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Okfuskee County District Attorney Max Cook likely will ask Attorney General Scott Pruitt to investigate a secret budget meeting of the County Commission or appoint another prosecutor to do so, Cook told the Okemah News Leader late last week.
"Since it is a pending case and I am not suppose to comment on a pending case, I can say very little," Cook told the newspaper.
"It is very likely because of ethics for prosecutors in the state of Oklahoma, it will require that I disqualify my office. I will ask the attorney general to handle the matter or appoint another district attorney."
The three county commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- did not provide public notice or post an agenda for a budget session with the county budget writer and County Clerk Dianne Flanders this past Monday.
The Open Meeting Act requires public notice and a posted meeting agenda when the majority of a public body even discusses public business, as this blog explained Wednesday.
The commissioners conducted the session after adjourning from their regular meeting. Okemah News Leader reporter Shakara Shepard had left but saw the county budget writer, Dan Hall, walking into the meeting room. She followed him back into the room.
According the newspaper's account of the session, the commissioners did more than discuss the county budget. The newspaper reported:
The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.
Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
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 Okfuskee County Commission meeting had adjourned Monday and a newspaper reporter had left when she saw the county's budget writer Dan Hall walking into the meeting room, the Okemah News Leader reported today.
The reporter returned to the room and saw the three commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- and County Clerk Dianne Flanders discussing the 2013-14 budget with Hall, the newspaper reported.
Hall gave the commissioners a cash flow/cash funds report, told them that this year's budget is better than last year's, and said the sales tax increased about $100,000, according to the newspaper.
And this wasn't just a discussion, the newspaper reported, explaining:
The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.
Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
All that occurred with no public notice of the meeting, much less a posted agenda, wrote the newspaper's editor, Lynn Thompson.
If the newspaper's account is correct, Wilson, Smith and Henry held a secret meeting on the county budget in blatant violation of the state's Open Meeting Act.
The Open Meeting Act defines a meeting as "the conducting of business of a public body by a majority of its members being personally together or ... together pursuant to a videoconference." A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))(emphasis added)
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body even discusses public business, much less makes decisions.
Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)
"Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process,'" the court said. (Id. ¶ 7)
A 1982 state attorney general opinion said:
Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
It is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act. (¶ 11)
In 2012, Attorney General Scott Pruitt said, "A public body is thus engaged in the 'conduct of business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction." (2012 OK AG 24, ¶ 10)
Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'" (¶ 9)
He also noted 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." (quoting Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment. (¶ 9)
The bottom line, as then-Attorney General Drew Edmondson said, "A governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
So why is public decision-making important?
The public policy stated in the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
In 1978, the Oklahoma Supreme Court 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 Mun. Attys v. State, 1978 OK 59, ¶ 10)
And as the 1982 attorney general opinion said, "An open deliberative process reveals rejected alternatives about which the public might not know if access to study sessions and deliberative meetings were denied." (1982 OK AG 212, ¶ 5)
Thompson noted that the Open Meeting Act "is not a new law that has just gone into effect."
"This is a 30-plus year old Act that has been in effect and that all elected officials should not be unaware or ignorant of the Act," he wrote.
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body discusses public business. The county budget is certainly the public’s business.
It's a blatant violation of the Open Meeting Act for a county commission to discuss the county budget with no public notice of the meeting. Any elected official who has so little respect for the people and the law should be prosecuted and sent to jail.
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
In 1981, the state Court of Criminal Appeals upheld the convictions of the city of Medicine Park's board of trustees for failing to post meeting agendas. "Posting is required even for the most typical meeting," the court said. (Hillary v. State, 1981 OK CR 78, ¶ 6)
In 2002, three of Nowata's five city commissioners pleaded no contest to violating the Open Meeting Act by discussing city business at a restaurant. A police informant recorded them deciding which of the three would serve as mayor and as city treasurer and discussing "the police department budget … cutting city jobs," and disciplining the city manager.
What will District Attorney David Max Cook do about the Okfuskee County commissioners meeting secretly to decide the county budget?
The Court of Civil Appeals said in 1981 that it would not wink at Open Meeting Act violations, explaining:
[F]or to wink at violations in one case is to invite them in another. The Oklahoma Legislature, elected voice of the people of this state, mandated open meetings, including observance of the notice and agenda provisions. ... [W]ithout vigorous enforcement in the courts, laudable legislation is reduced to "mere words." Well, not this laudable legislation, not in this Court, not in this case. The Legislature has said, "Let the sun shine on government." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57,¶ 31)
Let's hope Cook refuses to wink at the blatant violation in Okfuskee County. Otherwise, there's not much point in having an Open Meeting Act.
Joey Senat, Ph.D.
Associate Profesor
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.
