Criminal complaint filed over secret meeting of Atoka County commissioners

Atoka County Times editor Joe McClour has asked for a criminal investigation of the secret meeting held by Atoka County commissioners on July 9 to discuss a pay raise for themselves and other county elected officials.

McClour filed a complaint with Atoka police on July 17, he told the FOI Oklahoma Blog.

McClour said he's been told that the complaint was given to Police Chief John Smithart and would be sent to the OSBI.

The Atoka County Times broke the story about the meeting in its July 15 edition. The newspaper had been tipped off the meeting was occurring, but McClour was barred from attending it.

At the time, commissioners denied that the secret meeting had violated the Open Meeting Act because no roll call or vote was taken. The newspaper correctly pointed out that the Oklahoma Open Meeting Act defines a meeting as “the conduct of business of a public body by a majority of its members being personally together." ( OKLA. STAT. tit. 25, § 304(2)) (Read an earlier FOI Oklahoma Blog posting on the law related to this secret meeting.)

Commissioner Phillip Culbreath later conceded to The Oklahoman that the meeting might have violated the Open Meeting Act. The newspaper noted that Culbreath, a recently installed commissioner, admitted to not having had any training on the meeting law.

According to McClour, Culbreath was elected June 9 and sworn in June 15. But before being elected to the commission, Culbreath had spent seven years serving on the county excise board, which also is subject to the Open Meeting Act.

Gilbert Wilson is in his 13th year as an Atoka county commissioner. The third commissioner, Marvin Dale, was elected Feb. 10 and sworn in Feb. 19.

Proving that a violation was willful "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," the state Supreme Court said in 1984. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

Shouldn't the three commissioners have known that meeting secretly to discuss pay raises for themselves and other elected officials would violate the state's Open Meeting Act?

For now, the next move is up to law enforcement.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Atoka County commissioners met secretly to discuss pay raises for themselves

All three Atoka County commissioners met secretly with other elected county officials on July 9 to discuss granting a pay raise for the entire group, according to the Atoka County Times in its July 15 edition.

The pay raise was placed on the County Commission's agenda for July 13. Commissioners didn't discuss the raise at the meeting prior to voting to approve the salary increase, the newspaper reported.

Commissioners denied that the secret meeting violated the Open Meeting Act because no roll call or vote was taken.

However, as the newspaper correctly points out, the Oklahoma Open Meeting Act defines a meeting as “the conduct of business of a public body by a majority of its members being personally together." ( OKLA. STAT. tit. 25, § 304(2))

In 2007, legislators added language to the statutory definition of “meeting” to clarify that a majority of a public body can gather informally as long as “no business of the public body is discussed.” ( OKLA. STAT. tit. 25, § 304(2))

Judicial and attorney general opinions had made clear for the previous 25 years that members of a public body are prohibited from discussing the public’s business during social gatherings. A pay raise for elected officials is certainly the public's business.

“Sunshine legislation reaches, not just ‘formal’ meetings, but the ‘entire decision-making process,’” the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, 637 P.2d 1270, 1272)

Why is this important?

"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. . . ,” the Oklahoma Supreme Court said in 1978. (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, 577 P.2d 1310, 1313-14)

It's not sufficient for the Atoka County Commissioners to just vote publicly after having privately discussed the raises. As then-Attorney General Jan Eric Cartwright said in 1982:

“If government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere ‘rubber stamp’ vote is all but useless.” (1982 OK AG 212, ¶ 7)

The law in this area is clear and well-established. If Atoka County commissioners think it’s permissible to met secretly to discuss pay raises for themselves, what else do they believe is acceptable under the Open Meeting Act?

It’s a crime to violate the Open Meeting Act. Perhaps someone with the authority to do so will hold the commissioners accountable.

Either way, voters should keep it in mind the next time they are asked to cast ballots to rehire these commissioners.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism