AG says Open Meeting Act doesn't apply when public bodies discuss 'broad general matters' possibly related to their business but on which they cannot take action

Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
 
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
 
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
 
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
 
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
 
The Open Meeting Act defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
 
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
 
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
 
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
 
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
 
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
 
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
 
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:

• Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.


• Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."


• "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."

Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
 
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
 
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
 
Pruitt called such a practice "misleading to the public."
 
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
 
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of 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.

Answer: Meeting minutes should include votes of individual members on agenda items

Meeting minutes should include how each member of the public body voted on each agenda item, a city attorney said.

"The argument, of course, is that the vote is the action of the Council/Board, and the actions must be shown in the minutes," said Michael Vanderburg, city attorney for Oklmulgee.

Whether meeting minutes must include such votes became an issue last week. The Oklahoma Daily reported that meeting minutes of the OU Undergraduate Student Congress don't include votes. Instead, the voting record is kept as a separate document under the "resources" tab of the student government website.

The Open Meeting Act requires written minutes that are an "official summary of the proceedings showing clearly those members present and absent, all matters considered by the public body, and all actions taken by such public body." (OKLA. STAT. tit. 25, § 312(A))

In a provision separate from the minutes requirement, 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)

Given those provisions, must the minutes include each member's vote on agenda items?

Vanderburg said they must.

"The fact that at a separate place in the law, the vote is separately required to be publicly cast and recorded, does not support a separate record, but merely states the manner of the vote," said Vanderburg, a former city attorney for Broken Arrow.

"This is the first instance I have heard of where the votes were not included in the minutes, but instead recorded elsewhere," said the longtime member of FOI Oklahoma.

Another FOI Oklahoma member noted that the meeting minutes section of Robert's Rules of Order states, "When the voting is by roll call, the names of those voting on each side and those answering 'Present' should be entered." (RONR (10th ed.), p. 453, l. 33-35).

("[W]hen the voting is by yeas and nays [the chairman] should enter a list of the names of those voting on each side." (Public Domain Edition of Robert's Rules, Art. 10, sec. 60))

"One could make the argument then, if RONR is the adopted authority, that not including the roll call vote in the minutes would make them out of compliance," said Tyson Wynn, publisher and executive editor of WelchOk.com.

(While Robert's Rules of Order would apply when the Open Meeting Act is silent, it cannot trump the statute's requirements or prohibitions. "The statute makes no mention of Robert's Rules of Order and is not controlled thereby," the Oklahoma Supreme Court noted in 1975. (Oldham v. Drummond Bd. of Educ., 1975 OK 147, ¶ 7))

Recording the votes in the minutes seems to be "just common sense," said Korina Dove, an FOI Oklahoma member and editor of the Cherokee Messenger & Republican.

"Isn't the main purpose of keeping minutes so that the public can know the business - and the outcome of the business - on the agenda?" Dove noted.

For the public to make the most of the minutes, the votes should be included.

Joey Senat, Ph.D.
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.

Question: Does Open Meeting Act require that votes be recorded in meeting minutes?

Minutes of the OU Undergraduate Student Congress meeting Sept. 27 failed to include how each member voted, which members were present or absent, and whether two emergency allocations to student organizations were passed, The Oklahoma Daily reported today.

The Open Meeting Act requires written minutes that are an "official summary of the proceedings showing clearly those members present and absent, all matters considered by the public body, and all actions taken by such public body." (OKLA. STAT. tit. 25, § 312(A))

So the Undergraduate Student Congress minutes apparently violate the statute by not including the roll call, all the matters considered and all the actions taken.

But are the minutes required to include each member's vote on agenda items?

In a provision separate from the minutes requirement, the Open Meeting Act says, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

The OU Undergraduate Student Congress keeps its voting record as a separate document under the "resources" tab of its website.

That's not the most intuitive location for such important information. The voting record also is only for the most recent session for which minutes have been approved. In contrast, minutes are available for meetings since April.

So the voting record is not provided online in a way that most effectively helps students hold their individual student representatives accountable.

But does keeping a voting record separate from the meeting minutes satisfy the Open Meeting Act's requirement?

In 1975, the state Supreme Court emphasized that public bodies have to use a roll call vote and record the vote for each member. (Oldham v. Drummond Bd. of Educ., 1975 OK 147, ¶ 7)

The court was interpreting the 1971 predecessor to the current Open Meeting Act, but the statutory language was essentially the same. The previous version required that "any vote or action thereon must be taken in public meeting with the vote of each member publicly cast and recorded."

The "language is clear," the court said. "The vote of each member must be recorded."

The court rejected a school board's practice of voting "by a show of hands unless a roll call was asked." The votes of each member were not recorded.

