Sperry school board member's resignation letter criticizes superintendent, district's legal counsel for lack of openness with public

Derrell Morrow's abrupt resignation from the Sperry school board came with some harsh words for Superintendent Brian Beagles and the district's legal counsel, Rosenstein, Fist & Ringold of Tulsa.
 
"I believed, mistakenly, that our current superintendent was up to the challenge of leading our district in the effort to help educate our children in this challenging world. Our district deserves better leadership," Morrow wrote in a resignation letter dated Aug. 13.
 
"In my opinion, the board is legally liable for the actions by the administration and is placed in a precarious position because of such," Morrow wrote.
 
He said several public records requests had "not been dealt with in a diligent and legal manner" by the superintendent because of advice from the law firm.
 
"I do not understand why there should be such intransigence on the part of the board and administration," Morrow wrote. "As a public entity our school has to be accountable to the taxpayers of our district. The public has a right to know how its money is being spent."
 
This past spring, Beagles refused to release the board's agenda packets to the public until the day after meetings. Beagles told Neighbor News he understood from consultations with Doug Mann of Rosenstein, Fist & Ringold that the district was not required to release the agenda packets prior to meetings.
 
Then he said the law firm advised him that the district didn't have to respond to standing requests for agenda packets or other documents, such as the monthly billings from Rosenstein, Fist & Ringold.
 
Neighbor News filed a complaint with the Tulsa County District Attorney's Office, which persuaded Beagles to make the agenda packets available online by 1 p.m. on meeting days.
 
At the time, Beagles wouldn't clarify whether the district would continue requiring requesters to make appointments to view other public records. But the head of the DA's Civil Division told the newspaper chain, "I don’t think an appointment is required to inspect documents."
 
Morrow was critical of the district's use of Rosenstein, Fist & Ringold.
 
"In my opinion, said firm does not represent the best interest of our district but rather that of the firm," Morrow wrote. "Not only has our board voted to employ this firm but has approved substantial blanket purchase orders to the same."
 
He noted that "the board majority and superintendent are taking direction from a law firm that the Tulsa County District Attorney and the Grand Jury strongly recommended to Skiatook Schools that they no longer employ."
 
In 2010, a Tulsa County grand jury report said it would "serve the best interests of the district and community to hire a new attorney who can assist the board in being more open and communicative to the public."
 
Rosenstein, Fist & Ringold has given school districts other advice that seems contrary to the state Open Records Act.
 
In December, the law firm said a Stillwater parent would have to pay a search fee to read the emails, text messages and other correspondence of a school district committee that proposed a controversial school year calendar.
 
In June 2010, another school district represented by Rosenstein, Fist & Ringold tried to charge a $90 search fee for copies of the district's itemized legal bills.
 
The Broken Arrow Public Schools superintendent at the time considered the records request to be "an excessive disruption of the business of the school" because an attorney with the firm charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.
 
Morrow wasn't a newcomer to government. He had served as a Sperry town trustee for seven years before being elected to the school board in 2008.
 
As a school board candidate, he said a commitment to "openness, independent thought, accountability" were among the chief responsibilities of a school board member.
 
Unfortunately, he wasn't able to persuade Beagles and other board members to adopt that commitment.
 

 
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 school district charges search fee, $250 deposit to inspect emails of committee that proposed controversial school year calendar

A Stillwater parent wants to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial calendar that the school board appears ready to adopt for 2013.

Mitsi Andrews asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.

Caine and the district won't even tell Andrews the names of all the committee members. (Read the related posting.)

And an attorney for the district now says Andrews has to pay a $250 deposit before the district will begin compiling the emails for her inspection.

And the cost includes a search fee, said Kent B. Rainey of Rosenstein, Fist & Ringold.

Yes. Another school district represented by this Tulsa law firm wants to charge a search fee to disclose records clearly in the public interest -- even though the state Open Records Act clearly prohibits such a fee in such circumstances.

In a letter to Andrews, Rainey said a search of archived emails from July 1 to Dec. 8 found 897 with "calendar committee" in the body. Nearly 21,000 emails were found with "calendar" in the body.

Rainey said the district doesn't archive employee text messages so the 36 district employees on the committee will have to be asked for such messages. He said a method of retrieving the messages would have to be determined.

