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Owasso Councilman Patrick Ross sued the town on Tuesday in an attempt to make public an investigative report that led to the resignation of the city manager.
Ross' lawsuit, filed in Tulsa County, alleges a number of violations of the state's open government laws, including that the City Council did not vote publicly to keep that report secret, not pursue criminal prosecution of then-City Manager Rodney Ray, and whether to fire him.
The lawsuit asks Judge Daman Cantrell to declare invalid the city's resignation agreement with Ray and declare the investigative report to be a public record.
Chris Camp, Ross' attorney, argues that the City Council also violated the Open Meeting Act during meetings on May 24, June 18, June 21 and June 25 by conducting executive sessions "for the purpose of discussing personnel matters relating to the Office of the City Manager."
As noted by this blog on July 12, a state attorney general opinion requires that agenda items for an executive session under the personnel exemption include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
The opinion agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, it added:
We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)
As this blog did, Camp argues that listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office. He notes that the title of city manager and the Office of the City Manager aren't synonymous, interchangeable terms under the city's charter and ordinances.
The executive sessions focused solely on Ray, the lawsuit states.
The council also violated the Open Meeting Act by not keeping minutes of its executive sessions on those dates, the lawsuit states.
Minutes of executive session discussions must be kept, the state Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
A 1996 state attorney general opinion (1996 OK AG 100, ¶ 5 ) came to the same conclusion. It noted that legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act (OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public (OKLA. STAT. tit. 25, § 307(F)(2)).
Ross' lawsuit says council members were permitted to read the investigator's report only during the June 21 executive session. They weren't allowed to keep copies so the city "could respond 'truthfully' that no member of its staff or the City Council possessed a copy of the report," according to the lawsuit.
During the June 21 executive session, City Attorney Julie Lombardi told the council that the report was considered a confidential personnel record.
During that executive session, the council also discussed whether to seek criminal prosecution of Ray and a proposed resignation agreement was presented by Lombardi and discussed, according to the lawsuit.
It notes that neither topic was listed on the meeting agenda and the council didn't vote publicly to designate the report confidential.
The lawsuit points out that following that meeting, Lombardi told the Tulsa World that the investigator had presented his finding orally and that neither the city nor the council had received a written report from the investigator.
During the June 25 executive session, the lawsuit states, the council discussed a counter-proposal from Ray regarding his resignation agreement even though that topic was listed under a separate agenda item for public discussion.
Ross contends that only a vote of the council could deem the investigative report to be a confidential personnel record. Council member Jeri Moberly told the Owasso Reporter last month that the council had voted to do so on June 25 when it publicly voted to accept the resignation agreement. But the lawsuit notes that the resignation agreement didn't mention the investigative report and conceded that the agreement itself was a public record.
Ross' lawsuit also contends that the council violated the Open Meeting Act by conducting confidential communications with its attorney during the executive sessions even though that exemption wasn't listed on the agendas and the council didn't determine prior to going into the executive sessions that disclosure of its communication with the city attorney would "seriously impair the ability" of the council to conduct the investigation.
The lawsuit contends that the report is "an internal affairs investigation of a City office" and not an exempted personnel record. Placing the investigative report into Ray's personnel file did not exempt it from disclosure under the Open Records Act, the lawsuit argues. It also also notes that the report isn't actually in Ray's personnel file.
Even if the judge deems it a personnel record, the lawsuit argues, the report should be public as a "final action resulting in loss of pay ... or termination."
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 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.
The state Education Board didn't violate the Open Meeting Act in September by omitting from the agenda the item of business that would be discussed in an executive session, a spokeswoman said Thursday.
The department's reasoning boils down to 'cause we say we didn't.
"We believe the actions of the Board, both with regard to posting and procedure, were in compliance with the Open Meeting Act. We are evaluating established processes of the Department to ensure they are and remain fully complaint with the law," said Tricia Pemberton in an email to Kurt Gwartney, KGOU news director.