A member of the state commission overseeing the Veterans Affairs Department wants to do more than meet socially with a majority of the board without public notice, which the state Open Meeting Act already allows.
Thomas Howell wants legislators to allow the War Veterans Commission to discuss the public's business in secret.
"I said just throw it all out and say commissioners can meet whenever they wanted to, to discuss the problem that you have so you can have an answer when you come to these meetings on the problems we are having to address now," Howell said.
Howell, who represents Disabled Veteran Americans on the board, said he has spoken with two state senators about proposing a bill allowing a majority of the nine-member commission to meet secretly without violating the Open Meeting Act.
The Oklahoman's article didn't identify which two senators might be considering such idiotic legislation. But another news outlet reported that Howell has spoken with Sen. Don Barrington, R-Lawton.
Howell's public comments were made Friday during a meeting in which the commission voted to remove "interim" from John McReynolds' job title as executive director of the state's Veterans Affairs Department.
Ironically, the commissioners interviewed McReynolds and another candidate during an executive session, which means the public was excluded from that part of the meeting.
But the Open Meeting Act prohibits the majority of a public body from meeting without posting advance notice and an agenda telling the public that such an executive session is scheduled. (Okla. Stat. tit. 25, § 303)
These requirements exist for good reason. As the state Court of Civil Appeals said in 2008:
The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
This includes the entire decision-making process, our state Supreme Court has said.
"The underlying goals of the 'open meeting laws' can not be seriously challenged. 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)
Or as an attorney general opinion later explained, "Public access to a mere 'rubber stamp' vote is all but useless." (1982 OK AG 212, ¶ 7)
Howell complained that the Open Meeting Act's requirements cause problems because more than four commissioners are members of the VFW and the American Legion. He apparently believes that the statute prohibits the majority of a public body from gathering at parties, dinners or other social events.
In 2007, however, 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." (Okla. Stat. tit. 25, § 304(2))
But Howell's comments indicate that he believes commissioners should be able to discuss -- and essentially decide -- the public's business far from the prying eyes of the people they're supposed to serve.
Fortunately, Commission Chairman Richard Putnam seems to understand the purpose of the Open Meeting Act, saying:
My interpretation is we're not prevented from attending things like conventions where we are all members. We are just prevented from meeting as commissioners during those events. In psychology, we call it face validity. I think in order to have the public's trust we need to demonstrate we will not meet secretly.
The War Veterans Commission and the Veterans Affairs Department need to be building public trust. The agency has been criticized for a "series of premature deaths, abuse and neglect cases" at the seven nursing centers it operates. A former nurse's aid at the Veterans Center in Norman was convicted last week of one count of first-degree rape and two counts of forcible oral sodomy on patients.
In August, Gov. Mary Fallin requested an audit to review of the efficiency and effectiveness of the agency's management, the efficiency and effectiveness of the oversight of department operations, the reasonableness of expenditures, and a review of the expenditures of the department's administration for compliance with appropriate state statutes and regulations.
Howell of Duncan was one of eight new members appointed by Fallin to the commission in May. He had served on the commission previously as an appointee of Gov. Frank Keating in 1995.
Fallin, as a gubernatorial candidate in 2010, publicly said she expected her appointees to public bodies to abide by the Open Meeting and Open Records laws.
Fallin should emphasize that to Howell or replace him.
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. Differing interpretations of open government law and policy are welcome.
This time the public knows in advance that the Tulsa County Public Facilities Authority intends Thursday to vote to end live horse racing at Fair Meadows Racetrack.
That wasn't the case five weeks ago when the authority, also known as the Tulsa County fair board, unanimously voted without comment to end the racing even though the topic wasn't on its agenda.
That surprise decision led state Rep. Don Armes, R-Faxon, to ask Attorney General Scott Pruitt to investigate the process surrounding the closing of the racetrack.
The fair board's agenda for Thursday says public comment will be heard on ending live racing at the track and that the board will "consider and take action on ... cessation of horse racing activities...."
But being upfront now doesn't excuse the violation on Nov. 1. Subsequently ratifying an action or decision made in violation of the Open Meeting Act does not cure the violation, the Court of Civil Appeals first said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)
"The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law's purpose," the court said.
The Open Meeting Act clearly requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the court has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
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. That includes any agency action exceeding the scope of action defined by the notice.
In 2009, the court said any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider." (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
And the Oklahoma Supreme Court said more than 30 years ago 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)
Why? Because as the Court of Civil Appeals noted in 2008:
The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
So how could it be that the Tulsa County fair board -- whose membership includes all three Tulsa County commissioners -- take such a major action without having it on the agenda?
Armes was correct to call for an investigation into the fair board's proceedings leading to the Nov. 1 decision.
Let's hope that he and Pruitt follow through.
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.
Last week's meeting agenda for the state Board of Education omitted the item of business that would be discussed in executive session.
That omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
It also robbed Oklahomans of their right to know what public business the board would be discussing behind closed doors.
The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
Similar wording can be found in the provision allowing executive sessions to discuss "matters pertaining to economic development ... if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." (§ 307(C)(10))
"A vote to enter into executive session pursuant to [that provision] must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business,'" Attorney General Scott Pruitt said in a formal opinion in November. (2011 OK AG 22, ¶ 5)
The vote to enter an executive session under the attorney-client privilege would require the same kind of public affirmation that a public discussion would "seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest."
However, the state education board had no such discussion. Instead, the board simply voted to go into executive session. (Listen to the Sept. 27 audio starting at the 1:21.00 mark.)
The Open Meeting Act also states, "If a public body proposes to conduct an executive session, the agenda shall:
Contain sufficient information for the public to ascertain that an executive session will be proposed;
Identify the items of business and purposes of the executive session; and
State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
But the state Board of Education didn't list the specific investigation, claim or action to be discussed.
Instead, its agenda listed only the specific statutory authorization for the proposed executive session, stating under "Legal Services":
Discussion and possible action to Convene into Executive Session to discuss a pending investigation, claim, or action pursuant to 25 O. S. Section 307(B)(4)
(a) Convene into Executive Session
(b) Return to Open Session
(c) Possible action
The board took no action when it returned to open session.
In a 1998 written opinion, then-Attorney General Drew Edmondson emphasized that the statute says, "All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act." (1997 OK AG 61, ¶ 2)
The bold italics were Edmondson's.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," Edmondson said. (¶ 3)
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id.)
"In this light," Edmondson said, "it is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion." (¶ 3)
Pruitt emphasized the same statutory requirements last November, saying public bodies cannot meet in executive session to discuss economic development unless they "give proper notice of the proposed executive session on the meeting agenda." (2011 OK AG 22, ¶ 5)
Even more to the point, Pruitt told a state agency a year ago that its agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client provision.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
In response, the agency's spokeswoman said, "In the future, we will list all parties of pending litigation."
At an open government workshop for public officials and others in Oklahoma City in November, Pruitt's top assistant said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
The agenda item should list information such as the name of the parties in the lawsuit, Hudson said.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
And because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
Or as Hudson warned officials in November: "The Open Meeting Act is the law. Don't break the law."
Yet, the state Board of Education's agenda last week listed nothing more than the statute allowing the executive session. So much for the public's right to know what would be discussed behind closed doors.
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.
Oklahoma Pardon and Parole Board members conceded Tuesday that their agendas could have been worded better, but they insisted that they never intended to violate the Open Meeting Act, The Oklahoman reported today.
"I understand the perception and the appearance, but there was no mal-intent to not be transparent," said Parole Board member David Moore of Edmond.
But proving criminal intent won't be necessary if Oklahoma County District Attorney David Prater choses to prosecute board members for agendas that failed to notify the public that state inmates would be considered for early release.
Criminal intent doesn't have to be proved because the vague agendas would be a crime by virtue of the Open Meeting Act. In other words, the board members either complied with the statute or didn't. ( See Hillary v. State, 1981 OK CR 78, ¶ 5)
Instead, prosecutors need only prove a willful failure to comply. (Id.)
"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," the state Supreme Court has said. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the court explained. (Id. at ¶ 26) (emphasis added)
"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)
All Pardon and Parole Board members are briefed on the Open Meeting Act, board member Currie Ballard told the Tulsa World last week.
Open Meeting Act violations are a misdemeanor punishable by up to one year in the county jail and a fine of up to $500.
Prater told The Oklahoman that his criminal investigation into whether the board willfully violated the Open Meeting Act is ongoing.
Last week, Prater issued a letter describing violations by the board as "willful, conscious and purposeful."
"The Oklahoma Pardon and Parole Board's violations in this matter are egregious, aggravated and a clear attempt to operate in secrecy, outside of public scrutiny,” Prater wrote.
Names of inmates proposed for early release were not placed on the board's agendas. Instead, board members brought up the names under the agenda item "docket modification."
The board's vague agendas essentially prevented the public from knowing that offenders would be considered for early release, Prater concluded.
"A member of the public who was interested in monitoring a specific inmate would not begin checking the parole dockets until the time drew near for the legal consideration of the inmate," Prater wrote.
"Outside of Board members, no person had the ability to determine what inmate would or could be the next fortunate soul to emerge from the darkness of the 'Docket Modification' portion of the Board's business with an undeserved opportunity to attain an early and illegal release.
"This result illustrates why compliance with the Open Meeting Act is vital to public awareness and governmental transparency. At the least, the public deserves the opportunity to observe a public board violate the the law in the light of day," he wrote.
