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.