Possible criminal violation of Open Meeting Act by Broken Arrow School Board being investigated by state attorney general

A state investigatory audit of Broken Arrow Schools uncovered a possible Open Meeting Act violation that is being investigated by the state attorney general for possible prosecution.

The 84-page audit was released Thursday, but all details about the possible violation were redacted while state Attorney General Scott Pruitt's office continues its investigation.

"Once the AG’s office has completed its independent criminal investigation into these specific matters and a conclusion has been reached, those portions of the investigatory audit will be made public," according to a news release by Pruitt's office.

Violations of the Open Meeting Act are a misdemeanor punishable by up to one year in jail and a $500 fine.

Because the audit was requested by the Attorney General's Office to help in an investigation, the audit is considered part of that office's investigation and litigation files and, therefore, may be "kept confidential to preserve the integrity of the investigation until it’s complete or criminal charges are filed," according to the news release.

The audit covered several areas of interest between July 1, 2006, and March 31, 2009. Of the five current school board members, only Shari Wilkins and Sharon Whelpley served during that time.

"Following a thorough review, the Attorney General’s Office found possible criminal violations in at least two areas – open meetings and special favoritism for vendors. The AG’s Office will continue a criminal investigation in these areas, and pursue those criminally responsible, if warranted," according to the news release.

The audit cleared school board members of one alleged Open Meeting Act violation. A former board member was concerned that the board's policy committee had obligated the district for legal fees without proper board approval.

Auditors, however, determined that "no formal policy committee existed at the time" and that the contract for legal services was approved by the full board.


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

Broken Arrow school district's explanation indicates school board violated Open Meeting Act

I criticized the Broken Arrow School Board on Wednesday for apparently violating the Open Meeting Act. The school district's subsequent responses to The Broken Arrow Ledger validate that condemnation.

The school board's agenda for Monday night had cited the personnel exception as the authorization for an executive session.

Under the personnel exception, an executive session is "permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1)) (emphasis added)

But a district official told the newspaper that the school board only discussed reorganizing the district's administration -- not specific personnel -- during that closed-door session.

That means the board violated the Open Meeting Act because it wasn't entitled to conduct such a discussion behind closed doors. A 2006 attorney general opinion, for example, prohibits closed sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

"The legislative history of [the personnel] exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," the opinion said. (Id. ¶ 8) (emphasis added)

The agenda item for the school board's executive session failed to list any specific employees to be discussed -- another apparent violation of the Open Meeting Act.

In 1997, the state Attorney General was asked if a public body could "keep confidential the purpose of an executive session" under the personnel exception. The answer was NO. Agenda items for such a closed session must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." The purpose is to give the public actual advance notice. (1997 OK AG 61, ¶ 5)

So based on the statutory language and the attorney general decisions, the Broken Arrow School Board was not entitled to discuss just reorganizing the positions. And if it actually discussed individual salaried employees with personnel changes in mind, then the names or unique titles of just those employees should have been listed on the agenda.

The board's agenda said only that the purpose of the executive session was to discuss "organization of district administration." On Wednesday, a district official explained to The Broken Arrow Ledger in an e-mail:

The meaning of that phrase was that any and all administrators were possible conversation topics during the executive session. The organizational chart that is posted on our website - click on "Departments" and then "BAPS Organizational Chart 2010-2011" - was the document that guided the executive session discussion. You will see that the chart contains some names, but mostly positions. The positions that were announced on Monday are on this chart.

With all that said, the last thing we want to do with any board agenda item is to cause confusion for the press or the public, so we can be more specific in future agenda wording. If listing all district administrators by name and title is a more efficient way to indicate that all district administrators are part of a conversation about "district administration," then we can list all district administrators by name and/or title. That seems to be a reasonable way to avoid any confusion.

According to that explanation, the board discussed individual administrators.

Furthermore, The Broken Arrow Ledger reported that after returning to the open session from the executive session, the school board approved five personnel changes:

• Appointing new high school and middle school principals;
• Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
• Moving a principal to director of instructional services; and
• Naming the Performing Arts Center director as the executive director of fine arts.

On Thursday, district spokeswoman Tara Thompson told the newspaper that the school board discussed the organizational chart in executive session and later voted for three changes to the chart in open session. Those changes were in the form of personnel actions promoting district employees to new jobs.

