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.

Any Oklahoman may sue to enforce Open Meeting Act, appellate court rules

Oklahomans can sue to enforce the state Open Meeting Act without having to prove they were individually injured by the alleged violation, a three-judge panel of the state Court of Civil Appeals has ruled.
 
The Open Meeting Act "was specifically and especially enacted for the benefit of the public," meaning the "general public," said Judges Jerry L. Goodman, P. Thomas Thornbrugh and W. Keith Rapp.
 
Oklahomans don't have to rely upon local district attorneys to enforce the Open Meeting Act because the statute provides them with a "private right of action" to sue over violations, said the appellate judges in the decision filed Thursday.
 
They unanimously overturned Washington County Judge Russell Vaclaw's 2011 dismissal of a lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Trust Authority. They remanded the case to the trial court to determine if the BRTA had violated the Open Meeting Act.
 
Vaclaw had held that Joel Rabin and Sharon Hurst had no standing to sue because they "made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
 
He said plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA." The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
 
But the appellate judges said Vaclaw "misread" the state precedent upon which he relied.
 
In Holbert v. Echeverria, 1987 OK 99, the state Supreme Court created a three-part test for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

The Court of Civil Appeals disagreed with Vaclaw's application of all three parts.
 
Unlike the statute at issue in Holbert, the Open Meeting Act "states its public policy is to inform the public citizenry. Thus, the special class is the general public, of which Rabin-Hurst are members," wrote Goodman for the appellate court.
 
Goodman said state legislators had intended to create a private remedy because the statute includes remedies outside of criminal prosecution:

• An illegal executive session subjects each member of the public to criminal prosecution "and shall "cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public." (OKLA. STAT. tit. 25, § 307(F))
• "Any action taken in willful violation of this act shall be invalid." (§ 313)

"The criminal penalty of fines and imprisonment is different and apart from forcing minutes to be made public and actions to be made invalid," Goodman wrote.
 
"Although a district attorney prosecuting a criminal action could invoke those remedies, we find no reason why those remedies should be invoked strictly within the confines of a criminal case subject to the prosecutorial discretion of a district attorney," Goodman wrote. "The general public, the intended beneficiary of the [Open Meeting Act], would not be well served should that narrow interpretation prevail.
 
"The only way to effectively serve the public would be to permit these remedies to be invoked in a private action, by a member of the very public the [Open Meeting Act] was intended to serve."
 
Goodman noted a number of cases brought by private individuals wherein Oklahoma appellate courts had granted injunctive or declaratory relief under the Open Meeting Act.
 
"Had the legislature not intended for citizens to bring suit under the [Open Meeting Act] nor for civil courts to enforce §§ 307(F) and 313, it could have amended the OOMA to disallow such causes of action," Goodman said. "Failure to do so indicates the intent of the legislature to allow private actions to be brought to remediate the violation."
 
He said the two remedies also are consistent with the underlying public policy of the Open Meeting Act "to educated and inform the public on governmental processes."
 
"As the underlying purpose of the [Open Meeting Act] is, at its very core, to maintain governmental transparency through open meetings, the remedies provided for in the statute, and requested by Rabin-Hurst, logically uphold the purpose of the OOMA," Goodman wrote.
 
He disagreed with BRTA's argument that criminal prosecution was the only appropriate remedy.
 
"Suffice it to say, a criminal action subject only to prosecutorial discretion of a district attorney is likely to result only in a fine, and does not 'right the wrong' of an OOMA violation," Goodman wrote. "Whereas, making public the minutes of an improperly-held executive session and invalidating action take at same does 'right the wrong' of the violation.
 
"If the wrong is keeping secret information that should be publicly known, then the logical remedy is to disclose the secret to the public. Such remedies are meaningful and vigorously uphold the purpose of the OOMA."
 
The Court of Civil Appeals decision refutes not only Vaclaw's ruling but also a notion that began with six Tulsa City Council members in 2010.
 
In a motion to dismiss an Open Meeting Act lawsuit against councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott, their attorneys argued that private individuals had no right to sue over alleged Open Meeting Act violations. Tulsa County Judge Deborah C. Shallcross agreed in 2011 prior to Vaclaw's ruling.
 
