Apparent Open Meeting Act violations by Norman City Council

The Norman City Council came to a "consensus ... to move move forward with a compensation increase" for the city manager during an executive session last month but didn't vote on the action in open session, The Norman Transcript reported Saturday.
 
Norman Mayor Cindy Rosenthal committed another apparent violation of the Open Meeting Act when she asked in a Feb. 19 memo for each council member's "input" on new details of the recommended increase and to "let me know what direction you would like to move."
 
The Norman Transcript obtained a complete copy of the memo last week after City Attorney Jeff Bryant refused to release a redacted version, claiming it was an extension of the executive session, the newspaper also reported Saturday.
 
But the City Council's executive session discussion could not have continued after the meeting. The council had voted to adjourn its executive session and re-enter the regular session, according to minutes of the Feb. 12 meeting.
 
When the council re-entered the regular session, Rosenthal announced that no action and no votes had been taken in the executive session.
 
Under the Open Meeting Act, "any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded." (Okla. Stat. tit. 25, § 307(E)(3))
 
But according to Rosenthal's memo, the council had reached a "consensus ... that the City Manager's compensation and benefits package be adjusted to track with AFSCME and NonUnion wage adjustments in FYE12 and FYE13."
 
"I asked the City Attorney to review these recommendations and advise if he thought there were additional issues that should be considered," Rosenthal wrote in the memo.
 
There was: The council cannot adjust base pay for previous fiscal years, so "the proposed pay adjustment" would leave the city manager about $5,400 short of comparable treatment of AFSCME and NonUnion pay raises, Rosenthal wrote.
 
"As a matter of equity, we may wish to add to the one time stipend to close that gap," Rosenthal wrote. "Attached to this memorandum are comparison calculations. I welcome your input.
 
"Please review this information and let me now which direction you would like to move," she wrote.
 
Rosenthal wrote that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
But for decades, the law has clearly prohibited the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 305)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting." (1981 OK AG 69, ¶ 17)
 
The statute prohibits a member from obtaining a consensus upon an item of business through a series of private one-on-one meetings, according to that attorney general opinion.
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
Rosenthal's memo is the same as meeting one-on-one to obtain a consensus.
 
The Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is “very simple," the state Court of Civil Appeals said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
Also troubling is that Rosenthal and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge.
 
They promised to "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."
 
They broke that promise by coming to a consensus in an executive session and not voting publicly. They did so again if they were among a majority of the council that later discussed and came to a consensus on the pay proposal outside a public meeting. Kovach said he alerted the newspaper to Rosenthal's memo and advised his colleagues against responding to it because doing so seemed to be a violation of the Open Meeting Act.
 
These apparent violations of the Open Meeting Act should be investigated and prosecuted by Cleveland County District Attorney Greg Mashburn.
 
Because the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations."
 

 
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.

Prosecuting state Pardon and Parole Board is right call

Oklahoma County District Attorney David Prater's prosecution of the state Pardon and Parole Board for Open Meeting Act violations is drawing unwarranted criticism from the governor and The Oklahoman's editorial writers.
 
All five board members -- Currie Ballard, Richard L. Dugger, Marc Dreyer, Lynnell Harkins and David Moore -- pleaded not guilty on Thursday to multiple counts of violating the statute.
 
Prater alleges the board broke the law by discussing and voting on early parole consideration for inmates without listing such actions as agenda items. Instead, he says, the votes took place under the vague agenda item of "Docket Modifications," which included no other information.
 
Board members have said those votes only determined whether an inmate would be placed on the docket of a future meeting, at which time the inmate's name would appear on the board's website.
 
After charges were filed Wednesday, Gov. Mary Fallin said it "will have a chilling effect on individuals interested in public service."
 
"It is difficult to imagine men and women who are leaders in their communities wishing to serve in these positions — the vast majority of which draw no salary — if they are constantly in fear of being charged with a crime while making a good-faith effort to follow the law and the recommendations of their paid legal advisers," said Fallin.
 
(The Oklahoman echoed that concern in an editorial Friday.)
 
Fallin appointed Ballard, Dreyer and Moore to the board in 2011.
 
As a gubernatorial candidate in 2010, Fallin said she would expect her appointees to public bodies to abide by the state's Open Meeting Act. But her comments this week are an insult to the thousands of Oklahomans who serve on state and local boards and commissions without violating the statute.
 
