Friday, July 12, 2013

Owasso councilman questions legality of decision to hide findings of investigation into city manager's office

Owasso City Councilman Patrick Ross believes that only a vote of the council can keep secret the findings of the investigation that led to the resignation of the city manager.
Following an executive session on June 25, Mayor Doug Bonebrake told the Owasso Reporter that the investigation report compiled by Tulsa lawyer Guy Fortney would be kept confidential as a personnel record for City Manager Rodney Ray.
However, Bonebrake told the newspaper that the report would be kept by Fortney and not placed in Ray’s record. Such an arrangement raises additional doubt about whether the report can be considered a personnel record.
The City Council accepted Ray's resignation during the June 25 meeting and agreed to pay him more than $185,000. The council had placed Ray on administrative leave May 24 and authorized Fortney's investigation of an internal complaint against Ray.
In an email interview today, Ross said City Attorney Julie Lombardi told the council during an executive session June 21 that the report was considered a confidential personnel record.
But the council should have made that decision, Ross argued in a July 3 letter to the other council members, Owasso Police Chief Scott Chambliss and Tulsa County District Attorney Tim Harris.
"The Oklahoma Open Records Act does not require that personnel records be kept confidential," Ross pointed out.
Instead, the law says, "A public body may keep personnel records confidential." (OKLA. STAT. tit. 51, § 24A.7(A) (emphasis added))
"Therefore," Ross contended, "before sealing (or, alternatively, publishing) the results of Fortney’s investigation, the Owasso City Council was tasked with deciding whether or not it would designate such results as confidential.
"Further, in order for that decision to be valid, the City Council was required to adhere to the formalities of the [Open Meeting] Act, including placing the item on the agenda and publicly voting on the item. Neither happened here.
"Instead, the June 25th agenda contained only three items ... on which the City Council was allowed to vote, namely: (1) whether to go into executive session; (2) whether to enter into a resignation agreement with Rodney Ray; and (3) whether to appoint Warren Lehr as Interim City Manager.
"Nowhere on the agenda did it indicate that the City Council would be addressing and separately deciding whether or not to exercise Section 24A.7's confidentiality option with respect to Fortney’s investigative report."
Though not noted by Ross, the council's agendas for June 21 and June 25 might be considered violations of the Open Meeting Act for another reason.
Both agendas listed an executive session "for the purpose of discussing personnel matters relating to the Office of the City Manager, including matters related to job performance, such executive session provided for in O.S. 25, Section 307(B)(1)."
However, agenda items for an executive session under the personnel exemption must include either the name of the person or the person's position if it "is so unique as to allow adequate identification," according to a 1997 attorney general opinion. (1997 OK AG 61, ¶ 5)
Listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office.
In a matter unrelated to the internal investigation, Ray pleaded not guilty Wednesday to charges of writing a bogus check in excess of $1,000 and filing a false police report.

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.

Wednesday, July 10, 2013

Fallin claims political influences on state policy should be kept secret

Gov. Mary Fallin is claiming an executive privilege to hide records that reveal political considerations behind her decisions on state policy.
Included would be documents telling Fallin "who might be supportive of certain policy agendas in the legislature, both now and in the future, whether such support would exist after an upcoming election, and whether facts exist to help persuade the legislatures and others to support the governor's agenda," according to the formal response to an Open Records Act lawsuit against the governor.
The Lost Ogle, represented by the ACLU of Oklahoma, is challenging Fallin's claim that executive and deliberative process privileges permit her to withhold 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.
Fallin is the first Oklahoma governor to claim these privileges even though as a candidate she pledged to "support at every opportunity" the state's policy that "people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
Fallin's unprecedented use of executive privilege in Oklahoma earned her FOI Oklahoma's annual Black Hole Award in early March.
In the court filing May 31, the Attorney General's Office said an "expanded, non-deliberative process component of the executive privilege protects communications needed for the executives to function in pursuit of their policy decisions...." (P. 4)
The response contends that The Lost Ogle must show "a substantial or compelling need for the documents" before the judge can privately inspect the records to determine if "the public interest in confidentiality" outweighs "the Plaintiff's demonstrated need for disclosure of each document." (P. 8)
For more background on the lawsuit and Fallin's claims of executive privilege:
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.

