Tulsa, Stillwater police departments refuse to release resignation letters of officers in trouble with the law

Tulsa police officials earlier this month refused to release to FOX 23 the resignation letter of an officer sentenced to 35 years for robbing Hispanic drivers during traffic stops.
 
Stillwater police in July refused to release to NEWS 9 the resignation letter of an officer charged with stealing prescription drugs from the department.
 
Both departments claim the Open Records Act doesn't apply to the resignation letters.
 
The Open Records Act says public agencies "may keep personnel records confidential [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation." (OKLA. STAT. tit. 51, § 24A.7(A)(1))
 
But the resignation letters aren't part of the "internal personnel investigations." They are submitted by the employees.
 
The statute says, "All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying...." (§ 24A.7(B))
 
Because the resignation letters aren't specifically exempted, they must be available for public inspection and copying.
 
The statute also makes public "the records of any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (§ 24A.7(B)(4))
 
A 2009 attorney general opinion reiterated that once the investigation is complete and a final disciplinary action occurs, "the record(s) indicating that action must be available for public inspection and copying." (2009 OK AG 33, ¶ 29)
 
So if the police departments are correct that the resignation letters are part of the internal personnel investigations, then the resignation letters are the record indicating the final action and must be made available for public inspection and copying.
 
Public bodies also must consider that, given the intent of the Open Records Act, "disclosure is to be favored over a finding of exemption," the Oklahoma Supreme Court said in 1986. (Tulsa Tribune Co. v. Okla. Horse Racing Comm'n, 1986 OK 24, ¶ 22)
 
Or as a subsequent attorney general opinion explained, "The intent of the Act requires that questions of doubt as to the accessibility of government records be resolved in favor of access." (1988 OK AG 35, ¶ 3)
 
Interpreting the statute so that resignation letters of government employees are secret is a stretch that wrongly favors exemption over disclosure.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
 

Owasso councilman sues city over alleged open meeting, record violations

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.

Rogers County Commission hires independent contractor after executive session despite prohibition on such discussions behind closed doors

The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of independent contractors for professional services, the state attorney general said in 2005.

But Rogers County Commissioners Dan DeLozier, Mike Helm and Kirt Thacker did just that on March 5.

They went into executive session under the personnel exception to discuss the hiring of a public information officer as a salaried employee. They came out and hired a PIO as an independent contractor. (Read the meeting minutes.)

So I asked DeLozier, Helm and Thacker how the executive session and subsequent hiring of an independent contractor were permissible given what the attorney general had said.

Their legal adviser, Assistant District Attorney David T. Iski, responded on their behalf.

Iski said it would be "inaccurate" to conclude that the commission intended to "skirt the Act by intentionally confining its discussions to the hiring of the Public Information Officer (PIO) as an Independent Contractor."

Iski says the commissioners "entered an Executive Session to discuss the hiring of a PIO as an employee of the County."

"The resulting action indicates that the Board determined not to proceed with the position as one of an employer/employee relationship and chose to go another route," he said.

"It may also be helpful for you to know that the Board had not had a PIO previously and was not proceeding in a manner of simply filling an open position," Iski added.

I hadn't assumed that the commissioners intended to skirt the Open Meeting Act. My question was whether their actions violated the statute.

In 2005, then-Attorney General Drew Edmondson had been asked whether a public body could "convene in executive session" under the personnel exception to discuss hiring independent contractors. (2005 OK AG 29)

His answer: "A public body may hold an executive session under the Open Meeting Act only to discuss the 'employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee.' Discussing awarding a contract for professional services when the recipient will be an independent contractor, rather than a public officer or employee of the public body, is not a proper subject for an executive session." (¶ 13)

Iski says Rogers County commissioners didn't convene the executive session with the purpose of discussing an independent contractor.

But Edmondson's answer wasn't limited to the intent of the executive session. He said, "If ... the position were found to be that of an independent contractor, rather than an employee, it would be improper ... for the public body to discuss hiring someone to fill that position in an executive session." (¶ 7)

Edmondson's opinion doesn't condone what Rogers County commissioners did, particularly given the state Supreme Court's admonition that the Open Meeting Act "is to be construed liberally in favor of the public" because the statue was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the Oklahoma Court of Civil Appeals also has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 8)

In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."

