Tulsa, Stillwater police departments refuse to release resignation letters of officers in trouble with the law

Tulsa police officials earlier this month refused to release to FOX 23 the resignation letter of an officer sentenced to 35 years for robbing Hispanic drivers during traffic stops.
 
Stillwater police in July refused to release to NEWS 9 the resignation letter of an officer charged with stealing prescription drugs from the department.
 
Both departments claim the Open Records Act doesn't apply to the resignation letters.
 
The Open Records Act says public agencies "may keep personnel records confidential [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation." (OKLA. STAT. tit. 51, § 24A.7(A)(1))
 
But the resignation letters aren't part of the "internal personnel investigations." They are submitted by the employees.
 
The statute says, "All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying...." (§ 24A.7(B))
 
Because the resignation letters aren't specifically exempted, they must be available for public inspection and copying.
 
The statute also makes public "the records of any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (§ 24A.7(B)(4))
 
A 2009 attorney general opinion reiterated that once the investigation is complete and a final disciplinary action occurs, "the record(s) indicating that action must be available for public inspection and copying." (2009 OK AG 33, ¶ 29)
 
So if the police departments are correct that the resignation letters are part of the internal personnel investigations, then the resignation letters are the record indicating the final action and must be made available for public inspection and copying.
 
Public bodies also must consider that, given the intent of the Open Records Act, "disclosure is to be favored over a finding of exemption," the Oklahoma Supreme Court said in 1986. (Tulsa Tribune Co. v. Okla. Horse Racing Comm'n, 1986 OK 24, ¶ 22)
 
Or as a subsequent attorney general opinion explained, "The intent of the Act requires that questions of doubt as to the accessibility of government records be resolved in favor of access." (1988 OK AG 35, ¶ 3)
 
Interpreting the statute so that resignation letters of government employees are secret is a stretch that wrongly favors exemption over disclosure.
 

 
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.
 

Okfuskee County Commission's secret budget session apparently will be investigated for Open Meeting Act violation

Okfuskee County District Attorney Max Cook likely will ask Attorney General Scott Pruitt to investigate a secret budget meeting of the County Commission or appoint another prosecutor to do so, Cook told the Okemah News Leader late last week.
 
"Since it is a pending case and I am not suppose to comment on a pending case, I can say very little," Cook told the newspaper.
 
"It is very likely because of ethics for prosecutors in the state of Oklahoma, it will require that I disqualify my office. I will ask the attorney general to handle the matter or appoint another district attorney."
 
The three county commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- did not provide public notice or post an agenda for a budget session with the county budget writer and County Clerk Dianne Flanders this past Monday.
 
The Open Meeting Act requires public notice and a posted meeting agenda when the majority of a public body even discusses public business, as this blog explained Wednesday.
 
The commissioners conducted the session after adjourning from their regular meeting. Okemah News Leader reporter Shakara Shepard had left but saw the county budget writer, Dan Hall, walking into the meeting room. She followed him back into the room.
 
According the newspaper's account of the session, the commissioners did more than discuss the county budget. The newspaper reported:

The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.

Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
 
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
 

 
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.

Newspaper catches Okfuskee County commissioners in secret budget session

The Okfuskee County Commission meeting had adjourned Monday and a newspaper reporter had left when she saw the county's budget writer Dan Hall walking into the meeting room, the Okemah News Leader reported today.
 
The reporter returned to the room and saw the three commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- and County Clerk Dianne Flanders discussing the 2013-14 budget with Hall, the newspaper reported.
 
Hall gave the commissioners a cash flow/cash funds report, told them that this year's budget is better than last year's, and said the sales tax increased about $100,000, according to the newspaper.
 
And this wasn't just a discussion, the newspaper reported, explaining:

The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.

Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
 
All that occurred with no public notice of the meeting, much less a posted agenda, wrote the newspaper's editor, Lynn Thompson.
 
If the newspaper's account is correct, Wilson, Smith and Henry held a secret meeting on the county budget in blatant violation of the state's Open Meeting Act.
 
The Open Meeting Act defines a meeting as "the conducting of business of a public body by a majority of its members being personally together or ... together pursuant to a videoconference." A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))(emphasis added)
 
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body even discusses public business, much less makes decisions.
 
Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)
 
"Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process,'" the court said. (Id. ¶ 7)
 
A 1982 state attorney general opinion said:

Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
 
It is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act. (¶ 11)

In 2012, Attorney General Scott Pruitt said, "A public body is thus engaged in the 'conduct of business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction." (2012 OK AG 24, ¶ 10)
 
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.'" (¶ 9)
 
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." (quoting 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. (¶ 9)
 
The bottom line, as then-Attorney General Drew Edmondson said, "A governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
 
So why is public decision-making important?
 
