Prosecuting state Pardon and Parole Board is right call

Oklahoma County District Attorney David Prater's prosecution of the state Pardon and Parole Board for Open Meeting Act violations is drawing unwarranted criticism from the governor and The Oklahoman's editorial writers.
 
All five board members -- Currie Ballard, Richard L. Dugger, Marc Dreyer, Lynnell Harkins and David Moore -- pleaded not guilty on Thursday to multiple counts of violating the statute.
 
Prater alleges the board broke the law by discussing and voting on early parole consideration for inmates without listing such actions as agenda items. Instead, he says, the votes took place under the vague agenda item of "Docket Modifications," which included no other information.
 
Board members have said those votes only determined whether an inmate would be placed on the docket of a future meeting, at which time the inmate's name would appear on the board's website.
 
After charges were filed Wednesday, Gov. Mary Fallin said it "will have a chilling effect on individuals interested in public service."
 
"It is difficult to imagine men and women who are leaders in their communities wishing to serve in these positions — the vast majority of which draw no salary — if they are constantly in fear of being charged with a crime while making a good-faith effort to follow the law and the recommendations of their paid legal advisers," said Fallin.
 
(The Oklahoman echoed that concern in an editorial Friday.)
 
Fallin appointed Ballard, Dreyer and Moore to the board in 2011.
 
As a gubernatorial candidate in 2010, Fallin said she would expect her appointees to public bodies to abide by the state's Open Meeting Act. But her comments this week are an insult to the thousands of Oklahomans who serve on state and local boards and commissions without violating the statute.
 
The Open Meeting Act, as our Court of Civil Appeals noted in 1981, "is not obscure or incomprehensible." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
"On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word,” the court said. "Lack of familiarity is no excuse."
 
The Open Meeting Act certainly shouldn't have been incomprehensible to the five parole board members. Three -- Ballard, Dreyer and Harkins -- previously served on the board. And four have experience in enforcing the law: Dreyer is a former Drug Enforcement Administration agent; Dugger was a longtime district attorney in western Oklahoma; Harkins is an attorney and former special judge; and Moore is a former U.S. Secret Service agent.
 
All five also had no excuse because the state Attorney General's Office told them in April 2011 that agendas must give the public actual notice of the actions that might be taken in a meeting.
 
In an affidavit filed with the charges, Prater's chief investigator, Gary Eastridge, described what he heard in the audio recording of the hourlong open government training session that Gay Tudor, then an assistant attorney general, conducted with the board.
 
While Tudor was suggesting more details be added to agenda items, Eastridge said, "a female voice can be heard referencing 'docket modifications.""
 
Eastridge said Tudor made clear that board members could not take action if the possibility of that action was not listed on the agenda.
 
"The female (believed to be Mrs. Harkins) then specifically says 'that would be like docket modification item where we are going to bring someone forward.'"
 
Eastridge said Tudor emphasized during the session that the agenda is "a really big thing" and that agendas should include enough information for people to have an idea of what the board intended to do.
 
None of what Tudor told the board was new.
 
The Open Meeting Act says each agenda "shall 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 language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the state Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 9)
 
The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said. (Id. at ¶ 9)
 
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)
 
The principle is "very simple," the state Court of Civil Appeals said that year. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
Violating the Open Meeting Act is a misdemeanor. If convicted, the Pardon and Parole Board members could be punished by up to one year in the county jail and a $500 fine.
 
Those "light penalties for violating the [state's open records and meeting] laws only exacerbate the problem. Unless that changes, behavior isn't likely to either," The Oklahoman's editorial staff lamented in late August.
 
In the 2011 training session, Eastridge said, a board member asked Tudor if "intent" had to be proved for a criminal violation of the Open Meeting Act. She responded that willful violations don't require intent, only "'whether you knew or should have known and see now you know.'"
 
So the parole board members don't seem to fit Fallin's description of appointees making a good-faith effort to follow the Open Meeting Act and the recommendations of legal counsel.
 
Fallin also implied that political appointees serving on statewide boards and commissions fall into the same category as volunteers for charitable organizations. But the members of these government bodies make important decisions regarding state policies and spending.
 
The Pardon and Parole Board, for example, is "a vital part of the criminal justice system" whose mission "is to determine the best possible decision, through a case-by-case investigative process and to protect the public while recommending the supervised released of adult felons."
 
As Prater emphasized: "Public Safety is a core function of our government. As alleged, the Board was making crucial public safety decisions without giving the citizens of Oklahoma an opportunity to scrutinize its activities."
 
None of these statewide boards and commissions, however, is directly answerable to voters for their actions.
 
And if a Washington County district court judge is correct, civil lawsuits over Open Meeting violations may be filed only if the plaintiff was directly harmed.
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Judge Russell Vaclaw said in 2011.
 
Yet, Oklahomans have heard from district attorneys a long list of unfounded excuses for not prosecuting Open Meeting Act violations. When a district attorney chose not to file charges in 2011 because city council members hadn't intended to break the law, The Oklahoman complained:

Wouldn't we all love to get away with that excuse if we're pulled over for a traffic violation? Gee officer, I didn't mean to do it.

And in early August prior to Prater publicly criticizing the parole board's agendas, The Oklahoman complained about the lack of teeth in the state's open government laws, saying, "Prosecutors often are in no hurry to pursue what is a misdemeanor offense, nor do they like going after other public servants — the people who violate those laws."
 
But in an editorial Monday questioning Prater's decision to file charges against the parole board, The Oklahoman editorial asked, "What does it profit the state for members of this board to take a perp walk?"
 
The Oklahoman had answered its own question in a 2011 editorial titled "Ignorance of open meeting laws no excuse for public officials."

The laws regarding public meetings are black and white, and need to be adhered to. And those charged with enforcing the law need to do just that.
 
Why? Because laws regarding open meetings and open records allow the public to see how their tax money is being spent, how their elected officials are conducting their business. This is vitally important in our society.
 
When public officials try to avoid that light, they ought to be punished.

That remains true today.
 
Prosecuting the parole board is the right call.
 

 
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.