So based on this explanation, the superintendent went into that closed-door session with specific personnel actions in mind, but those employees weren't listed on the agenda under the executive session.

Thompson said two principals appointed during the open meeting at the same time the board approved the three personnel actions had not been part of the executive session discussion. Instead, she told the newspaper, those principals were listed under a general consent agenda item where other routine employment actions are considered.

However, the newspaper noted that the supplemental document to the general consent item listed only one of the principals.

The school board and district officials are either being disingenuous or simply don’t understand the law.

Thompson reiterated to the newspaper:

If we can be more efficient in our procedures, we will be happy to make those improvements, because ultimately, it's about customer service. If specifically naming all the administrators represented on the organizational chart will help the public better understand the topic of discussion during executive session, we will list, by title and name, all the administrators represented on the organizational chart and attach that to the agenda.

It’s awful nice of the school board to want to be more efficient. But based on attorney general decisions, the school board may not list all the district administrators and then discuss behind closed doors whomever they choose from that list.

Listing all the district’s administrators would serve only to camouflage from Broken Arrow taxpayers which ones the superintendent and school board intend to discuss. That's why the attorney general didn't provide it as an alternative to keeping secret the names of the employees who will be the subject of a closed meeting.

Simply put: The school board can't have it both ways. If it's going to discuss reorganizing positions regardless of which employees hold those jobs, then that discussion must be in front of the public. If it's going to discuss personnel changes involving individual salaried employees, then only those employee names or unique titles must be on the agenda.

The school district’s explanation is terribly disappointing but not surprising given this school board and district’s lack of transparency over the years. A culture of government secrecy can be difficult to change.

This is not just a matter of being more efficient; it’s a matter of complying with the Open Meeting Act’s requirements and respecting the right of Broken Arrow parents and other taxpayers to know what their government is doing beforehand.

Last July, Superintendent Jarod Mendenhall promised a commitment to the "spirit of full transparency and openness" by his new administration. "Transparency's got to be there," he said.

But the meeting agenda and the district's subsequent explanation don't live up to that promise. I sincerely hope that Mendenhall and the school board will reconsider how they conduct the public's business.


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.

Mannford school superintendent claims Open Meeting Act complied with by listing all district employees on agenda for executive session; Concerns also raised about closed sessions in Norman, Broken Arrow

Mannford School Superintendent Steve Waldvogel told the local newspaper on Monday that the Open Meeting Act may be complied with by listing all district employees on the agenda for an executive session to discuss personnel even if only a few would actually be discussed.

Meanwhile, the Broken Arrow School Board on Monday night discussed behind closed doors the "organization of district administration" without listing specific employees on the agenda.

Then in Norman on Tuesday, the City Council was scheduled to discuss "various workers' compensation cases" in an executive session during a special meeting. No information regarding the cases was listed on the agenda.

These executive sessions seem to violate the Open Meeting Act for the same reason: The agendas fail to provide the public with sufficient advance notice of what will be discussed in the closed-door sessions.

In Mannford, the agenda for the school board's April 11 meeting did not include the names of any district employees even though an executive session was listed to "consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Waldvogel told the Mannford Eagle on Monday that the school board had offered a list of all district employees and contended that any one of those could be discussed in the executive session.

That contention is nonsense.

A 1997 attorney general opinion says agenda items for an executive session under the personnel exemption must include either the employee's name or job title if it "is so unique as to allow adequate identification."(1997 OK AG 61, ¶ 5)

A 2006 attorney general opinion emphasized, "Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes." (2006 OK AG 17, ¶ 9)

The purpose of listing the name or unique title is to identify the specific employee to be discussed. That requirement wouldn't be necessary if a public body could simply list ALL employees, as Waldvogel contends, to camouflage who actually will be discussed behind closed doors.

Listing all employees provides the public with no more actual advance notice than not listing any would. That's why the 1997 attorney general opinion didn't provide it as an alternative to keeping secret the names of those who would be discussed.

In Broken Arrow on Monday, the school board's agenda did not list employees to be discussed even though one statutory authorization listed for the executive session was the personnel exception.

The other statutory authorization listed was the Open Meeting Act's exception for "Discussing any matter where disclosure of information would violate confidentiality requirements of state or federal law." (OKLA. STAT. tit. 25, § 307(B)(7))

How that exception applied wasn't explained on the agenda and isn't obvious.