The court pointed out that no record of the each member's vote was included in the minutes. But it didn't say the votes must be recorded in the minutes -- only that votes must be recorded.

For practical purposes, it would make sense to include the votes in the minutes. For the public to make the most of the minutes, the votes should be included.

The Open Meeting Act requires that minutes be an "official summary of the proceedings." 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)

Does that mean votes must be recorded in the minutes? Or would a separate record of votes be sufficient under the statute?

Seems like another gray area that state legislators should address.

But if you have the answer, please tell me. I'd be happy to pass it along here.


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.

Must city councils and other local public bodies keep electronic recordings of meetings once the written minutes are completed?

Question from the public: I recently requested copies of electronic recordings of a committee subject to the Oklahoma Open Meeting Act. The city attorney said the electronic copies don’t exist because the secretary disposed of the recordings after using them to write the meeting minutes. Is the public body required to keep the recordings? I believe Fabin v State (2004 OK 67) covers this very thing.

Unfortunately, state law doesn’t appear to require local public bodies to keep electronic recordings of public meetings after the written minutes are created.

However, no state statute requires that the city destroy (or reuse) the recordings. In other words, no state statute prohibits the city from keeping the recordings.

Therefore, this is a policy question. It best serves the public in a democracy to retain the recordings for a certain number of years. Seek an on-the-record explanation from the elected city officials as to why the electronic recordings of all public meetings are not retained. Perhaps they would decide that future recordings should be kept. If they don’t, this could be an issue for the next municipal elections.

State law does require that the city establish a schedule regarding the retention and destruction of records. What is the city’s retention schedule for records?

Fabian is not necessarily applicable because it concerned the records of state government, not a local government.

At issue in Fabian was whether the Department of Public Safety was required to retain electronic recording of administrative hearings concerning revocation of drivers' licenses. (Fabian & Associates v. State ex rel. Dept. of Public Safety, 2004 OK 67)

The court did not prohibit DPS from ever destroying the tape recordings but said it could do so only “in accordance with The Records Management Act.” (Id. at ¶19)

So we should look to The Records Management Act and to interpretations of the statute for guidance.

The Attorney General’s Office has noted, "The Records Management Act does not apply directly to local governments.” (2002 OK AG 13 ¶5) (see also 2009 OK AG 12, 2001 OK AG 46)

The state statute explicitly differentiates between the records held by the state and those held by local governments. (OKLA. STAT. tit. 67, § 203)

The statute requires the governing body of each county, city, town, village, township, district and authority to, “as far as practical, follow the program, established for the management of state records.” (Id. at § 207)

In at least two formal opinions, the state attorney general has said that under the statute, “political subdivisions are mandated by the Legislature to maintain a records management program, and, ‘as far as practical,’ utilize the program established by the Records Management Act, with the assistance of the Administrator.” (2002 OK AG 13, ¶7) (see also 2001 OK AG 46)

In other words, the attorney general has said, local governments “are not exempt from records management and must use the State Records Management Act as a model to the extent practical.” (2002 OK AG 13, ¶3)

“Such a schedule would determine the amount of time the records must be kept, and in what form. What constitutes ‘as far as practical’ is a question of fact beyond the scope of an Attorney General Opinion. Likewise, the length of time to keep a particular record hinges on the nature of the specific record, which also constitutes a question of fact beyond the scope of an Attorney General Opinion,” the attorney general said in 2005. (Id. ¶8)

Based on the statutory language and the attorney general opinions, the city would not be required to keep its recordings of public meetings once the written minutes are created.

I welcome explanations to the contrary.


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

Tulsa library board: No minutes of executive session; another OMA violation

The Tulsa City-County Library Commission doesn't keep minutes of its executive sessions, the Tulsa World reported this morning.

So rack up another violation of the state Open Meeting law by this board.

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, 611 P.2d 628, 631. (“Although the municipal attorneys' case permits executive sessions on the advice of counsel in certain specified instances, it does not abrogate the statutory requirement that minutes be kept and recorded.”))

State Attorney General Drew Edmondson came to the same conclusion in a 1996 written opinion. (1996 OK AG 100, ¶ 5)

"The Oklahoma Supreme Court has held that the requirement for minutes to be kept and recorded also applies to executive sessions," Edmondson said.

He also said state legislators had "explicitly recognized that the requirement to keep a summary of the proceedings in the form of written minutes extends to executive sessions."

Edmondson 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)).

The penalty for violating the Open Meeting Act is one year in the county jail and/or a $500 fine.

Which public bodies in your area routinely don't keep minutes of their executive sessions? Might be worth asking them.

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