AG says Open Meeting Act doesn't apply when public bodies discuss 'broad general matters' possibly related to their business but on which they cannot take action

Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
 
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
 
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
 
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
 
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
 
The Open Meeting Act defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
 
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
 
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
 
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
 
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
 
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
 
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
 
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:

• Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.


• Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."


• "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."

Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
 
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
 
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
 
Pruitt called such a practice "misleading to the public."
 
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
 
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of the law."
 

 
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.