Thursday, December 6, 2012

Tulsa Co. board to vote again on horse racing after original agenda apparently violated Open Meeting Act

This time the public knows in advance that the Tulsa County Public Facilities Authority intends Thursday to vote to end live horse racing at Fair Meadows Racetrack.
That wasn't the case five weeks ago when the authority, also known as the Tulsa County fair board, unanimously voted without comment to end the racing even though the topic wasn't on its agenda.
That surprise decision led state Rep. Don Armes, R-Faxon, to ask Attorney General Scott Pruitt to investigate the process surrounding the closing of the racetrack.
The fair board's agenda for Thursday says public comment will be heard on ending live racing at the track and that the board will "consider and take action on ... cessation of horse racing activities...."
But being upfront now doesn't excuse the violation on Nov. 1. Subsequently ratifying an action or decision made in violation of the Open Meeting Act does not cure the violation, the Court of Civil Appeals first said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)
"The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law's purpose," the court said.
The Open Meeting Act clearly requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the court has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
The court said any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act. That includes any agency action exceeding the scope of action defined by the notice.
In 2009, the court said any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider." (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
And the Oklahoma Supreme Court said more than 30 years ago 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)
Why? Because as the Court of Civil Appeals noted in 2008:
The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
So how could it be that the Tulsa County fair board -- whose membership includes all three Tulsa County commissioners -- take such a major action without having it on the agenda?
Armes was correct to call for an investigation into the fair board's proceedings leading to the Nov. 1 decision.
Let's hope that he and Pruitt follow through.

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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