The state Supreme Court has said agendas must "be worded in plain language, directly stating the purpose of the meeting . . . [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." (Andrews v. Indep. Sch. Dist. No. 29 of Cleveland County, 1987 OK 40, ¶ 7)
"To require otherwise would defeat the purpose of the Act," the unanimous court said. (Id.)
The five Pardon and Parole Board members told reporters Tuesday that they are willing to make whatever changes are needed so their actions are clear to the public.
"If there is some way we can tweak our process to be more transparent, then we certainly want to do that," Moore said. "We will fix what we need to fix to make sure there is no appearance of secrecy."
That willingness to change is admirable.
But "We're sorry. We won't do it again" shouldn't absolve the Pardon and Parole Board members of using agendas that kept the public in the dark about the early release of murderers and child molesters.
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' attorney said 10 months ago that agenda items for meetings of the statewide commission overseeing the agency would be more specific when major policy changes are contemplated.
So much for that assurance, according to a story in The Oklahoman today.
Last month, Commissioner Michael Peck presented a lengthy proposal to close a Pauls Valley residential center for developmentally disabled adults under an agenda item labeled "property committee report," the newspaper reported.
The head of a nonprofit concerned with the future of the Southern Oklahoma Resource Center said Peck had assured him that he "would not be presenting anything" regarding its closure at the meeting.
Surprise!
Peck told the newspaper he didn't try to mislead the SORC Parent Guardian Association and hadn't planned to make the presentation.
"I did not know I was going to say anything about my idea until the moment came," Peck said.
Peck and Commissioner Brad Yarbrough, who was still commission chairman in June, claim the state Open Meeting Act wasn't violated because no action was taken.
WRONG!
The purpose of the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
As such, the statute requires agendas to include "the subject matter or matters to be considered." (OKLA. STAT. tit. 25, § 303)
The state Supreme Court has said agendas must "be worded in plain language, directly stating the purpose of the meeting . . . [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." (Andrews v. Indep. Sch. Dist. No. 29 of Cleveland County, 1987 OK 40, ¶ 7)
"To require otherwise would defeat the purpose of the Act," the unanimous court said. (Id.)
And because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public," the court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7))
The state Court of Civil Appeals said 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." (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8)
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. ¶ 10)
Or as a 1980 attorney general opinion said:
The Open Meeting Act must be given a construction, which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken. (1980 OK AG 215, ¶ 12)
And at an open government workshop nearly three years ago, public officials were cautioned not to use "cryptic" agenda language.
"Don’t try to hide items of business by putting it under 'report,'" warned Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
The Attorney General's Office prefers for such reports "to have bulleted points for items under the report," said Tudor.
Contrary to that advice, the June 12 agenda for the Oklahoma Commission for Human Services has seven items listing nothing more than "report."
The commission's agenda materially obscured the scope of matters that would be considered. It failed to give the public actual notice of what would be discussed. Members of the Parent Guardian Association were denied the opportunity to hear for themselves Peck's plan to close the center.
Aside from what the Open Meeting Act requires, vague agenda items are just not good government. As another author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."
But DHS commissioners seem hell bent on keeping Oklahomans in the dark.
After complaints last summer that the commissioners were violating the Open Meeting Act, Oklahoma County District Attorney David Prater warned them that there are no minimal violations.
"Oklahoma's laws on openness in government serve an important and noble purpose," Prater wrote. "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 specifically 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."
Prater chose not to prosecute commissioners then for violating the Open Meeting Act.
What will he do now?
Joey Senat
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 state Board of Education last week cut several programs even though its meeting agenda noted only "discussion and possible action on the FY2012 Common Education Budget Work Program."
"Some board members complained during the meeting that they only received the budget details the evening before the meeting and they wanted more time to look over the numbers," reported Oklahoma Watchdog Editor Peter J. Rudy.
"The budget details were not posted online and the press did not receive copies until just before the meeting started," Rudy noted. "It could be argued that ... stakeholders (like National Board Certified teachers) had no idea looking at the agenda that their programs were being eliminated."
The board cut funding for National Board Certified teacher bonuses, adult education, charter school startup grants, new robotics programs, and middle school mathematics laboratories, The Oklahoman had reported.
The newspaper had also noted that board members complained about not having enough time to study the budget prior to being asked to vote on it.
"I just think it's kind of unfair to give it to us the day before and want us to try to vote on it," board member Gayle Miles-Scott said. "Could we not have a special meeting?"
State schools Superintendent Janet Barresi told Rudy that staff had worked on the budget "up to the 11th hour."
"We had to make a decision yesterday that we had to move forward with this," she said.
(Watch Barresi's reaction in the video as Rudy explains that the Oklahoma County District Attorney's Office is investigating the Oklahoma Human Services Commission for a possible Open Meeting Act violation because its agenda's budget item did not specify increased co-payments for clients who receive child-care benefits and reduced income eligibility.)
