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.

OU Regents claim loopholes in Open Meeting Act to bar student reporter from committee meetings

A reporter for The Oklahoma Daily was prohibited by the legal counsel for The University of Oklahoma Board of Regents on Wednesday from attending four committee meetings where, as the student newspaper points out, "public business regarding university building plans and fees were discussed."

The reporter was barred from meetings of the board's audit and finance, Norman campus, Health Sciences Center campus and athletics committees, the newspaper reports today .

In an e-mail to the newspaper, OU regents legal counsel Anil Gollahalli called the meetings "informational subcommittee meetings to allow members of the Board to more fully find facts relevant to items that may considered by the full Board in public session."

The Open Meeting Act clearly states that the definition of public body "shall include all committees or subcommittees of any public body." (OKLA. STAT. tit. 25, § 304(1))

But Gollahalli told the newspaper, "To ensure that the entire Board always gathers in meetings open to the public, subcommittees are composed of no more than three members of the Board such that subcommittees lack a quorum."

In other words, the regents purposefully meet in groups smaller than a quorum of the full board as a way to avoid discussing the public's business in front of the public.

A loophole in the Open Meeting Act's definition of "meeting" allows a group smaller than the majority of a public body to meet secretly to discuss the public’s business.

But does that apply if the three members of a public body constitute the entire membership for a committee of that public body? A quorum of the committee is meeting to discuss public business.

So how does Gollahalli attempt to bypass that problem? By saying the committees have no independent decision-making authority.

"The informational nature of the subcommittees are such that no subcommittee has independent decision-making authority, ensuring that no decision of the Board ever occurs without participation of the full Board and the public's knowledge," he told the newspaper.

That relies on an exception the state Supreme Court carved out for sub-entities -- typically ad hoc committees or citizens advisory committees -- empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity.

A subordinate entity -- a Citizen's Advisory Committee in that case -- with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton, 1978 OK 53.

HOWEVER, Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the Citizen’s Advisory Committee met.

The current statutory language including "all committees or subcommittees of any public body" in the definition of public body was added in 1977.

A 1981 attorney general relied upon that "expanded definition" to decide that Job Content Evaluation Committees were "the subcommittees of a public body, the State Personnel Board." (1981 OK AG 214)

Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:

In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.

Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law.

Under the new Open Meeting Act, the term 'public body' was enlarged to include, '... all committees or subcommittees of any public body.' The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (¶¶ 7-8)

Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the "1977 changes merely added several new categories to the definition of 'public body.'" (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)

But the key question in International Association of Firefighters was whether the Sanders rule on subordinate entities applied to "an individual."

The court concluded that the Legislature had not intended for the 1977 revisions to expand the Sanders doctrine to include an individual.

The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body "shall include all committee or subcommittees of any public body."

Had legislators overridden the rule set forth in Sanders? Attorney General Cartwright believed so in 1981.

So we're back to asking what the OU regents' committees do? If they make recommendations, do they cull options from the list? That would be making a decision and require them to comply with the Open Meeting Act.

And does the Sanders rule apply to standing committees of a public body?

But the real question here is why shouldn't the public be allowed to attend "informational subcommittee meetings" in which members of a public body "more fully find facts relevant to items that may considered by the full Board in public session."

It is, after all, the public's business.

Our state Court of Civil Appeals has said the "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 12)

Our state Supreme Court has said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)

Because the Open Meeting Act was "enacted for the public’s benefit," the Oklahoma Supreme Court has said, 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)

Gollahalli said, "The University and its governing Board are committed to openness and transparency and endeavor to ensure full compliance with all applicable laws."

But the OU regents and their legal counsel are using a strict compliance with the letter of the law to defeat its purpose, which is "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."

When a public body does the legal equivalent of the limbo to avoid the Open Meeting Act, it doesn’t build the public's trust or confidence in government. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. And it certainly doesn't demonstrate a commitment to openness and transparency.

Unfortunately, OU regents aren't alone among university and college administrators in this regard. But perhaps OU's regents will reconsider. One can only hope.


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

Lone Grove committee met secretly to narrow list of candidates for city manager

The Lone Grove City Council likely will select a city manager tonight from a list of three candidates recommended by a committee that met secretly to winnow the list from 31 applicants, says Gary Hicks, owner of The Lone Grove Ledger.

The committee, composed of two councilors, the city clerk and two residents, was appointed by the council to screen applicants for the city manager position.

Under Oklahoma law, a committee that exercises actual or de facto decision-making power is subject to the Open Meeting Act.

Hicks says Lone Grove officials, however, will likely try to slip through the same loophole used by other public bodies. The same one used by the OSU A&M Board of Regents when it chose Burn Hargis as OSU president.

For all intents and purposes, a committee cuts the list of applicants. But the full board officially is able to consider all the applicants.

For example, almost three years ago today, OSU regents selected Hargis after he was unanimously referred by a 33-member search committee. To defend that committee's secret meetings, the governing board's attorney said the regents alone had the responsibility to choose and employ a president, reject all candidates or reopen the search.

But this was the regents spokesman's explanation of the committee's process:

• 102 “potential candidates,” including 53 nominees, were in contact with the search committee.
• The committee considered whether applicants and nominees were qualified and narrowed the pool to 27 applicants.
• Six candidates interviewed with the committee.
• Three were interviewed.
• The committee unanimously referred Burns Hargis to OSU’s governing board “for further consideration.”

Seems like the committee made several decisions.

Even so, the regents went into executive session supposedly to consider all the applicants. The closed-door session lasted about 15 minutes -- including the time regents spent walking to and from another room.

It was a sham. During the executive session, OSU spokesman Gary Shutt handed out news releases announcing the regents had voted unanimously to choose Hargis. The news release even included quotes from state officials about the selection of Hargis.

