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Have questions or concerns about Oklahoma's Open Meeting and Records laws?
You can ask First Assistant Attorney General Rob Hudson during a statewide series of seminars on the state's freedom of information laws.
Hudson will answer FOI-related questions and explain the requirements on access to public records and the conduct of public meetings.
The seminars are free and open to the public. Registration is not required.
Each will be from 1 p.m. to 4 p.m. The first is Sept. 26 at the Southern Oklahoma Technology Center, 2610 Sam Noble Parkway, Ardmore.
The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.
For more information, contact Lisa at OPA, (405) 499-0040, toll-free in Oklahoma at 1-888-815-2672 or lpotts@okpress.com.
The rest of the seminars are scheduled for:
- Oct. 17: Bedouin Shrine, 201 Sixth St., Muskogee.
- Nov. 7: Metro Technology Center, Conference Center Auditorium, 1900 Springlake Drive, Oklahoma City.
- Nov. 14: High Plains Technology Center, Seminar Center, 3921 34th St., Woodward.
- Dec. 5: Tulsa Technology Center-Riverside, 801 E. 91st St., Tulsa.
- Dec. 12: Great Plains Technology Center, 4500 W. Lee Blvd., Lawton.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
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 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