Gwartney, who had questioned the vague agenda item, said Friday that he intends to bring a complaint to Oklahoma County District Attorney David Prater next week.
I explained in early October why the omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
As Gwartney later noted, "The agenda item basically gave the reader absolutely no idea what the board would be discussing."
Let's hope Prater agrees that the board violated the Open Meeting Act and at the very least tells the board to change its ways.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Last week's meeting agenda for the state Board of Education omitted the item of business that would be discussed in executive session.
That omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
It also robbed Oklahomans of their right to know what public business the board would be discussing behind closed doors.
The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
Similar wording can be found in the provision allowing executive sessions to discuss "matters pertaining to economic development ... if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." (§ 307(C)(10))
"A vote to enter into executive session pursuant to [that provision] must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business,'" Attorney General Scott Pruitt said in a formal opinion in November. (2011 OK AG 22, ¶ 5)
The vote to enter an executive session under the attorney-client privilege would require the same kind of public affirmation that a public discussion would "seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest."
However, the state education board had no such discussion. Instead, the board simply voted to go into executive session. (Listen to the Sept. 27 audio starting at the 1:21.00 mark.)
The Open Meeting Act also states, "If a public body proposes to conduct an executive session, the agenda shall:
Contain sufficient information for the public to ascertain that an executive session will be proposed;
Identify the items of business and purposes of the executive session; and
State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
But the state Board of Education didn't list the specific investigation, claim or action to be discussed.
Instead, its agenda listed only the specific statutory authorization for the proposed executive session, stating under "Legal Services":
Discussion and possible action to Convene into Executive Session to discuss a pending investigation, claim, or action pursuant to 25 O. S. Section 307(B)(4)
(a) Convene into Executive Session
(b) Return to Open Session
(c) Possible action
The board took no action when it returned to open session.
In a 1998 written opinion, then-Attorney General Drew Edmondson emphasized that the statute says, "All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act." (1997 OK AG 61, ¶ 2)
The bold italics were Edmondson's.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," Edmondson said. (¶ 3)
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id.)
"In this light," Edmondson said, "it is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion." (¶ 3)
Pruitt emphasized the same statutory requirements last November, saying public bodies cannot meet in executive session to discuss economic development unless they "give proper notice of the proposed executive session on the meeting agenda." (2011 OK AG 22, ¶ 5)
Even more to the point, Pruitt told a state agency a year ago that its agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client provision.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
In response, the agency's spokeswoman said, "In the future, we will list all parties of pending litigation."
At an open government workshop for public officials and others in Oklahoma City in November, Pruitt's top assistant said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
The agenda item should list information such as the name of the parties in the lawsuit, Hudson said.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
And because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
Or as Hudson warned officials in November: "The Open Meeting Act is the law. Don't break the law."
Yet, the state Board of Education's agenda last week listed nothing more than the statute allowing the executive session. So much for the public's right to know what would be discussed behind closed doors.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Rep. Mike Reynolds sat in on the state Board of Juvenile Affairs' closed-door interviews of executive director candidates Friday, The Oklahoman reported.
The executive session was delayed about 45 minutes after Reynolds asked to attend the interviews. Board members voted to allow him in after discussing it with attorneys.
Reynolds had cited a provision in the Open Meeting Act that allows any legislator to attend the executive sessions of any state agency, board or commission when the jurisdiction of the lawmaker’s assigned legislative committee "includes the actions of the public body involved." (OKLA. STAT. tit. 25, § 310)
But did that provision entitle the Republican from Oklahoma City to be in the executive session?
A 1978 attorney general opinion said a legislative education committee member was not entitled under the provision to attend executive sessions in which local school boards discussed the employment of individuals. (1978 OK AG 144)
The key was not that school boards are not "state" boards. Instead, the attorney general focused on whether the legislative committee "possesses such jurisdiction as would include the actions of the public body incident to the subject executive session." (Id. ¶ 6)
The attorney general noted that individual employment matters are "exclusively within the jurisdiction, judgment and discretion" of local school boards. (Id. ¶ 9)
"We are unaware of any existing legislative committee which possesses comparable jurisdiction," the attorney general stated. (Id.)