The Open Meeting Act, as our Court of Civil Appeals noted in 1981, "is not obscure or incomprehensible." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
"On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word,” the court said. "Lack of familiarity is no excuse."
 
The Open Meeting Act certainly shouldn't have been incomprehensible to the five parole board members. Three -- Ballard, Dreyer and Harkins -- previously served on the board. And four have experience in enforcing the law: Dreyer is a former Drug Enforcement Administration agent; Dugger was a longtime district attorney in western Oklahoma; Harkins is an attorney and former special judge; and Moore is a former U.S. Secret Service agent.
 
All five also had no excuse because the state Attorney General's Office told them in April 2011 that agendas must give the public actual notice of the actions that might be taken in a meeting.
 
In an affidavit filed with the charges, Prater's chief investigator, Gary Eastridge, described what he heard in the audio recording of the hourlong open government training session that Gay Tudor, then an assistant attorney general, conducted with the board.
 
While Tudor was suggesting more details be added to agenda items, Eastridge said, "a female voice can be heard referencing 'docket modifications.""
 
Eastridge said Tudor made clear that board members could not take action if the possibility of that action was not listed on the agenda.
 
"The female (believed to be Mrs. Harkins) then specifically says 'that would be like docket modification item where we are going to bring someone forward.'"
 
Eastridge said Tudor emphasized during the session that the agenda is "a really big thing" and that agendas should include enough information for people to have an idea of what the board intended to do.
 
None of what Tudor told the board was new.
 
The Open Meeting Act says each agenda "shall 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 language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the state 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, ¶ 9)
 
The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said. (Id. at ¶ 9)
 
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, ¶ 18)
 
Violating the Open Meeting Act is a misdemeanor. If convicted, the Pardon and Parole Board members could be punished by up to one year in the county jail and a $500 fine.
 
Those "light penalties for violating the [state's open records and meeting] laws only exacerbate the problem. Unless that changes, behavior isn't likely to either," The Oklahoman's editorial staff lamented in late August.
 
In the 2011 training session, Eastridge said, a board member asked Tudor if "intent" had to be proved for a criminal violation of the Open Meeting Act. She responded that willful violations don't require intent, only "'whether you knew or should have known and see now you know.'"
 
So the parole board members don't seem to fit Fallin's description of appointees making a good-faith effort to follow the Open Meeting Act and the recommendations of legal counsel.
 
Fallin also implied that political appointees serving on statewide boards and commissions fall into the same category as volunteers for charitable organizations. But the members of these government bodies make important decisions regarding state policies and spending.
 
The Pardon and Parole Board, for example, is "a vital part of the criminal justice system" whose mission "is to determine the best possible decision, through a case-by-case investigative process and to protect the public while recommending the supervised released of adult felons."
 
As Prater emphasized: "Public Safety is a core function of our government. As alleged, the Board was making crucial public safety decisions without giving the citizens of Oklahoma an opportunity to scrutinize its activities."
 
None of these statewide boards and commissions, however, is directly answerable to voters for their actions.
 
And if a Washington County district court judge is correct, civil lawsuits over Open Meeting violations may be filed only if the plaintiff was directly harmed.
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Judge Russell Vaclaw said in 2011.
 
Yet, Oklahomans have heard from district attorneys a long list of unfounded excuses for not prosecuting Open Meeting Act violations. When a district attorney chose not to file charges in 2011 because city council members hadn't intended to break the law, The Oklahoman complained:

Wouldn't we all love to get away with that excuse if we're pulled over for a traffic violation? Gee officer, I didn't mean to do it.

And in early August prior to Prater publicly criticizing the parole board's agendas, The Oklahoman complained about the lack of teeth in the state's open government laws, saying, "Prosecutors often are in no hurry to pursue what is a misdemeanor offense, nor do they like going after other public servants — the people who violate those laws."
 
But in an editorial Monday questioning Prater's decision to file charges against the parole board, The Oklahoman editorial asked, "What does it profit the state for members of this board to take a perp walk?"
 
The Oklahoman had answered its own question in a 2011 editorial titled "Ignorance of open meeting laws no excuse for public officials."