Rabin said today that he and Hurst have spent tens of thousands of dollars fighting their case -- which hasn't even gone to trial yet to determine if a violation occurred. They deserve public recognition and gratitude for defending the basic right of all Oklahomans to sue to enforce their right to know under the Open Meeting Act.
 
Because as the appellate judges seem to realize -- Oklahomans can't rely upon district attorneys to vigorously and consistently enforce the law.
 
The next step should be state legislators amending the Open Meeting Act to explicitly grant attorney's fees and court costs to successful plaintiffs. Private individuals shouldn't have to foot the bill when it falls on them to prove government officials violated 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.

Norman mayor says she routinely seeks 'input' from entire council outside of public meetings

Norman Mayor Cindy Rosenthal said she routinely sends memos to the rest of the City Council seeking "input" on whom she intends to appoint to boards and commissions, The Oklahoman reported today.
 
"The item is then on the agenda and a public vote is taken," Rosenthal told the newspaper.
 
Rosenthal said City Attorney Jeff Bryant approved sending a memo in February to all her fellow council members in which she asked for "input" on new details of a recommended compensation increase for the city manager and asked them to "let me know what direction you would like to move."
 
Rosenthal wrote in the memo that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
She told The Oklahoman that accusations she is violating the Open Meeting Act are just "politics ... there's nothing to it."
 
But the Open Meeting Act, as well as judicial and attorney general pronouncements on the statute for decades, clearly forbids the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act requires that "the vote of each member must be publicly cast and recorded." (Okla. Stat. tit. 25, § 305)
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 306)
 
In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as “no business of the public body is discussed."
 
In 1981, the Oklahoma Court of Civil Appeals had emphasized, "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting. (1981 OK AG 69, ¶ 17)
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
A 1982 attorney general opinion said:

The requirements that members be physically present for meetings to take place and that voting be done only at meetings, provide protection against secret decision-making and further the Legislative intent of facilitating the understanding of government by informed citizens. (1982 OK AG 7, ¶ 7)

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." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is “very simple," the state Court of Civil Appeals has said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
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, Etc., 1981 OK CIV APP 57, ¶18)
 
"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)
 
Rosenthal and the rest of the Norman City Council are responsible for knowing the requirements and prohibitions of the Open Meeting Act.
 
She and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge. They promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Kovach had told The Norman Transcript about the memo, which revealed that the council -- including Kovach -- had apparently violated the Open Meeting Act by reaching a consensus during an executive session to move forward on the pay increase for the city manager.
 
With Rosenthal up for re-election in two weeks, she says Kovach accusing her of violating the Open Meeting Act by sending the memo is just "politics." The Oklahoman article noted that Kovach is a consultant for Tom Sherman, one of Rosenthal's opponents.
 
But the political motivations behind revealing open government violations don't negate the violations themselves. Norman City Council members should not be reaching consensus to take actions in executive session or seeking "input" and "direction" from a majority of the council outside of meetings.
 

 
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.
 

Prosecuting state Pardon and Parole Board is right call

Oklahoma County District Attorney David Prater's prosecution of the state Pardon and Parole Board for Open Meeting Act violations is drawing unwarranted criticism from the governor and The Oklahoman's editorial writers.
 
All five board members -- Currie Ballard, Richard L. Dugger, Marc Dreyer, Lynnell Harkins and David Moore -- pleaded not guilty on Thursday to multiple counts of violating the statute.
 
Prater alleges the board broke the law by discussing and voting on early parole consideration for inmates without listing such actions as agenda items. Instead, he says, the votes took place under the vague agenda item of "Docket Modifications," which included no other information.
 
Board members have said those votes only determined whether an inmate would be placed on the docket of a future meeting, at which time the inmate's name would appear on the board's website.
 
After charges were filed Wednesday, Gov. Mary Fallin said it "will have a chilling effect on individuals interested in public service."
 
"It is difficult to imagine men and women who are leaders in their communities wishing to serve in these positions — the vast majority of which draw no salary — if they are constantly in fear of being charged with a crime while making a good-faith effort to follow the law and the recommendations of their paid legal advisers," said Fallin.
 
