Kiowa town trustee kicked off board for failing to take open government training

A Kiowa town trustee was removed from the board because he failed to undergo mandatory training that includes the state's open government laws, the McAlester News-Capital reported last week.
 
Ray Goss had one year from the date he was elected in April 2011 to take the training, which is offered by the Oklahoma Municipal League.
 
Newly elected and appointed municipal officials must undergo the daylong training in their first year of office or they "shall cease to hold the office." (OKLA. STAT. tit. 11, § 8-114(A)(C)(E))
 
The curriculum includes municipal budget requirements, the Open Meeting Act, the Open Records Act, ethics, procedures for conducting meetings, conflict of interest, and purchasing procedures. (§ 8-114(C))
 
Because Goss continued to serve on the board past April, the town's newly appointed attorney is reviewing all motions and votes Goss made.
 
"We are now going to have to re-look at all the decisions the board made since April," said John Thomas.
 
Mayor Janelle Beaver announced Goss' departure from the board during Monday's regular meeting of the Kiowa Board of Trustees.
 
The McAlester News-Capital reported that other trustees asked Thomas if Goss could be reappointed after taking the training.
 
The newspaper paraphrased Thomas as saying the purpose of the law is not to find a way around it but to cause municipal officials to be responsible for their position.
 
"We need to follow the law," Thomas said. "That was the intention of the legislature."
 
Kudos to Thomas for that answer.
 
The Oklahoma Municipal League website lists officials who have completed the training.
 

 
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.

OKC police refuse to identify officer who fired gun in his home, taken to hospital for mental health check

Oklahoma City police officials won't tell the public which of its officers fired a gun in his house Thursday when other officers responded to a call that he was acting strangely, The Oklahoman reported Saturday.
 
The officer was taken to a hospital for a mental health check, the newspaper was told.
 
The officer's wife called police about 3:50 p.m. Thursday to report that he was talking and acting strangely at their house in the 12700 block of South Robinson Avenue., which runs behind Santa Fe Elementary School. I am told that the school was locked down during the incident.
 
The Oklahoman reported that among those responding was the department's tactical team, which remained on standby while other officers investigated.
 
The officer fired at least one gunshot into the floor of his home, The Oklahoman was told.
 
The department's public information officer said he wasn't arrested because police don't know if a crime occurred. Capt. Dexter Nelson told the newspaper:

He can shoot up his house all that he wants to. If he has a firearm in his house and shoots up his house and isn't endangering anyone else, that's not necessarily a crime. We have people shoot guns inside their homes all the time, and they aren't arrested.

Wow!
 
But Oklahoma City's Municipal Code says discharging a firearm in the city is a misdemeanor. (Ch. 30, Art. X, § 30-308)
 
A state statute makes it a felony, punishable by two to 20 years in prison, "for anyone to willfully or intentionally discharge any firearm or other deadly weapon at or into any dwelling, or at or into any building used for public or business purposes." (OKLA. STAT. tit. 21, § 1289.17A)
 
Nelson said the officer is on administrative leave and the department's internal affairs unit is investigating whether a crime occurred.
 
Nelson refused to release the officer's name, blaming that decision on city attorneys.
 
The state Open Records Act requires police to release "initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred." (OKLA. STAT. tit. 21, § 24A.8(A)(3))
 
The statute allows police to release other information on an incident. (§ 24A.8(B))
 
But Nelson told the newspaper:

You have already provided a 'brief summary' of the incident. Additional details are not required. Since the subject was not taken to jail, arrestee information does not exist.

The bottom line is that Oklahoma City Police Department officials don't want the public to know which of their officers fired a gun in a residential neighborhood and then was taken to a hospital to have his mental health evaluated.
 
Nothing in the Open Records Act prohibits police from releasing the name as part of the incident report.
 
The name of anyone who fires a gun in a residential area should be included in the summary of what occurred. It's even more important because it was a police officer who fired a weapon close to an elementary school.
 