The "School Board's actions were limited by its own notice to 'discussion' and 'interviews,'" the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)

That Open Meeting Act violation seems no different from the Rogers County Commission hiring an independent contractor after having met in executive session to discuss hiring a salaried employee and having listed on the agenda the hiring of a salaried employee, not an independent contractor.

The Rogers County commissioners could have avoided this Open Meeting Act problem by deciding first whether to hire a public information officer as a county employee or as an independent contractor. That discussion should have been held in public.

But even so, once the commissioners had decided in their March 5 executive session to hire an independent contractor, they should have ended the closed-door session. The hiring of the public information officer as an independent contractor should have been put on the following week's agenda for discussion and action.

Instead, the commissioners voted "to enter into an Independent Contractor's Agreement effective today with a Public Information Officer, Kristen Bergman." (Even though Bergman began working for the county, her contract wasn't approved by the commissioners until Monday.)

Unfortunately, the commission's closed-door discussion of an independent contractor on March 5 wasn't a one-time problem.

On March 19, commissioners went into executive session under the attorney-client privilege exception to discuss "possible official action" regarding a court-ordered $22.5 million judgment (plus attorney fees, court cost and interest that continues to accrue until the debt is paid) against the county.

After the session, they voted to hire a law firm and a financial adviser to provide options to deal with the judgment. The contracts for professional services were approved at this Monday's meeting. (Read the March 19 meeting minutes and the March 26 agenda.)

Johanning & Byrom PC will act as the county's bond attorney, and The Baker Group will serve as its financial adviser, The Claremore Daily Progress reported.

"Our job is to look at all the funding options available for Rogers County," said Greg Nieto of The Baker Group. "We will bring back recommendations and additional information in the next couple of weeks. We are seeking the most economical method to satisfy the ruling."

How could the hiring of these independent contractors have been discussed behind closed doors without violating the Open Meeting Act?

Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could such a discussion fall under the attorney-client exception? That Iski was included in the executive session would not have been sufficient reason.

"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," said Edmondson in the same 2005 opinion. (¶ 11)

In other words, a public discussion of hiring independent contractors to provide options would had to have "seriously impaired" the ability of the commission to process the claim in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.

Rather than liberally construing the Open Meeting Act to favor openness, some Rogers County officials are interpreting it so as to justify closed-door discussions that appear to violate the statute.


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.

Not all DHS commission committee meetings to be open to public

The Budget and Rules committees of the statewide commission overseeing the state Department of Human Services will meet publicly and comply with Open Meeting Act requirements, the Tulsa World reported Monday.

"We are a public agency serving more of the public than any other agency and need to be as open as possible. It's all about the public, not about us," said Brad Yarbrough, chairman of the Oklahoma Commission for Human Services.

That's a big step forward for a public body that wasn't too keen on open government until Yarbrough was appointed chairman by Gov. Mary Fallin in the fall.

But the story indicates that public notices and agendas won't be posted for two of the commission's six standing committees.

Yarbrough told the Tulsa World that the Special Review Committee and the Evaluation and Compensation Review Committee will be closed because of separate statutory exemptions for confidential child- and adult-welfare information and for considering pending personnel actions.

Why shouldn't public notice and agendas be posted for those committees as well?

This is especially true for the Evaluation and Compensation Review Committee, which seems to act as the commission's personnel committee.

Under the Open Meeting Act, a public body may meet in executive session to discuss "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1))

But such closed-door discussions may occur only if the executive session is listed with sufficient information on the publicly posted agenda and only after the officials vote in open session to go into executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

And an AG opinion requires that the names or unique titles of those employees be listed on the meeting agenda. (1997 OK AG 61, ¶ 5)

On Tuesday, I sent emails to DHS spokeswoman Sheree Powell and Diane Clay of the state Attorney General's Office asking whether another state statute requires the evaluation committee to meet without posting public notice and an agenda.

They haven't responded.

Yarbrough had told the Tulsa World his first action as chairman was to contact Attorney General Scott Pruitt's office for help.