According to The Broken Arrow Ledger, the school board approved reorganizing the administration by:

• Appointing new high school and middle school principals;
• Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
• Moving a principal to director of instructional services; and
• Naming the Performing Arts Center director as the executive director of fine arts.

Those are all personnel actions. The names of those employees should have been listed on the agenda.

In Norman, the City Council's agenda did not list the specific workers' compensation cases. The exception cited was attorney-client privilege. However, the agenda listed five cases involving the city of Norman. Why weren't the compensation cases specified?

(Click here for a previous posting regarding the attorney-client exemption under OKLA. STAT. tit. 25, § 307(B)(4).)

And don't forget that the Bernice Board of Trustees held executive sessions on March 14 and April 11 to discuss creating "a town maintenance" position even though the 2006 attorney general opinion prohibits closed-door sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed."

These attorney general opinions aren't new. The elected officials -- school board and city council members alike -- are expected to know the state Open Meeting law.

In Mannford, Waldvogel told the newspaper that if the school board violated any laws they would deal with it.

More important, however, is what the district attorneys for each of these towns will do about it. Violating the Open Meeting Act is a crime. The public must rely on the district attorneys to uphold that 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.

New BA school superintendent: 'They can see my e-mails if they want. I've got nothing to hide.'

Broken Arrow's new school superintendent on Thursday repeated his promise of a transparent administration.

"Transparency's got to be there," Jarod Mendenhall told more than 100 staffers. "They can look at anything they want. They can see my e-mails if they want. I've got nothing to hide."

Earlier during his first day on the job, Mendenhall waived a $90 search fee authorized by his predecessor and promised that the district "will do all that it can to be open and transparent in its operations."

"That includes doing our very best to follow the spirit and regulations of the Oklahoma Open Records Act," he said in a press release.

To read coverage of his meeting with district staff: Broken Arrow Superintendent Mendenhall starts work, by Sara Plummer, Tulsa World, 7.2.10.

To read more about the search fee: BA's new school superintendent says district will comply with letter, spirit of state Open Records Act, FOI Oklahoma Blog, 7.1.10.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

BA's new school superintendent says district will comply with letter, spirit of state Open Records Act

Broken Arrow's new school superintendent today expressed a commitment to the "spirit of full transparency and openness" by the district's administration and officially waived a $90 search fee for records.

“The Open Records Act is not a theory or hypothesis,” Jarod Mendenhall said in a news release. “It is the law, and we will follow it to the best of our ability.”

Mendenhall's predecessor, Gary Gerber, had authorized the $90 search fee for redacting information from copies of the district's itemized legal bills.

Gerber, who retired Wednesday, had refused to recognize the requester as a taxpayer seeking to ensure that district officials are properly doing their jobs.

Under the state Open Records Act, a search fee cannot be charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants." (OKLA. STAT. tit. 51, § 24A.5(3))

Mendenhall agreed that statutory prohibition on search fees applied to this request and waived the $90.

“I want to make it clear that the school district will charge a search fee per Open Records Act allowances if it is determined that the request would cause excessive disruption of the business of the district and cause several people to be taken from their customary jobs and from the business of the people to produce the requested information,” Mendenhall added.

District spokesman Keith Isbell clarified that Mendenhall was referring to commerically motivated records requests, which may be charged a search fee under the Open Records Act.

"Clearly the Act says in 'no' case shall a search fee be charged when the release of records is in the public interest, including but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with affairs of governments are honestly faithfully, and competently performing their duties as public servants," Isbell said in an e-mail.

"Most requests fall under that description meaning a search fee can’t and won’t be charged," he said. "If a request for commercial uses causes an excessive disruption of the business of the district, it could be assessed a search/administrative fee per the Open Records Act."

Not charging a search fee to every commercial request is commendable and evidence of Mendenhall's commitment to open government.

"Make no mistake; we work for the taxpayers of this community and this state," Mendenhall said, adding:

People have the right to know and be fully informed about us and all governmental entities, and I can assure you that Broken Arrow Public Schools will do all that it can to be open and transparent in its operations, and that includes doing our very best to follow the spirit and regulations of the Oklahoma Open Records Act.

Mendenhall has certainly talked the talk. So far, he's walking the walk. That's good news for Broken Arrow's students and their parents.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

New BA school superintendent waives search fee for copies of district's itemized legal bills

Broken Arrow's new school superintendent has waived the $90 search fee to redact information from copies of the district's itemized legal bills, says the woman who requested the records.