"Police officers must be held to a higher standard of moral and ethical values then[sic] is expected of the average person. Police officers need the trust and respect of the public to perform their duties and responsibilities effectively." (Richard W. DeShon, Police Officers Oath of Office and Codes of Ethics: A Question of Knowledge, 2000)
 
Instead, Oklahoma City police officials are twisting the Open Records Act to create a loophole so they can hide which of their officers fired his weapon in a neighborhood while acting strangely.
 
The City Council should expect police officials to be more forthright with its citizens.
 

 
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.

Woodward Industrial Foundation challenges DA opinion that it's a public body

A district judge is expected to rule by Friday on whether the Woodward Industrial Foundation must comply with the state Open Meeting Act.
 
The foundation is challenging Woodward County District Attorney Hollis Thorp's recent opinion that it is a public body subject to the Open Meeting Act.
 
Judge Paul K. Woodward heard arguments in the case last Monday. Attorneys for the foundation and Thorp were expected to submit their written legal arguments today. (Woodward Indust. Found. v. Oklahoma, CV-2012-00058 (Woodward Co. Sept. 10, 2012))
 
In a letter to the foundation on Aug. 28, Thorp provided no explanation for his conclusion.
 
WIF Board Chairman Alan Case II disagreed with Thorp, telling the Woodward News that the foundation receives public funding through "contracts with the City of Woodward to provide economic development and business recruitment services."
 
That would mean the foundation is not a public body under a 2002 attorney general opinion, which said, "Private organizations which contract with a governmental body and are reimbursed for identifiable goods or services are not public bodies under the Act." (2002 OK AG 37, ¶ 17)
 
"Receiving payment from public funds for performing specific services or providing goods pursuant to a contract is not the same as being 'supported' by public funds," the opinion agreed. (Id. ¶ 15)
 
In contrast, the opinion said, a private organization would be supported by public funds if

It did not submit itemized invoices for services rendered to receive public funds but instead received a direct allocation of public funds and
 
There was no direct relationship to the amount of services performed by the private entity and the funds it was allocated because the entity received funds regardless of whether it performed services. (Id. ¶ 18)

The question is whether the Woodward Industrial Foundation receives public funds to operate regardless of what it does or receives a payment for performing specific services. The former meaning it is subject to the Open Meeting and Open Records laws. The latter meaning it’s not.
 

 
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.

First Amendment Congress essay contest for high school students

Oklahoma high school students can win up to $300 in the 2012 Zach Taylor First Amendment Congress Essay Contest.
 
This year's theme: In your opinion, what is the greatest threat to First Amendment freedoms in this day and age?
 
Students are encouraged to do factual research on the topic, but to write creatively and personally, rather than to write a report.
 
Essays should be about 500 words, typed and double-spaced. Grammar and spelling will be considered.
 
Entries must be received by 5 p.m., Oct. 11. Email entries to Dr. Vickie Williams at ccosabulk@gmail.com. Click here for more details.
 
First prize is $300. Second- and third-place winners will receive $200 and $100, respectively.
 
Winners will be recognized at FOI Oklahoma's 14th annual First Amendment Congress on Oct. 31 at the University of Central Oklahoma.
 
Among the speakers will be Adam Goldstein, attorney advocate for the Student Press Law Center. He will discuss current First Amendment issues for high school students and teachers.
 
The registration deadline is Oct. 25. Click here for details.
 

Does allowing only Oklahoma Bar Association members online access to court documents in 64 counties violate the Open Records Act?

The Oklahoma Supreme Court will decide whether a state contractor's practice of allowing only Oklahoma Bar Association members to download court documents in 64 counties violates the Open Records Act, the Tulsa World reported today.
 
Everyone can access those cases for free through KellPro's On Demand Court Records system, but only bar association members can download the accompanying documents. KellPro charges them a subscription of $50 per month or $600 per year.
 
Everyone not a member of the bar association has to drive to those county courthouses during business hours Monday through Friday (except government holidays) to get copies.
 
KellPro and Mike Evans, administrative director of the courts, disagreed on why KellPro restricts access to documents to bar association members.
 
KellPro's ODCR website tells non-OBA members trying to download records:

While we would prefer to provide the same great access to everyone, we are not permitted to do so at this time. ... We are currently governed by contract with the Administrative Offices of the Courts and the Oklahoma Supreme Court to limit access to active members of the Oklahoma Bar Association.
 