The Oklahoman noted that Reynolds is a member of the House of Representatives Administrative Rules and Government Oversight Committee, which reviews rules of all state agencies.
But by state statute, the Board of Juvenile Affairs -- not the Legislature -- hires and sets the salary for the executive director of the Office of Juvenile Affairs. (OKLA. STAT. tit. 10a, § 2-7-101(H)(2))
So it seems as though Reynolds was not entitled by the Open Meeting Act to sit in on an executive session in which the board interviewed candidates for executive director.
The board, however, was entitled to permit Reynolds into the closed-door session. The 1978 attorney general opinion said public bodies generally have the discretion to select whom they allow into executive sessions. (1978 OK AG 144, ¶ 4)
According to The Oklahoman, Reynolds encourages other lawmakers to attend executive sessions of agencies that their committees oversee. Not necessarily a bad idea.
But that right to attend seems limited to whether the subject of the executive session is within the jurisdiction of the legislator's committee. The Open Meeting Act doesn't seem to give legislators carte blanche to attend the closed sessions of state boards.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
The Healdton City Council recently met in executive session to "discuss consulting and possible hiring of Human Resources attorney regarding pending litigation," The Ardmoreite reported Monday.
But the Open Meeting Act doesn't permit a closed-door discussion of hiring an independent contractor.
And in another apparent violation of the statue, the meeting agenda failed to reveal anything about the "pending litigation" that justified the executive session.
The meeting Aug. 6 was the second this summer in which the council seemed to have violated the Open Meeting Act.
On July 2, the council met behind closed doors under the statutory exemption to discuss terrorism-related issues even though it actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma.
The meeting agenda not only listed the wrong statutory exemption but also failed to include any information about the "pending investigation" that would be discussed.
Carter County District Attorney Craig Ladd waffled last week on whether the council violated the Open Meeting Act in July.
In an email to The Ardmoreite on Aug. 7, Ladd wrote, "After looking into the matter further, I am not convinced a willful violation occurred (other than perhaps the clerical error of citing B9 rather than B4 and then proceeding, rather than postponing it for another week.)"
So wouldn't that be a violation?
Criminal intent isn't necessary for a violation to have occurred. The question is only whether the council willfully failed to comply with the Open Meeting Act. (See Hillary v. State, 1981 OK CR 78, ¶ 5)
"Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court has said. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
Before the council had entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
As Ladd conceded to the newspaper, the council proceeded with the executive session rather than postpone it a week. That's deliberate disregard of the law.
The Open Meeting Act prohibits executive sessions unless certain procedures, such as listing the statutory authorization, are "strictly complied with." (OKLA. STAT. tit. 25, § 307(E))
The Court of Civil Appeals has said "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
The statute requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said government bodies must comply with this provision by citing more than attorney-client privilege.
"The public has a right to know what you are going to discuss in an executive session," the first assistant attorney general told public officials in November.
If the lawsuit has not been filed, then the agenda item should include "at least the nature of it," Rob Hudson said. "More is better."
But for the Aug. 6 meeting, the Healdton City Council refused to put on the agenda any information about the "pending litigation."
The council also apparently used the executive session to discuss hiring an independent contractor, i.e., an attorney specializing in human resources cases.
The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of an independent contractor, such as an attorney, for professional services, the state attorney general said in 2005. (2005 OK AG 29, ¶ 13)
If such a discussion is not allowed under the personnel exception, it shouldn't be allowed under attorney-client privilege.
Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could the Healdton council's discussion fall under the attorney-client exception?
The same 2005 attorney general opinion also said:
"The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a 'pending investigation, claim, or action.' Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will 'seriously impair' the body's ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest." (¶ 11)
In other words, a public discussion of consulting or possibly hiring a human resources attorney would had to have "seriously impaired" the ability of the council to process the pending litigation in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.