Beth C. Snellgrove said she received a phone call about noon today from district spokesman Keith Isbell, telling her that the new superintendent, Jarod Mendenhall, has waived the fee.

The fee was authorized by Gary Gerber, who retired today as superintendent.

Mendenhall's decision came after the FOI Oklahoma Blog's initial posting on the search fee last Thursday and an editorial and online article in The Broken Arrow Ledger today.

In the article, Gerber questioned Snellgrove's motive for requesting the records.

“Only Ms. Snellgrove knows her true motives for making the open records act request," he told the reporter.

"I don’t believe that Ms. Snellgrove’s request can be viewed in a vacuum," he said. "The timing of her request did raise eyebrows, as it came after the Sperry School District hired Ms. Snellgrove’s husband for what, I understood, to be a newly created position at Sperry. You will have to decide if this is reflecting a personal interest on her part rather than a public interest."

The reporter noted that Jim Sisney, who was dismissed as superintendent by the Broken Arrow Board of Education in 2008, is the superintendent of Sperry Public Schools.

This morning, the reporter asked me for a reaction to Gerber's comments. My response:

Ms. Snellgrove’s husband’s job for another school district would have no bearing on her status as a taxpayer and parent of children in Broken Arrow schools in making sure that district officials “are honestly, faithfully, and competently performing their duties as public servants.”

I asked Mr. Gerber twice if he considered the release of the itemized legal bills to be in the public interest. He wouldn’t answer the question. To say it’s not in the public interest would be idiotic and reveal him to be a petty bureaucrat. To say it is would be acknowledging that he couldn’t charge the search fee.

Mr. Gerber’s comments indicate he is charging the search fee because he has a personal grudge against Ms. Snellgrove rather than legitimate reasons under the state Open Records law.

Mr. Gerber’s response to this request leave me wondering how other people are treated when they ask the Broken Arrow school district for information that belongs to them – the public.

By waiving the fee, Mendenhall has taken a step in the right direction on what I suspect will be a long road to true transparency for Broken Arrow public schools.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

BA school district needs lesson in transparency, newspaper says

A $90 search fee for copies of the Broken Arrow school district's itemized legal bills serves only as a deterrent to taxpayers checking up on their government, the executive editor of The Broken Arrow Ledger writes in a column today.

"This decision to charge does nothing to promote openness and transparency from a school district that has been mired in controversy the last few years," wrote William Swaim. "It makes it that much harder for the average taxpayer to make a legitimate request — in fact, it’s a deterrent."

The FOI Oklahoma Blog reported Thursday that Broken Arrow Public Schools Superintendent Gary Gerber authorized a $90 search fee for copies of the district’s itemized legal bills in part because the taxpayer's request lacked a "direct relationship to the education of students."

Gerber told the requester, Beth C. Snellgrove, the fee also was based on “the nature and scope of the request” and “the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.”

In short, Gerber discounted the taxpayer as someone seeking to ensure that district officials are properly doing their jobs. The state Open Records Act prohibits charging a search fee to such requesters.

Swaim called Gerber's third justification "appalling."

"Gerber might as well have come out and said, because Snellgrove supported former superintendent Jim Sisney, that she was on the wrong side of the issue and therefore should have to pay for it," Swaim wrote.

To read Swaim's full column: BA school district needs lesson in transparency

To read the full FOI Oklahoma Blog posting: BA school district charges $90 search fee to redact from legal bills, says records request posed excessive disruption, not pertinent to education


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

BA school district charges $90 search fee to redact from legal bills, says records request posed excessive disruption, not pertinent to education

Broken Arrow Public Schools Superintendent Gary Gerber authorized a $90 search fee for copies of the district’s itemized legal bills in part because the taxpayer's request lacked a "direct relationship to the education of students,” he said.

In a June 16 letter to the records requester, Gerber also justified the fee based on “the nature and scope of the request” and “the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.”

In short, Gerber discounted the taxpayer as someone seeking to ensure that district officials are properly doing their jobs. Under the state Open Records Act, a search fee cannot be charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

Instead, Gerber considered the records request to be “an excessive disruption of the business of the school” because an attorney charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

The school district’s detailed legal bills have been a FOI-issue since 2008 when Broken Arrow resident Chris Tharp and others requested them. District officials wouldn't provide the detailed billing records for the services provided.

