OSBI commissioners vote again to hire director -- this time in front of public

OSBI commissioners this week voted again to hire a director after their attorney suggested it to "cover your bases," The Oklahoman reported Wednesday.

“I don't believe that doing so is an admission that you willfully violated the [Open Meeting] act,” said Jimmy Bunn Jr., OSBI's chief legal counsel. “It's merely just covering your bases and making sure the appointment is done appropriately.”

Earlier this month, commissioners concluded an executive session and hired a director without telling the waiting reporter that the closed-door session was not only completed but also that the entire special meeting had ended. (Read FOI Oklahoma Blog posting.)

Reporter Michael Baker said he and his photographer were the only members of the public in the room before the closed session began. They had even signed in prior to the meeting, and their names were read aloud at the start.

Somehow, the commissioners and staff didn't question why the journalists were not present when the open meeting resumed and commissioners voted to hire the director -- which was the journalists' reason for being there because it was the sole purpose of the special meeting.

Baker hadn't wandered off during the executive session. He was right where OSBI officials had told him to wait -- in the lobby. The commission meeting room is in a secure part of the OSBI headquarters. Getting to the second-floor room requires an OSBI escort from the first-floor lobby.

When commissioners went into executive session, Baker and photographer were escorted from the conference room back to the lobby. "No one ever returned to the lobby to say the meeting was back in session and offer an escort for media or the public to the conference room," Baker wrote in his original story.

Bunn on Tuesday told OSBI commissioners he is "convinced that was not a willful violation of the Open Meeting Act." (Watch the video of Bunn's advice to commissioners.)

But willfulness does not require that commissioners had acted in bad faith, maliciously or with an intent to violate the law during the earlier 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)

“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)

(See also 1981 OK AG 214, ¶ 15: “[T]he Administrator of the State Personnel Board was under a duty to (1), see that the Committee members were briefed and told of their responsibilities and duties and (2), see that the Committees were furnished with copies of statutes pertaining to their duties. Accordingly, the Committee members most likely knew or should have known of their duty to comply with the Open Meeting Act.”)

The state 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)

Given the OSBI Commission's meeting location, it had an obligation to make sure that those members of the public who were in the room prior to the closed-door session are notified and given time to return before the open meeting resumes. Not doing so conflicted with the letter and the basic premise of the state Open Meeting Act.

The OSBI commissioners' do-over vote on Tuesday did not absolve them of any possible earlier violation. The Court of Civil Appeals in 1981 rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation. In the case before the court, school boards had violated the statute while acting on an annexation later ratified by county voters.

"The election did not rectify the harm to the public because the harm did not lie in the annexation itself," said the court. "The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose. The election did not ‘cure’ these violations." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)

The best news from Tuesday's meeting was the apparent recognition that the previous vote was not in the best interest of an open government.

"There was a mistake made," Bunn told commissioners. "In the interest both of transparency and being completely open and to ensure that the appointment ... is effective, my recommendation was that essentially vote on it again, reappoint him and then that takes care of any potential claims or allegations that your prior appointment was ineffective or inappropriate."

This blog previously noted that the OSBI is sometimes called upon by district attorneys to investigate violations of our Open Meeting law. As such, its governing body should be held to the highest standard of compliance.

One commissioner seemed to agree on Tuesday. "If anybody should be doing things right, it's the OSBI," said Rob Hudson, district attorney for Payne and Logan counties.

Amen to that.


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

OSBI Commission hires director, ends meeting without inviting waiting public back into room after closed executive session

OSBI commissioners concluded an executive session and hired a new director Monday without telling the waiting reporter that the closed-door session was not only completed but also that the entire special meeting had ended.

After having waited about six hours to be called back into the meeting, The Oklahoman reporter realized it was over when he saw commissioners leaving the building.

Commission Chairman Ted Farris said commissioners believed everyone had been told the meeting was resuming. "I'm sorry that happened, but we didn't understand there was a problem," he said.

The OSBI Commission later provided the reporter with an audio recording of the meeting and the vote. But that doesn't excuse the commission's apparent oversight. If an audio recording were sufficient, then the Open Meeting Act, and related judicial and attorney general opinions, would not be so adamant that the public is entitled to be present during public meetings.

Reporter Michael Baker says he and his photographer were the only members of the public in the room before the closed session began. They had even signed in prior to the meeting, and their names were read aloud at the start.

Yet, Farris and the other commissioners apparently didn't question why the journalists were not present when the open meeting resumed and commissioners voted to hire the new director -- which was the journalists' reason for being there because it was the only agenda item and the sole purpose of the special meeting.

If Baker had just wandered off and wasn't there when the meeting room was reopened, then this wouldn't be an open meeting issue.

But that's not how the OSBI Commission conducts its meeting. As Baker explained in the newspaper this morning, the commission meeting room is in a secure part of the OSBI headquarters. Getting to the second-floor room requires an OSBI escort from the first-floor lobby.

When commissioners went into executive session, Baker and photographer were escorted from the conference room back to the lobby. "No one ever returned to the lobby to say the meeting was back in session and offer an escort for media or the public to the conference room," Baker wrote.

