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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.
The Healdton City Council recently met in executive session to "discuss consulting and possible hiring of Human Resources attorney regarding pending litigation," The Ardmoreite reported Monday.
But the Open Meeting Act doesn't permit a closed-door discussion of hiring an independent contractor.
And in another apparent violation of the statue, the meeting agenda failed to reveal anything about the "pending litigation" that justified the executive session.
The meeting Aug. 6 was the second this summer in which the council seemed to have violated the Open Meeting Act.
On July 2, the council met behind closed doors under the statutory exemption to discuss terrorism-related issues even though it actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma.
The meeting agenda not only listed the wrong statutory exemption but also failed to include any information about the "pending investigation" that would be discussed.
Carter County District Attorney Craig Ladd waffled last week on whether the council violated the Open Meeting Act in July.
In an email to The Ardmoreite on Aug. 7, Ladd wrote, "After looking into the matter further, I am not convinced a willful violation occurred (other than perhaps the clerical error of citing B9 rather than B4 and then proceeding, rather than postponing it for another week.)"
So wouldn't that be a violation?
Criminal intent isn't necessary for a violation to have occurred. The question is only whether the council willfully failed to comply with the Open Meeting Act. (See Hillary v. State, 1981 OK CR 78, ¶ 5)
"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)
Before the council had entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
As Ladd conceded to the newspaper, the council proceeded with the executive session rather than postpone it a week. That's deliberate disregard of the law.
The Open Meeting Act prohibits executive sessions unless certain procedures, such as listing the statutory authorization, are "strictly complied with." (OKLA. STAT. tit. 25, § 307(E))
The Court of Civil Appeals has said "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)
The statute requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said government bodies must comply with this provision by citing more than attorney-client privilege.
"The public has a right to know what you are going to discuss in an executive session," the first assistant attorney general told public officials in November.
If the lawsuit has not been filed, then the agenda item should include "at least the nature of it," Rob Hudson said. "More is better."
But for the Aug. 6 meeting, the Healdton City Council refused to put on the agenda any information about the "pending litigation."
The council also apparently used the executive session to discuss hiring an independent contractor, i.e., an attorney specializing in human resources cases.
The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of an independent contractor, such as an attorney, for professional services, the state attorney general said in 2005. (2005 OK AG 29, ¶ 13)
If such a discussion is not allowed under the personnel exception, it shouldn't be allowed under attorney-client privilege.
Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could the Healdton council's discussion fall under the attorney-client exception?
The same 2005 attorney general opinion also said:
"The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a 'pending investigation, claim, or action.' Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will 'seriously impair' the body's ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest." (¶ 11)
In other words, a public discussion of consulting or possibly hiring a human resources attorney would had to have "seriously impaired" the ability of the council to process the pending litigation in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.
Ladd told The Ardmoreite that he will comment on the latest apparent violations as soon as practical.
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.
Trustees for the town of Buffalo were scheduled to discuss and consider "the renovation and leasing of the Duckwall's building" in town.
Instead, the trustees voted to sell the building, the Onside Buffalo blog notes.
Town trustees seem to have violated the state Open Meeting Act by taking an action not listed on the agenda.
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)
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 state Supreme Court said in 1981. (Int’l Ass'n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
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)
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.)
In 1981, the Court of Civil Appeals, using the statutory construction later approved by the Supreme Court in Andrews, 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."
(Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
"Use of the terms 'interviewing' and 'discussing the hiring' of an administrator in juxtaposition with 'hiring' of principals is misleading," the court said. "It creates more than an inference that the two agenda items are distinct, the latter being limited to 'discussion' and 'interview.'" (Id. ¶ 11).
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 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. (Id. ¶ 8)
In Buffalo, the agenda said trustees would consider "leasing" the property, but they voted to sell it.
Leasing and selling are not the same.
The Merriam-Webster Dictionary defines lease as "a contract by which one conveys real estate, equipment, or facilities for a specified term and for a specified rent; also : the act of such conveyance or the term for which it is made."
It defines selling as giving up property "to another for something of value (as money)."
Buffalo trustees failed to give the public actual notice of what action they would consider.
The Onside Buffalo blog seems correct when it concludes, "If you are looking for a textbook case of violating the Open Meetings Act look no further."
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 Healdton City Council met behind closed doors Monday night under the statutory exemption to discuss terrorism-related issues, The Ardmoreite reported.
But in the executive session, the council actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma, the newspaper said.