Ladd told The Ardmoreite that he will comment on the latest apparent violations as soon as practical.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
McAlester City Council members are scheduled to meet behind closed doors tonight, as they did last week, to discuss "Project Spider."
The meeting agendas describe it as "a proposed expansion of an existing McAlester employer/business."
City Manager Pete Stasiak has refused to provide the McAlester News-Capital with more details, saying he couldn’t reveal the company's name because it would disclose too much information that might affect the outcome of the project.
City Councilor Travis Read told the newspaper it's a project the city is working on with MPower Economic Development.
Read said the code name was used to keep secret the name of the business. The intent was not to violate the state Open Meeting Act, he said.
Confusion over what to include on the agenda is created by the wording of the provision allowing executive sessions to discuss economic development.
Public bodies may confer behind closed doors "on matters pertaining to economic development, including the transfer of property, financing, or the creation of a proposal to entice a business to remain or to locate within their jurisdiction if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." ((OKLA. STAT. tit. 25, § 307(C)(10))
However, state legislators didn't exempt economic development discussions from what's required on a meeting agenda for executive sessions.
As Attorney General Scott Prutt emphasized in late November, the statutory requirements to conduct an executive session apply to discussions of economic development. (2011 OK AG 22)
He said the vote to enter into such an executive session "must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business.'" (Id. ¶ 5)
"In addition," Pruitt said, "the public body must give proper notice of the proposed executive session on the meeting agenda." (Id.)
He then quoted from the Open Meeting Act (OKLA. STAT. tit. 25, § 311(B)(2)):
B. 2. If a public body proposes to conduct an executive session, the agenda shall:
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
b. identify the items of business and purposes of the executive session; and
c. state specifically the provision of Section 307 of this title authorizing the executive session.
Pruitt concluded:
If a public body determines an executive session is necessary to protect the development of products or services or to protect the confidentiality of a business, and if the public body has given proper notice of the proposed executive session under 25 O.S.Supp.2010, § 311(B)(2), then the public body may vote and enter into executive session for purposes of conferring on certain matters of economic development pursuant 25 O.S.Supp.2010, § 307(C)(10). (emphasis added)
Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
Despite those requirements, the Skiatook Board of Trustees in March and April didn't identify the items of business and purposes of their close-door sessions to discuss economic development.
Now, the McAlester City Council is using code names on meeting agendas.
"We have some businesses that do not want to be identified publicly until the deal is made," Read explained.
Well, government employees would like their identity kept secret, too, when city councils discuss them in executive session. Yet a 1998 attorney general opinion requires that the employee’s name or unique title be listed on the agenda.
Why? Because to meet in executive session, said then-Attorney General Drew Edmondson, the public body must satisfy the agenda requirements set forth in the Open Meeting Act. The same requirements pointed out by Pruitt.
Plus, as Edmondson had noted, the statute says, "All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act." (OKLA. STAT. tit. 25, § 311(B)(1))
The bold italics were Edmondson's emphasis.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," Edmondson said. (1997 OK AG 61, ¶ 3)
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute." (Id.)
Edmondson noted the state Supreme Court had agreed that 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.” (Id. ¶3) (citing Andrews v. Independent School Dist. No. 29 of Cleveland County, 1987 OK 40)
"In this light," Edmondson said, "it is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion." (1997 OK AG 61, ¶ 5)
Although the Open Meeting Act "does not specify that a person must be identified by name," he said, "in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification."
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
And because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95)
Or as a 1980 attorney general opinion said, "The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken." (1980 OK AG 215, ¶ 12)
At an open government workshop in September 2009, public officials were cautioned not to use "cryptic" agenda language. A public body should not try to hide what it will be doing at a meeting, said Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
Similarly, Pruitt's office has warned public bodies that they must identify the item of business and purpose of executive sessions for discussions protected by attorney-client privilege.
Government attorneys for years have argued that listing any information about a "pending investigation, claim, or action" would hurt the public interest.