The laws regarding public meetings are black and white, and need to be adhered to. And those charged with enforcing the law need to do just that.
 
Why? Because laws regarding open meetings and open records allow the public to see how their tax money is being spent, how their elected officials are conducting their business. This is vitally important in our society.
 
When public officials try to avoid that light, they ought to be punished.

That remains true today.
 
Prosecuting the parole board is the right call.
 

 
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 earns 'F' for public access to government information

Oklahoma's Open Records Act received a failing grade and ranked 33rd nationally in a recent national study of public access to government information.
 
Connecticut ranked first with an 89 percent "B+" grade, according to the State Integrity Investigation.
 
Oklahoma scored 54 percent.
 
The score probably should have been lower because the state received 100 percent for having a right of appeal if access to a record is denied.
 
The only appeal is to file a lawsuit, which the survey described as "a risky proposition which is both time-consuming and expensive," or ask a district attorney to enforce the statute.
 
South Carolina was "faulted" for having the same "weak legal structure." It ranked last with an overall score of 22.
 
South Carolina received zero points for the absence of a formal appeals process when a record is denied. Oklahoma received 100 percent under the same question.
 
However, Oklahoma received zero percent for not having a government "agency or entity that monitors the application of access to information laws and regulations."
 
Likewise, Oklahoma received zero percent for not having an agency that "independently initiates investigations" and "imposes penalties on offenders."
 
Also read: Oklahoma gets F on open government survey, by Bryan Dean, The Oklahoman, 7.28.12
 

 
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.

Delaware County district attorney refuses to prosecute Open Meeting Act violations in Bernice

The Bernice Board of Trustees won't face criminal charges over several Open Meeting Act violations detailed by a state audit in April, Delaware County District Attorney Eddie Wyant's office said last week.
 
"Basically, after we have looked at what we've got here, it appears that the things that they did were under the advice of their counsel, and that in our opinion makes it difficult to find that it was a willful violation," Wyant's first assistant told the Tulsa World
 
"We don't necessarily agree with their counsel, but it certainly mitigates against it being a willful violation," said Ben Loring.
 
But that excuse ignores a long line of contrary opinions by Oklahoma courts.
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
The court said the violation by the Beggs Public Works Authority, "although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, 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 of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
So should the Bernice Board of Trustees have known the law? In at least one instance, they were warned by a resident that an executive session would be illegal under the particular circumstances. But they did it anyway.
 
Keep in mind, too, that since 2005, all municipal officials elected for the first time must undergo training that includes the Open Meeting Act's requirements and prohibitions. (OKLA. STAT. tit. 11, § 8-114(A))
 
Violating the Open Meeting Act is a misdemeanor punishable by up to a $500 fine and one year in the county jail.
 
As a penal statute, the Open Meeting Act must be strictly construed, the Oklahoma Court of Criminal Appeals said in 1992.
 
"Any cause of action based upon such a statute must be clear and without a doubt," the court said. "Statutes which create and provide penalties for criminal offenders must be sufficiently explicit so persons of common intelligence may understand their provisions and so that their meaning does not require speculation," the court said. (State v Patton, 1992 OK CR 57, ¶ 3)
 
In Bernice, the state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had unquestionably violated the Open Meeting Act by:

• Discussing contracts of independent contractors in executive session;
• Not taking minutes of executive sessions;
• Not listing the statutory authorization for executive sessions or listing the wrong one;
• Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
• Voting in an executive session; and
• Discussing the creation of a job, rather than hiring a specific person, in executive sessions. (A violation that was pointed out on this blog last April.)

These aren't violations of new requirements or prohibitions under the Open Meeting Act. And, as the audit pointed out, the Oklahoma Court of Civil Appeals has said:

The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes [sic]. Lack of familiarity is no excuse. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶18 )

But in Delaware County, public officials' ignorance of the Open Meeting Act is being excused.
 
Loring also gave one more reason why Bernice trustees wouldn't be prosecuted for robbing the public of their right to an open government: It did not appear that any of the trustees personally benefited from the violations described in the audit.
 
"Our attitude would be a whole lot different if there is personal gain from it," Loring told the Tulsa World.
 
When did that become a requirement for prosecution of an Open Meeting Act violation?
 