Rainey said 15 non-district employees serve on the committee. He said those members will have to be asked for emails, text messages and other correspondence that they exchanged among themselves but not with district employees.

(How could the district contact those non-employees if it doesn't have a record of their names?)

All the collected documents will have to be reviewed by district personnel or his law firm for exempted material, he said.

For these reasons, Rainey said, "The District believes your ORA request would clearly cause excessive disruption of the District's essential functions."

Therefore, he said, Andrews will be charged a "fee to recover the direct cost of the document search."

But the Open Records Act prohibits a search fee in these circumstances, stating:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))

Andrews' request certainly fits within this provision. She has requested records that can reveal the pros and cons discussed by the committee, and which, if any, alternatives were rejected and for what reasons.

In June 2010, another school district represented by Rosenstein, Fist & Ringold tried to charge a $90 search fee for copies of the district’s itemized legal bills.

The Broken Arrow Public Schools superintendent at the time considered the records request to be "an excessive disruption of the business of the school" because Rainey charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

Current BAPS Superintendent Jarod Mendenhal not only rescinded the search fee when he took office a week later but also agreed that one shouldn't have been charged in the first place. A district spokesman said:

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

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

Because the Stillwater school district is represented by Rosenstein, Fist & Ringold, it is useful to review legal arguments made by the Broken Arrow superintendent who tried justify a search fee.

Gary Gerber had pointed to this comment by the Oklahoma Court of Appeals in a 1995 case:

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers. (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

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

But the trial court had "clearly overstepped its judicial authority" with its interpretation, said an attorney serving on the FOI Oklahoma Inc. board of directors in 2010.

"Clearly, § 24A.5 says no such thing," said Doug Wilson, who won several Open Records Act cases before becoming an assistant district attorney for Tulsa County.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of "In no case, shall a search fee be charged when...."

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

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

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

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

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

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


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 school district won't disclose all members of committee that shaped school calendar policy

For two months, a committee of Stillwater school district employees and others from the community discussed -- and then proposed -- a controversial calendar for next school year.

No public notice. No agendas. No meeting minutes.

Now, an attorney for the district says only one document with the names of the committee members exists and it's only "a partial list of members."

And a district parent wanting to inspect the committee's emails will have to pay a search fee because the request "would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.

(A later posting on this blog will address why the Open Records Act prohibits a search fee from being charged to the parent.)

Rainey also told Mitsi Andrews that she would have to pay a $250 deposit before the district would begin compiling the emails for her inspection.

Andrews received two letters from Rainey on Wednesday evening, the day after the school board voted to keep the traditional school calendar for 2012-13. But a continuous learning academic calendar will be up for consideration again next year, the Stillwater NewsPress reported.

School Superintendent Ann Caine told the board she had proposed the expanded calendar idea to the district’s annual calendar committee.

District parents learned of the continuous learning calendar proposal in an email from the "SPS Calendar Committee" at 4:10 p.m. on Dec. 2. They were given four days to respond to an online survey about the proposal.

According to that email, the committee consists of a teacher, parent, support staff member and administrator from each school site.

"Additionally, representatives from Oklahoma State University, Meridian Technology Center, the City of Stillwater, and local childcare providers also participated and provided valuable input," the email said.

"As a result of the deliberations of the committee, a proposal is being put forth to move the district to a continuous learning calendar," the email said.

Andrews said that was the first she had heard of the committee and the proposed change for the next school year, so she telephoned and emailed Caine asking for a list of the Calendar Committee members, and agendas and minutes of its meetings.

In an email Dec. 7, Caine responded, "We do not have an agenda or minutes from our committee meetings."

Caine's administrative assistant had told Andrews the committee was not appointed by the school board.

If the committee wasn't appointed by the board, then it isn't subject to the state Open Meeting Act. But no agendas? No minutes? No notes of any kind? How did members know what they were considering from meeting to meeting?

As for the names of the committee members, Caine responded, "I do not feel comfortable releasing the names of the committee because I do not have permission from them to do so."

Andrews asked again but used a more formal request letter.

Rainey responded on behalf of the district. He said the committee has about 51 members, of which 36 are district employees.