The meeting agenda had not specified a reason for the executive session. It listed only, "Discuss with City Attorney pending investigation disclosure of which City Attorney has advised will impair the ability to proceed with pending investigation as provided by the Oklahoma Open Meeting Act (Title 25 307.B.9)."
Listing the wrong statutory authorization and not listing an item of business are apparent violations of the state Open Meeting Act.
Carter County District Attorney Craig Ladd told the newspaper he would wait to review information on the executive session before commenting.
The Open Meeting Act permits executive sessions for nine topics. The one listed on the agenda, OKLA. STAT. tit. 25, § 307(B)(9), is to discuss terrorism, e.g., "the investigation of a plan or scheme to commit an act of terrorism."
The agenda apparently should have cited Okla. Stat. tit. 25, § 307(B)(4), which allows confidential communications between a public body and its attorney "concerning a pending investigation, claim, or action."
Before the council entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
City Attorney Bob Pinkerton dismissed it as a misprint and the council proceeded on his advice, Pineda reported.
But the Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are "strictly complied with." (§ 307(E))
For example, the agenda must "state specifically the provision ... authorizing the executive session." (§ 311(B)(2)(c))
The Healdton City Council agenda didn't state the correct statutory authorization for the executive session.
The Open Meeting Act also requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said publicly since September that government bodies must comply with this provision by citing more than attorney-client privilege.
For example, Attorney General Scott Pruitt told a state board that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
Rob Hudson 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.
For example, at least the nature of an impending lawsuit or claim should be listed, Hudson said.
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
The agenda item should list information such as the name of the parties in the lawsuit, he explained.
"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."
Headlton officials should have listed the reason for the executive session.
After the meeting, Mayor David Smith confirmed for Pineda that a months-long investigation has found discrepancies in the town's finances. City Treasurer Karen Kardaleff was relieved of her duties Tuesday morning and placed on paid leave, Pineda reported.
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)
The Court of Civil Appeals 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)
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
In prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
The state Supreme Court has said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
In November, Hudson simply warned officials: "The Open Meeting Act is the law. Don't break the law."
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.
Owasso residents can now read staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions."
City officials had been withholding the documents, claiming they were drafts exempted under the state Open Records Act.
But the statute contains no provision allowing governments to keep "drafts" secret from the public.
Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."
The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)
In late October, City Manager Rodney Ray agreed to release those "work session" documents to the Owasso Reporter even though he disagreed that the Open Records Act required him to do so.
The Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too.
In November, the city began making the documents available to the general public.
Ray's administrative assistant, Juliann M. Stevens, emailed the September agenda packet to Jennifer Gray, who was a student in my media law course and also an Owasso resident.
The city also is posting the agenda packets for "work sessions" online. See the Nov. 8 packet and the one for tomorrow (Dec. 13).
Thank you to the Owasso city officials for making the documents easily available to the public.
Kudos to the Owasso Reporter for sticking up for not just its need to know but for the public's as well.
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.
At least the nature of an impending lawsuit or claim should be listed on the agenda item for an executive session under the Open Meeting Act's attorney-client privilege, an official with the state Attorney General's Office said Monday.
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
He spoke to more than 200 government officials, news media and other members of the public at a Monday seminar in Oklahoma City. The next workshop on the state freedom of information laws will be Nov. 14 at the High Plains Technology Center in Woodward.
The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.
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))
The statute 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))
Hudson 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.
Hudson reiterated what Pruitt told a state agency in September: The agenda item should list information such as the name of the parties in the lawsuit.
"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."
On other Open Meeting Act issues, Hudson ...
- Warned against taking "straw polls" in executive sessions;
- Said a roll-call vote isn't required by the Open Meeting Act, "but it's the smart thing to do"; and
- Warned that a majority of a public body should not take action or discuss public business by phone, email or even Facebook.
Speaking about the Open Records Act, another member of Pruitt's staff warned governments against charging more than the direct, reasonable cost of copying documents.
"This isn't supposed to be a money-making operation," said Diane Clay, communications director for the Attorney General's Office.
Clay also agreed that staff memoranda and other documents are public records when given in agenda packets to members of public bodies.
The Oklahoma Open Records Act contains no provision for "drafts." Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."