Personal gain wasn't apparent, or mentioned, when the Muskogee County district attorney prosecuted Boynton town trustees in 2010 for Open Meeting Act violations.
 
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
 
Wyant's excuses for not prosecuting are frustrating for the public not only because they ignore the law but also because a Washington County judge has said Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the government body's alleged violation.
 
The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," said Associate District Judge Russell Vaclaw said in November.
 
But Wyant's refusal to prosecute blatant violations underscores the need to create an independent state authority with the expertise and willingness to pursue violations. Oklahomans simply cannot rely on local district attorneys to consistently do the essential job of protecting an open government.
 
In 2008, the Court of Civil Appeals said: "The 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)
 
However, that purpose is defeated when district attorneys shrug off violations of the Open Meeting Act.
 

 
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.

Assistant DA: Prosecution of DHS commission not likely

Commissioners overseeing the state Department of Human Services apparently won't face charges of violating the Open Meeting Act.

An assistant district attorney for Oklahoma County told the Tulsa World that the DHS response to allegations of meeting violations will be taken under advisement.

"I don't think filing charges will be necessary to accomplish our goal, but no firm decision has been made," said Scott Rowland. "I think with each passing meeting, we will see how things are being worked out."

Rowland told the newspaper that prosecutors met with DHS officials last week for the first time and discussed how the commission's committees are being used.

The soon-to-be-former chairman of the Oklahoma Commission for Human Services recently testified that the committees are limited to four members to avoid the Open Meeting Act's requirements for public notices and agendas, The Oklahoman reported Sunday.

Like some other public bodies in the state, the commission exploits a loophole created by the state Supreme Court to avoid committee meetings being open to taxpayers even though the Open Meeting Act definition of public body includes "all committees or subcommittees of any public body."

However, as I've pointed out on this blog several times, nothing in the Open Meeting Act prohibits these committee meetings from being open to the public. Rowland echoed that point in the Tulsa World.

"It would remove any room for argument if they would just post an agenda and open it up," Rowland said.

Sure would.


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 commission falls short of Open Meeting Act requirements, DA says

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.

Votes recorded for DHS commissioner who wasn't present; DA investigation into apparent Open Meeting Act violations by commission likely finished in about two weeks

DHS Commissioner George Young Sr. voted to return from an executive session and to adjourn the meeting June 14, according to commission records.

But Young wasn't present for most of the executive session or for the adjournment, the Tulsa World reported today.

The statewide commission overseeing the Oklahoma Department of Human Services is being investigated for apparent Open Meeting Act violations at the meeting.

For example, members of the Oklahoma Commission for Human Services left after the closed executive session on June 14 without a public vote to adjourn.

Oklahoma Watchdog Editor Peter J. Rudy provided information about that apparent violation of the Open Meeting Act to the Oklahoma County district attorney.

Assistant District Attorney Scott Roland says his investigation will likely be finished in about two weeks, the Tulsa World reported today.

Commissioner Steven Dow, who has complained publicly about the lack of openness by the public body, has said a staff person asked each member individually for a vote on whether to adjourn.

DHS spokeswoman Sheree Powell told the Tulsa World that the roll-call vote was taken "in a public area of the room."

That doesn't comply with the Open Meeting Act, which states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

Under the commission's procedure, a staff person could collect votes on any measure while members of the public body milled about in a public hallway or lobby.

That defeats the purpose of requiring a public roll-call vote. The public would have no idea who voted which way until the meeting minutes were available.

The commission's haphazard method also makes more likely the kind of mistake that Powell says occurred when votes were recorded for Young. She told the Tulsa World that the recorded votes were a "scrivener's error" and would be corrected in the minutes up for approval at the July 26 meeting.

Rowland's investigation should go beyond whether the commission cast public votes to return from the executive session and subsequently to adjourn.

When the commission approved the DHS budget on June 14, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.

But no mention of that important decision was made on the meeting agenda.

Chairman Richard L. DeVaughn later told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.

If Pruitt won't, hopefully Oklahoma County District Attorney David Prater will.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the Court of Civil Appeals has said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)

The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said.

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. (Id. ¶ 8)

The commission's June 14 agenda failed to give the public actual notice and materially obscured the scope of matters commissioners would consider.

Rowland also should be investigating Dow's claim that the commission's Budget Committee made decisions when it met secretly.