So it literally wasn't possible to call a special meeting to give board members and the public time to mull over the budget details? And to include those important details on the agenda for a special meeting?
The Open Meeting Act says each agenda "shall identify all items of business to be transacted by a public body at a meeting." (OKLA. STAT. tit. 25, § 311(B)(1))
The state education board's agenda didn't do that. Barresi should have asked for a special meeting so the agenda could specify such important budget cuts. The public and the board members being asked to vote on that budget deserved more time to consider it. The board's vote is not supposed to be a rubber-stamp.
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.
Jet officials who pledged to comply with the letter and spirit of the state's open government laws now won't provide meeting agendas and minutes as simple email attachments.
Also, the town's copy fees posted on the wall at City Hall violate the Open Records Act. The town charges 50 cents for each page larger than 8 1/2 by 11 inches, according to the posted fees.
But the town may not charge more than 25 cents per page for uncertified paper documents 8 1/2 by 14 inches or smaller. (OKLA. STAT. tit. 51, § 24A.5(3))
A photo of the town's posted records fees was provided to the FOI Oklahoma Blog by Paul Blackledge, who has chronicled online his attempts to get computerized records from town officials.
Blackledge wants the agendas, as well as minutes, sent to him as email attachments so he can post them on a website he created to make town records available.
"I want to include the agenda with the regular meeting notice that the web site automatically displays a few days ahead of the regular meetings," he said. "This would provide a heads up notice for people away from home or for out of town property owners."
The town doesn't have its own website on which to post the agendas or minutes.
Town attorney E. W. "Bill" Shaw of Mitchell & DeClerck in Enid said the records won't be provided to Blackledge via email because the Open Records Act doesn't require it.
"The state law may permit, but does not require, the Town of Jet to release records by electronic means. If the state law changes to require the release of public records by electronic means, the Board will adopt an appropriate policy for the Town of Jet," Shaw told Blackledge in, ironically, an email.
In another email, Shaw noted that the Open Records Act states, "Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act." (OKLA. STAT. tit. 51, § 24A.2)
Of course, that's also the same section that begins with:
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. ... The purpose of this 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.
Shaw is correct that the statute doesn't require records be sent as email attachments. However, Shaw also seems to say the town doesn't have to provide records in an electronic format at all.
"51 O.S. §24A.3 is merely the definition which includes the form of records that may be maintained that are to be produced under the Act. It is not a requirement that records be produced in any particular form," Shaw said in an email.
But a 1999 attorney general opinion said that because "the Open Records Act does not distinguish between the form of public records," records must be provided "in whatever form they exist." (1999 OK AG 55, ¶ 23)
In a 2006 opinion, then-Attorney General Drew Edmondson said public agencies could not refuse to provide existing computer records in that format.
"There are no Oklahoma statutes or laws generally requiring public agencies or public officers to keep records in an electronic format," he noted. "However, if a governmental agency elects to keep its records in electronic format we believe that such agency must provide records under the Act in this format if so requested." (2006 OK AG 35, ¶ 19)
After Paul Blackledge got no where with Shaw, I wrote the following email to Town Board members Jim Blackledge, Carolyn Crossette and Clerk-Treasurer Donna S. Keller, each of whom had signed FOI Oklahoma's Open Government Pledge in April.
Dear Mr. Jim Blackledge, Ms. Carolyn Crossette and Ms. Donna S. Keller:
Paul Blackledge has contacted me about the City of Jet's refusal to supply him with meeting agendas and minutes via e-mail.
While the Open Records Act does not require records be made available via e-mail, the law does clearly require that records be made available in the format in which they exist.
Each of you signed FOI Oklahoma’s Open Government Pledge in which you pledged “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.”
You also pledged that you and the City of Jet would comply “with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”
Given your public commitment to open government and the City of Jet’s apparent lack of a website on which to post these documents for easy access by the public, I am asking that meeting agendas and minutes be made available to Paul Blackledge as attachments to e-mail unless doing so is technologically impossible.
If the latter is the case, what obstacles cannot be overcome to provide the requested records via e-mail attachments? For example, are the meeting agendas and minutes created with a typewriter or in a computer format, e.g. a Word document?
Because you yourselves signed the Open Government Pledge, I am asking that you, not someone else, respond to my inquiry.
I look forward to working with you to resolve this issue.
Sincerely,
Joey Senat, Ph.D.
Instead of a response from them, I received the following e-mail from Shaw:
Mr. Senat,
As the attorney for the Town of Jet Oklahoma , I find your recent email to the town very offensive. What do you know about the town of Jet and the operation of the town government. Have you done anything other that listen to the gripes and complaints of the citizens named.