"I asked for help in determining what might be the best process for building and posting the agenda," he said. "They are now reviewing those before they are posted to ensure we are complying with the Oklahoma Open Meeting Act.

"Because the commission was being looked at by the district attorney of Oklahoma County for alleged violations of the Open Meeting Act, I felt it was very important to work with officials outside the agency to make sure we are doing things by the law."

That's commendable.

But more openness is called for.

In lieu of a state statute requiring complete secrecy, all the commission's committees should meet publicly and follow the Open Meeting Act requirements for entering into executive sessions.


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


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

Oklahoma Supreme Court denies public access to government employees' birth dates and worker identification numbers, says no valid public interest in knowing the information

Public access to government employees' birth dates and worker identification numbers would constitute an unwarranted invasion of privacy, the Oklahoma Supreme Court ruled Tuesday.

(Okla. Pub. Employees Ass’n v. Oklahoma Office of Pers. Mgmt., 2011 OK 68). Opinion begins on Page 14.)

In coming to that conclusion, the seven-justice majority found no value in the public knowing the information but accepted as gospel the claim that access would cause identity theft and other harms.

"The information requested here could result in cases of identity theft and compromise of government computer systems yet bring little, if any, information to public attention which would enlighten Oklahoman citizens as to how their government runs, performs, or spends their tax dollars," they said. (Id. ¶ 3)

"There is simply no instance in which we can fathom how such information would advance the public's interest in assuring that the government is properly performing its function. (Id. ¶ 35)

"The purpose of openness in government is not fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing about an agency's own conduct. (Id. ¶ 37)

"Rather, government agencies and the courts have a special obligation to protect the public's interest in individual privacy by acknowledging that public records are being harvested for personal information about individuals, contributing to a surge in identify theft, consumer profiling, and the development of a stratified society were individuals are pigeonholed according to the electronic trail they leave of transactions that disclose personal details." (Id.)

The case revolves around which information in a government employee's personnel file may be exempted under the state Open Records Act. A public body may keep confidential those personnel records "where disclosure would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications submitted by persons not hired by the public body, and transcripts from institutions of higher education maintained in the personnel files of certified public school employees." (OKLA. STAT. tit. 51, § 24A.7(A)(2))

In a one-paragraph dissent, Justice Yvonne Kauger, joined by Chief Justice Steven W. Taylor, saw the case as "a matter of statutory construction."

Kauger noted that although the Legislature had amended the personnel exemption three times since 1985, "it had never chosen to include the date of birth."

"If the Legislature desires to do so, it certainly can," Kauger wrote.

A 2009 attorney general had said the birth dates of government employees were presumed to be public information when contained in their personnel files and should be released upon request. Officials could refuse to release the information only if they determined that disclosing the birth date would constitute an “unwarranted invasion of privacy” that outweighed the public interest in disclosure. (2009 OK AG 33, ¶ 11)

Then-Attorney General Drew Edmondson told The Oklahoman:

My [personal] opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy. My view is that the conditions under which birth dates would be confidential would be rare.

Shortly after issuing the 2009 opinion, Edmondson released the birth dates of his employees.

In the opinion, Edmondson said public officials must balance the interests involved, "weighing the public's right of access to the records, which the Legislature has declared is substantial, against the employees' interests in nondisclosure." As part of that balancing,

A public body may determine that the ORA's public policy raises the question, 'How does disclosing an employee's birth date allow citizens to know what the government (or a particular employee) is up to, and whether he or she is properly discharging his or her duties?' If the purpose of the ORA is to '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,' the operative question is 'how will knowing an employee’s birth date assist citizens in the exercise of that political power?’ (2009 OK AG 33, ¶ 10)

On Tuesday, Justices Tom Colbert, Joseph M. Watt, James R. Winchester, James E. Edmondson, John F. Reif, Douglas Combs and Noma Gurich found that the balance between public interest and employee privacy "must tip in favor of privacy." (2011 OK 68, ¶ 35)

"We determine that when the balancing test is applied to the facts presented, where significant privacy interests are at stake while the public's interest either in employee birth dates or employee identification numbers is minimal, release of birth dates and employee identification numbers of State employees 'would constitute a clearly unwarranted invasion of privacy,'" they said. (Id. ¶ 39)

They gave no weight to the public's interest in knowing the information. (Id. ¶ 35)

"Although state employees' privacy interests may be diminished somewhat by taking a position in an agency subject to public scrutiny, they do not surrender all privacy rights by taking a government employment," the majority said. "However, it is important to note that the policy of public disclosure is purposed to serve the public interest and not to satisfy the public's curiosity. Here, the information sought serves no valid public interest." (Id.)

