Wednesday, October 3, 2012

Agenda didn't explain why state education board would meet behind closed doors

Last week's meeting agenda for the state Board of Education omitted the item of business that would be discussed in executive session.
That omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
It also robbed Oklahomans of their right to know what public business the board would be discussing behind closed doors.
The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
Similar wording can be found in the provision allowing executive sessions to discuss "matters pertaining to economic development ... 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." (§ 307(C)(10))
"A vote to enter into executive session pursuant to [that provision] 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,'" Attorney General Scott Pruitt said in a formal opinion in November. (2011 OK AG 22, ¶ 5)
The vote to enter an executive session under the attorney-client privilege would require the same kind of public affirmation that a public discussion would "seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest."
However, the state education board had no such discussion. Instead, the board simply voted to go into executive session. (Listen to the Sept. 27 audio starting at the 1:21.00 mark.)
The Open Meeting Act also states, "If a public body proposes to conduct an executive session, the agenda shall:
    Contain sufficient information for the public to ascertain that an executive session will be proposed;
    Identify the items of business and purposes of the executive session; and
    State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
But the state Board of Education didn't list the specific investigation, claim or action to be discussed.
Instead, its agenda listed only the specific statutory authorization for the proposed executive session, stating under "Legal Services":
Discussion and possible action to Convene into Executive Session to discuss a pending investigation, claim, or action pursuant to 25 O. S. Section 307(B)(4)
(a) Convene into Executive Session
(b) Return to Open Session
(c) Possible action
The board took no action when it returned to open session.
In a 1998 written opinion, then-Attorney General Drew Edmondson emphasized that 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." (1997 OK AG 61, ¶ 2)
The bold italics were Edmondson's.
"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. (¶ 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.)
"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." (¶ 3)
Pruitt emphasized the same statutory requirements last November, saying public bodies cannot meet in executive session to discuss economic development unless they "give proper notice of the proposed executive session on the meeting agenda." (2011 OK AG 22, ¶ 5)
Even more to the point, Pruitt told a state agency a year ago that its agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client provision.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
In response, the agency's spokeswoman said, "In the future, we will list all parties of pending litigation."
At an open government workshop for public officials and others in Oklahoma City in November, Pruitt's top assistant said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
The agenda item should list information such as the name of the parties in the lawsuit, Hudson said.
"How else would the average person know what you are talking about," Hudson explained.
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."
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, ¶ 7)
Or as Hudson warned officials in November: "The Open Meeting Act is the law. Don't break the law."
Yet, the state Board of Education's agenda last week listed nothing more than the statute allowing the executive session. So much for the public's right to know what would be discussed behind closed doors.

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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