If the parties that you are so eager to support would use just have of the efforts they have expended in support rather that perpetual criticism, much could be accomplished. No citizen has been denied access to appropriate public records. The town is in compliance with the law.
Did you do any investigation before your contact dated May 6th or did you just take the information provided by a few and decide to join in their continuing antagonism of the town board. Your copying of your letter to the newspapers and others makes it clear that your intentions were to embarrass and attempt to pressure the town board with no concern for the town board and the antagonism that it has be subjected to for months from certain citizens who will be satisfied only if things are done their way.
From the tenor and content of your letter I must conclude that FOI Oklahoma really has no concern for truth, the law or responsible government.
Bill Shaw
E. W. "Bill" Shaw
Mitchell DeClerck
202 W. Broadway
Enid, Oklahoma 73701
580-234-5144
580-234-8890 (Facsimile)
My email was copied to Korina Dove, editor of the Cherokee Messenger Republican, because she had given the Open Government Pledge to the candidates for Jet's April election. The email also was copied to FOI Oklahoma President Bryan Dean, President Elect Lindel Hutson and Paul Blackledge.
As for responsible government, Jim Blackledge, Crossette and Keller could go a long way toward meeting that goal and living up to their pledge by using technology to make government more accessible.
Wouldn't cost the town a penny or much time. And it's simple. Use Google Docs to make the agendas and minutes available online. Create a Facebook page for the town to post the links.
If I can figure out these tools, certainly they could. As elected officials, they have an obligation to do so.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
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.
Unposted meetings attended by Wagoner County commissioners were called by residents to discuss Coweta's decision to scale back its fire protection district, the County Commission chairman told a newspaper Wednesday.
"I am also a citizen, and this does affect me," James Hanning told the Muskogee Phoenix. "We (the commissioners) were there, if anything, for moral support — my concern is that the people have the power and knowledge they need to make an informed decision."
So why not post public notices and agendas for the meetings?
The Broken Arrow Ledger reported Tuesday that because Coweta is pulling back on its fire service area, the meetings concerned a possible ad valorem tax on county residents to fund a rural fire district.
No public notices and agendas were given for the meetings, which were held in Coweta churches on Feb. 17, March 10 and 24, the Broken Arrow Ledger reported. All three commissioners attended the first meeting, and two attended the March ones.
The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))
"At least one county commissioner at each of these meetings actively took part in the discussion," the Broken Arrow Ledger's executive editor said in a letter to District Attorney Brian Kuester.
"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," said William Swaim, Oklahoma Neighbor Newspaper executive editor.
"Commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal," Swaim said.
Hanning told the Phoenix the topics discussed during those meetings were not county issues. However, he conceded that the commission would have to vote to approve an election to pass an ad valorem tax.
The Coweta-American reported April 11 that Wagoner County officials want Coweta to pull the city’s fire service to the city limits and let rural fire districts cover the surrounding area.
According to the newspaper, Hanning told a meeting of some 500 people that the way to solve the rural fire service issue would be to vote on an ad valorem tax, a property tax assessed by the county.
The newspaper reported that Hanning explained how the tax would be assessed and the mechanism for calling an election on the ad valorem tax.
"No matter what proposal comes to the table, our need is not a fire station, it is a fire district," Hanning said. "Our goal is to create options to have a fire district that will sustain a station."
At the same meeting, the newspaper reported, a member of the Wagoner County Excise Board said he appreciated the "great amount of effort" the county commissioners had put in to coming up with solutions.
Sure sounds like a county issue involving the commissioners despite Hanning's characterization to the Muskogee Phoenix.
Hanning also defended the unposted meetings as permissible because no decisions were made at them. However, that is irrelevant under the Open Meeting Act.
In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body can gather informally as long as "no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))
Judicial and attorney general opinions, though, had made clear for the previous 25 years that members of a public body are prohibited from discussing the public's business during social gatherings.
"Sunshine legislation reaches, not just ‘formal’ meetings, but the 'entire decision-making process,'" the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)
Hanning also told the Phoenix that Assistant District Attorney John David Luton assured him the commissioners could attend the three unposted meetings without violating the Open Meeting Act.
The newspaper said a telephone call to Luton was not returned Wednesday.
Oklahoma's public policy, as stated in the Open Meeting Act, is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Therefore,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (2000 OK AG 7, ¶ 30)
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, 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 said that year: "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)
That didn't happen in Wagoner County.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communiations
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.
Wagoner County commissioners met three times to discuss a possible ad valorem tax on county residents to fund a rural fire district but didn't post public notices and agendas for the meetings, the Broken Arrow Ledger reports.
The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))
Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)
Yet, Wagoner County commissioners failed to post notices and agendas for meetings Feb. 17 at the First Baptist Church in Coweta, and March 10 and 24 at the First United Methodist Church in Coweta, according to a letter from Oklahoma Neighbor Newspaper Executive Editor William Swaim to a number of public officials.