(The Oklahoman echoed that concern in an editorial Friday.)
 
Fallin appointed Ballard, Dreyer and Moore to the board in 2011.
 
As a gubernatorial candidate in 2010, Fallin said she would expect her appointees to public bodies to abide by the state's Open Meeting Act. But her comments this week are an insult to the thousands of Oklahomans who serve on state and local boards and commissions without violating the statute.
 
The Open Meeting Act, as our Court of Civil Appeals noted in 1981, "is not obscure or incomprehensible." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
"On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word,” the court said. "Lack of familiarity is no excuse."
 
The Open Meeting Act certainly shouldn't have been incomprehensible to the five parole board members. Three -- Ballard, Dreyer and Harkins -- previously served on the board. And four have experience in enforcing the law: Dreyer is a former Drug Enforcement Administration agent; Dugger was a longtime district attorney in western Oklahoma; Harkins is an attorney and former special judge; and Moore is a former U.S. Secret Service agent.
 
All five also had no excuse because the state Attorney General's Office told them in April 2011 that agendas must give the public actual notice of the actions that might be taken in a meeting.
 
In an affidavit filed with the charges, Prater's chief investigator, Gary Eastridge, described what he heard in the audio recording of the hourlong open government training session that Gay Tudor, then an assistant attorney general, conducted with the board.
 
While Tudor was suggesting more details be added to agenda items, Eastridge said, "a female voice can be heard referencing 'docket modifications.""
 
Eastridge said Tudor made clear that board members could not take action if the possibility of that action was not listed on the agenda.
 
"The female (believed to be Mrs. Harkins) then specifically says 'that would be like docket modification item where we are going to bring someone forward.'"
 
Eastridge said Tudor emphasized during the session that the agenda is "a really big thing" and that agendas should include enough information for people to have an idea of what the board intended to do.
 
None of what Tudor told the board was new.
 
The Open Meeting Act says each agenda "shall identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
 
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the state Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 9)
 
The purpose of the Open Meeting Act "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. (Id. at ¶ 9)
 
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is "very simple," the state Court of Civil Appeals said that year. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
Violating the Open Meeting Act is a misdemeanor. If convicted, the Pardon and Parole Board members could be punished by up to one year in the county jail and a $500 fine.
 
Those "light penalties for violating the [state's open records and meeting] laws only exacerbate the problem. Unless that changes, behavior isn't likely to either," The Oklahoman's editorial staff lamented in late August.
 
In the 2011 training session, Eastridge said, a board member asked Tudor if "intent" had to be proved for a criminal violation of the Open Meeting Act. She responded that willful violations don't require intent, only "'whether you knew or should have known and see now you know.'"
 
So the parole board members don't seem to fit Fallin's description of appointees making a good-faith effort to follow the Open Meeting Act and the recommendations of legal counsel.
 
Fallin also implied that political appointees serving on statewide boards and commissions fall into the same category as volunteers for charitable organizations. But the members of these government bodies make important decisions regarding state policies and spending.
 
The Pardon and Parole Board, for example, is "a vital part of the criminal justice system" whose mission "is to determine the best possible decision, through a case-by-case investigative process and to protect the public while recommending the supervised released of adult felons."
 
As Prater emphasized: "Public Safety is a core function of our government. As alleged, the Board was making crucial public safety decisions without giving the citizens of Oklahoma an opportunity to scrutinize its activities."
 
None of these statewide boards and commissions, however, is directly answerable to voters for their actions.
 
And if a Washington County district court judge is correct, civil lawsuits over Open Meeting violations may be filed only if the plaintiff was directly harmed.
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Judge Russell Vaclaw said in 2011.
 
Yet, Oklahomans have heard from district attorneys a long list of unfounded excuses for not prosecuting Open Meeting Act violations. When a district attorney chose not to file charges in 2011 because city council members hadn't intended to break the law, The Oklahoman complained:

Wouldn't we all love to get away with that excuse if we're pulled over for a traffic violation? Gee officer, I didn't mean to do it.

