skip to main |
skip to sidebar
The Healdton City Council recently met in executive session to "discuss consulting and possible hiring of Human Resources attorney regarding pending litigation," The Ardmoreite reported Monday.
But the Open Meeting Act doesn't permit a closed-door discussion of hiring an independent contractor.
And in another apparent violation of the statue, the meeting agenda failed to reveal anything about the "pending litigation" that justified the executive session.
The meeting Aug. 6 was the second this summer in which the council seemed to have violated the Open Meeting Act.
On July 2, the council met behind closed doors under the statutory exemption to discuss terrorism-related issues even though it actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma.
The meeting agenda not only listed the wrong statutory exemption but also failed to include any information about the "pending investigation" that would be discussed.
Carter County District Attorney Craig Ladd waffled last week on whether the council violated the Open Meeting Act in July.
In an email to The Ardmoreite on Aug. 7, Ladd wrote, "After looking into the matter further, I am not convinced a willful violation occurred (other than perhaps the clerical error of citing B9 rather than B4 and then proceeding, rather than postponing it for another week.)"
So wouldn't that be a violation?
Criminal intent isn't necessary for a violation to have occurred. The question is only whether the council willfully failed to comply with the Open Meeting Act. (See Hillary v. State, 1981 OK CR 78, ¶ 5)
"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," the state Supreme Court has said. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
Before the council had entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
As Ladd conceded to the newspaper, the council proceeded with the executive session rather than postpone it a week. That's deliberate disregard of the law.
The Open Meeting Act prohibits executive sessions unless certain procedures, such as listing the statutory authorization, are "strictly complied with." (OKLA. STAT. tit. 25, § 307(E))
The Court of Civil Appeals has said "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
The statute requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said government bodies must comply with this provision by citing more than attorney-client privilege.
"The public has a right to know what you are going to discuss in an executive session," the first assistant attorney general told public officials in November.
If the lawsuit has not been filed, then the agenda item should include "at least the nature of it," Rob Hudson said. "More is better."
But for the Aug. 6 meeting, the Healdton City Council refused to put on the agenda any information about the "pending litigation."
The council also apparently used the executive session to discuss hiring an independent contractor, i.e., an attorney specializing in human resources cases.
The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of an independent contractor, such as an attorney, for professional services, the state attorney general said in 2005. (2005 OK AG 29, ¶ 13)
If such a discussion is not allowed under the personnel exception, it shouldn't be allowed under attorney-client privilege.
Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could the Healdton council's discussion fall under the attorney-client exception?
The same 2005 attorney general opinion also said:
"The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a 'pending investigation, claim, or action.' Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will 'seriously impair' the body's ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest." (¶ 11)
In other words, a public discussion of consulting or possibly hiring a human resources attorney would had to have "seriously impaired" the ability of the council to process the pending litigation in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.
Ladd told The Ardmoreite that he will comment on the latest apparent violations as soon as practical.
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.
The Healdton City Council met behind closed doors Monday night under the statutory exemption to discuss terrorism-related issues, The Ardmoreite reported.
But in the executive session, the council actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma, the newspaper said.
The meeting agenda had not specified a reason for the executive session. It listed only, "Discuss with City Attorney pending investigation disclosure of which City Attorney has advised will impair the ability to proceed with pending investigation as provided by the Oklahoma Open Meeting Act (Title 25 307.B.9)."
Listing the wrong statutory authorization and not listing an item of business are apparent violations of the state Open Meeting Act.
Carter County District Attorney Craig Ladd told the newspaper he would wait to review information on the executive session before commenting.
The Open Meeting Act permits executive sessions for nine topics. The one listed on the agenda, OKLA. STAT. tit. 25, § 307(B)(9), is to discuss terrorism, e.g., "the investigation of a plan or scheme to commit an act of terrorism."
The agenda apparently should have cited Okla. Stat. tit. 25, § 307(B)(4), which allows confidential communications between a public body and its attorney "concerning a pending investigation, claim, or action."
Before the council entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
City Attorney Bob Pinkerton dismissed it as a misprint and the council proceeded on his advice, Pineda reported.
But the Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are "strictly complied with." (§ 307(E))
For example, the agenda must "state specifically the provision ... authorizing the executive session." (§ 311(B)(2)(c))
The Healdton City Council agenda didn't state the correct statutory authorization for the executive session.