But open government advocates fear that exempting government employees' birth dates and identification numbers from their personnel files would severely hamper the ability of Oklahomans to know and be fully informed about their government. State law already exempts public employees' Social Security numbers, home addresses and telephone numbers.

By barring access to the birth dates and employee identification numbers, the court has made it virtually impossible for the public to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also will find it virtually impossible to track workers across government jobs.

But the seven justices discounted the ability of the press and public "to identify one state worker from another" as "too 'narrow and limited' on the public interest scale to tip the balance of interests in favor of disclosure." (Id. ¶ 34)

The justices also shrugged off the fact that birth dates are available in other public documents, such as voter registration records.

"The fact that information may be available to the public in some form or from another source does not dissolve the individual's interest in controlling the dissemination of information regarding personal matters," they said. (Id. ¶ 34)

In contrast, Drew Edmondson had publicly said it would be difficult to contend that birth dates are private when they are found in a number of public records.

Instead, the justices placed a great deal of weight on the fear of identity theft, saying:

Since September 11, 2001, the ramifications of identity theft have proven much more grave than previously thought. Identify theft, a huge problem in financial fraud, now has implications for national security.

The growing problem of identify theft is facilitated when birth dates are combined with other personal information. Simply combining the release of a person's age along with other factors may make the individual vulnerable to those targeting a certain age range for scams.

With both a name and a birth date, one can obtain information about: an individual's criminal record; arrest record (which may not include disposition of the charges); driving record; state of origin; political party affiliation; social security number; current and past addresses; civil litigation records; liens; property owned; credit history; financial accounts; and quite possibly, information about an individual's complete medical and military histories; and insurance and investment portfolios. (Id. ¶ 32)

But a data privacy expert speaking at FOI Oklahoma Inc.'s 2010 Sunshine Week conference said keeping birth dates secret won't help protect workers' identities or safety because the information already is available elsewhere.

"What I would tell them is stop trying to shut the barn door after the horses are gone. It's a lack of understanding by policy makers to what an effective countermeasure is to identity theft," said Richard J.H. Varn, chief information officer for the city of San Antonio and executive director of the Coalition for Sensible Public Records Access.

Varn also emphasized that public records are not a source of information for identity thieves. However, exempting the birth dates from public records does create a privacy problem, he said.

When public identifiers are not made public, it is nearly impossible to distinguish among people with the same name. It leads to more false positives and false negatives, Varn told the National Freedom of Information Coalition conference in 2009.

For example, when The Oklahoman compared a state payroll data to the state sex offender registry, the newspaper found 778 state employees who shared first and last names with registered sex offenders.

"Without dates of birth, which are included in the sex offender registry, it is impossible to determine whether these workers may be sex offenders," the newspaper noted.

For years, The Oklahoman and Tulsa World have received birth dates of public employees. In 2010, for example, Oklahoma City Public Schools released birth dates for more than 5,000 district employees in response to The Oklahoman's open records request.

And the state of Oklahoma has made tens of millions of dollars selling personal information, including birth dates and other personal information of all state drivers, The Oklahoman and Tulsa World reported last year.

Where are the incidences of these records being used to steal people's identities?

Instead of relying upon facts, the seven justices emphasized that the Legislature had intended to create "a non-exclusive list of information" whose release would result in an unwarranted invasion of privacy when it created the personnel exemption to the Open Records Act. (Id. ¶ 39)

However, they ignored that legislators had not exempted birth dates when they blocked public access to government employees' Social Security numbers, home addresses and telephone numbers. And for the past two sessions, legislators rejected attempts to add birth dates to the list of exempted information.