The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)
Clay reminded officials of the statute's purpose: "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." (OKLA. STAT. tit. 51, § 24A.2)
Similarly, Hudson told officials to keep in mind the purpose of the Open Meeting Act: "Encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
He noted that the Oklahoma Supreme Court said the Open Meeting Act "is to be construed liberally in favor of the public" because the statute was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
And, Hudson pointed out, the Court of Civil Appeals 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)
Ultimately, Hudson warned officials: "The Open Meeting Act is the law. Don't break the law."
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.
Agendas for meetings of public bodies must be specific, the Attorney General's Office emphasized to government officials this week.
"Don't try to hide the ball," warned Janis Preslar, chief of the Attorney General's Office's general counsel office.
Preslar spoke on the state Open Meeting Act during a Monday seminar in Muskogee. The next workshop on the state freedom of information laws will be Nov. 7 at the Metro Technology Center in Oklahoma City.
The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.
Read Tulsa World and Muskogee Phoenix coverage of Monday's seminar.
Preslar said the Attorney General's Office reviews the agendas of all state agencies it advises and urged public bodies to have their agendas reviewed by their attorneys before posting.
Preslar also warned that ignorance of the law doesn't make a violation non-willful.
"Ignorance is not an excuse," she said. "Willful violation can mean that you didn't know about a law that you should have."
Pruitt should remind district attorneys of 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.
A state agency's 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)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.
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.
This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.
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))
But the statute 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))
However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.
Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.
In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.
Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)
In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, Wilson pointed out.
That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))
Another attorney with experience in open government cases said identifying the claim "is extremely important."
"Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.
Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.
"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.
(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)
In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.
"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.
Attorney General Scott Pruitt seems to agree.
The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.
A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.
(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)
Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.
On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:
The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.
Pruitt's advice apparently will improve the commission's future agendas as well.
"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.
Other public bodies should take note of Pruitt's opinion and do so as well.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.
But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.
Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.
However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.
In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.
Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.
Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."
"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.
Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.
Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.
In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."
Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."
The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.
(For a detailed explanation of how public bodies try to exploit a loophole in the Open Meeting Act, read how the OU Regents use a strict compliance with the letter of the statute to defeat its purpose.)
Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))
And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.
But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.
DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.
One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.
DeVaughn told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
Prater has done just that, warning the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."
Dow had also complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."
Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.
However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."
As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
State Department of Human Services legal staff, not the commission overseeing DHS, will respond to the Oklahoma County district attorney's request a week earlier for a written explanation for why two issues "should not be viewed as willful violations of the Oklahoma Open Meeting Act," Oklahoma Watchdog reported Friday.
District Attorney David Prater said the commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act."
Prater's request for more information was directed to Commission Chairman Richard L. DeVaughn. Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."
The Oklahoma Commission for Human Services certainly seems to have violated the Open Meeting Act in some instances. For more explanation, read "DHS commission falls short of Open Meeting Act requirements, DA says."
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
The statewide commission overseeing the Oklahoma Department of Human Services may have violated the Open Meeting Act, Oklahoma County's district attorney said Friday.
The commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act," said David Prater in a five-page letter to Commission Chairman Richard L. DeVaughn.
Prater asked DeVaughn for a "written reply to provide any needed explanation or clarification of the ... issues and to show why these two issues should not be viewed as willful violations of the Oklahoma Open Meeting Act."
Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."
Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)
The state Supreme Court has said that for the purposes of the Open Meeting Act:
Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act. (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)
DeVaughn told the Tulsa World, "I’m very, very confident that we have never violated the Open Meetings Act in any form."
DeVaughn, a commissioner since 2004, better read the Open Meeting Act again because they certainly have violated it.
At their June meeting, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, Oklahoma Watchdog Editor Peter J. Rudy reported at the time.
Rudy and Commissioner Steven Dow complained to Prater about the commission's practice to "never officially return from executive session and publicly vote in open meeting about the matters discussed in executive session."
The Open Meeting Act prohibits the commission from voting in executive session. The statute also requires that all votes be publicly cast.
Dow complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."
Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.
Commission records showed Commissioner George Young Sr. voting to return from an executive session and to adjourn the meeting June 14 even though Young wasn't present for most of the executive session or for the adjournment, the Tulsa World later reported.
Prater said the commission clearly "has not properly come back into open session after having convened and gone into executive session."
He said telephoning commissioners for their votes on executive sessions and on adjournment "falls short of what is required under the Act."
"The practice ... is careless at best and falls short of what the public has a right to expect from its public servants," Prater said. "This office condemns any action, purposeful or unintentional, which has the intent or effect of circumventing the Open Meeting Act in regard to executive session matters."