But Pruitt told a state agency that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
Listing only the specific statutory authorization would violate the Open Meeting Act, said Rob Hudson, first assistant attorney general. The agenda item should list information such as the name of the parties in the lawsuit.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better.
"How else would the average person know what you are talking about," he explained. "The public has a right to know what you are going to discuss in an executive session."
Executive sessions for attorney-client privilege, personnel investigations and economic development fall under the same statutory requirements for agendas.
So if the names of those threatening a lawsuit and the names of employees must be listed on the agenda, the name of the company being discussed behind closed doors should be disclosed, too.
After all, that business is asking for some economic incentive such as a tax break, donated land, utility rate discount, or other favor involving public funds.
The public should know before these are "done deals."
As Cartwright wrote in 1982: "Executive sessions are not permitted under the law because the matters to be taken up are in the private domain of public officials. Such matters are the business of the public. (1982 OK AG 114, ¶ 12) (emphasis included)
"Executive sessions exist only for the purpose of compromising equally important policy commitments which come into conflict....," he noted.
Permitting closed-door discussions of the particulars of an economic development proposal protects the development of products or services as well as the confidentiality of the business' plans.
Requiring specific information, such as the name of the company, on the agenda would protect the equally important policy commitment "to encourage and facilitate an informed citizenry's understanding of the governmental process and governmental problems."
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
The Healdton City Council met behind closed doors Monday night under the statutory exemption to discuss terrorism-related issues, The Ardmoreite reported.
But in the executive session, the council actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma, the newspaper said.
The meeting agenda had not specified a reason for the executive session. It listed only, "Discuss with City Attorney pending investigation disclosure of which City Attorney has advised will impair the ability to proceed with pending investigation as provided by the Oklahoma Open Meeting Act (Title 25 307.B.9)."
Listing the wrong statutory authorization and not listing an item of business are apparent violations of the state Open Meeting Act.
Carter County District Attorney Craig Ladd told the newspaper he would wait to review information on the executive session before commenting.
The Open Meeting Act permits executive sessions for nine topics. The one listed on the agenda, OKLA. STAT. tit. 25, § 307(B)(9), is to discuss terrorism, e.g., "the investigation of a plan or scheme to commit an act of terrorism."
The agenda apparently should have cited Okla. Stat. tit. 25, § 307(B)(4), which allows confidential communications between a public body and its attorney "concerning a pending investigation, claim, or action."
Before the council entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
City Attorney Bob Pinkerton dismissed it as a misprint and the council proceeded on his advice, Pineda reported.
But the Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are "strictly complied with." (§ 307(E))
For example, the agenda must "state specifically the provision ... authorizing the executive session." (§ 311(B)(2)(c))
The Healdton City Council agenda didn't state the correct statutory authorization for the executive session.
The Open Meeting Act also requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
The Attorney General's Office has said publicly since September that government bodies must comply with this provision by citing more than attorney-client privilege.
For example, Attorney General Scott Pruitt told a state board that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
Rob Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
For example, at least the nature of an impending lawsuit or claim should be listed, Hudson said.
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
The agenda item should list information such as the name of the parties in the lawsuit, he explained.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
Headlton officials should have listed the reason for the executive session.
After the meeting, Mayor David Smith confirmed for Pineda that a months-long investigation has found discrepancies in the town's finances. City Treasurer Karen Kardaleff was relieved of her duties Tuesday morning and placed on paid leave, Pineda reported.
The purpose of the Open Meeting Act is to "encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
The Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
In prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
The state Supreme Court has said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
In November, Hudson simply warned officials: "The Open Meeting Act is the law. Don't break the law."
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Skiatook's Board of Trustees has discussed economic development behind closed doors in three of its four most recent meetings.
