Tulsa Development Authority group likely to meet in public to redo screening process

A Tulsa Development Authority advisory committee will likely meet in public to hear all 10 proposals for a vacant fire station, the Tulsa World reported today.

The newspaper reported last week that the committee overseen by Tulsa City Councilor Maria Barnes had met secretly to winnow the field of 10 to three without hearing presentations from the other seven.

Today's story says Authority Executive Director O.C. Walker recommended in a memorandum sent Friday that the authority tell the advisory committee to hear presentations from all 10 bidders in an open meeting.

The issue is set for discussion at the authority's Dec. 2 meeting, the newspaper reported.

TDA attorney Jot Hartley told the Tulsa World that although the authority had done nothing wrong, redoing the process in an open meeting would provide full transparency.

Good thinking. But Barnes' committee, created by the TDA at her urging, seems to have violated the Open Meeting Act by meeting secretly.

An ad hoc committee or citizens advisory committee that "exercises actual or de facto decision-making authority" must comply with the Open Meeting Act, the state Supreme Court said in 1978. (Sanders v. Benton, 1978 OK 53, ¶ 16)

A 1984 attorney general opinion said, "[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

That reasoning seems to apply to Barnes' advisory group.

Hartley said last week that the TDA was not bound by the recommendations of Barnes' committee. But if the TDA had considered only the three proposals ranked and forwarded by the committee, then that committee would have exercised decision-making authority.

Still, the good news is that Tulsans' need to know will be served if the TDA requires the advisory group to redo the process in the open.

But legislators should strengthen the public's right to know by declaring that all citizens advisory committees and ad hoc committees -- regardless of decision-making power -- are subject to the Open Meeting Act.


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

Tulsa mayor says no public meetings to hash out differences with City Council, insists on private talks 1v1

Tulsa Mayor Dewey Bartlett Jr. refuses to publicly mediate disputes with the City Council, insisting instead on private discussions with each councilor, the Tulsa World reported this week.

Bartlett's reason for secret meetings? He's afraid that councilors might "posture or politicize things."

"Especially if someone gets irritated or gets mad, things could be said in the heat of the moment," he said. "For us to have very frank conversations, that's what needs to happen."

In other words, something might be said that Bartlett doesn't want the public to hear.

So much for the Open Government Pledge that Bartlett signed when he ran for office only a year ago.

In putting his name to that paper, Bartlett pledged “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.”

But for a third time, Bartlett's actions indicate he either doesn't understand the promise he made to fellow Tulsans or had no intention of living up to it when he signed the document.

Last September, just a day or so after FOI Oklahoma Inc. received Bartlett's signed Open Government Pledge, he got a Tulsa County judge to seal his divorce case, which had been filed in public court seven years earlier. Bartlett wanted the documents closed after a small portion of the case file was posted on the conservative blog Batesline.

In March, Bartlett said open meetings would hamper frank discussions of a city-county committee looking for ways to save taxpayer money.

But the pledge that Bartlett signed isn't conditional. It contains no exemption for "frank discussions" only behind closed doors.

On Tuesday when Bartlett nixed the idea of public mediation with the council, he took a shot at the Tulsa World, which has editorialized in favor of open discussions.

"I know the media loves this," he said. "I feel like we all should get royalties off the newspapers that have been sold."

No, Mr. Mayor, your problem isn't with the news media.

It's with the spirit of our state's open government laws, which you endorsed when you signed that pledge. Here is a reminder: "The purpose of Oklahoma's Open Meeting and Open Records laws [is] to ensure and facilitate the public's understanding of governmental processes and problems."

That understanding occurs best when the public observes frank and open discussions by its elected officials.

As our state Supreme Court said, “If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59)

Tulsa city councilors, to their credit, seem to be taking that sentiment to heart, having twice rejected pressure from Bartlett to conduct these talks behind closed doors. I urge them to do so again.

In the meantime, FOI Oklahoma is asking state and local candidates on this November's ballot to sign the Open Government Pledge -- but with one caveat. Don't sign if you don't believe in and won't support the inherent right of Oklahomans to know and be fully informed about what their government does.

This is one campaign promise we won't let you ignore.

For more coverage of this issue:

• The feud, Tulsa World editorial, 9.16.10.
• Mayor's 'Mr. Positive' approach in speech gets mixed reviews, Brian Barber, Tulsa World, 9.16.10

Joey Senat, Ph.D.

