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.

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.