Given its meeting location, the commission has an obligation to make sure that those members of the public -- and that includes reporters -- who were in the room prior to the closed-door session are notified and given time to return before the open meeting resumes.

Not doing so conflicts with the letter and the basic premise of the state Open Meeting Act.

The statute requires that meetings be held at “specified times and places which are convenient to the public.” (OKLA. STAT. tit 25, § 303)

Why? Because it is the public policy of the state “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (OKLA. STAT. tit. 25, § 302)

What occurred at the OSBI Commission meeting Monday was hardly encouraging or facilitating. Instead, intentionally or not, commissioners appeared to thumb their collective nose at the public's right to know.

The irony, of course, is that the OSBI is sometimes called upon by district attorneys to investigate violations of our Open Meeting law. As such, its governing body should be held to the highest standard of compliance. Any thing less undermines the agency's moral authority in such investigations.

So whom does the public hold accountable when political appointees don't comply with the Open Meeting law? Answer: The elected officials who appoint them.

Two members of the OSBI Commission, Tulsa County Sheriff Stanley Glanz and Rob Hudson, district attorney for Payne and Logan counties, are elected officials. But all seven members are appointed by the governor.

(The other commissioners are Anne Holzberlein, Russell Noble, Mickey Perry and Mike Wilkerson.)

Regardless of today's election, the next governor has publicly said she expects her appointees to public bodies to abide by the Open Meeting and Open Records laws. Republican Mary Fallin and Democrat Jeri Askins made that promise at FOI Oklahoma's Sunshine Conference in March.

They also signed FOI Oklahoma's Open Government Pledge in which they promised, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

Let's hold the next governor to those promises the first time her political appointees to a public body seem unwilling to understand or to comply with our open government laws.


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

Autopsy reports used to reveal incompetency, corruption, but Oklahoma legislators want to stop public access to such records

(See also, Legislator withdraws bill restricting access to autopsy records)

A bill limiting what the public may know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown was unanimously approved by state senators on Thursday.

But the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

For example:

• The FBI recently began investigating three post-Katrina police shootings in New Orleans because of a series published by ProPublica and others. Two experts said an autopsy report raised questions about one of the fatal shootings and its circumstances. One of the experts called the New Orleans coroner’s forensic work in the case “incomplete at best.”

• In Florida, an associate state medical examiner was found to have falsified several autopsy reports. His license to perform autopsies in Missouri had been revoked earlier because he fabricated autopsy reports there.

• In Tennessee, the state medical examiner was stripped of his job and later his medical license after two investigations concluded he had botched autopsies and lied on some autopsy reports. In one case, for example, he concluded a man died of multiple stab wounds but another forensic pathologist later said the wounds were "cuts from a glass table that the deceased fell on when he died.” In another, he determined a death was caused by sudden-infant death syndrome but a review of the autopsy found the child died of acute cocaine intoxication.

• In Texas, a former medical examiner was convicted of falsifying autopsies in three counties.

In Oklahoma, HB 3155 is headed to a conference committee, so Senate and House leaders can work out details.

Sponsored by Rep. Leslie Osborn, R-Tuttle, the bill passed the House last month by a vote of 86-7. Voting "yes" were 10 House members who had signed FOI Oklahoma Inc.'s Open Government Pledge. More on that later.

The legislation would close access to "information contained in an autopsy report providing the 'manner of death' as homicide, unknown or pending until discoverable under law."

For those autopsy reports, the Office of Chief Medical Examiner would be required to tell the public the "autopsy number, case number, laboratory analysis number, manner of death, full name, age, date of birth, race, sex, and home address of decedent, name and title of the individual notifying the Office of the Chief Medical Examiner, date and time of such notification, including the city, county, type of premises, and the date and time of viewing, and the date report was filed."

HB 3155 closes the information to family members, closes the reports indefinitely, and doesn't address cases in which the person died in the custody of police, notes Mark Thomas of the Oklahoma Press Association.

OSBI requested the bill, reportedly because "telling details were released in two high-profile cases last year." The public is left with the impression that releasing those details has prevented OSBI from solving those murders.

The Oklahoman called the bill "an overreaction." But for most of our state legislators, that impression seems sufficient reason to stop access to government records long available to the public.

No thought seems to have been given to whether the public has a legitimate need to know the details of autopsy reports involving homicides or when the manner of death is unknown.

"When you close records, it allows corruption to creep into the system of identifying who died and how," said Thomas. "It is so important that this has to be carefully scrutinized, whether law enforcement likes it or not."

State Rep. Lucky Lamons, a former Tulsa police officer, agrees that the autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.

Lamons has pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information

When the measure passed the House, Lamons, a Democrat, was the only legislator who lived up to his pledge to support open government.

Representatives who had signed the pledge but voted to close the records were:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Watson, Weldon, , R-Tulsa,
• Wright, Harold, R-Weatherford
  

By signing the pledge, these House members had promised “to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power.”