The justices, instead, chose to add birth dates to the list themselves. That's called judicial activism: When a court takes the opportunity to solve what it perceives as a social problem rather than relying upon the legislative branch to do so.

In this case, the seven justices see public access to personal information in government records as a social problem. But their decision is based on their subjective fears rather than facts. By adding birth dates to the list of exempted information, they did what the elected representatives of the people had chosen not to do.

To find no valid public interest in access to the government employees' birth dates and identification numbers is nonsensical and insulting to the public's intelligence.

The ruling on Tuesday is a serious blow to the public's ability to act as a watchdog of its government's activities. The court's reasoning is an affront to the public's right to know and be fully informed about its government.

For more background on the case, click here.

Read reactions to the ruling.


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.

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

Public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption, the district attorney for the Oklahoma Panhandle recently told a hospital board.

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

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

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

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Boring agreed, saying,

It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session.

So what is required for a violation to be prosecuted?

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

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

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

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

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

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

He noted that in 1984, the state Supreme Court said that for the purposes of the Open Meeting Act:

Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act. (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)

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

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

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

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

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

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

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

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

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

What a steaming pile of buffalo chips.

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

If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.

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

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

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

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

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

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

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

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


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


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

Broken Arrow school district's explanation indicates school board violated Open Meeting Act

I criticized the Broken Arrow School Board on Wednesday for apparently violating the Open Meeting Act. The school district's subsequent responses to The Broken Arrow Ledger validate that condemnation.

The school board's agenda for Monday night had cited the personnel exception as the authorization for an executive session.

Under the personnel exception, an executive session is "permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1)) (emphasis added)

But a district official told the newspaper that the school board only discussed reorganizing the district's administration -- not specific personnel -- during that closed-door session.

That means the board violated the Open Meeting Act because it wasn't entitled to conduct such a discussion behind closed doors. A 2006 attorney general opinion, for example, prohibits closed sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

"The legislative history of [the personnel] exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," the opinion said. (Id. ¶ 8) (emphasis added)

The agenda item for the school board's executive session failed to list any specific employees to be discussed -- another apparent violation of the Open Meeting Act.

In 1997, the state Attorney General was asked if a public body could "keep confidential the purpose of an executive session" under the personnel exception. The answer was NO. Agenda items for such a closed session must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." The purpose is to give the public actual advance notice. (1997 OK AG 61, ¶ 5)

So based on the statutory language and the attorney general decisions, the Broken Arrow School Board was not entitled to discuss just reorganizing the positions. And if it actually discussed individual salaried employees with personnel changes in mind, then the names or unique titles of just those employees should have been listed on the agenda.

The board's agenda said only that the purpose of the executive session was to discuss "organization of district administration." On Wednesday, a district official explained to The Broken Arrow Ledger in an e-mail:

The meaning of that phrase was that any and all administrators were possible conversation topics during the executive session. The organizational chart that is posted on our website - click on "Departments" and then "BAPS Organizational Chart 2010-2011" - was the document that guided the executive session discussion. You will see that the chart contains some names, but mostly positions. The positions that were announced on Monday are on this chart.

With all that said, the last thing we want to do with any board agenda item is to cause confusion for the press or the public, so we can be more specific in future agenda wording. If listing all district administrators by name and title is a more efficient way to indicate that all district administrators are part of a conversation about "district administration," then we can list all district administrators by name and/or title. That seems to be a reasonable way to avoid any confusion.

According to that explanation, the board discussed individual administrators.

Furthermore, The Broken Arrow Ledger reported that after returning to the open session from the executive session, the school board approved five personnel changes:

• Appointing new high school and middle school principals;
• Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
• Moving a principal to director of instructional services; and
• Naming the Performing Arts Center director as the executive director of fine arts.

On Thursday, district spokeswoman Tara Thompson told the newspaper that the school board discussed the organizational chart in executive session and later voted for three changes to the chart in open session. Those changes were in the form of personnel actions promoting district employees to new jobs.

So based on this explanation, the superintendent went into that closed-door session with specific personnel actions in mind, but those employees weren't listed on the agenda under the executive session.

Thompson said two principals appointed during the open meeting at the same time the board approved the three personnel actions had not been part of the executive session discussion. Instead, she told the newspaper, those principals were listed under a general consent agenda item where other routine employment actions are considered.