Associate Professor

OSU School of Media & Strategic Communications

Tulsa City Council considering private meetings with mayor to set ground rules, topics for public discussions

Less than a week after voting not to mediate disputes with the mayor in an executive session, members of the Tulsa City Council are saying they’ll divide into smaller groups to meet privately with him and a facilitator on Tuesday at the request of the Tulsa Metro Chamber, the Tulsa World reported today.

The closed-door meetings are to “set the ground rules and discuss how we are going to go about all of this” to hold chamber-facilitated public meetings later, a council member said.

Tuesday's meetings reportedly would include deciding which topics will be discussed during the public meetings.

Councilors Roscoe Turner, Maria Barnes and Jim Mautino said they likely would not participate unless the meetings are open from the beginning, the Tulsa World reported.

Good. Because setting ground rules and agreeing to topics will require council members to vote or otherwise come to a consensus regarding public business -- something they are not entitled to do outside of a public meeting.

In the proposed meetings Tuesday, the facilitator hired by the chamber essentially becomes a go-between for the city councilors.

But a 1981 state attorney general opinion prohibits such serial meetings among the members of a public body.

“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,” said then-Attorney General Jan Eric Cartwright. (1981 OK AG 69, ¶ 17)

In other words, members of a public body cannot meet secretly in groups smaller than a quorum to decide public business.

That prohibition on obtaining a consensus through informal discussions also applies to the assistants of members of public bodies, Oklahoma County commissioners were warned in 2005.

While there was “nothing inherently wrong with [the commissioners’] chief deputies getting together with one another in order to acquaint themselves with” agenda items, “there is a clear prohibition of any chief deputy binding his or her commissioner to how he or she will vote on the matter,” then-District Attorney C. Wesley Lane II told commissioners.

“Chief deputies cannot promise, bind or commit their commissioner to any action on any particular agenda item or public business decision. To do so would be in violation of the [Open Meeting] Act. Thus, no chief deputy can announce at any gathering held between other chief deputies that his or her commissioner will vote a particular way on an issue,” Lane said.

That reasoning would apply to Tulsa city councilors telling the facilitator what ground rules and topics they will agree to for public meetings.

The persistent belief by some council members that they can meet in small groups to decide the public’s business is an absolute outrage. Their admission that they’re using this ploy in an attempt to avoid the Open Meeting Act’s requirements shows a willful intent to violate the law.

Even Councilor G.T. Bynum’s attorney, Ronald E. Durbin II, had recently 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.”

“In this situation, it is obvious that any plan to use smaller numbers of Councilors would inevitably result in the need for those Councilors in attendance to share information and discuss settlement proposals with those Councilors not in attendance. This activity would be a clear violation of the OMA, and thus, only an executive session including a quorum of the Councilors should be utilized if any mediation session is to be closed to the public,” he told them.

Council members are using the Open Meeting Act's definition of a meeting as a loophole. The statute defines a meeting as “the conducting of business of a public body by a majority of its members being personally together or . . . together pursuant to a videoconference." (Okla. Stat. tit. 25, § 304(2))

So council members -- as other public bodies have done -- figure that they can meet in groups of less than a quorum to conduct -- or at least discuss -- the public's business.

But they should keep in mind this admonition from then-Attorney General Jan Eric Cartwright:

The Open Meeting Act should be liberally construed in order to effectuate its purpose ... [and] should be interpreted in such a way as to avoid establishing potential evasion loopholes. (1982 OK AG 212, ¶ 13)

Better yet, state legislators should improve the Open Meeting Act by simply prohibiting two members of a public body from even discussing public business outside of a public meeting of that body.

Announcing these closed meetings on Tuesday with the mayor does not absolve the council members of their obligations under the law.

And the concern is about more than the city council making decisions behind closed doors.

“If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed,” the Oklahoma Supreme Court said in 1978. (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, 577 P.2d 1310, 1313-14)

The stated 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)

A 1980 attorney general opinion requires that the statute "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)

Only an open deliberative process reveals which alternatives are rejected and why, both of which the public is entitled to know. (See 1982 OK AG 212, ¶ 5)

If Tulsa City Council members and the mayor can’t abide by not only the letter but also the spirit of our open government laws, then they should quit public office and stick with the private sector.

It’s a heaping pile of horse excrement to claim that elected officials must meet in secret because otherwise some would not be candid or others would posture in front of the public. That they cannot act like responsible adults is not an exemption to our Open Meeting Act.

Political cowardice on the part of elected officials is not an excuse for secret discussions of the public’s business.

If these elected officials are afraid to speak openly, honestly and candidly in front of the public, then Tulsa voters should hire replacements in the next election – or sooner.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communications