The Open Meeting Act also requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said publicly since September that government bodies must comply with this provision by citing more than attorney-client privilege.
For example, Attorney General Scott Pruitt told a state board that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
Rob Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
For example, at least the nature of an impending lawsuit or claim should be listed, Hudson said.
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
The agenda item should list information such as the name of the parties in the lawsuit, he explained.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
Headlton officials should have listed the reason for the executive session.
After the meeting, Mayor David Smith confirmed for Pineda that a months-long investigation has found discrepancies in the town's finances. City Treasurer Karen Kardaleff was relieved of her duties Tuesday morning and placed on paid leave, Pineda reported.
The purpose of 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)
The Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
In prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
The state Supreme Court has 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)
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
In November, Hudson simply warned officials: "The Open Meeting Act is the law. Don't break 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.
The Lone Grove City Council last May fired the city manager and hired a temporary replacement even though neither action was listed on the meeting agenda, The Lone Grove Ledger reported this week.
But the council will not face prosecution for the obvious violation of the state Open Meeting Act because Bryan County District Attorney Emily Redman says no collusion occurred among the councilors, the newspaper said.
However, as the newspaper points out, "collusion" is not required for a violation of the Open Meeting Act to be considered willful and, therefore, to be prosecuted.
Willfulness does not require that the councilors had acted in bad faith, maliciously or with an intent to violate the law during the vote.
Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (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 explained. (Id. at ¶ 26) (emphasis added)
"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)
The Oklahoma Supreme Court adopted the lower court's reasoning in 1984, saying, “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, 701 P.2d 754, 761)
A violation of the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)
Taking actions not listed on an agenda are clear violations of the Open Meeting Act. And the Lone Grove City Council should know the law.
Under the Open Meeting Act, each agenda must "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
The Oklahoma Court of Civil Appeals has said agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
The purpose of the statute "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said.
Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said.
In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."
The "School Board’s actions were limited by its own notice to 'discussion' and 'interviews," the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)
The Lone Grove City Council's meeting agenda listed merely a performance review of the city manager, the newspaper reported.
"There was no mention of any possible action, let alone what that action might be. There was absolutely no mention of the possibility of hiring an acting city manager," wrote Gary Hicks, the newspaper's publisher.
(He noted that the recording of the May 17 meeting was "lost," or "misplaced," or "there was a power surge," or "the recorder wasn't turned on." "Which scenario is chosen depends on which city official was talking at the moment," wrote Hicks.)
Despite the apparent Open Meeting Act violation, the council won't be prosecuted because Redman said she found no willful violation.
In her letter to Carter County District Attorney Craig Ladd, Redman said an OSBI investigation did not show collusion among the three city councilors who voted to fire the city manager.
(Ladd had the case assigned to Redman because one of his staff members is the sister of councilor Chris Young and because the city attorney in May was a former member of his staff, the newspaper reported.)
Without a prosecution, the public will never know what the Oklahoma State Bureau of Investigation found. OSBI officials have refused to release the investigative report to The Lone Grove Ledger.
Under Oklahoma law, OSBI officials noted, "All records relating to any investigation being conducted by the Bureau, including any records of laboratory services provided to law enforcement agencies ... shall be confidential and shall not be open to the public." (OKLA. STAT. tit. 74, § 150.5(D)(1))
"The fact that the investigation is closed does not alter the confidential nature of those records," the state Supreme Court said in 1993. (Hicks v. Thompson, 1993 OK 57)
So bottom line: Taxpayers footed the bill for an investigation into criminal conduct by elected officials, but they will never know what investigators found because a district attorney refuses to prosecute based on a dubious understanding of what constitutes a willful violation.
This situation exemplifies why prosecution of open government violations should be put in the hands of someone else, perhaps at the state level.
That will be a topic of discussion at FOI Oklahoma's fourth annual Sunshine Week Conference on March 12 in Oklahoma City. An internationally recognized expert on open government laws will offer his insight on creating a state agency that Oklahomans can go to for help when public officials wrongly withhold records or restrict access to open meetings.
More information on the conference and a registration form can be found on FOI Oklahoma's website.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