So far, all requests that have been made to the AOC regarding access to the scanned court documents have been denied. Any questions or concerns regarding this limitation should be directed to the Administrative Offices of the Courts.
 
We are not allowed to authorize exceptions, and we cannot grant access to an individual Oklahoma District Court.

The Supreme Court signed a $1 million contract in August 2009 with KellPro Inc. to get data from the courts it serves ready for conversion to a new system in which records from all 77 counties will be available online to everyone for free.
 
The Tulsa World noted that KellPro's state contract specifies "any efforts by KellPro to market, sell, publish, or disseminate court information, including but not limited to providing paid access to case dockets or imaged court documents, through a commercial subscription ... must be authorized, in advance, by the Supreme Court of Oklahoma."
 
Evans told the newspaper that the clause was added before the contract was signed because KellPro had already begun to sell subscriptions to bar members and bulk data to several entities without the Supreme Court's permission.
 
The Supreme Court unanimously issued an administrative directive in October 2009 barring bulk distribution of electronic case information. That decision seemed to violate the Open Records Act by limiting access to electronic records.
 
The court did not tell KellPro to stop selling the online access subscription to bar association members.
 
The Tulsa World asked Evans why the court didn't use its contractual authority to order KellPro to stop selling subscriptions only to OBA members. "I can't answer that because I wasn't in the room," he said.
 
One thing is clear: Court case records are subject to the Open Records Act.
 
"Although the definition of 'public body' contained within the Open Records Act does not encompass judges or Justices generally, the Act's definition of 'records' does include documents filed of record in court proceedings," the Oklahoma Supreme Court said in 2002. (Nichols v. Jackson, 2002 OK 65, ¶ 1)
 
The Court of Criminal Appeals had come to a similar conclusion a year earlier. The majority had noted the purpose of the Open Records Act, its definition of public body and that the statute provides that "[a]ll records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (Nichols v. Jackson, 2001 OK CR 35, ¶ 8)
 
"The Act also states that boards and courts fall under its definition of 'public body', and therefore are subject to its provisions," the majority explained. (Id. ¶ 9)
 
The records at issue, "being documents and papers coming into the custody and control of the Supreme Court in connection with the transaction of the public business of the criminal prosecution …, fall within the purview of the Act," the majority said. (Id. ¶ 10)
 
"Unless the records fall within a statutorily prescribed exception in the Act, the Act requires the records be made available for public inspection and copying," the majority concluded. (Id.)
 
The dissenting judge agreed, saying, "Oklahoma's Open Records Act clearly applies on its face to the courts." (Id. ¶ 4 (Chapel, J., dissenting))
 
So why should only members of the Oklahoma Bar Association be granted online access to court records?
 
Meanwhile, the public continues to pay for the creation of the new system, which is at least six months to one year behind schedule, the Tulsa World noted.
 

 
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.
 

Is DA correct that Woodward Industrial Foundation must comply with Open Meeting Act?

Woodward County District Attorney Hollis Thorp has deemed the local industrial foundation a public body subject to the Open Meeting Act, the Woodward News and The Oklahoman reported today.
 
Thorp's decision was "based on Oklahoma case law and the Oklahoma Open Meeting Act itself as well as previous Attorney General opinions on the Open Meeting Act," he told the Woodward News.
 
"There were many bases for this. One was that they do receive a large amount of taxpayer funds. Also case law says that the Open Meeting Act should be construed liberally toward openness," he said.
 
Thorp told the newspaper he would not file criminal charges against the Woodward Industrial Foundation's board for not having complied with the Open Meeting Act prior to his opinion.
 
"At that point in time I'm sure they felt like they were abiding by the law and I hadn't yet issued an opinion, so it's not fair to hold them accountable in the past," he said.
 
However, the Woodward Industrial Foundation disagrees with Thorp's determination that it is a public body.
 
"The Foundation was organized as a private, not-for-profit entity. The Foundation is not part of the City of Woodward and has never been an instrumentality of the City of Woodward," WIF Board Chairman Alan Case II told the Woodward News in a prepared statement.
 