None of the agendas specified an item of business for the executive sessions even though an attorney general opinion in late November indicated that they should. (2011 OK AG 22)
In the opinion, Attorney General Scott Pruitt said city councils and other public bodies, not just nonprofit foundations, could conduct executive sessions to discuss economic development. (See OKLA. STAT. tit. 25, § 307(B)(10))
But, Pruitt added, "This does not end our discussion." (2011 OK AG 22, ¶ 5)
He emphasized that the statutory requirements to conduct an executive session still applied.
For example, he said the vote to enter into such an executive session "must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business.'" (Id.)
"In addition," Pruitt said, "the public body must give proper notice of the proposed executive session on the meeting agenda." (Id.)
He then quoted from the Open Meeting Act:
B. 2. If a public body proposes to conduct an executive session, the agenda shall:
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
b. identify the items of business and purposes of the executive session; and
c. state specifically the provision of Section 307 of this title authorizing the executive session. (OKLA. STAT. tit. 25, § 311(B)(2))
So why are Skiatook trustees listing on meeting agendas only the statutory authorization, not the item of business to be discussed?
- March 27: "Consideration and appropriate action relating to a request for Trustee approval of an executive session for the purpose of discussing matters pertaining to economic development in accordance with Title 25 O.S., Section 307(C), paragraph 10."
- April 4: "Consideration and appropriate action relating to a request for Trustee approval of an executive session for the purpose of discussing matters pertaining to economic development in accordance with Title 25 O.S., Section 307(C), paragraph 10."
- April 24: "Discussing matters pertaining to economic development in accordance with Title 25 OS, Section 307(C), paragraph 10."
After all, Pruitt's opinion wasn't the first to say that all statutory requirements for an executive session must be followed regardless of the topic.
A 1997 attorney general opinion had said public bodies have an "absolute" duty under the Open Meeting Act to specify the purpose of an executive session beyond simply stating the statutory authorization. (1997 OK AG 61)
That opinion dealt with whether a public body had to reveal the specific purpose of an executive session to discuss personnel. But then-Attorney General Drew Edmondson's answer was not dependent upon the wording of the personnel exemption. Rather, his reasoning was based on the statutory requirements applying to all executive sessions.
To meet in executive session, Edmondson said, the public body must the criteria set forth in the statute:
1. All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act.
2. If a public body proposes to conduct an executive session, the agenda shall:
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
b. identify the items of business and purposes of the executive session; and
c. state specifically the provision of Section 307 of this title authorizing the executive session. (OKLA. STAT. tit. 25, § 311(B)(1)(2)
The bold italics were Edmondson's emphasis.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," he said. (¶ 3.)
Relying upon appellate court interpretations of the statutory requirements, Edmondson said, "It is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion."
In the instance of a personnel issue, the AG agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, he said:
We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)
This past September, Pruitt told a state agency that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
At least the nature of an impending lawsuit or claim should be listed on the agenda item for such an executive session, said Rob Hudson, first assistant attorney general.
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
He said listing only the specific statutory authorization for the proposed executive session would violate the Open Meeting Act. The agenda item should list information such as the name of the parties in the lawsuit.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
These attorney general opinions and other pronouncements boil down to one conclusion: Whether the executive session is to discuss litigation with an attorney, or a personnel issue, or economic development, the agenda must identify the specific item of business to be discussed.
Skiatook trustees may meet behind closed doors to deliberate on "economic development," but they are ignoring Pruitt's admonition that proper notice must be given on the meeting agenda. That means identifying what the trustees intend to discuss. Taxpayers are entitled to know beforehand just as they are when the topic is a pending investigation or a government employee.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
At least the nature of an impending lawsuit or claim should be listed on the agenda item for an executive session under the Open Meeting Act's attorney-client privilege, an official with the state Attorney General's Office said Monday.
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
He spoke to more than 200 government officials, news media and other members of the public at a Monday seminar in Oklahoma City. The next workshop on the state freedom of information laws will be Nov. 14 at the High Plains Technology Center in Woodward.
The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.