(Tharp was recognized by FOI Oklahoma Inc. in March for his efforts to make the bills public. Read related blog postings.)

The amount spent by the school district on legal fees rose from $8,500 in fiscal year 2007-08 to more than $200,000 in 2008-09, said Tharp.

He hired an attorney, who in June 2009 requested documents demonstrating what legal services the Tulsa law firm Rosenstein, Fist & Ringold had provided for the district since being hired on Aug. 6, 2008.

After the school board hired an attorney for advice, it voted unanimously in late August 2009 to release the itemized bills to Tharp.

Tharp says he was not charged a search fee when the records were provided.

On Feb. 16, Beth C. Snellgrove requested the itemized legal bills submitted by Rosenstein, Fist & Ringold from July 1, 2009, to the date of her request.

She received an invoice of $12.50 (50 pages at 25 cents each) for copying and $90 for “3 hours administrative time to prepare request.”

Snellgrove said that when she had requested copies of the records provided to Tharp, the district did not charge her a search fee.

“That is why I did not expect there to be any search or administrative fees for my most recent Open Records Request for itemized legal bills,” she said.

Snellgrove said she hasn’t picked up these documents because she can’t afford the $90 fee.

The district’s fee schedule lists “$30 per hour for administrative time” in connection with charging a search fee.

If a search is necessary to furnish the documents and if this request is solely for commercial purposes or if the request is going to cause excessive disruption of the business of the School District, the person or organization making the request agrees to pay a search fee of $9.00 per hour for secretarial time; $30.00 per hour for administrative time; $100.00 per hour for computer query or programming (all calculated on quarter-hour increments).” (Policies/Section II- Community Relations/Fee Schedule for Duplication of and Search for School Records)

In accordance with the state Open Records Act, the district policy also states,

A search fee shall not be charged when the release of documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (Policies/Section II- Community Relations/Production of Public Records)

In an e-mail June 10 to district spokesman Keith Isbell, I asked if the district contended that Snellgrove is not a taxpayer “seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants."

Gerber responded with a letter to Snellgrove, saying, “We believe this question to be misplaced.”

Gerber pointed to a 1995 Oklahoma Court of Appeals case stating, “Whether a records request is in the ‘public interest’ does not turn on the bare allegations and mere say-so of the requesting party, but is a question to be determined in light of the circumstances of the case.” (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

Gerber added:

In considering the totality of the circumstances surrounding your request, consideration was given to (a) the nature and scope of the request, (b) the request’s lack of direct relationship to the education of students at the School District, and (c) the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.

Gerber’s reasoning seems flawed for the following reasons:

1. The “nature and scope of the request” would be similar to Tharp’s, which the school board voted 5-0 to fulfill. Tharp said he was NOT charged a search fee for the redacted copies he received.


2. Tharp and the citizens group Broken Arrow Parents for Truth wanted the legal bills to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”
   
   Why wouldn’t the same reasoning apply to Snellgrove’s request?
   
   A review of legal bills could help reveal incompetency, dishonesty and other problems with the administration of the school district. Certainly, that has a “direct relationship to the education of students.”
   
   Also to be considered is the purpose of the Open Records Act “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.” (OKLA. STAT. tit. 51, § 24A.2)


3. As for Gerber’s third reason, FOI Oklahoma Inc. board member Doug Wilson said:
   

   In a world comprised of differing opinions, it would clearly be unreasonable for the School District to draw a line in the sand and say that the release of records to those people who support its actions is in the public interest but the release of records to those who do not support its actions is not in the public interest.

In justifying the search fee, Gerber also pointed to this comment by the court in McVarish,

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers.

However, the court in McVarish noted that the request at issue encompassed some 4,300 documents, which the community mental-health agency estimated would take three employees a week to compile.

In contrast, Snellgrove’s request required a review of 17 legal bills that took three hours, according to Gerber.

Gerber’s reliance on McVarish in this instance might be misplaced, said Wilson, an attorney who has won open records lawsuits against county assessors.

In McVarish, the Court of Civil Appeals had quoted with apparent approval the trial judge’s conclusion that “whether or not there’s any public purpose or whether it’s a matter of a private vendetta . . . I think what the legislature was perhaps trying to say was if there’s going to be some sort of substantial disruption of business of the public agency then a fee is not improper.”