And in early August prior to Prater publicly criticizing the parole board's agendas, The Oklahoman complained about the lack of teeth in the state's open government laws, saying, "Prosecutors often are in no hurry to pursue what is a misdemeanor offense, nor do they like going after other public servants — the people who violate those laws."
 
But in an editorial Monday questioning Prater's decision to file charges against the parole board, The Oklahoman editorial asked, "What does it profit the state for members of this board to take a perp walk?"
 
The Oklahoman had answered its own question in a 2011 editorial titled "Ignorance of open meeting laws no excuse for public officials."

The laws regarding public meetings are black and white, and need to be adhered to. And those charged with enforcing the law need to do just that.
 
Why? Because laws regarding open meetings and open records allow the public to see how their tax money is being spent, how their elected officials are conducting their business. This is vitally important in our society.
 
When public officials try to avoid that light, they ought to be punished.

That remains true today.
 
Prosecuting the parole board is the right call.
 

 
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.
 

State Senate committee recommends school board members take open government training

New school board members would have to undergo at least one hour of training in the state's Open Records and Meeting laws, under a bill recommended Monday by the Senate Education Committee.
 
Senate Bill 91, by Sen. Eddie Fields, R-Wynona, would amend current training requirements for school board members that must be completed within 15 months of being elected or appointed.
 
Otherwise, the school board member must vacate the seat and cannot be reappointed or re-elected for three to five years, depending upon how many members serve on the school board. (Okla. Stat. tit. 70, 5-110(C))
 
That's an important difference from the open government training requirement for newly elected municipal officials. That statute requires the training to be completed in their first year of office or they "shall cease to hold the office." However, it doesn't explicitly prohibit them from being reappointed once the training is completed. (OKLA. STAT. tit. 11, § 8-114(E))
 
In December, Kiowa trustees reinstated a former trustee who had been forced to resign because he hadn't taken the training.
 
SB 91 was approved unanimously by Sens. Josh Brecheen, Earl Garrison, Jim Halligan, David Holt, Ron Sharp, Wayne Shaw, Gary Stanislawski and John Ford.
 

 
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.

Delaware County district attorney refuses to prosecute Open Meeting Act violations in Bernice

The Bernice Board of Trustees won't face criminal charges over several Open Meeting Act violations detailed by a state audit in April, Delaware County District Attorney Eddie Wyant's office said last week.
 
"Basically, after we have looked at what we've got here, it appears that the things that they did were under the advice of their counsel, and that in our opinion makes it difficult to find that it was a willful violation," Wyant's first assistant told the Tulsa World
 
"We don't necessarily agree with their counsel, but it certainly mitigates against it being a willful violation," said Ben Loring.
 
But that excuse ignores 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, 701 P.2d 754, 761)
 
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)
 
So should the Bernice Board of Trustees have known the law? In at least one instance, they were warned by a resident that an executive session would be illegal under the particular circumstances. But they did it anyway.
 
Keep in mind, too, that since 2005, all municipal officials elected for the first time must undergo training that includes the Open Meeting Act's requirements and prohibitions. (OKLA. STAT. tit. 11, § 8-114(A))
 
Violating the Open Meeting Act is a misdemeanor punishable by up to a $500 fine and one year in the county jail.
 
As a penal statute, the Open Meeting Act must be strictly construed, the Oklahoma Court of Criminal Appeals said in 1992.
 
"Any cause of action based upon such a statute must be clear and without a doubt," the court said. "Statutes which create and provide penalties for criminal offenders must be sufficiently explicit so persons of common intelligence may understand their provisions and so that their meaning does not require speculation," the court said. (State v Patton, 1992 OK CR 57, ¶ 3)
 
In Bernice, the state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had 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. (A violation that was pointed out on this blog last April.)

These aren't violations of new requirements or prohibitions under the Open Meeting Act. And, as the audit pointed out, the Oklahoma Court of Civil Appeals has said:

The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes [sic]. Lack of familiarity is no excuse. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶18 )

But in Delaware County, public officials' ignorance of the Open Meeting Act is being excused.
 
Loring also gave one more reason why Bernice trustees wouldn't be prosecuted for robbing the public of their right to an open government: It did not appear that any of the trustees personally benefited from the violations described in the audit.
 