Swaim said at least two of the three commissioners were at each meeting and discussed a proposed county ad valorem tax for the funding of a county rural fire district.
"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," Swaim said.
According to Swaim:
- Commissioners James Hanning, Tim Kelley and Chris Edwards attended the Feb. 17 meeting with people comprising a grassroots effort to come up with suggestions for fire coverage once Coweta's rural fire service area is adjusted.
- Hanning and Kelley attended the March 10 meeting with 80-90 people. Hanning told a reporter that an assistant district attorney had said no meeting notice or agenda was required.
- Hanning and Kelley also attended the March 24 meeting that included about 200 people.
A notice and agenda weren't posted until an April 7 meeting at the Coweta High School gymnasium in which all three commissioners again attended, Swaim said.
"These meetings, concerning what has developed into a volatile topic, did not keep Wagoner County residents properly informed of the discussion of an ad valorem tax to fund a fire district in the county," said Swaim in the letter. "At least one county commissioner at each of these meetings actively took part in the discussion.
"Because of these violations, commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal. Residents now may not fully understand the issue or other reasonable options available as they were not properly notified of these public meetings that may effect them," said Swaim.
"These are issues we take seriously and believe the county commissioners should follow the law and should be held accountable for the specific violations that occurred," Swaim said in the letter, which was sent to Wagoner County District Attorney Brian Kuester.
Indeed, these would be outrageous violations of the Open Meeting Act. Absolutely criminal violations if they occurred as described. If true, then those commissioners stole from Wagoner County residents their right to understand and participate in their county government.
The Legislature's goal in enacting the Open Meeting Act "was not simply to prevent or punish deliberate violations, but to restore sadly sagging public confidence in government, a goal which is hurt by every noncomplying meeting regardless of whether or not the noncompliance resulted from evil motives," then-Attorney General Jan Eric Cartwright said in 1982. (1982 OK AG 212, ¶ 11)
The public policy stated in the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Therefore,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (2000 OK AG 7, ¶ 30)
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, 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 said that year: "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)
Unfortunately, Wagoner County Commissioners Hanning, Kelley and Edwards didn't follow Oklahoma's open-meeting policy.
Violations of the Open Meeting Act are a misdemeanor punishable by a fine of up to $500 and up to one year in the county jail. (OKLA. STAT. tit. 25, § 314)
These meetings by Hanning, Kelley and Edwards warrant the fullest investigation and prosecution by the district attorney. What is Kuester going to do?
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.
OSU's Student Government Association last week amended its bylaws, apparently as a reminder to future members that it must comply with the state Open Meeting Act.
The Daily O'Collegian reported in early March that the SGA didn't send meeting notices to the county clerk as required by the Open Meeting Act and didn't post agendas for regularly scheduled meetings on its website as required by another state statute.
Most troubling was that once again an SGA official was adamant that the public body didn't have to comply with the Open Meeting Act.
A fallacy that OSU legal counsel Doug Price once again had to correct.
A reminder wouldn't seem necessary given that a 1979 attorney general opinion specifically says that OSU's SGA and Residence Hall Association must comply with the Open Meeting Act. (1979 OK AG 134)
But four times since 2002, The Daily O'Collegian has reported on open meeting violations by SGA officials. (Read this blog posting for a listing.)
This time, however, the SGA amended its bylaws so that:
- "All agendas and minutes of the SGA Senate shall be posted to the SGA website. All agendas must be posted 24 hours before Senate convenes, and minutes must be posted following the final edit made by the SGA Senate secretary.
- "Notice shall be given to the county clerk of all regularly scheduled meetings of the SGA Senate.
- "The Senate chair shall give notice in writing the meeting dates, times and places for the following calendar year by Dec. 15 of the current year."
The Daily O'Collegian reported that the bill passed and went into effect immediately.
Good.
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's Graduate Student Senate apparently violated the state Open Meeting Act on Sunday when it approved two bills not listed on the agenda for that night's regular meeting, The Oklahoma Daily reported today.
The GSS unanimously approved five members to the spring election board and established polling sites for the election, the student newspaper reported.
The author of the two bills said she had submitted them to the appropriate officials the previous Monday. But, somehow, the bills weren't listed on the agenda.
Graduate Student Senate Chair Derrell Cox told the newspaper that GSS leaders decided to propose the bills despite the lack of public notice.
“It was our consensus in the executive meeting that [the legislation] would go forward,” Cox said. “I don’t know exactly who dropped the ball, but someone within the Senate dropped the ball in getting that posted.”
GSS leaders apparently felt pressured to approve the bills because of a requirement that the number and location of polling places be established at least three academic weeks prior to the elections on March 29 and 30.