The commission relies on loopholes in the Open Meeting Act to avoid having the Budget Committee meet publicly and post meeting notices and agendas. No more than four of the commission's nine members are on the Budget Committee. But that avoids the Open Meeting Act's requirements only if the committee has no actual or de facto decision-making power.

But Dow, who said he was barred from the Budget Committee's meetings, said the commmittee "has de facto decision-making authority."

"They did not decide to approve the overall budget, but it did decide the details of that budget," he told the Tulsa World.

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in jail and a $500 fine.

Will DHS commissioners face charges, a stern finger-wagging, or be allowed to go merrily on their way? That will depend on what Rowland says he found and what Prater decides to do based on those findings.


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


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

DA agrees meeting violations occurred but refuses to prosecute, lambasts those who filed complaint

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, the district attorney for the Oklahoma Panhandle recently told a hospital board.

The agenda also must identify by name or position the employee to be discussed under the personnel exemption, said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.

An agenda must also identify the "potential action [to be] taken as a result of the executive session," said Boring in a June 10 letter to three doctors who filed an Open Meeting Act complaint against the board.

Boring said these required pieces of information were left off a May 24 meeting agenda for the Board of Control overseeing the Memorial Hospital of Texas County in Guymon.

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)

But Boring said he won't prosecute because these omissions weren't "a willful violation of the OMA by the BOC that would support or justify criminal prosecution."

Boring blamed the violations on the "extremely short notice and time period" that the hospital's CEO had to "prepare, post and file a revised agenda in order for the BOC to be able to address" the issue that required an executive session. (Read The Oklahoman article for an explanation of the conflict over a doctor's suspension.)

"It is also worthy of noting that this complaint is the only complaint ever received by this office against the BOC of MHTC with respect to the OMA," Boring said.

However, May 24 wasn't the first time the board's agenda omitted some or all of the information that Boring said is required to conduct an executive session.

Eleven of the board's previous 15 agendas since Nov. 24, 2009, lacked the necessary information for its closed-door sessions. (Read the agendas for Jan. 25, 2011; Dec. 20, 2010; Sept. 28, 2010; Aug. 24, 2010; May 25, 2010; April 27, 2010; March 30, 2010; Feb. 23, 2010; Feb. 2, 2010; Dec. 22, 2009; and Nov. 24, 2009.)

So, a lack of time doesn't seem to have been the cause of the violations.

Perhaps the lack of complaints is because the public attending the meetings didn't know the law.

That's not an excuse for the board. As Boring pointed out, the hospital's CEO is not responsible for the Open Meeting Act violations even though he puts together the agenda.

"He is not a member of the BOC," said Boring. "The provisions of the OMA impose obligations upon the board of a public body."

The board members are Chairman Wayne Manning, Vice Chairman Dallas Mayer, Secretary/Treasurer Jim Webster, John Nye, John Board, Mary Beth Ebersole and Kelly McMurry.

Why don't they know the law? Boring's conclusions and the law he relied upon regarding what the statute requires are decades old. The Act states, "If a public body proposes to conduct an executive session, the agenda shall:

1. Contain sufficient information for the public to ascertain that an executive session will be proposed;
2. Identify the items of business and purposes of the executive session; and
3. State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

A 1997 attorney general opinion says agenda items for an executive session under the personnel exemption must include either the employee's name or job title if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)

The reasoning in that opinion and the statute's language also make clear that a specific item of business must be listed under the exemption for attorney-client privilege.

Boring agreed, saying,

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.

So what is required for a violation to be prosecuted?

Boring explained that his "office is not authorized to file criminal actions against anyone on its own initiative."

"My office files criminal actions based upon the receipt of an 'affidavit of arrest' or an 'affidavit for issuance of an arrest warrant' from a law enforcement officer," he said.

Boring said his office may "receive and gather information relating to allegations of criminal activity, especially when such activity relates to actions taken by public bodies."

"Subject to obtaining relevant facts that may indicate criminal action has occurred, this office may then submit the information to the appropriate law enforcement agency for formal investigation," he said.

Boring said it's "not unusual" for his office "to receive complaints relating to violations of the OMA." His office then attempts to obtain all the pertinent information and determines if the Open Meeting Act has been violated, he said.