"Our attitude would be a whole lot different if there is personal gain from it," Loring told the Tulsa World.
 
When did that become a requirement for prosecution of an Open Meeting Act violation?
 
Personal gain wasn't apparent, or mentioned, when the Muskogee County district attorney prosecuted Boynton town trustees in 2010 for Open Meeting Act violations.
 
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 excuses for not prosecuting are frustrating for the public not only because they ignore the law but also because a Washington County judge has said Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the government body's alleged violation.
 
The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," said Associate District Judge Russell Vaclaw said in November.
 
But Wyant's refusal to prosecute blatant violations underscores the need to create an independent state authority with the expertise and willingness to pursue violations. Oklahomans simply cannot rely on local district attorneys to consistently do the essential job of protecting an open government.
 
In 2008, the Court of Civil Appeals said: "The Act is designed to 'encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting." (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
 
However, that purpose is defeated when district attorneys shrug off violations of the Open Meeting Act.
 

 
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.

Stillwater Medical Center Authority says disclosing hospital officials’ salaries would be clearly unwarranted invasion of privacy, sues requester for $3,000 cost of copying records, held ‘retreats’ in Tulsa, OKC

The Stillwater Medical Center Authority says disclosing the salaries of the hospital’s top officials would put it at a hiring disadvantage and “would constitute a clearly unwarranted invasion” of the employees’ privacy, according to documents filed in an open records lawsuit against the public authority.

Last week, the hospital authority filed a counterclaim, seeking the $3,038.25 cost of copying 12,153 pages that the requester has not picked up.

The requester, former Stillwater commissioner Henry “Hank” Moore Jr., sued the hospital authority in late August. He was seeking, among other information, the salaries for the medical center’s top five senior management officials. (See Moore v. Stillwater Medical Center Authority, No. CJ-2010-408 (Payne County) (Aug. 24, 2010))

The Stillwater Medical Center Authority refused to disclose the salaries based on advice from the law firm McAfee & Taft in Oklahoma City.

That advice, written by a summer associate, relied upon a 2009 attorney general opinion on whether the birth dates of government employees are public records when contained in their personnel files. (2009 OK AG 33)

In that opinion, Attorney Drew Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (¶ 11)

Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy,” Edmondson said.

Relying upon that opinion, McAfee & Taft concluded that the hospital authority would be required to make the salary information public unless the board designated "salary and payroll information as confidential" because disclosure "would result in a clearly unwarranted invasion of the employee's privacy."

On July 27, the Stillwater Medical Center Authority voted that "disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy of Hospital employees." The agenda item was "Determination if Disclosure of Certain Information Would Constitute a Clearly Unwarranted Invasion of Privacy."

If the board determined that release of ALL employees' salaries would constitute an invasion of privacy, then the board's action violated the attorney general opinion. Edmondson had said such determinations must be made on an individual basis. "A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body," he said. (¶ 11)

To make the determination on an individual basis, the public body would have to weigh the public's interest in disclosure against the employee's interest in non-disclosure, Edmondson said. (¶ 31)

Describing this weighing of competing values, McAfee & Taft's memo said:

The Attorney General considered whether knowledge of a birth date would in any way assist the public in evaluating a public employee and determined that the information would not be helpful to the public. The privacy interest of employees outweighed the public interest.

However, that is not what the final AG opinion states.

The opinion originally said, “Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

But that was deleted from the revised opinion after Edmondson told The Oklahoman:

My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy. My view is that the conditions under which birth dates would be confidential would be rare.

To the new opinion, Edmondson added:

It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. (¶ 11)

Shortly after issuing the revised opinion, Edmondson released the names and birth dates of his employees.

Even so, McAfee & Taft had no trouble determining that employee privacy outweighs the public interest, saying:

On the one hand, knowing the salary amounts paid by a public body to its employees could assist the public in judging the efficiency of a public body and of its employees. On the other hand, it is likely that most employees would prefer that their salary information remain private. Animosity among public employees could also arise if employee-specific salary information becomes available, especially if significant variations in compensation exist among employees.

Overall, it would be reasonable for the trustees of the Authority to determine that the public interest in obtaining general salary information does not outweigh the interest of the employees in maintaining the confidentiality of such information and that the disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy.