Wilson said the trial court had “clearly overstepped its judicial authority” with its interpretation.

“Clearly, § 24A.5 says no such thing,” Wilson said.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of “In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, “Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed.” (1999 OK AG 55, ¶ 15)

Legislative intent also had been “quite clear” to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

“[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body,” he said. “51 O.S. 24A.5(3) … is quite clear on that point when it decrees ‘in no case’ may such search fees be assessed in such circumstances.” (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to Snellgrove’s request given that the same sentence in the statute includes both the news media and “taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

Asked if Gerber didn’t consider disclosure of the legal bills to be in the public interest, Isbell responded:

Dr. Gerber points out the records in question are and have been available for release since March (2010) subject to the receipt of the fees previously detailed and agreed to by Ms. Snellgrove. Dr. Gerber points out that Ms. Snellgrove has so far failed and neglected to obtain the records.

The district’s form for requesting records lists the fees for a search if the request is for a commercial purpose or would “cause excessive disruption of the business of the School District.”

District officials neglected to include the provision that “In no case, shall a search fee be charged when. . . .”

Even if a court were to say that release of the itemized legal bills would not be in the public interest, a search fee could be charged to Snellgrove only if her request “would clearly cause excessive disruption of the public body’s essential functions.” (OKLA. STAT. tit. 51, § 24A.5(3))

Under the district’s policy, the superintendent decides if the request would cause an excessive disruption. The policy states,

Such a determination is made in light of the totality of the circumstances involved with each request, and factors to be considered include: (a) the number of documents sought, (b) their page lengths, (c) the number of employees who will be involved in the search, (d) the length of time that it will take to assemble the documents, (e) whether employees will be required to redact confidential information from documents, and (f) whether the request will divert staff from their regular jobs.

However, as Gerber noted, the redaction was done by attorney Kent B. Rainey of Rosenstein, Fist & Ringold.

In other words, Snellgrove’s request required the review of 17 legal bills by one outside attorney for three hours and no district employees were diverted from their regular jobs -- hardly an excessive disruption of the district’s essential functions.

The fact that Rainey charged the school district $190 per hour is irrelevant.

“Since a third party did the redacting, there is simply a monetary expense to the School District, and the statute talks about disruption, not expense,” explained Wilson.

Money wasn’t an issue for the school board in early June when it approved a $14,000 bonus for Gerber, whose annual salary is $140,000.

Gerber retires June 30 after a 36–year career in various jobs with the district. His replacement is Jarod Mendenhall, a former Union Public Schools assistant superintendent.

Broken Arrow Public Schools policy gives the superintendent nearly unfettered discretion in deciding which release of records is in the public interest and which requests pose an excessive disruption.

Perhaps Mendenhall will keep the letter and spirit of the Open Records Act in mind when he makes those decisions.

“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” (OKLA. STAT. tit. 51, § 24A.2)

In the meantime, Gerber -- or the school board -- should reconsider charging the $90 search fee for Snellgrove's request.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Broken Arrow school board reveals names of two superintendent finalists

Two finalists for the Broken Arrow school superintendent job agreed Tuesday to allow their names to be disclosed to the public, The Broken Arrow Ledger reported today.

They released the school board from a confidentiality agreement that had prohibited public disclosure of their names, the newspaper said.

Kudos to these candidates for getting off to a good start by recognizing the public's need to know whom the board is considering for the job of superintendent. By knowing the qualifications of at least the finalists, the public is more likely to have confidence in the board's final choice.

The candidates are Jarod Mendenhall, the assistant superintendent of Union Public Schools, and Diane Gross, the assistant superintendent of Haysville Unified School District, in Haysville, Kan. They will visit Broken Arrow on Jan. 12 and Jan. 14, according to the newspaper.

A consultant overseeing the search said the finalists will meet with school district staff and Broken Arrow residents. The selection is expected in February.

The newspaper's story provides background on the two candidates.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Broken Arrow school board votes to release detailed billing records from law firm

Taxpayers will get a better idea of what a Tulsa law firm did to earn more than $200,000 from the Broken Arrow Public Schools in one year.

The school system's board of education voted 5-0 Monday night to release all detailed billing records that establish the nature and amount of charges incurred by the school district for legal services provided by the Tulsa firm Rosenstein, Fist & Ringold.