The public policy stated in the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
In 1978, the Oklahoma Supreme Court said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass'n of Mun. Attys v. State, 1978 OK 59, ¶ 10)
 
And as the 1982 attorney general opinion said, "An open deliberative process reveals rejected alternatives about which the public might not know if access to study sessions and deliberative meetings were denied." (1982 OK AG 212, ¶ 5)
 
Thompson noted that the Open Meeting Act "is not a new law that has just gone into effect."
 
"This is a 30-plus year old Act that has been in effect and that all elected officials should not be unaware or ignorant of the Act," he wrote.
 
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body discusses public business. The county budget is certainly the public’s business.
 
It's a blatant violation of the Open Meeting Act for a county commission to discuss the county budget with no public notice of the meeting. Any elected official who has so little respect for the people and the law should be prosecuted and sent to jail.
 
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
 
In 1981, the state Court of Criminal Appeals upheld the convictions of the city of Medicine Park's board of trustees for failing to post meeting agendas. "Posting is required even for the most typical meeting," the court said. (Hillary v. State, 1981 OK CR 78, ¶ 6)
 
In 2002, three of Nowata's five city commissioners pleaded no contest to violating the Open Meeting Act by discussing city business at a restaurant. A police informant recorded them deciding which of the three would serve as mayor and as city treasurer and discussing "the police department budget … cutting city jobs," and disciplining the city manager.
 
What will District Attorney David Max Cook do about the Okfuskee County commissioners meeting secretly to decide the county budget?
 
The Court of Civil Appeals said in 1981 that it would not wink at Open Meeting Act violations, explaining:

[F]or to wink at violations in one case is to invite them in another. The Oklahoma Legislature, elected voice of the people of this state, mandated open meetings, including observance of the notice and agenda provisions. ... [W]ithout vigorous enforcement in the courts, laudable legislation is reduced to "mere words." Well, not this laudable legislation, not in this Court, not in this case. The Legislature has said, "Let the sun shine on government." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57,¶ 31)

Let's hope Cook refuses to wink at the blatant violation in Okfuskee County. Otherwise, there's not much point in having an Open Meeting Act.
 

 
Joey Senat, Ph.D.
Associate Profesor
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.

Owasso councilman sues city over alleged open meeting, record violations

Owasso Councilman Patrick Ross sued the town on Tuesday in an attempt to make public an investigative report that led to the resignation of the city manager.
 
Ross' lawsuit, filed in Tulsa County, alleges a number of violations of the state's open government laws, including that the City Council did not vote publicly to keep that report secret, not pursue criminal prosecution of then-City Manager Rodney Ray, and whether to fire him.
 
The lawsuit asks Judge Daman Cantrell to declare invalid the city's resignation agreement with Ray and declare the investigative report to be a public record.
 
Chris Camp, Ross' attorney, argues that the City Council also violated the Open Meeting Act during meetings on May 24, June 18, June 21 and June 25 by conducting executive sessions "for the purpose of discussing personnel matters relating to the Office of the City Manager."
 
As noted by this blog on July 12, a state attorney general opinion requires that agenda items for an executive session under the personnel exemption include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
 
The opinion agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, it added:

We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)

As this blog did, Camp argues that 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. He notes that the title of city manager and the Office of the City Manager aren't synonymous, interchangeable terms under the city's charter and ordinances.
 
The executive sessions focused solely on Ray, the lawsuit states.
 
The council also violated the Open Meeting Act by not keeping minutes of its executive sessions on those dates, the lawsuit states.
 
Minutes of executive session discussions must be kept, the state Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
 
A 1996 state attorney general opinion (1996 OK AG 100, ¶ 5 ) came to the same conclusion. It noted that legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act (OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public (OKLA. STAT. tit. 25, § 307(F)(2)).
 
Ross' lawsuit says council members were permitted to read the investigator's report only during the June 21 executive session. They weren't allowed to keep copies so the city "could respond 'truthfully' that no member of its staff or the City Council possessed a copy of the report," according to the lawsuit.
 
During the June 21 executive session, City Attorney Julie Lombardi told the council that the report was considered a confidential personnel record.
 
During that executive session, the council also discussed whether to seek criminal prosecution of Ray and a proposed resignation agreement was presented by Lombardi and discussed, according to the lawsuit.
 
It notes that neither topic was listed on the meeting agenda and the council didn't vote publicly to designate the report confidential.
 
The lawsuit points out that following that meeting, Lombardi told the Tulsa World that the investigator had presented his finding orally and that neither the city nor the council had received a written report from the investigator.
 
During the June 25 executive session, the lawsuit states, the council discussed a counter-proposal from Ray regarding his resignation agreement even though that topic was listed under a separate agenda item for public discussion.
 