However, the newspaper noted that the supplemental document to the general consent item listed only one of the principals.

The school board and district officials are either being disingenuous or simply don’t understand the law.

Thompson reiterated to the newspaper:

If we can be more efficient in our procedures, we will be happy to make those improvements, because ultimately, it's about customer service. If specifically naming all the administrators represented on the organizational chart will help the public better understand the topic of discussion during executive session, we will list, by title and name, all the administrators represented on the organizational chart and attach that to the agenda.

It’s awful nice of the school board to want to be more efficient. But based on attorney general decisions, the school board may not list all the district administrators and then discuss behind closed doors whomever they choose from that list.

Listing all the district’s administrators would serve only to camouflage from Broken Arrow taxpayers which ones the superintendent and school board intend to discuss. That's why the attorney general didn't provide it as an alternative to keeping secret the names of the employees who will be the subject of a closed meeting.

Simply put: The school board can't have it both ways. If it's going to discuss reorganizing positions regardless of which employees hold those jobs, then that discussion must be in front of the public. If it's going to discuss personnel changes involving individual salaried employees, then only those employee names or unique titles must be on the agenda.

The school district’s explanation is terribly disappointing but not surprising given this school board and district’s lack of transparency over the years. A culture of government secrecy can be difficult to change.

This is not just a matter of being more efficient; it’s a matter of complying with the Open Meeting Act’s requirements and respecting the right of Broken Arrow parents and other taxpayers to know what their government is doing beforehand.

Last July, Superintendent Jarod Mendenhall promised a commitment to the "spirit of full transparency and openness" by his new administration. "Transparency's got to be there," he said.

But the meeting agenda and the district's subsequent explanation don't live up to that promise. I sincerely hope that Mendenhall and the school board will reconsider how they conduct the public's business.


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.

Mannford school superintendent claims Open Meeting Act complied with by listing all district employees on agenda for executive session; Concerns also raised about closed sessions in Norman, Broken Arrow

Mannford School Superintendent Steve Waldvogel told the local newspaper on Monday that the Open Meeting Act may be complied with by listing all district employees on the agenda for an executive session to discuss personnel even if only a few would actually be discussed.

Meanwhile, the Broken Arrow School Board on Monday night discussed behind closed doors the "organization of district administration" without listing specific employees on the agenda.

Then in Norman on Tuesday, the City Council was scheduled to discuss "various workers' compensation cases" in an executive session during a special meeting. No information regarding the cases was listed on the agenda.

These executive sessions seem to violate the Open Meeting Act for the same reason: The agendas fail to provide the public with sufficient advance notice of what will be discussed in the closed-door sessions.

In Mannford, the agenda for the school board's April 11 meeting did not include the names of any district employees even though an executive session was listed to "consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Waldvogel told the Mannford Eagle on Monday that the school board had offered a list of all district employees and contended that any one of those could be discussed in the executive session.

That contention is nonsense.

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

A 2006 attorney general opinion emphasized, "Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes." (2006 OK AG 17, ¶ 9)

The purpose of listing the name or unique title is to identify the specific employee to be discussed. That requirement wouldn't be necessary if a public body could simply list ALL employees, as Waldvogel contends, to camouflage who actually will be discussed behind closed doors.

Listing all employees provides the public with no more actual advance notice than not listing any would. That's why the 1997 attorney general opinion didn't provide it as an alternative to keeping secret the names of those who would be discussed.

In Broken Arrow on Monday, the school board's agenda did not list employees to be discussed even though one statutory authorization listed for the executive session was the personnel exception.

The other statutory authorization listed was the Open Meeting Act's exception for "Discussing any matter where disclosure of information would violate confidentiality requirements of state or federal law." (OKLA. STAT. tit. 25, § 307(B)(7))

How that exception applied wasn't explained on the agenda and isn't obvious.

According to The Broken Arrow Ledger, the school board approved reorganizing the administration by:

• Appointing new high school and middle school principals;
• Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
• Moving a principal to director of instructional services; and
• Naming the Performing Arts Center director as the executive director of fine arts.

