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The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.
But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.
Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.
However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.
In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.
Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.
Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."
"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.
Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.
Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.
In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."
Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."
The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.
(For a detailed explanation of how public bodies try to exploit a loophole in the Open Meeting Act, read how the OU Regents use a strict compliance with the letter of the statute to defeat its purpose.)
Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))
And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.
But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.
DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.
One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.
DeVaughn told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
Prater has done just that, warning the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."
Dow had also complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."
Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.
However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."
As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."
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 Department of Human Services legal staff, not the commission overseeing DHS, will respond to the Oklahoma County district attorney's request a week earlier for a written explanation for why two issues "should not be viewed as willful violations of the Oklahoma Open Meeting Act," Oklahoma Watchdog reported Friday.
District Attorney David Prater said the commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act."
Prater's request for more information was directed to Commission Chairman Richard L. DeVaughn. Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."
The Oklahoma Commission for Human Services certainly seems to have violated the Open Meeting Act in some instances. For more explanation, read "DHS commission falls short of Open Meeting Act requirements, DA says."
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.
The statewide commission overseeing the Oklahoma Department of Human Services may have violated the Open Meeting Act, Oklahoma County's district attorney said Friday.
The commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act," said David Prater in a five-page letter to Commission Chairman Richard L. DeVaughn.
Prater asked DeVaughn for a "written reply to provide any needed explanation or clarification of the ... issues and to show why these two issues should not be viewed as willful violations of the Oklahoma Open Meeting Act."
Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."
Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)
The state Supreme Court has said that for the purposes of the Open Meeting Act:
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)
DeVaughn told the Tulsa World, "I’m very, very confident that we have never violated the Open Meetings Act in any form."
DeVaughn, a commissioner since 2004, better read the Open Meeting Act again because they certainly have violated it.
At their June meeting, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, Oklahoma Watchdog Editor Peter J. Rudy reported at the time.
Rudy and Commissioner Steven Dow complained to Prater about the commission's practice to "never officially return from executive session and publicly vote in open meeting about the matters discussed in executive session."
The Open Meeting Act prohibits the commission from voting in executive session. The statute also requires that all votes be publicly cast.
Dow complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."
Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.
Commission records showed Commissioner George Young Sr. voting to return from an executive session and to adjourn the meeting June 14 even though Young wasn't present for most of the executive session or for the adjournment, the Tulsa World later reported.
Prater said the commission clearly "has not properly come back into open session after having convened and gone into executive session."
He said telephoning commissioners for their votes on executive sessions and on adjournment "falls short of what is required under the Act."
"The practice ... is careless at best and falls short of what the public has a right to expect from its public servants," Prater said. "This office condemns any action, purposeful or unintentional, which has the intent or effect of circumventing the Open Meeting Act in regard to executive session matters."
Prater rejected the notion that not publicly voting to adjourn would be a "de minimis violation."
"I would submit there are no de minimis violations of the Open Meeting Act," Prater wrote. "Oklahoma's laws on openness in government serve an important and noble purpose. Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."
Prater commended the commission for properly reconvening in open session to adjourn at its July 26 meeting.
But Prater told the Tulsa World he is looking "real hard" at whether the commission purposefully places no more than four of its nine members on its Budget Committee in an attempt to avoid the requirements of the Open Meeting Act. That loophole only applies, however, if the committee has no actual or de facto decision-making power.
"Part of the problem looking into these committees is there are no minutes and nothing is recorded so it is hard to determine what has been considered," Prater told the newspaper.
(For a detailed explanation of how public bodies try to exploit the loophole, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.)
Dow has said the Budget Committee "has de facto decision-making authority."
"They did not decide to approve the overall budget, but it did decide the details of that budget," he said.
Dow also had complained that when the commission approved the Department of Human Services budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.
An important decision. But no mention of it was made on the meeting agenda.
Prater said the omission was not a "willful violation of the law that would render null and void the action taken by the Commission."
An agenda item concerning a $500 million budget "could never spell out each and every detail," wrote Prater.
"However, the core purposes of the Open Meetings Act dictate that the public be able to ascertain what actions are to be considered or taken by its governing bodies, and my concern is that with very little effort on the part of the Commission, this particular agenda item could have been made to far better advance the purposes of openness in government," Prater wrote.
Prater warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
In June, DeVaughn had told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
Seems as though Prater has done just that.
(For more news coverage of Prater's letter, read DHS commission may have violated openness laws, DA says by Bryan Dean of The Oklahoman.
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.
DHS Commissioner George Young Sr. voted to return from an executive session and to adjourn the meeting June 14, according to commission records.
But Young wasn't present for most of the executive session or for the adjournment, the Tulsa World reported today.
The statewide commission overseeing the Oklahoma Department of Human Services is being investigated for apparent Open Meeting Act violations at the meeting.
For example, members of the Oklahoma Commission for Human Services left after the closed executive session on June 14 without a public vote to adjourn.
Oklahoma Watchdog Editor Peter J. Rudy provided information about that apparent violation of the Open Meeting Act to the Oklahoma County district attorney.
Assistant District Attorney Scott Roland says his investigation will likely be finished in about two weeks, the Tulsa World reported today.
Commissioner Steven Dow, who has complained publicly about the lack of openness by the public body, has said a staff person asked each member individually for a vote on whether to adjourn.
DHS spokeswoman Sheree Powell told the Tulsa World that the roll-call vote was taken "in a public area of the room."
That doesn't comply with the Open Meeting Act, which states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)
Under the commission's procedure, a staff person could collect votes on any measure while members of the public body milled about in a public hallway or lobby.
That defeats the purpose of requiring a public roll-call vote. The public would have no idea who voted which way until the meeting minutes were available.
The commission's haphazard method also makes more likely the kind of mistake that Powell says occurred when votes were recorded for Young. She told the Tulsa World that the recorded votes were a "scrivener's error" and would be corrected in the minutes up for approval at the July 26 meeting.
Rowland's investigation should go beyond whether the commission cast public votes to return from the executive session and subsequently to adjourn.
When the commission approved the DHS budget on June 14, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.
But no mention of that important decision was made on the meeting agenda.
Chairman Richard L. DeVaughn later told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
If Pruitt won't, hopefully Oklahoma County District Attorney David Prater will.
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 Court of Civil Appeals has said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)
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.
Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. (Id. ¶ 8)
The commission's June 14 agenda failed to give the public actual notice and materially obscured the scope of matters commissioners would consider.
Rowland also should be investigating Dow's claim that the commission's Budget Committee made decisions when it met secretly.
The commission relies on loopholes in the Open Meeting Act to avoid having the Budget Committee meet publicly and post meeting notices and agendas. No more than four of the commission's nine members are on the Budget Committee. But that avoids the Open Meeting Act's requirements only if the committee has no actual or de facto decision-making power.
But Dow, who said he was barred from the Budget Committee's meetings, said the commmittee "has de facto decision-making authority."
"They did not decide to approve the overall budget, but it did decide the details of that budget," he told the Tulsa World.
Violating the Open Meeting Act is a misdemeanor punishable by up to one year in jail and a $500 fine.
Will DHS commissioners face charges, a stern finger-wagging, or be allowed to go merrily on their way? That will depend on what Rowland says he found and what Prater decides to do based on those findings.
Joey Senat, Ph.D.
OSU Associate Professor
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.
The statewide commission overseeing the Oklahoma Department of Human Services doesn't seem too keen on open government.
On Tuesday, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, reported Oklahoma Watchdog Editor Peter J. Rudy.
And Commissioner Steven Dow complained to Rudy that he -- Dow -- is not allowed to attend the commission's budget committee hearings.
Rudy said he has provided information about the lack of a public vote to adjourn -- an apparent violation of the Open Meeting Act -- to the Oklahoma County district attorney.
Rudy said he was the only person in the meeting room when commissioners returned from about a 15-minute executive session. Rather than dealing with the next agenda item or even voting to adjourn, commissioners "started gathering their things and leaving," Rudy reported.
Rudy said he was told the meeting was over. During a subsequent interview, he was told that the commission's clerk "asked each member individually for their vote on whether to adjourn."
However, the Open Meeting Act states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)
That doesn't mean voting behind closed doors at the end of the executive session or in the hallway walking back to the meeting room.
Leaves me wondering what else commissioners vote on outside the view of the public.
Also indicative of the commission's disrespect for an open government was Dow's complaint of being barred from the commission's budget committee hearings.
"They do not want the committee subject to the Open Meetings Act. There is no agenda, no minutes, no way for me to find out what the deliberations were,” said Dow, executive director of the Community Action Project of Tulsa County.
Apparently the budget committee isn't a majority of the commission members, but having Dow there would put it over the magic number.
Yes, it's that old game again.
For a detailed explanation, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.
Here is a summary of how it works: (1) The Open Meeting Act's definition of "meeting" allows less than the majority of a public body to meet secretly to discuss the public’s business. (2) The Open Meeting Act says it applies to "all committees and subcommittees of any public body." But a state Supreme Court decision years ago said that despite that language, the statute doesn't apply to committees that are strictly advisory.
Public bodies use these loopholes by saying the committee -- consisting of less than a majority of the public body -- isn't subject to the Open Meeting Act because the committee doesn't make decisions.
Seems odd that the budget committee wouldn't make any decisions.
Nothing in the statute prohibits the committee from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing. That's outrageous.
And the Legislature needs to address these loopholes by clarifying that ALL means ALL, even those committees that just advise or recommend, and especially those committees whose members are from the parent public body.
On Tuesday, Dow was one of two commissioners to vote against the proposed budget for the Department of Human Services, Rudy reported in a separate story.
Dow's complaints about the budget and the budgeting process are worth reading.
The nine-member commission, established by the Oklahoma Constitution, "approves program budgets, funding, and policies and procedures that direct the Department's program and service delivery."
The other commissioners are Chairman Richard L. DeVaughn, Vice Chairman Aneta F. Wilkinson, Jay Dee Chase, Linda English Weeks, Michael L. Peck, Robert D. Rawlings, Anne M. Roberts, and George E. Young Sr.
They do an important job that should be done in the open. But that doesn't seem to be the commission's mind-set.
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.