Ross contends that only a vote of the council could deem the investigative report to be a confidential personnel record. Council member Jeri Moberly told the Owasso Reporter last month that the council had voted to do so on June 25 when it publicly voted to accept the resignation agreement. But the lawsuit notes that the resignation agreement didn't mention the investigative report and conceded that the agreement itself was a public record.
 
Ross' lawsuit also contends that the council violated the Open Meeting Act by conducting confidential communications with its attorney during the executive sessions even though that exemption wasn't listed on the agendas and the council didn't determine prior to going into the executive sessions that disclosure of its communication with the city attorney would "seriously impair the ability" of the council to conduct the investigation.
 
The lawsuit contends that the report is "an internal affairs investigation of a City office" and not an exempted personnel record. Placing the investigative report into Ray's personnel file did not exempt it from disclosure under the Open Records Act, the lawsuit argues. It also also notes that the report isn't actually in Ray's personnel file.
 
Even if the judge deems it a personnel record, the lawsuit argues, the report should be public as a "final action resulting in loss of pay ... or termination."
 

 
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.

Oklahoma DA Council's new leader refused to prosecute blatant Open Meeting Act violations, seems opposed to public access to police dash-cam video

The new chairman of the Oklahoma District Attorneys Council is the same DA who refused to prosecute the Bernice Board of Trustees for several Open Meeting Act violations revealed by a state audit in 2012.
 
Eddie Wyant also seems likely to be asking state legislators next year to close public access to police dash camera recordings of arrests.
 
The council is the state agency that provides training as well as administrative, financial and personnel support for the state's 27 district attorneys.
 
Wyant, district attorney for Ottawa and Delaware counties, will serve as its 2013-14 chairman by virtue of being president of the Oklahoma District Attorneys Association. He served as the previous vice chairman of the council and president-elect of the association.
 
In June 2012, Wyant decided not to file criminal charges against Bernice trustees despite a state audit detailing several violations of the Open Meeting Act.
 
The state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had abused the statute's "new business" provision and unquestionably violated the Open Meeting Act by:

• Discussing contracts of independent contractors in executive session;
• Not taking minutes of executive sessions;
• Not listing the statutory authorization for executive sessions or listing the wrong one;
• Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
• Voting in an executive session; and
• Discussing the creation of a job, rather than hiring a specific person, in executive sessions.

One of Wyant's reasons for not prosecuting the trustees for robbing the public of its right to an open government: It did not appear that trustees personally benefited from the violations.
 
But personal gain isn't a requirement for prosecution of an Open Meeting Act violation.
 
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
 
Wyant's other reason: Trustees had apparently operated under the advice of their attorney.
 
That excuse ignored a long line of contrary opinions by Oklahoma courts.
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
The court said the violation by the Beggs Public Works Authority, "although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
 
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the Court of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
Wyant now seems interested in having state legislators overturn a recent state Court of Civil Appeals ruling that police dash camera recordings must be released to the public under the Open Records Act.
 
In July, the Oklahoma District Attorneys Association declined to file a friend of the court brief asking the state Supreme Court to hear the appeal of that decision. Wyant made the motion for the council to take no action on the city of Claremore's request, the Tulsa World reported.
 
But Wyant told the newspaper that doesn't mean prosecutors won't seek legislation to change the decision. He said release of the videos could impair a defendant's right to a fair trial because a statement on camera could later be ruled inadmissible by a court.
 
That argument against public disclosure is specious. Arrest reports and police affidavits including defendant statements are public records. Dash-cam videos also have been made public by local law enforcement agencies across the state for years.
 
At the District Attorneys Association meeting in July, prosecutors questioned why police recordings should be public but those of the Oklahoma Highway Patrol should be kept secret.
 
The state Department of Public Safety’s audio and video recordings were public records until legislators in 2005 gave DPS officials the power to keep them secret. That legislation came after an Oklahoma County trial judge ruled that the OHP videos were public because they contained facts about arrests.
 
The Department of Public Safety and OHP aren't role models for government transparency. They release the videos when it suits them, not the public.
 
The recent Court of Civil Appeals ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
And as the Open Records Act states, Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)
 
That should include when government officials carrying badges and guns interact with the public.
 
As then-Sen. Jim Wilson of Tahlequah said in 2009:

Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide.

Tell your legislators to not only reject any attempt to close public access to police dash-cam recordings but also remove OHP's exemption.
 

 
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.
 

Jet officials sign Open Government Pledge

Two Jet town officials have pledged to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
City Clerk/Treasurer Stephanie L. Carson and Town Trustee Matt Morris were elected in April.
 
By signing FOI Oklahoma's Open Government Pledge, Carson and Morris pledged "to support at every opportunity ... the inherent right [of Oklahomans] to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Instructions and a list of signers for the 2013 and previous elections can be found on FOI Oklahoma’s website.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications