions protected by attorney-client privilege.
Government attorneys for years have argued that listing any information about a "pending investigation, claim, or action" would hurt the public interest.
But 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.
Listing only the specific statutory authorization would violate the Open Meeting Act, said Rob Hudson, first assistant attorney general. The agenda item should list information such as the name of the parties in the lawsuit.
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.
"How else would the average person know what you are talking about," he explained. "The public has a right to know what you are going to discuss in an executive session."
Executive sessions for attorney-client privilege, personnel investigations and economic development fall under the same statutory requirements for agendas.
So if the names of those threatening a lawsuit and the names of employees must be listed on the agenda, the name of the company being discussed behind closed doors should be disclosed, too.
After all, that business is asking for some economic incentive such as a tax break, donated land, utility rate discount, or other favor involving public funds.
The public should know before these are "done deals."
As Cartwright wrote in 1982: "Executive sessions are not permitted under the law because the matters to be taken up are in the private domain of public officials. Such matters are the business of the public. (1982 OK AG 114, ¶ 12) (emphasis included)
"Executive sessions exist only for the purpose of compromising equally important policy commitments which come into conflict....," he noted.
Permitting closed-door discussions of the particulars of an economic development proposal protects the development of products or services as well as the confidentiality of the business' plans.
Requiring specific information, such as the name of the company, on the agenda would protect the equally important policy commitment "to encourage and facilitate an informed citizenry's understanding of the governmental process and governmental problems."

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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