The Healdton City Council recently met in executive session to "discuss consulting and possible hiring of Human Resources attorney regarding pending litigation," The Ardmoreite reported Monday.
But the Open Meeting Act doesn't permit a closed-door discussion of hiring an independent contractor.
And in another apparent violation of the statue, the meeting agenda failed to reveal anything about the "pending litigation" that justified the executive session.
The meeting Aug. 6 was the second this summer in which the council seemed to have violated the Open Meeting Act.
On July 2, the council met behind closed doors under the statutory exemption to discuss terrorism-related issues even though it actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma.
The meeting agenda not only listed the wrong statutory exemption but also failed to include any information about the "pending investigation" that would be discussed.
Carter County District Attorney Craig Ladd waffled last week on whether the council violated the Open Meeting Act in July.
In an email to The Ardmoreite on Aug. 7, Ladd wrote, "After looking into the matter further, I am not convinced a willful violation occurred (other than perhaps the clerical error of citing B9 rather than B4 and then proceeding, rather than postponing it for another week.)"
So wouldn't that be a violation?
Criminal intent isn't necessary for a violation to have occurred. The question is only whether the council willfully failed to comply with the Open Meeting Act. (See Hillary v. State, 1981 OK CR 78, ¶ 5)
"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," the state Supreme Court has said. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
Before the council had entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
As Ladd conceded to the newspaper, the council proceeded with the executive session rather than postpone it a week. That's deliberate disregard of the law.
The Open Meeting Act prohibits executive sessions unless certain procedures, such as listing the statutory authorization, are "strictly complied with." (OKLA. STAT. tit. 25, § 307(E))
The Court of Civil Appeals has said "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)
The statute 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 government bodies must comply with this provision by citing more than attorney-client privilege.
"The public has a right to know what you are going to discuss in an executive session," the first assistant attorney general told public officials in November.
If the lawsuit has not been filed, then the agenda item should include "at least the nature of it," Rob Hudson said. "More is better."
But for the Aug. 6 meeting, the Healdton City Council refused to put on the agenda any information about the "pending litigation."
The council also apparently used the executive session to discuss hiring an independent contractor, i.e., an attorney specializing in human resources cases.
The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of an independent contractor, such as an attorney, for professional services, the state attorney general said in 2005. (2005 OK AG 29, ¶ 13)
If such a discussion is not allowed under the personnel exception, it shouldn't be allowed under attorney-client privilege.
Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could the Healdton council's discussion fall under the attorney-client exception?
The same 2005 attorney general opinion also said:
"The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a 'pending investigation, claim, or action.' Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will 'seriously impair' the body's ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest." (¶ 11)In other words, a public discussion of consulting or possibly hiring a human resources attorney would had to have "seriously impaired" the ability of the council to process the pending litigation in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.
Ladd told The Ardmoreite that he will comment on the latest apparent violations as soon as practical.
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.