Prater rejected the notion that not publicly voting to adjourn would be a "de minimis violation."
"I would submit there are no de minimis violations of the Open Meeting Act," Prater wrote. "Oklahoma's laws on openness in government serve an important and noble purpose. Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."
Prater commended the commission for properly reconvening in open session to adjourn at its July 26 meeting.
But Prater told the Tulsa World he is looking "real hard" at whether the commission purposefully places no more than four of its nine members on its Budget Committee in an attempt to avoid the requirements of the Open Meeting Act. That loophole only applies, however, if the committee has no actual or de facto decision-making power.
"Part of the problem looking into these committees is there are no minutes and nothing is recorded so it is hard to determine what has been considered," Prater told the newspaper.
(For a detailed explanation of how public bodies try to exploit the loophole, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.)
Dow has said the Budget Committee "has de facto decision-making authority."
"They did not decide to approve the overall budget, but it did decide the details of that budget," he said.
Dow also had complained that when the commission approved the Department of Human Services budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.
An important decision. But no mention of it was made on the meeting agenda.
Prater said the omission was not a "willful violation of the law that would render null and void the action taken by the Commission."
An agenda item concerning a $500 million budget "could never spell out each and every detail," wrote Prater.
"However, the core purposes of the Open Meetings Act dictate that the public be able to ascertain what actions are to be considered or taken by its governing bodies, and my concern is that with very little effort on the part of the Commission, this particular agenda item could have been made to far better advance the purposes of openness in government," Prater wrote.
Prater warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
In June, DeVaughn had told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
Seems as though Prater has done just that.
(For more news coverage of Prater's letter, read DHS commission may have violated openness laws, DA says by Bryan Dean of The Oklahoman.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
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.
A wrongly worded McAlester City Council agenda item will be reposted with the correct information and voted on again, the mayor told the McAlester News-Capital.
The newspaper's James Beaty had questioned the validity of the council's original vote last week.
The agenda item was labeled "Consider and act upon change in zoning from R-1B (Single Family Residential) to C-5 (Highway Commercial)."
However, the summary in smaller print explained the item concerned closing streets and alleys, not a rezoning.
Turns out, the incorrect label was a clerical error that simply repeated the label from the previous item on the agenda.
City Attorney Joe Ervin told Beaty the council's approval of the street and alley closings was valid because the summary was correct.
"As long as any element is correct," it doesn’t matter if another part is not, Ervin said.
Beaty contended that Ervin’s interpretation sets a dangerous precedent for future councils.
For example, Beaty wrote, what would then prevent a future council from listing Item 6 as a resolution supporting Flag Day — but then stating in smaller print under an Executive Summary as actually being about a water bill increase?
I agreed with Beaty that Ervin's explanation opens the door to abuses of the Open Meeting Act.
Also, a reasonable legal argument can be made that the City Council should not have approved the incorrect item but instead should have pulled it or tabled it.
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)
Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the Court of Civil Appeals said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)
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. (Id. ¶ 8)
Based on those statements, the McAlester City Council shouldn't have voted on the agenda item.
But why should Beaty or I have to make any legal argument? The issue is as much about ethics and the principle of conducting an open government as it is about the letter of the statute.
Why couldn't the City Council just do the right thing without arguing over it?
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," said then-Attorney General Jan Eric Cartwright in 1982. (1982 OK AG 212, ¶ 11)
How does the city attorney's defense of the City Council's action inspire public confidence in McAlester's city government?
Why not just admit there was a mistake and pull the item until it could be corrected for the next meeting's agenda? If it needed to be dealt with before the next regular meeting, they could call a special meeting.
McAlester city officials could take a lesson from the way Muskogee County District Larry Moore handled a similar situation in July 2009. The wrong date had been listed on the agenda for the county commission's regular meeting. Moore refused to allow the commission to conduct the meeting as an "emergency meeting," saying a special meeting could be called without sustaining any financial loss.
"We’re going to follow the law. It’s as simple as that," Moore told the county clerk and commissioners.
My point: Mistakes happen. But make the right choice when they do.
McAlester Mayor Kevin Priddle seems to have gotten the message.
"You don't want to set the precedent about something not being covered at any level of government — whether it's the city, or state or federal," he told Beaty.
Priddle said he will have the item placed on the agenda again to ensure it has been properly posted before the council votes on it.
Now was that so hard?
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.