"If we find a violation, we must then consider if such a violation could be deemed a 'willful violation' of the OMA before referral is made to law enforcement," Boring said.

He noted that in 1984, the state Supreme Court 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)

He also noted that in the same opinion, the court said, "Notice of meetings of public bodies which are deceptively vague and likely to mislead constitute a willful violation." (Id.)

Boring said that in reading the board's May 24 agenda, "It is not possible to say that it would be comprehensible to a person of ordinary intelligence what matters were proposed to be discussed in the executive session and what action, if any, was contemplated to be taken on the matters to be discussed in the executive session.

"The duty to specify on the agenda plainly and directly in language comprehensible to a person of ordinary intelligence the purpose of the executive session proposed ... was not satisfied," Boring said. "The notice provided to the public in ... the revised agenda fails to satisfy the requirements of minimum notice of the contemplated action that would be taken following the executive session."

So why isn't Boring forwarding the violations to a law enforcement agency for formal investigation and then prosecution? He explained:

It does not appear to me that there is any basis whatsoever to assert, much less establish and prove beyond a reasonable doubt in a criminal prosecution, that the BOC had any intention of acting in bad faith or with malice or wantonness to circumvent the provisions of the OMA.

There is absolutely nothing in the record that would indicate that any of the obvious hostility between the medical staff and the CEO, and perhaps any feelings the CEO might have toward members of the medical staff, were, should, or could be imputed to the individual members of the BOC.

Further, I can not conclude and certainly do not feel the facts would support a finding beyond a reasonable doubt that the actions of the BOC were taken in conscious, purposeful, blatant, or deliberate disregard of the OMA.

In addition, I do not believe or find any facts that would legitimately support a proposition that there was any intention on the part of the BOC to be deceptively vague or to mislead the public about the nature of the matters to be addressed in the executive session.

I conclude and find there was not a willful violation of the OMA by the BOC that would support or justify criminal prosecution of the BOC of MHTC.

What a steaming pile of buffalo chips.

Boring said the OMA puts the obligation on the public body, but then he excused them for being ignorant of a law that's nearly 35 years old. He's doing exactly what our Court of Civil Appeals in 1981 warned against:

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.

Instead of prosecuting the Open Meeting Act violations, Boring lambasted the three doctors who filed the complaint with his office, saying:

It is the policy of this office that, to the extent possible, we will avoid being drawn into political disagreements associated with municipal and county entities, including the functioning of various boards established under municipal or county authority. This office is not willing to permit the power of the office through a threat of criminal prosecution to be used as the arbiter of such disagreements.

The complaint received by this office is laden with indications of it being instigated as the result of an internal or political disagreement or dispute between certain members of the medical staff and the CEO of MHTC.

Boring said he is relatively sure that if the board had upheld the doctor's suspension by the three doctors, they would not have filed the complaint. He doesn't explain why that should affect his decision on whether the board willfully violated the Open Meeting Act. But Boring did add:

This matter has consumed almost four full days of my time in order to sort through and determine the actual facts as well as doing the necessary legal research and drafting of this response. These four days represent four additional days of time that other criminal matters and county business requiring my attention have been placed on hold. That means victims are waiting, defendants are waiting, judges are waiting, attorneys are waiting, and county officers are waiting while I have been dealing with this complaint.

That's all he did for those four days? So much for multi-tasking. And if it's "not unusual" for Boring's office to receive Open Meeting Act complaints, shouldn't he already know the law? This is another example of why the public should be able to go to someone at the state level who specializes in open government law.

In the meantime, Boring has provided some insight into the difficulty of getting district attorneys to treat this form of public corruption seriously.

P.S. The board's agendas also routinely list items of business under "New Business." Boring should explain to the board that the Open Meeting Act defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." Nothing should be listed on the agenda under "new business." (OKLA. STAT. tit. 25, § 311(A)(9))


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.

Possible criminal violation of Open Meeting Act by Broken Arrow School Board being investigated by state attorney general

A state investigatory audit of Broken Arrow Schools uncovered a possible Open Meeting Act violation that is being investigated by the state attorney general for possible prosecution.

The 84-page audit was released Thursday, but all details about the possible violation were redacted while state Attorney General Scott Pruitt's office continues its investigation.