Those are all personnel actions. The names of those employees should have been listed on the agenda.

In Norman, the City Council's agenda did not list the specific workers' compensation cases. The exception cited was attorney-client privilege. However, the agenda listed five cases involving the city of Norman. Why weren't the compensation cases specified?

(Click here for a previous posting regarding the attorney-client exemption under OKLA. STAT. tit. 25, § 307(B)(4).)

And don't forget that the Bernice Board of Trustees held executive sessions on March 14 and April 11 to discuss creating "a town maintenance" position even though the 2006 attorney general opinion prohibits closed-door sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed."

These attorney general opinions aren't new. The elected officials -- school board and city council members alike -- are expected to know the state Open Meeting law.

In Mannford, Waldvogel told the newspaper that if the school board violated any laws they would deal with it.

More important, however, is what the district attorneys for each of these towns will do about it. Violating the Open Meeting Act is a crime. The public must rely on the district attorneys to uphold that 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.

Complaints that public bodies in Bernice, Mannford conducted executive sessions in apparent violations of Open Meeting Act

The Bernice Board of Trustees and the Mannford School Board are each accused of recently conducting executive sessions that violated the state Open Meeting Act.

Prior to each session, the elected officials dismissed warnings that the closed-door sessions failed to meet the statutory requirements, according to complaints sent to FOI Oklahoma Inc.

In Bernice, the Board of Trustees held executive sessions on March 14 and April 11 to discuss "a town maintenance person" under the personnel exemption. (OKLA. STAT. tit. 25, § 307(B)(1))

No other information regarding the executive sessions was listed on the agendas.

Resident Steve Miller said the board is creating the position and voted after the March 14 executive session to post advertisements for a part-time maintenance person.

Miller told the FOI Oklahoma Blog that he pointed out to the trustees prior to the April 11 executive session that a 2006 attorney general opinion prohibits such sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

The exemption applies only "to discussing particular current or prospective public officers or employees," then-Attorney General Drew Edmondson said in the opinion. (Id.)

"The legislative history of this exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," according to Edmondson. (Id. ¶ 8)

"Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes," he said. (Id. ¶ 9)

A 1997 opinion by Edmondson says agenda items for an executive session under the personnel exemption must 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)

In a letter (pages 1 & 2) that Miller said he gave to the Bernice mayor and trustees on April 11, he objected to the executive session scheduled for that night. Miller said he also sent the letter to Delaware County District Attorney Eddie Wyant.

Another problem: The April 11 agenda listed the wrong statutory authorization for the executive session. The item said the topic was "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of a town maintenance person as authorized by Title 25 O.S. 307(B)(2)." However, that exemption is for "negotiations concerning employees and representatives of employee groups."

In Mannford, attorney Ronald E. Durbin II said he told the Board of Education during an April 11 meeting that its executive session involving the personnel exemption would violate the Open Meeting Act.

The agenda listed a "Proposed executive session to consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Durbin said he pointed out to the board that the 1997 attorney general opinion requires that the employee's name or unique title be included on the agenda.

Durbin said the superintendent replied that the school board was free to discuss "any personnel" and refused to identify which employees would be the subject of the closed-door session. Durbin said he was told to contact the school district's attorney, Bryan K. Drummond of Rosenstein, Fist & Ringold in Tulsa.

In a letter to Drummond on Friday, Durbin said the agenda "clearly violates the public notice provisions of the Open Meeting Act."

Durbin said the board's refusal to provide the names "was not out of ignorance but rather a willful disobedience" of the Open Meeting Act. He asked Drummond for not only the employee names but also for "all minutes, tape recordings, and all other records, notes and/or documents which [were] reviewed during that executive session."

Durbin of Moyers, Martin, Santee & Imel in Tulsa served as Tulsa Councilor G.T. Bynum’s attorney during open meeting issues involving the council last summer. Durbin warned the council against using small group meetings to mediate issues with the mayor, saying such meetings would be "not only inadvisable but would also result in a clear violation of the OMA.”

Both Durbin and Miller seem to have valid complaints regarding the respective executive sessions. The question is whether the local district attorneys will treat these apparent violations seriously.


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.