Even though Senate President Pro Tempore Glenn Coffee, R-Oklahoma City, voted for the bill, he has said he does not support making information on the reports completely confidential.

"I think we need to be very cautious in going down that road,” Coffee said. "There may be some issues about when things are released and being able to build a case. But a blanket confidentiality is probably overshooting the issue.”

It sure would.

To read coverage of the autopsy bill:

• Senate OKs bill to keep autopsy information confidential, by Barbara Hoberock, Tulsa World, 4.16.10.

• Oklahoma lawmakers eye autopsy proposal, by Julie Bisbee, The Oklahoman, 4.16.10.

• Bill would keep autopsies secret, by Amanda Guerra, KOCO, 4.16.10.

• Whittling away: Autopsy records bill should be shelved, editorial, The Oklahoman, 3.31.10.

• House passes autopsy-closure bill, by Barbara Hoberock & Nicole Marshall, Tulsa World, 3.10.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Incumbents promising open government win re-election in Norman

Norman Mayor Cindy Rosenthal and Ward 4 Councilor Carol Dillingham were re-elected Tuesday night, the Norman Transcript reported.

Each has pledged, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

By signing FOI Oklahoma Inc.'s Open Government Pledge, Rosenthal and Dillingham also promised “to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power.”

The Oklahoma State Bureau of Investigation is looking into a Norman city councilman's complaint that the council violated the Open Meeting Act during an executive session on June 9.

Councilman Tom Kovach, who also has signed the Open Government Pledge, had contacted FOI Oklahoma on June 18 about the meeting. He believes that the council's discussion about financing the Rock Creek Road overpass at Interstate 35 violated the law because the agenda item for the executive session listed only the acquisition of right-of-way for the construction.

Perhaps because of the OSBI investigation, open government seemed to be a campaign issue in Norman.

Rosenthal's opponent, Ward 3 Councilor Hal Ezzell, signed the pledge in December.

Rosenthal received 54 percent of the vote.

In the Ward 4 race, one of Dillingham's three opponents, Austin Dyches, had also signed the pledge.

Dillingham received 72 percent of the vote.

Let's hope open government remains a priority for the mayor and council and that they live up to their promises.


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

OSBI investigating complaint that Norman City Council violated Open Meeting Act

The Oklahoma State Bureau of Investigation is looking into a Norman city councilman's complaint that the Council violated the Open Meeting Act during an executive session on June 9, The Norman Transcript reported Saturday.

Councilman Tom Kovach had contacted FOI Oklahoma on June 18 about the meeting. He believes that the council's discussion about financing the Rock Creek Road overpass at Interstate 35 violated the law because the agenda item for the executive session listed only the acquisition of right-of-way for the construction.

Kovach noted that financing a construction project is not one of the nine topics permitted for executive sessions under the Open Meeting Act.

However, the purchase or appraisal of real property is a permitted topic. The meeting is “limited to members of the public body, the attorney for the public body, and the immediate staff of the public body. No landowner, real estate salesperson, broker, developer, or any other person who may profit directly or indirectly by a proposed transaction concerning real property which is under consideration may be present or participate in the executive session." (OKLA. STAT. tit. 25, § 307(D))

Councilman Doug Cubberley recused himself and left the room during the discussion of the acquistion. But when the discussion moved to paying for the project, Kovach said, Cubberley was brought back into the room "since the financing was a separate issue."

According to The Norman Transcript, Cubberley said he left the executive session because if the Council decided to condemn a certain property, the owner might hire Cubberley's law partner as legal representative. Cubberley said the city's legal staff said he did not need to recuse himself but that he felt uncomfortable staying for the discussion.

He returned to discuss options for purchasing rights of way.

The financing is part of a controversial Tax Increment Financing District.

At the Council's June 23 meeting, Kovach complained publicly that the Council had violated the Open Meeting Act during its executive session on June 9.

City Attorney Jeff Bryant does not believe the Council violated the law.

In a memo obtained by The Norman Transcript, Bryant told the Council, "The question here is whether the description of the business and purpose of the session (to discuss the acquisition of real property associated with the Rock Creek Road Overpass) was sufficient to include discussion of which property would be acquired, the mechanism by which it was proposed to be acquired (purchase) and how the property would be acquired, i.e. funding source."

He said he believes the council complied "with the spirit and intent of the Oklahoma Open Meeting Act," saying the the agenda "contained sufficient information to inform the public that an executive session would be proposed, identified the business and purpose of the session and stated the statute provision that authorized the executive session."

An FOI Oklahoma Blog posting in response to Kovach explained that subsequent public discussion and action would not excuse a violation of the Open Meeting Act.

In the memo, Bryant also addressed whether the law was violated by Councilman-elect Alan Atkins' presence during the executive session.

Bryant said no violation occurred because Atkins, who had not been sworn in, was present as an elected official, not as a private citizen, and did not stand to profit from the property acquisition.

An OSBI official told The Transcript that the investigation is in the "initial stages." The investigation was requested by Cleveland County District Attorney Greg Mashburn, the official said.


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