The election is more than four weeks away, but the GSS won't have another regular meeting until March 6. Spring break is March 14-18.
However, calling a special meeting for this week would have given the public the required notice and avoided a violation of the Open Meeting Act.
Anyone convicted of violating the Open Meeting Act can by punished by up to one year in jail and a $500 fine. Also, any action taken in "willful violation" of the statute is "invalid." (OKLA. STAT. tit. 25, § 313)
In 2010, Boynton's three town trustees were charged with violating the Open Meeting Act after voting to appoint a town manager even though no such item was on the agenda for the special meeting.
The Open Meeting Act clearly requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
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. That includes any agency action exceeding the scope of action defined by the notice.
Any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider," the Court of Civil Appeals said in 2009. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
The statute defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." (OKLA. STAT. tit. 25, § 311(A)(9))
At OU, the bills selecting members of the election board and establishing polling places were submitted to legislative leaders six days before the meeting. And those leaders should have known they were facing a deadline for the election.
The Open Meeting Act also permits emergency meetings. An emergency "is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss." (OKLA. STAT. tit. 25, § 304(5))
Establishing election board members and polling sites four weeks in advance of an election does not meet the statutory definition of an emergency meeting.
The Open Meeting Act is not a nuisance law to be ignored when it's inconvenient for elected officials, including college students who have taken responsibility for governing their classmates.
As our Court of Appeals said, 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." (1981 OK CIV APP 56, ¶ 8)
That holds true even on the University of Oklahoma campus.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The Lone Grove City Council last May fired the city manager and hired a temporary replacement even though neither action was listed on the meeting agenda, The Lone Grove Ledger reported this week.
But the council will not face prosecution for the obvious violation of the state Open Meeting Act because Bryan County District Attorney Emily Redman says no collusion occurred among the councilors, the newspaper said.
However, as the newspaper points out, "collusion" is not required for a violation of the Open Meeting Act to be considered willful and, therefore, to be prosecuted.
Willfulness does not require that the councilors had acted in bad faith, maliciously or with an intent to violate the law during the vote.
Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the court explained. (Id. at ¶ 26) (emphasis added)
"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)
The Oklahoma Supreme Court adopted the lower court's reasoning in 1984, saying, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.” (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)
A violation of 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)
Taking actions not listed on an agenda are clear violations of the Open Meeting Act. And the Lone Grove City Council should know the law.
Under the Open Meeting Act, each agenda must "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
The Oklahoma Court of Civil Appeals has said agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
The purpose of the statute "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.
In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."
The "School Board’s actions were limited by its own notice to 'discussion' and 'interviews," the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)
The Lone Grove City Council's meeting agenda listed merely a performance review of the city manager, the newspaper reported.
"There was no mention of any possible action, let alone what that action might be. There was absolutely no mention of the possibility of hiring an acting city manager," wrote Gary Hicks, the newspaper's publisher.
(He noted that the recording of the May 17 meeting was "lost," or "misplaced," or "there was a power surge," or "the recorder wasn't turned on." "Which scenario is chosen depends on which city official was talking at the moment," wrote Hicks.)
Despite the apparent Open Meeting Act violation, the council won't be prosecuted because Redman said she found no willful violation.
In her letter to Carter County District Attorney Craig Ladd, Redman said an OSBI investigation did not show collusion among the three city councilors who voted to fire the city manager.
(Ladd had the case assigned to Redman because one of his staff members is the sister of councilor Chris Young and because the city attorney in May was a former member of his staff, the newspaper reported.)
Without a prosecution, the public will never know what the Oklahoma State Bureau of Investigation found. OSBI officials have refused to release the investigative report to The Lone Grove Ledger.
Under Oklahoma law, OSBI officials noted, "All records relating to any investigation being conducted by the Bureau, including any records of laboratory services provided to law enforcement agencies ... shall be confidential and shall not be open to the public." (OKLA. STAT. tit. 74, § 150.5(D)(1))
"The fact that the investigation is closed does not alter the confidential nature of those records," the state Supreme Court said in 1993. (Hicks v. Thompson, 1993 OK 57)
So bottom line: Taxpayers footed the bill for an investigation into criminal conduct by elected officials, but they will never know what investigators found because a district attorney refuses to prosecute based on a dubious understanding of what constitutes a willful violation.
This situation exemplifies why prosecution of open government violations should be put in the hands of someone else, perhaps at the state level.
That will be a topic of discussion at FOI Oklahoma's fourth annual Sunshine Week Conference on March 12 in Oklahoma City. An internationally recognized expert on open government laws will offer his insight on creating a state agency that Oklahomans can go to for help when public officials wrongly withhold records or restrict access to open meetings.
More information on the conference and a registration form can be found on FOI Oklahoma's website.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