Case pointed out that the foundation receives public funding through "contracts with the City of Woodward to provide economic development and business recruitment services."
 
A 2002 attorney general opinion said, "Private organizations which contract with a governmental body and are reimbursed for identifiable goods or services are not public bodies under the Act." (2002 OK AG 37, ¶ 17)
 
"Receiving payment from public funds for performing specific services or providing goods pursuant to a contract is not the same as being 'supported' by public funds," the opinion agreed. (Id. ¶ 15)
 
It explained:

For example, a contract between a private organization and a governmental agency may be strictly a reimbursement-for-services (or goods) contract. In the case of reimbursement-for-services, the terms of the contract usually make such an arrangement clear by stating that the private organization will be reimbursed for actual expenses up to a maximum amount for a certain period. To recover its expenses, the private organization submits claims to the governmental agency, detailing the services provided. In such contracts, private organizations provide services in the same way an architect, engineer, or other professional would. Similarly, a private organization may have a reimbursement contract to provide goods to a governmental entity. (Id. ¶ 13)
 
In either type of reimbursement contract, the organizations are merely contractors or vendors of goods or services. In some cases, the legislature may appropriate the contract amount to a governmental agency specifically for the purpose of reimbursing a private organization for its goods or services, much as the municipalities appropriated funds to the public trusts for eventual payment to non-profit corporations in A.G. Opin. 80-215. The question is whether receiving payment for goods or services from public funds in the type of reimbursement contracts mentioned above, constitutes being "supported in whole or in part by public funds." (¶ 14)

"Given the multitude of State contracts issued for both goods and professional services, it cannot be the intent of the Act that every private organization, either for-profit or non-profit, which receives payments for its goods or services from public funds becomes a public body subject to the Act," the opinion said. (Id. ¶ 17)
 
In contrast, private organizations that "receive appropriations from the legislature or grants of public funds which subsidize their operations would likely qualify as 'supported in whole or in part by public funds,'" the opinion said. (Id. ¶ 11)
 
It explained:

Some contractual relationships, however, are not based strictly on reimbursement for goods or services. For example, in Indianapolis Convention & Visitors Ass'n v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 210 n.2, 213-14 (Ind. 1991), the court held that a private entity established to promote and publicize the city's convention and visitor industry was subject to the state sunshine laws because:
 
(1) the private entity did not submit itemized invoices or claims for services rendered to receive public funds, but instead received a direct allocation of public funds from the local hotel-motel tax, as well as free office and meeting space, furniture, and equipment from a governmental entity; and
 
(2) there was no quid pro quo or direct relationship to the amount of services performed by the private entity and the funds it was allocated, because the entity received funds regardless of whether it performed services. (Id. ¶ 18) (emphasis added)

So the question is whether the Woodward Industrial Foundation receives public funds to operate regardless of what it does or receives a payment for performing specific services. The former meaning it is subject to the Open Meeting and Open Records laws. The latter meaning it’s not.
 
Case told the newspaper that the foundation was reviewing its legal options and would "respond to the District Attorney's letter as it deems appropriate."
 
Thorp was hesitant to say he would file criminal charges against the WIF board if it fails to comply with the Open Meeting Act.
 
"I have to look at that when or if it happens," he told the Woodward News. "If there is a willful violation of the act, it is a misdemeanor. But it has to be shown that it was done willfully, not just an oversight."
 
However, the Open Meeting Act doesn't excuse "oversights" by a public body told to comply with it.
 
A crime would exist simply be virtue of not complying with the statute. Criminal intent doesn't have to be proved. (See Hillary v. State, 1981 OK CR 78, ¶ 5)
 
Thorp need only prove a willful failure to comply, which the state Supreme Court said "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)
 
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)
 
The Woodward News said received a copy of Thorp's opinion today. Here is the entire letter:

August 28, 2012 HAND DELIVERED
 
Cody Hodgden, Esquire
Hodgden, Hallren, & Hodgden
1002 9th Street
Woodward, OK, 73801
 
Dear Mr. Hodgden:
 
As I believe you are aware, the Woodward County District Attorney's Office has received an inquiry with regard to whether the Woodward Industrial Foundation is subject to the requirements of the Oklahoma Open Meeting Act. (25 O.S. § 301-314). Following receipt of the inquiry, an investigation was conducted at my request by District Attorney Investigator, Steve Tanio. That investigation is now complete. In addition to the results of this investigation, I have also reviewed information and documents provided by Cody Hodgden, as attorney for the Foundation.
 
