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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.
Seems like the Budget Committee for the Oklahoma Commission for Human Services is violating the Open Meeting Act, based on what one commissioner told the Tulsa World.
Steven Dow also said that when the commission approved the Department of Human Services budget Tuesday, 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 Tuesday.
Chairman Richard L. DeVaughn told the newspaper in a release that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
In other words, until Pruitt or a court tells DeVaughn to be more transparent, the public can go to hell.
(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 2012.)
Dear Mr. Pruitt, please tell DeVaughn to add more details to the agendas so that the public can know in advance what the commission is up to. Better yet, tell them all to follow not only the letter but also the spirit of the Open Meeting Act.
The stated purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Therefore, then-Attorney General Drew Edmondson said in 2000, "a governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
The principle is "very simple," the state Court of Civil Appeals said that year: "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
In contrast, the Oklahoma Commission for Human Services has a budget committee that meets in secret.
The commission purposefully places no more than four of its nine members on the Budget Committee in at 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.
But the Budget Committee "has de facto decision-making authority," said Dow, executive director of the Community Action Project of Tulsa County.
"They did not decide to approve the overall budget, but it did decide the details of that budget," he said.
Ooops!
(Friday's posting explains the loopholes that the commission is trying to exploit.)
Nothing in the Open Meeting Act prevents the Oklahoma Commission for Human Services from posting agendas and keeping minutes of its Budget Committee meetings or from posting more details on its agenda.
Only a desire for secrecy is stopping it.
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 doesn't seem too keen on open government.
On Tuesday, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, reported Oklahoma Watchdog Editor Peter J. Rudy.
And Commissioner Steven Dow complained to Rudy that he -- Dow -- is not allowed to attend the commission's budget committee hearings.
Rudy said he has provided information about the lack of a public vote to adjourn -- an apparent violation of the Open Meeting Act -- to the Oklahoma County district attorney.
Rudy said he was the only person in the meeting room when commissioners returned from about a 15-minute executive session. Rather than dealing with the next agenda item or even voting to adjourn, commissioners "started gathering their things and leaving," Rudy reported.
Rudy said he was told the meeting was over. During a subsequent interview, he was told that the commission's clerk "asked each member individually for their vote on whether to adjourn."
However, the Open Meeting Act states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)
That doesn't mean voting behind closed doors at the end of the executive session or in the hallway walking back to the meeting room.
Leaves me wondering what else commissioners vote on outside the view of the public.
Also indicative of the commission's disrespect for an open government was Dow's complaint of being barred from the commission's budget committee hearings.
"They do not want the committee subject to the Open Meetings Act. There is no agenda, no minutes, no way for me to find out what the deliberations were,” said Dow, executive director of the Community Action Project of Tulsa County.
Apparently the budget committee isn't a majority of the commission members, but having Dow there would put it over the magic number.
Yes, it's that old game again.
For a detailed explanation, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.
Here is a summary of how it works: (1) The Open Meeting Act's definition of "meeting" allows less than the majority of a public body to meet secretly to discuss the public’s business. (2) The Open Meeting Act says it applies to "all committees and subcommittees of any public body." But a state Supreme Court decision years ago said that despite that language, the statute doesn't apply to committees that are strictly advisory.
Public bodies use these loopholes by saying the committee -- consisting of less than a majority of the public body -- isn't subject to the Open Meeting Act because the committee doesn't make decisions.
Seems odd that the budget committee wouldn't make any decisions.
Nothing in the statute prohibits the committee from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing. That's outrageous.
And the Legislature needs to address these loopholes by clarifying that ALL means ALL, even those committees that just advise or recommend, and especially those committees whose members are from the parent public body.
On Tuesday, Dow was one of two commissioners to vote against the proposed budget for the Department of Human Services, Rudy reported in a separate story.
Dow's complaints about the budget and the budgeting process are worth reading.
The nine-member commission, established by the Oklahoma Constitution, "approves program budgets, funding, and policies and procedures that direct the Department's program and service delivery."
The other commissioners are Chairman Richard L. DeVaughn, Vice Chairman Aneta F. Wilkinson, Jay Dee Chase, Linda English Weeks, Michael L. Peck, Robert D. Rawlings, Anne M. Roberts, and George E. Young Sr.
They do an important job that should be done in the open. But that doesn't seem to be the commission's mind-set.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
A reporter for The Oklahoma Daily was prohibited by the legal counsel for The University of Oklahoma Board of Regents on Wednesday from attending four committee meetings where, as the student newspaper points out, "public business regarding university building plans and fees were discussed."