I disagree with that conclusion. First, that determination in favor of employee privacy is not an individual application but rather a blanket policy, which the attorney general opinion said is prohibited.

Second, public employees' possible preference for secrecy does not outweigh the inherent right of Oklahomans "to know and be fully informed about their government." (See OKLA. STAT. tit. 51, § 24A.2)

Third, "animosity among public employees" because of "significant variations in compensation" is unrelated to privacy. It's a reason why the trustees and hospital officials want to keep employees in the dark. Which supports the public interest in disclosure. Why should "significant variations in compensation exist among [government] employees" doing the same or similar jobs?

An Oklahoma court seems unlikely to rule that the salaries of public hospital employees should be kept secret from the public. Courts in other states have consistently ruled that disclosure of public employee salaries does not constitute an unwarranted invasion of privacy and that the public has a right to know what those employees earn. (I will discuss examples of such cases soon on the blog.)

But here's the most important reason why an Oklahoma court will side with the public's need to know: The Oklahoma Open Records Act requires that the salaries of public employees be made public.

The balancing of privacy and public interests prescribed by the attorney general for birth dates came about only because birth dates are not mentioned in the Open Records Act. In contrast, 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 including, but not limited to, records of: ... the gross receipts of public funds. (OKLA. STAT. tit 51, § 24A.7(B)(2))

McAfee & Taft's memo says the Open Records Act "does not address salary information." I believe that is incorrect. Although the statute doesn't use the word "salary," salaries are included in the gross receipts paid to the employees.

After the lawsuit was filed, Stillwater Medical Center President and CEO Jerry Moeller disclosed his salary to Moore, The Stillwater NewsPress reported.

Moeller said his salary is $276,261 with a bonus last year of $11,050. Moeller receives a car allowance of $7,200 and the use of a Karsten Creek membership valued at $7,600, the newspaper reported.

Certainly seems like information the public should know about a public employee.

In a court document filed on Oct. 18, the hospital authority cited other reasons for not releasing the salary information, including:

• Releasing the information may give other hospitals an unfair competitive advantage
  
• Disclosure was detrimental to the competitive interests and advantage of the Hospital
  

The hospital authority also contended that the salary information doesn’t have to be disclosed because the medical center is “owned and operated by a public trust, not supported by tax dollars, unlike governmental agencies and subdivisions.”

However, as the hospital authority conceded in its response to the lawsuit, the Oklahoma Court of Civil Appeals held in 2003 that the Stillwater Medical Center is “a political subdivision for the purposes of the Oklahoma Governmental Torts Claim Act.” (See Elledge v. Stillwater Medical Center, 2003 OK CIV APP 6)

More importantly, the hospital authority also conceded that as a political subdivision of the state, it is subject to the Open Records and Open Meeting laws.

The hospital authority also said in its court filing that it would not conduct meetings outside of Stillwater. Moeller had told The Stillwater NewsPress in August that the board had in years past conducted “retreats” in Tulsa and Oklahoma City until City Attorney John Dorman “advised us that it might not keep with the spirit of the law.”


That's an understatement considering the Open Meeting Act requires that public meetings "be held at specified times and places which are convenient to the public." (OKLA. STAT. tit. 25, § 303)

The Stillwater Medical Center Authority also seems to be violating the Open Meeting Act by not keeping minutes of its executive committee meetings.

Among the exhibits filed by Moore is a letter to him from Moeller in which Moeller writes, "There is no problem with [providing] the agendas and minutes of the regular and special Board meetings, but we do not keep minutes at any Executive Committee meetings."

But the Open Meeting Act's definition of public body includes "all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1))

The statute also requires that each public body keep minutes of its meetings. (OKLA. STAT. tit. 25, § 312)

So why aren't minutes kept of the board's executive committee meetings?

The Stillwater Medical Center Authority would do well to keep in mind these admonitions by our state appellate courts:

Because the Open Meeting Act was “enacted for the public’s benefit,” the statute “is to be construed liberally in favor of the public,” the state Supreme Court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple,” the state Court of Civil Appeals said that year. “When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57)

That includes even the Stillwater Medical Center Authority.

 

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