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.
 

Open government advocate wins another term on Norman City Council

Norman Councilman Tom Kovach was re-elected to the Ward 2 seat in the city's municipal election on Tuesday.

Kovach and Steve Lucas, a candidate for the Ward 8 seat, had signed FOI Oklahoma's Open Government Pledge.

Lucas, a Cleveland County deputy sheriff, lost in his election.

Kovach was the first candidate in a 2012 election to sign the pledge this year. He also signed the pledge when he ran for re-election to the Ward 2 seat in 2010.

Kovach is a member of FOI Oklahoma Inc.

This past summer, Kovach's fellow council members approved his proposals to make Norman city government more transparent.

Under what became Norman's first records retention policy, all city emails and other records must be "retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."

Also, all committees, sub committees and ad hoc committees must abide by the state Open Meeting Act and a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.

Kovach said that provision covers advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.

By signing the Open Government Pledge, candidates promise, "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."

They also promise “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.”

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.


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

Norman councilman is first 2012 candidate to sign FOI Oklahoma's Open Government Pledge

Norman Councilman Tom Kovach has renewed his support for open government as he seeks another two-year term in the city's municipal election on April 3.

Kovach, 49, is the first candidate in a 2012 election to sign FOI Oklahoma's Open Government Pledge.

He also signed the pledge when he ran for re-election to the Ward 2 seat in 2010.

Freedom of Information Oklahoma Inc. invites all candidates for municipal offices this spring to sign the pledge to uphold the letter and spirit of the state's Open Meeting and Open Records laws.

Instructions and a list of signers for the 2011 elections can be found on FOI Oklahoma’s Web site, www.foioklahoma.org.

This past summer, Kovach's fellow council members approved his proposals to make Norman city government more transparent.

Under what became Norman's first records retention policy, all city emails and other records must be
"retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."

Also, all committees, sub committees and ad hoc committees must abide by the state Open Meeting Act
and a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.

Kovach said that provision covers advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.

By signing the Open Government Pledge, candidates promise, "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."

They also promise “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.”

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.


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

Norman councilman proposes city advisory committees meet publicly, city officials end practice of deleting emails daily

Committees advising the city of Norman would have to abide by the state Open Meeting Act and city emails would be kept for at least one year, under a proposal by Councilman Tom Kovach.

Kovach also wants executive sessions of the city's public bodies to be recorded.

His proposal is on the agenda for the City Council's regular meeting Tuesday.

Under what would become Norman's first records retention policy, "all records, written and electronic, shall be retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."

"I have received stiff opposition to even this limited time," said Kovach. "Staff insists this will put a burden on our existing storage capacity and is trying to limit this. It not perfect but it is better than what they do now, which is delete every day."

Under Kovach's proposal, "all meetings of committees, sub committees and ad hoc committees" would be subject to the Open Meeting Act and to a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.

Kovach said this provision is intended to cover advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.

Kovach is one of five Norman council members to have signed FOI Oklahoma's Open Government Pledge as candidates. The others are Carol Dillingham, Hal Ezzell, Roger Gallagher and Mayor Cindy Rosenthal.

Each 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."

Kovach's proposal would do just that.


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 City Council cleared of Open Meeting Act allegations

An executive session discussion on how to finance the purchase of right-of-way for a road project did not violate the Open Meeting Act, the Payne County district attorney has concluded.

According to media reports, Rob Hudson said the Norman City Council's discussion of financing options for property associated with the Rock Creek Road overpass project was allowed under the exemption for the "purchase or appraisal of real property."

Hudson concluded that talking about funding sources “is a natural and normal aspect of purchasing real property,” The Norman Transcript reported.

Hudson also indicated that the councilors were protected because City Attorney Jeff Bryant participated in the executive session and should have told them that the discussion was potentially illegal.

The OSBI investigation into the June 2009 meeting was requested by Norman City Councilman Tom Kovach, who is a Democratic candidate for House District 44.

Perhaps because of the OSBI investigation, open government seemed to be a campaign issue in Norman's municipal election this past spring. Among the four candidates who signed FOI Oklahoma's Open Government Pledge were Mayor Cindy Rosenthal and Ward 4 Councilor Carol Dillingham, both of whom were re-elected.

For background on the legal issues surrounding the executive session: OSBI investigating complaint that Norman City Council violated Open Meeting Act

For more coverage of Hudson's decision not to prosecute: Norman council members cleared of allegation they violated Open Meeting Act, Jane Glenn Cannon, The Oklahoman, July 14, 2010.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

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

Norman councilman signs Open Government Pledge

Norman Councilman Tom Kovach has signed FOI Oklahoma's Open Government Pledge as he runs for re-election in the city's municipal election on March 2.

Kovach, who represents Ward 2, is the second candidate in the election to sign the pledge. Councilman Hal Ezzell signed as a mayoral candidate.

Freedom of Information Oklahoma Inc. invites candidates for municipal offices and school board seats this spring to sign the pledge to uphold the letter and spirit of the state's Open Meeting and Open Records laws.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s Web site, www.foioklahoma.org.

By signing the pledges, candidates promise, "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."

They also promise “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.”

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

For the 2008 and 2009 elections, 58 candidates for local or statewide offices signed the pledge. Of those, 28 were elected.


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