After careful review, it is my conclusion that the Woodward Industrial Foundation is a "public body" as that term is defined in § 304 of the Oklahoma Open Meeting Act and is therefore subject to the requirements of that Act. It is also my conclusion that any violation of those requirements by the officers, board members, employees, or agents of the Foundation prior to the delivery of this letter were not "willful" and therefore not subject to the criminal penalties provided for in 25 O.S. § 314. However, from the date of the delivery of this letter it is my expectation that the Foundation and all individuals acting on behalf of the Foundation will fully comply with the requirements of the Oklahoma Open Meeting Act. Thank you for your cooperation.
 
Sincerely,
 
Hollis E. Thorp
District Attorney
HET/st

While I'm glad that Thorp came down on the side of openness, I'm not sure he is correct. How did he apply the 2002 attorney general opinion and how does the Woodward Industrial Foundation receive public funding? Those are the key questions.
 

 
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.
 

Judge grants public access to criminal case filed against an Enid attorney

Grady County District Judge Richard Van Dyck on Tuesday granted the Enid News & Eagle's request to unseal court records of a felony perjury charge filed and later dismissed against Enid attorney Eric Edwards.
 
"The court finds the newspaper has a First Amendment right to publish the news as it finds it," Van Dyck said. "The public needs to know what its elected officials are up to. The public has a right to know."
 
Van Dyck also rejected requests by Edwards' attorney, Stephen Jones, to close Tuesday's hearing to the public, the Enid News & Eagle reported.
 
The newspaper did not receive the case records from the Major County court clerk Tuesday afternoon because Van Dyck’s order unsealing it had not been received.
 
District Judge Ray Dean Linder had sealed the case the day the charge was filed in May.
 
The 71-year-old judge gave no reason other than he was the judge in the case and "because in my professional opinion it deserved to be sealed." Linder also told the newspaper at the time that the case would "remain sealed until I say it shouldn't be sealed."
 
The Oklahoma Supreme Court reassigned the case from Linder to Van Dyck in June. Major County District Attorney Hollis Thorp also recused his office from the matter, so prosecution was assigned to Oklahoma County District Attorney David Prater.
 
Van Dyck dismissed the charge against Edwards in July after Prater said the case lacked merit.
 
The Enid News & Eagle filed motions to intervene in the case for the purpose of filing a motion to unseal the case record and to lift Linder's order sealing the case.
 
News & Eagle Publisher Jeff Funk raised serious questions about why Linder had become involved in the case and said the manner in which the case was sealed gave the impression of partiality and undue secrecy.
 
"It looks like preferential treatment for Edwards, an attorney, to have a criminal charge against him kept confidential even though charges against all other adults are handled in open court," Funk said. "Our objection is to the secrecy of this case, and we want the court to declare this secrecy, this special treatment, unlawful and wrong."
 
Van Dyck said he was "very aware and very mindful of any appearance of impropriety." He also said the public's interest in knowing the truth was greater than the need to keep the records sealed, which would only "heighten suspicions," the newspaper reported.
 
Prater said he had no objection to the newspaper intervening. "It does appear this case should be unsealed," he told Van Dyck.
 
After Van Dyck's decision, Funk said he hopes "other judges take note of this ruling."
 
"The court system was designed to serve the public, all Oklahomans, and criminal cases need to remain open to the public," Funk said. "When cases are improperly closed, it gives the appearance of favoritism or improper treatment. With openness, Oklahomans can have greater confidence in their court system."
 
Kudos to Funk for taking on this fight and to Van Dyck for affirming the public's right to know what goes on in its courts.
 

 
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.