The reporter was barred from meetings of the board's audit and finance, Norman campus, Health Sciences Center campus and athletics committees, the newspaper reports today .
In an e-mail to the newspaper, OU regents legal counsel Anil Gollahalli called the meetings "informational subcommittee meetings to allow members of the Board to more fully find facts relevant to items that may considered by the full Board in public session."
The Open Meeting Act clearly states that the definition of public body "shall include all committees or subcommittees of any public body." (OKLA. STAT. tit. 25, § 304(1))
But Gollahalli told the newspaper, "To ensure that the entire Board always gathers in meetings open to the public, subcommittees are composed of no more than three members of the Board such that subcommittees lack a quorum."
In other words, the regents purposefully meet in groups smaller than a quorum of the full board as a way to avoid discussing the public's business in front of the public.
A loophole in the Open Meeting Act's definition of "meeting" allows a group smaller than the majority of a public body to meet secretly to discuss the public’s business.
But does that apply if the three members of a public body constitute the entire membership for a committee of that public body? A quorum of the committee is meeting to discuss public business.
So how does Gollahalli attempt to bypass that problem? By saying the committees have no independent decision-making authority.
"The informational nature of the subcommittees are such that no subcommittee has independent decision-making authority, ensuring that no decision of the Board ever occurs without participation of the full Board and the public's knowledge," he told the newspaper.
That relies on an exception the state Supreme Court carved out for sub-entities -- typically ad hoc committees or citizens advisory committees -- empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity.
A subordinate entity -- a Citizen's Advisory Committee in that case -- with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton, 1978 OK 53.
HOWEVER, Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the Citizen’s Advisory Committee met.
The current statutory language including "all committees or subcommittees of any public body" in the definition of public body was added in 1977.
A 1981 attorney general relied upon that "expanded definition" to decide that Job Content Evaluation Committees were "the subcommittees of a public body, the State Personnel Board." (1981 OK AG 214)
Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:
In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.
Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law.
Under the new Open Meeting Act, the term 'public body' was enlarged to include, '... all committees or subcommittees of any public body.' The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (¶¶ 7-8)
Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the "1977 changes merely added several new categories to the definition of 'public body.'" (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)
But the key question in International Association of Firefighters was whether the Sanders rule on subordinate entities applied to "an individual."
The court concluded that the Legislature had not intended for the 1977 revisions to expand the Sanders doctrine to include an individual.
The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body "shall include all committee or subcommittees of any public body."
Had legislators overridden the rule set forth in Sanders? Attorney General Cartwright believed so in 1981.
So we're back to asking what the OU regents' committees do? If they make recommendations, do they cull options from the list? That would be making a decision and require them to comply with the Open Meeting Act.
And does the Sanders rule apply to standing committees of a public body?
But the real question here is why shouldn't the public be allowed to attend "informational subcommittee meetings" in which members of a public body "more fully find facts relevant to items that may considered by the full Board in public session."
It is, after all, the public's business.
Our state Court of Civil Appeals has said the "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 12)
Our state Supreme Court has said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)
Because the Open Meeting Act was "enacted for the public’s benefit," the Oklahoma Supreme Court has said, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
The principle is "very simple," the state Court of Civil Appeals has said, "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
Gollahalli said, "The University and its governing Board are committed to openness and transparency and endeavor to ensure full compliance with all applicable laws."
But the OU regents and their legal counsel are using a strict compliance with the letter of the law to defeat its purpose, which is "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."
When a public body does the legal equivalent of the limbo to avoid the Open Meeting Act, it doesn’t build the public's trust or confidence in government. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. And it certainly doesn't demonstrate a commitment to openness and transparency.
Unfortunately, OU regents aren't alone among university and college administrators in this regard. But perhaps OU's regents will reconsider. One can only hope.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The Lone Grove City Council likely will select a city manager tonight from a list of three candidates recommended by a committee that met secretly to winnow the list from 31 applicants, says Gary Hicks, owner of The Lone Grove Ledger.
The committee, composed of two councilors, the city clerk and two residents, was appointed by the council to screen applicants for the city manager position.
Under Oklahoma law, a committee that exercises actual or de facto decision-making power is subject to the Open Meeting Act.
Hicks says Lone Grove officials, however, will likely try to slip through the same loophole used by other public bodies. The same one used by the OSU A&M Board of Regents when it chose Burn Hargis as OSU president.