Monday, July 1, 2013

Any Oklahoman may sue to enforce Open Meeting Act, appellate court rules

Oklahomans can sue to enforce the state Open Meeting Act without having to prove they were individually injured by the alleged violation, a three-judge panel of the state Court of Civil Appeals has ruled.
The Open Meeting Act "was specifically and especially enacted for the benefit of the public," meaning the "general public," said Judges Jerry L. Goodman, P. Thomas Thornbrugh and W. Keith Rapp.
Oklahomans don't have to rely upon local district attorneys to enforce the Open Meeting Act because the statute provides them with a "private right of action" to sue over violations, said the appellate judges in the decision filed Thursday.
They unanimously overturned Washington County Judge Russell Vaclaw's 2011 dismissal of a lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Trust Authority. They remanded the case to the trial court to determine if the BRTA had violated the Open Meeting Act.
Vaclaw had held that Joel Rabin and Sharon Hurst had no standing to sue because they "made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
He said plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA." The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
But the appellate judges said Vaclaw "misread" the state precedent upon which he relied.
In Holbert v. Echeverria, 1987 OK 99, the state Supreme Court created a three-part test for determining if a private cause of action can be inferred from a regulatory statute:
  1. The plaintiff is one of the class for whose special benefit the statute was enacted;
  2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
  3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
The Court of Civil Appeals disagreed with Vaclaw's application of all three parts.
Unlike the statute at issue in Holbert, the Open Meeting Act "states its public policy is to inform the public citizenry. Thus, the special class is the general public, of which Rabin-Hurst are members," wrote Goodman for the appellate court.
Goodman said state legislators had intended to create a private remedy because the statute includes remedies outside of criminal prosecution:
  • An illegal executive session subjects each member of the public to criminal prosecution "and shall "cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public." (OKLA. STAT. tit. 25, § 307(F))
  • "Any action taken in willful violation of this act shall be invalid." (§ 313)
"The criminal penalty of fines and imprisonment is different and apart from forcing minutes to be made public and actions to be made invalid," Goodman wrote.
"Although a district attorney prosecuting a criminal action could invoke those remedies, we find no reason why those remedies should be invoked strictly within the confines of a criminal case subject to the prosecutorial discretion of a district attorney," Goodman wrote. "The general public, the intended beneficiary of the [Open Meeting Act], would not be well served should that narrow interpretation prevail.
"The only way to effectively serve the public would be to permit these remedies to be invoked in a private action, by a member of the very public the [Open Meeting Act] was intended to serve."
Goodman noted a number of cases brought by private individuals wherein Oklahoma appellate courts had granted injunctive or declaratory relief under the Open Meeting Act.
"Had the legislature not intended for citizens to bring suit under the [Open Meeting Act] nor for civil courts to enforce §§ 307(F) and 313, it could have amended the OOMA to disallow such causes of action," Goodman said. "Failure to do so indicates the intent of the legislature to allow private actions to be brought to remediate the violation."
He said the two remedies also are consistent with the underlying public policy of the Open Meeting Act "to educated and inform the public on governmental processes."
"As the underlying purpose of the [Open Meeting Act] is, at its very core, to maintain governmental transparency through open meetings, the remedies provided for in the statute, and requested by Rabin-Hurst, logically uphold the purpose of the OOMA," Goodman wrote.
He disagreed with BRTA's argument that criminal prosecution was the only appropriate remedy.
"Suffice it to say, a criminal action subject only to prosecutorial discretion of a district attorney is likely to result only in a fine, and does not 'right the wrong' of an OOMA violation," Goodman wrote. "Whereas, making public the minutes of an improperly-held executive session and invalidating action take at same does 'right the wrong' of the violation.
"If the wrong is keeping secret information that should be publicly known, then the logical remedy is to disclose the secret to the public. Such remedies are meaningful and vigorously uphold the purpose of the OOMA."
The Court of Civil Appeals decision refutes not only Vaclaw's ruling but also a notion that began with six Tulsa City Council members in 2010.
In a motion to dismiss an Open Meeting Act lawsuit against councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott, their attorneys argued that private individuals had no right to sue over alleged Open Meeting Act violations. Tulsa County Judge Deborah C. Shallcross agreed in 2011 prior to Vaclaw's ruling.
Rabin said today that he and Hurst have spent tens of thousands of dollars fighting their case -- which hasn't even gone to trial yet to determine if a violation occurred. They deserve public recognition and gratitude for defending the basic right of all Oklahomans to sue to enforce their right to know under the Open Meeting Act.
Because as the appellate judges seem to realize -- Oklahomans can't rely upon district attorneys to vigorously and consistently enforce the law.
The next step should be state legislators amending the Open Meeting Act to explicitly grant attorney's fees and court costs to successful plaintiffs. Private individuals shouldn't have to foot the bill when it falls on them to prove government officials violated 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.