Wednesday, August 15, 2012

Pardon and Parole Board members say they didn't intend to violate state Open Meeting Act; But proving criminal intent not necessary for successful prosecution

Oklahoma Pardon and Parole Board members conceded Tuesday that their agendas could have been worded better, but they insisted that they never intended to violate the Open Meeting Act, The Oklahoman reported today.
"I understand the perception and the appearance, but there was no mal-intent to not be transparent," said Parole Board member David Moore of Edmond.
But proving criminal intent won't be necessary if Oklahoma County District Attorney David Prater choses to prosecute board members for agendas that failed to notify the public that state inmates would be considered for early release.
Criminal intent doesn't have to be proved because the vague agendas would be a crime by virtue of the Open Meeting Act. In other words, the board members either complied with the statute or didn't. ( See Hillary v. State, 1981 OK CR 78, ¶ 5)
Instead, prosecutors need only prove a willful failure to comply. (Id.)
"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)
Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the court explained. (Id. at ¶ 26) (emphasis added)
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
All Pardon and Parole Board members are briefed on the Open Meeting Act, board member Currie Ballard told the Tulsa World last week.
Open Meeting Act violations are a misdemeanor punishable by up to one year in the county jail and a fine of up to $500.
Prater told The Oklahoman that his criminal investigation into whether the board willfully violated the Open Meeting Act is ongoing.
Last week, Prater issued a letter describing violations by the board as "willful, conscious and purposeful."
"The Oklahoma Pardon and Parole Board's violations in this matter are egregious, aggravated and a clear attempt to operate in secrecy, outside of public scrutiny,” Prater wrote.
Names of inmates proposed for early release were not placed on the board's agendas. Instead, board members brought up the names under the agenda item "docket modification."
The board's vague agendas essentially prevented the public from knowing that offenders would be considered for early release, Prater concluded.
"A member of the public who was interested in monitoring a specific inmate would not begin checking the parole dockets until the time drew near for the legal consideration of the inmate," Prater wrote.
"Outside of Board members, no person had the ability to determine what inmate would or could be the next fortunate soul to emerge from the darkness of the 'Docket Modification' portion of the Board's business with an undeserved opportunity to attain an early and illegal release.
"This result illustrates why compliance with the Open Meeting Act is vital to public awareness and governmental transparency. At the least, the public deserves the opportunity to observe a public board violate the the law in the light of day," he wrote.
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.)
The five Pardon and Parole Board members told reporters Tuesday that they are willing to make whatever changes are needed so their actions are clear to the public.
"If there is some way we can tweak our process to be more transparent, then we certainly want to do that," Moore said. "We will fix what we need to fix to make sure there is no appearance of secrecy."
That willingness to change is admirable.
But "We're sorry. We won't do it again" shouldn't absolve the Pardon and Parole Board members of using agendas that kept the public in the dark about the early release of murderers and child molesters.

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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