For all intents and purposes, a committee cuts the list of applicants. But the full board officially is able to consider all the applicants.
For example, almost three years ago today, OSU regents selected Hargis after he was unanimously referred by a 33-member search committee. To defend that committee's secret meetings, the governing board's attorney said the regents alone had the responsibility to choose and employ a president, reject all candidates or reopen the search.
But this was the regents spokesman's explanation of the committee's process:
- 102 “potential candidates,” including 53 nominees, were in contact with the search committee.
- The committee considered whether applicants and nominees were qualified and narrowed the pool to 27 applicants.
- Six candidates interviewed with the committee.
- Three were interviewed.
- The committee unanimously referred Burns Hargis to OSU’s governing board “for further consideration.”
Seems like the committee made several decisions.
Even so, the regents went into executive session supposedly to consider all the applicants. The closed-door session lasted about 15 minutes -- including the time regents spent walking to and from another room.
It was a sham. During the executive session, OSU spokesman Gary Shutt handed out news releases announcing the regents had voted unanimously to choose Hargis. The news release even included quotes from state officials about the selection of Hargis.
Remember: The board was still behind closed doors and hadn't returned to vote in public.
Unlike the OSU regents, Lone Grove council members might not have already made up their minds. Councilors are slated to interview all three recommended candidates in executive session tonight.
The public never learned who else the search committee had considered for the OSU job. At least in Lone Grove, the names of the three applicants are on the agenda for tonight.
So why was it necessary for the committee to meet secretly? To abide by the Open Meeting Act, the committee would only have had to notify the public of its meetings and posted agendas for those meetings. It could have gone into executive session to discuss and review applicants. Only votes to select the finalists would have had to be conducted in open session. And the public learned those names when the agenda was posted.
More important, how does this loophole exist when the Open Meeting Act clearly says the definition of public body “shall include all committees or subcommittees of any public body”? (OKLA. STAT. tit. 25, § 304(1))
We can thank our state Supreme Court. In 1978, justices carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)
A subordinate entity with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton.
Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the advisory committee at issue had met.
The statutory language adding “all committees or subcommittees of any public body” to the definition of public body was enacted in 1977.
A 1981 attorney general relied upon that “expanded definition” to decide that Job Content Evaluation Committees were “the subcommittees of a public body, the State Personnel Board.” Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:
In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.
Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law. Under the new Open Meeting Act, the term ‘public body’ was enlarged to include, ‘. . . all committees or subcommittees of any public body.’ The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (1981 OK AG 214, ¶ 7)
Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the “1977 changes merely added several new categories to the definition of ‘public body.’” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)
Its reasoning emphasized that when the Open Meeting Act was revised, the House in Conference Committee had rejected a Senate amendment that would have changed the definition of public body to include “advisory groups, advisory committees, or persons appointed to advise, consult or make recommendations for any board, bureau, commission, agency, task force or study group….” (Id. ¶ 11-12) In the court’s view, that language would have “broaden[ed] the coverage of the Open Meeting Law to groups, committees, etc.” (Id. ¶ 11)
However, an equally plausible explanation is that the amendment was rejected because legislators did not intend for the Open Meeting Act to apply to individuals. The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body “shall include all committee or subcommittees of any public body.” Had legislators intended to override the rule set forth in Sanders? Attorney General Cartwright seemed to believe so in 1981.
Only a more thorough investigation of legislative records would shed light on the Legislature’s intent. In the meantime, it should be assumed that the Sanders doctrine applies: An advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Open Meeting Act.
“Not making decisions means not making any decisions,” Edmondson reminded Oklahoma public school boards in late 2004. “If you’re looking for a new superintendent or a new coach and you appoint a subcommittee to go through all the resumes and then come back and make a recommendation, that’s fine. But if the subcommittee can cull out some of the applicants, then they’re making decisions. That makes them in breach of the Open Meeting law.” (Becky Tiernan, Attorney general clarifies Open Meeting Act rules, THE DAILY OKLAHOMAN, Nov. 18, 2004, at 15A)
In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)
Unfortunately, some government officials in this state have ignored these warnings and twisted Sanders to avoid the Open Meeting Act.
The only solution is to have our state legislators make clear in the statute that all advisory committees, even those with no decision-making power, are subject to the Open Meeting Act. Because, unfortunately, we cannot trust our government officials to abide by anything less.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