Remember: The board was still behind closed doors and hadn't returned to vote in public.

Unlike the OSU regents, Lone Grove council members might not have already made up their minds. Councilors are slated to interview all three recommended candidates in executive session tonight.

The public never learned who else the search committee had considered for the OSU job. At least in Lone Grove, the names of the three applicants are on the agenda for tonight.

So why was it necessary for the committee to meet secretly? To abide by the Open Meeting Act, the committee would only have had to notify the public of its meetings and posted agendas for those meetings. It could have gone into executive session to discuss and review applicants. Only votes to select the finalists would have had to be conducted in open session. And the public learned those names when the agenda was posted.

More important, how does this loophole exist when the Open Meeting Act clearly says the definition of public body “shall include all committees or subcommittees of any public body”? (OKLA. STAT. tit. 25, § 304(1))

We can thank our state Supreme Court. In 1978, justices carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)

A subordinate entity with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton.

Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the advisory committee at issue had met.

The statutory language adding “all committees or subcommittees of any public body” to the definition of public body was enacted in 1977.

A 1981 attorney general relied upon that “expanded definition” to decide that Job Content Evaluation Committees were “the subcommittees of a public body, the State Personnel Board.” Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:

In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.
 

Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law. Under the new Open Meeting Act, the term ‘public body’ was enlarged to include, ‘. . . all committees or subcommittees of any public body.’ The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (1981 OK AG 214, ¶ 7)

Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the “1977 changes merely added several new categories to the definition of ‘public body.’” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)

Its reasoning emphasized that when the Open Meeting Act was revised, the House in Conference Committee had rejected a Senate amendment that would have changed the definition of public body to include “advisory groups, advisory committees, or persons appointed to advise, consult or make recommendations for any board, bureau, commission, agency, task force or study group….” (Id. ¶ 11-12) In the court’s view, that language would have “broaden[ed] the coverage of the Open Meeting Law to groups, committees, etc.” (Id. ¶ 11)

However, an equally plausible explanation is that the amendment was rejected because legislators did not intend for the Open Meeting Act to apply to individuals. The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body “shall include all committee or subcommittees of any public body.” Had legislators intended to override the rule set forth in Sanders? Attorney General Cartwright seemed to believe so in 1981.

Only a more thorough investigation of legislative records would shed light on the Legislature’s intent. In the meantime, it should be assumed that the Sanders doctrine applies: An advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Open Meeting Act.

“Not making decisions means not making any decisions,” Edmondson reminded Oklahoma public school boards in late 2004. “If you’re looking for a new superintendent or a new coach and you appoint a subcommittee to go through all the resumes and then come back and make a recommendation, that’s fine. But if the subcommittee can cull out some of the applicants, then they’re making decisions. That makes them in breach of the Open Meeting law.” (Becky Tiernan, Attorney general clarifies Open Meeting Act rules, THE DAILY OKLAHOMAN, Nov. 18, 2004, at 15A)

In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

Unfortunately, some government officials in this state have ignored these warnings and twisted Sanders to avoid the Open Meeting Act.

The only solution is to have our state legislators make clear in the statute that all advisory committees, even those with no decision-making power, are subject to the Open Meeting Act. Because, unfortunately, we cannot trust our government officials to abide by anything less.


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

Tulsa Development Authority committee headed by city council member held secret meetings in apparent violation of Open Meeting Act

Tulsa City Councilor Maria Barnes oversaw secret meetings by a Tulsa Development Authority committee that screened proposals to buy and redevelop a vacant fire station in the Cherry Street neighborhood, the Tulsa World reported this week.

Barnes told the newspaper that her advisory committee narrowed the field of 10 offers to three, heard presentations from those bidders, and then ranked them. The TDA is scheduled is to hear the three finalists' presentations Dec. 2.

The committee's meeting were not publicly posted, the newspaper reported.

One applicant, still expecting to make his presentation, didn't learn he had already been eliminated until told by the Tulsa World.

Given this scenario, those meetings violated the Open Meeting Act.

According to the statute, the definition of public body “shall include all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1)) However, the state Supreme Court has carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)

(The court's decision was based on language found in the 1971 Open Meeting Act. The current statutory language including “all committees or subcommittees of any public body” in the definition of public body was added in 1977. However, the court has persisted in recognizing the exception is created based on old statutory language.)

But if “the subordinate entity in the performance of its assigned duties and responsibilities exercises actual or de facto decision-making authority, it must comply with the open meetings law,” the court said in Sanders.

In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

That reasoning would seem to apply to the TDA committee headed by Barnes and created by the TDA at her urging.

The Tulsa World reported that TDA attorney Jot Hartley said the authority is not bound by the recommendations of the advisory committee.

But if the committee winnowed the list of applicants being reviewed by the TDA -- as it appears to have done -- then its meetings were subject to the Open Meeting Act.

Even if the committee's meeting weren't technically required to be open, the process described by the Tulsa World is anything but a good governmental practice. As a Tulsa World editorial said today:

In a word, the way this screening process was conducted stinks. It is indefensible. If the authority won't scrap the results and start over, someone higher up ought to take some steps to make that happen.

The TDA is staffed by the City of Tulsa's Economic Development and Real Estate Management Division. The TDA Board of Commissioners are:

• Julius Pegues, chairman
• Paula Bryant-Ellis, vice chairman
• Carl Bracy
• John D. Clayman
• Roy Peters

Casting doubt over whether the committee should have met publicly would be another example of a government body using a loophole created by the court in Sanders: A public body creates a committee to do the work of eliminating applicants. When challenged about the committee's secret meetings, the public body claims it isn't technically required to abide by those decisions.

Our state legislators should end this charade by reiterating this coming session that the statute means what it says: ALL committees or subcommittees are subject to the Open Meeting Act.


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