The "partial list" of 43 members includes only district employees, parents and Board Member Debra Vincent.

Missing are the names of representatives from OSU, Meridian Technology Center, the city of Stillwater and local childcare providers.

How convenient given Caine's refusal to identify those members. And it's difficult to believe for the same reason.

Caine and other district officials know, of course, who the other members are. They know whom they invited to participate. Certainly, they know who accepted. Didn't the district have sign-in sheets for the meetings?

And how else could Caine reconvene the committee in January -- as she told the school board she would -- to begin drafting another proposal to go into effect in 2013.

But in Rainey's letter, he emphasized, "The District is not required to respond to questions or interrogatories, only to provide documents that are in existence."

In other words, don't bother asking because we aren't going to tell you.

But the public is entitled to know who helps shape public school policy.

The Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

Oklahoma’s Open Records Act starts with the following statement of principle:

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

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

These important principles apply even in Stillwater.


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.

Complaints that public bodies in Bernice, Mannford conducted executive sessions in apparent violations of Open Meeting Act

The Bernice Board of Trustees and the Mannford School Board are each accused of recently conducting executive sessions that violated the state Open Meeting Act.

Prior to each session, the elected officials dismissed warnings that the closed-door sessions failed to meet the statutory requirements, according to complaints sent to FOI Oklahoma Inc.

In Bernice, the Board of Trustees held executive sessions on March 14 and April 11 to discuss "a town maintenance person" under the personnel exemption. (OKLA. STAT. tit. 25, § 307(B)(1))

No other information regarding the executive sessions was listed on the agendas.

Resident Steve Miller said the board is creating the position and voted after the March 14 executive session to post advertisements for a part-time maintenance person.

Miller told the FOI Oklahoma Blog that he pointed out to the trustees prior to the April 11 executive session that a 2006 attorney general opinion prohibits such sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

The exemption applies only "to discussing particular current or prospective public officers or employees," then-Attorney General Drew Edmondson said in the opinion. (Id.)

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

"Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes," he said. (Id. ¶ 9)

A 1997 opinion by Edmondson says agenda items for an executive session under the personnel exemption must 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)

In a letter (pages 1 & 2) that Miller said he gave to the Bernice mayor and trustees on April 11, he objected to the executive session scheduled for that night. Miller said he also sent the letter to Delaware County District Attorney Eddie Wyant.

Another problem: The April 11 agenda listed the wrong statutory authorization for the executive session. The item said the topic was "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of a town maintenance person as authorized by Title 25 O.S. 307(B)(2)." However, that exemption is for "negotiations concerning employees and representatives of employee groups."

In Mannford, attorney Ronald E. Durbin II said he told the Board of Education during an April 11 meeting that its executive session involving the personnel exemption would violate the Open Meeting Act.

The agenda listed a "Proposed executive session to consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Durbin said he pointed out to the board that the 1997 attorney general opinion requires that the employee's name or unique title be included on the agenda.

Durbin said the superintendent replied that the school board was free to discuss "any personnel" and refused to identify which employees would be the subject of the closed-door session. Durbin said he was told to contact the school district's attorney, Bryan K. Drummond of Rosenstein, Fist & Ringold in Tulsa.

In a letter to Drummond on Friday, Durbin said the agenda "clearly violates the public notice provisions of the Open Meeting Act."

Durbin said the board's refusal to provide the names "was not out of ignorance but rather a willful disobedience" of the Open Meeting Act. He asked Drummond for not only the employee names but also for "all minutes, tape recordings, and all other records, notes and/or documents which [were] reviewed during that executive session."

Durbin of Moyers, Martin, Santee & Imel in Tulsa served as Tulsa Councilor G.T. Bynum’s attorney during open meeting issues involving the council last summer. Durbin warned the council against using small group meetings to mediate issues with the mayor, saying such meetings would be "not only inadvisable but would also result in a clear violation of the OMA.”

Both Durbin and Miller seem to have valid complaints regarding the respective executive sessions. The question is whether the local district attorneys will treat these apparent violations seriously.


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.

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

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

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

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

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

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

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

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

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

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

Tharp isn’t satisfied with that answer.

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

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

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

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

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

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

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


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