The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
The statute also states, "If a public body proposes to conduct an executive session, the agenda shall:
- Contain sufficient information for the public to ascertain that an executive session will be proposed;
- Identify the items of business and purposes of the executive session; and
- State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
Hudson reiterated what Pruitt told a state agency in September: The agenda item should list information such as the name of the parties in the lawsuit.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
On other Open Meeting Act issues, Hudson ...
- Warned against taking "straw polls" in executive sessions;
- Said a roll-call vote isn't required by the Open Meeting Act, "but it's the smart thing to do"; and
- Warned that a majority of a public body should not take action or discuss public business by phone, email or even Facebook.
Speaking about the Open Records Act, another member of Pruitt's staff warned governments against charging more than the direct, reasonable cost of copying documents.
"This isn't supposed to be a money-making operation," said Diane Clay, communications director for the Attorney General's Office.
Clay also agreed that staff memoranda and other documents are public records when given in agenda packets to members of public bodies.
The Oklahoma Open Records Act contains no provision for "drafts." Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."
The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)
Clay reminded officials of the statute's purpose: "Ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." (OKLA. STAT. tit. 51, § 24A.2)
Similarly, Hudson told officials to keep in mind the purpose of the Open Meeting Act: "Encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
He noted that the Oklahoma Supreme Court said the Open Meeting Act "is to be construed liberally in favor of the public" because the statute was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
And, Hudson pointed out, the Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
Ultimately, Hudson warned officials: "The Open Meeting Act is the law. Don't break the law."
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.
Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.
An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.
"We should not even be here," said J. Schaad Titus.
Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.
(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)
Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session, the real subject of which was not permitted in an executive session.
The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.
In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.
In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.
The BRTA contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.
In a response, Rabin and Hurst's attorney said the Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act.
In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.
The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision."
The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action."
Attorneys for Hurst and Rabin also point to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.
"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.
At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."
But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.
But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.
McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?
McMahan's interpretation contradicts the language of the Open Meeting Act, which states:
If a public body proposes to conduct an executive session, the agenda shall:
- Contain sufficient information for the public to ascertain that an executive session will be proposed;
- Identify the items of business and purposes of the executive session; and
- State specifically the provision of Section 307 of this title authorizing the executive session."(OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.
Given the BRTA executive session at issue, perhaps that's what McMahan wants.
In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.
In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
A state agency's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.
The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
But the statute also states, "If a public body proposes to conduct an executive session, the agenda shall:
Contain sufficient information for the public to ascertain that an executive session will be proposed;
Identify the items of business and purposes of the executive session; and
State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.
Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.
In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.
Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)
In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, Wilson pointed out.
That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))
Another attorney with experience in open government cases said identifying the claim "is extremely important."
"Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.
Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.
"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.
(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)
In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.
"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.
Attorney General Scott Pruitt seems to agree.
The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.
A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.
(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)
Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.
On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:
The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.
Pruitt's advice apparently will improve the commission's future agendas as well.
"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.
Other public bodies should take note of Pruitt's opinion and do so as well.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
The statewide commission overseeing the 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.
Committees advising the city of Norman would have to abide by the state Open Meeting Act and city emails would be kept for at least one year, under a proposal by Councilman Tom Kovach.
Kovach also wants executive sessions of the city's public bodies to be recorded.
His proposal is on the agenda for the City Council's regular meeting Tuesday.
Under what would become Norman's first records retention policy, "all records, written and electronic, shall be retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."
"I have received stiff opposition to even this limited time," said Kovach. "Staff insists this will put a burden on our existing storage capacity and is trying to limit this. It not perfect but it is better than what they do now, which is delete every day."
Under Kovach's proposal, "all meetings of committees, sub committees and ad hoc committees" would be subject to the Open Meeting Act and to a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.
Kovach said this provision is intended to cover advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.
Kovach is one of five Norman council members to have signed FOI Oklahoma's Open Government Pledge as candidates. The others are Carol Dillingham, Hal Ezzell, Roger Gallagher and Mayor Cindy Rosenthal.
Each promised to "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
Kovach's proposal would do just that.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