The board also will release the district’s engagement letter with the Tulsa law firm Crowe & Dunlevy and detailed billing records submitted to the district by the firm.

School board members had hired Crowe & Dunlevy in June to advise them whether to release the billing records from Rosenstein, Fist & Ringold.

The records are expected to be made public this week, says Chris Tharp. He had been seeking the billing records submitted by Rosenstein, Fist & Ringold since September.

"Only took a year, but I got it. Or will get it in the mail later this week," Tharp told the FOI Oklahoma Blog on Tuesday.

The school district spent about $8,500 on legal fees in fiscal year 2007-08, says Tharp, whose children attend Broken Arrow Public Schools.

That amount increased to more than $200,000 in the 2008-09, he says.

Tharp and the citizens group Broken Arrow Parents for Truth want the information to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”

School district officials would tell him how much the law firm had been paid but wouldn't provide the detailed billing records for the services provided. One school board member said she didn't think the public was "entitled to know exactly what we spend our legal bills on.”

“I mean, I’m elected to represent the public. This is not a democracy. This is a republic. That means that I am elected and you guys trust me to make decisions and because you all don’t have the time to go into and research everything. That’s what I’m elected to do, to research and study all this stuff,” said Maryanne Flippo, who didn’t seek re-election to the school board this past spring.

Doug Mann of Rosenstein, Fist & Ringold contended that attorney-client privilege shielded the information from public view.

Tharp hired an attorney, who in June requested documents demonstrating what legal services Rosenstein, Fist & Ringold has provided for the district since being hired on Aug. 6, 2008.

In response, the school board hired Crowe & Dunlevy for advice on releasing the records.

Tharp added to his request the district’s engagement letter with Crowe & Dunlevy and the detailed billing records it submits to the district.

In a June letter to the school district, Tharp's attorney, Marvin Laws of Hayes Magrini & Gatewood in Oklahoma City, referred to the Oklahoma Open Records Act's preamble:

“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” (OKLA. STAT. tit. 51, § 24A.2)

The purpose of the Oklahoma Open Records Act is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”


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

Court battle brewing over request to see Broken Arrow school board's detailed billing records from law firm

Should the public know the details of what law firms do for the state and local government agencies that hire them with taxpayers' money?

"I don't really think the public is entitled to know exactly what we spend our legal bills on,” said a member of the Broken Arrow Public Schools Board of Education in a March meeting.

“I mean, I’m elected to represent the public. This is not a democracy. This is a republic. That means that I am elected and you guys trust me to make decisions and because you all don’t have the time to go into and research everything. That’s what I’m elected to do, to research and study all this stuff,” said Maryanne Flippo, who didn’t seek re-election to the school board this past spring.

In fiscal year 2007-08, the school district spent about $8,500 on legal fees, says Chris Tharp, whose children attend Broken Arrow Public Schools.

That amount increased to more than $200,000 in the 2008-09, says Tharp.

Since September 2008, Tharp and the citizens group Broken Arrow Parents for Truth have been asking for billing records that establish the nature and amount of charges incurred by the school district for legal services provided by the Tulsa firm Rosenstein, Fist & Ringold.

Tharp wants the information to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”

School district officials will tell him how much the law firm has been paid but won’t provide the detailed billing records for the services provided.

Doug Mann of Rosenstein, Fist & Ringold contends that attorney-client privilege shields the information from public view.

Tharp isn’t satisfied with that answer.

“I am just a taxpayer requesting copies of the legal bills per FOI. Me and some others have (been) turned down repeatedly. Well, I went ahead and hired an attorney,” Tharp recently told the FOI Oklahoma Blog.

On June 11, an attorney for Tharp requested documents demonstrating what legal services Rosenstein, Fist & Ringold has provided for the district since being hired on Aug. 6, 2008.

In turn, school board members on June 29 voted 3-2 to hire the Tulsa law firm of Crowe & Dunlevy to advise them whether to release the records.

That prompted a letter from Tharp’s attorney, Marvin Laws of Hayes Magrini & Gatewood in Oklahoma City, asking to see the district’s engagement letter with Crowe & Dunlevy and detailed billing records submitted to the district by the firm.

In Laws' June 11 letter to the school district, he referred to the Oklahoma Open Records Act's preamble:

“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” (OKLA. STAT. tit. 51, § 24A.2)

The purpose of the Oklahoma Open Records Act is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”


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