"Once the AG’s office has completed its independent criminal investigation into these specific matters and a conclusion has been reached, those portions of the investigatory audit will be made public," according to a news release by Pruitt's office.

Violations of the Open Meeting Act are a misdemeanor punishable by up to one year in jail and a $500 fine.

Because the audit was requested by the Attorney General's Office to help in an investigation, the audit is considered part of that office's investigation and litigation files and, therefore, may be "kept confidential to preserve the integrity of the investigation until it’s complete or criminal charges are filed," according to the news release.

The audit covered several areas of interest between July 1, 2006, and March 31, 2009. Of the five current school board members, only Shari Wilkins and Sharon Whelpley served during that time.

"Following a thorough review, the Attorney General’s Office found possible criminal violations in at least two areas – open meetings and special favoritism for vendors. The AG’s Office will continue a criminal investigation in these areas, and pursue those criminally responsible, if warranted," according to the news release.

The audit cleared school board members of one alleged Open Meeting Act violation. A former board member was concerned that the board's policy committee had obligated the district for legal fees without proper board approval.

Auditors, however, determined that "no formal policy committee existed at the time" and that the contract for legal services was approved by the full board.


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

OU Graduate Student Senate passes two unlisted bills in apparent violation of Open Meeting Act

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

DA refuses to prosecute Lone Grove City Council for open meeting violation, says 'no collusion' between members; OSBI report closed to public

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

Boynton trustee pleads guilty to Open Meeting Act violation

A Boynton trustee pleaded guilty Tuesday to violating the state Open Meeting Act when he voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Trustee Elmer Claiborne Lang received a suspended one-year sentence and a $500 fine, according to news reports.

Lang also forfeited his office effective Tuesday because the guilty plea led the revocation of his probation on a 2009 nepotism charge.

All three town trustees were charged earlier this month with violating the Open Meeting Act on Sept. 27. The OSBI also is investigating whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

News coverage of Lang's guilty plea:

• Boynton official pleads guilty, loses his post, by Susan Hylton, Tulsa World, 10.27.10.
• Boynton trustee pleads guilty, by Muskogee Phoenix, 10.26.10.

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

Guilty plea but no remorse from former Boynton official for violating state Open Records Act

Former Boynton Clerk/Treasurer Pauline Osburn pleaded guilty Monday to two counts of violating the state’s Open Records Act, The Muskogee Phoenix reported today.

But the 73-year-old Osburn didn’t seem to understand that she was wrong to refuse town trustees access to the town's water records in May. She indicated to the judge she would likely do it again given the same circumstances, the newspaper reported.

Once officials had the records in hand, they learned the town had about $15,000 in the bank but more than $40,000 in debts. At the same time, the city was owed thousands of dollars for delinquent water bills. One resident owed more than $8,000, The Muskogee Phoenix reported.

On Monday, Osburn told the Muskogee District Court judge, “We had a bunch of people who had caused problems” – apparently referring to the other town officials who wanted to see the public records.

Osburn was given a one-year suspended sentence for each count. She must pay a $250 fine on each count, plus court costs and a monthly probation supervision fee of $40 per month. The Muskogee Phoenix reported the court costs were nearly $800 as of Monday morning.

Osburn faced a maximum sentence of one year in the county jail and a $500 fine for each of the two misdemeanors. (OKLA. STAT. tit. 51, § 24A.17(A))

A jury trial for Osburn had been scheduled for Oct. 26. She resigned in May.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Oklmulgee officials charged with violating Open Meeting Act

Members of the Okmulgee County Criminal Trust Authority, including the county sheriff and city police chief, were charged Thursday with 38 counts of violating the Oklahoma Open Meeting Act.

They are accused of unauthorized voting in executive session, failure to give notice of action actually taken, failure to record each member’s vote and two counts of failure to give notice of action taken, according to published reports by Sheila Stogsdill in the Tulsa World and The Oklahoman.

The charges stem from meetings occurring from Dec. 7, 2006, to Feb. 1, 2007.

Stogsdill reported that court records don't indicate the next court date for the men.

The case is being prosecuted by Muskogee County District Attorney Larry Moore.

A violation of the Open Records Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail. (OKLA. STAT. tit. 51, § 24A.17(A))

More details on the charges are available in Stogsdill's stories.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism