DA accuses state Pardon and Parole Board of willfully violating Open Meeting Act to secretly release ineligible inmates

The Oklahoma Pardon and Parole Board willfully violated the Open Meeting Act with vague agendas that failed to notify the public that it would consider releasing inmates early, including some who were ineligible because they had not served mandatory sentences, Oklahoma County District Attorney David Prater announced Wednesday.
 
"I determined that the Board has no authority to pardon, commute or otherwise modify an inmate's sentence that was subject to a statutory restriction on early release. I also found that even the most diligent member of the public who had an interest in carefully monitoring a specific inmate, would not have known or anticipated the actions of your Board," Prater said in a letter to the board's executive director.
 
"The violations of the Open Meetings Act are willful, conscious and purposeful violations of the law," Prater wrote.
 
"Additionally, I find the Board's actions to be deliberate disregard of Oklahoma's Open Meeting Act," he wrote. "The Oklahoma Pardon and Parole Board's violations in this matter are egregious, aggravated and a clear attempt to operate in secrecy, outside of public scrutiny.”
 
Prater told The Oklahoman that he is considering filing charges against the board members.
 
Violating the statute is a misdemeanor punishable by up to one year in the county jail and up to a $500 fine.
 
In his letter, Prater also said the early release of inmates in violation of mandatory sentencing guidelines should be considered invalid as violations of the Open Meeting Act.
 
He called on the executive branch to take action to reverse the invalid decisions.
 
"Obviously, this will include taking inmates who have been released back into custody," he wrote.
 
Prater described a procedure during board meetings in which the members would vote to place inmates on a docket called a "Pre-Docket Investigation," or "PDI," for consideration of early release.
 
Prater said the Pre-Investigation Docket was "NEVER" mentioned on the 2.5 years of board meeting agendas that he reviewed.
 
"It was IMPOSSIBLE to determine at what point in the Pardon and Parole Board meetings the 'PDI' docket was being considered and voted on," Prater wrote.
 
He said a review of board meeting minutes revealed "an obscure, recurring Agenda item ... 'Docket Modifications - J.D. Daniels.'"
 
"Notably, no reference was made to a related docket or website containing a docket for consideration to be 'modified,'" Prater said. "The 'Docket Modification' Agenda items gives NO notice to the public of what business the Board will be conducting under this item."
 
The Pardon and Parole Board also didn't notify district attorneys of "unqualified inmates" being placed on the "PDI" docket for early parole consideration, Prater complained.
 
The board's vague agendas essentially prevented the public from knowing that inmates would be illegally considered for early release, Prater concluded.
 
"A member of the public who was interested in monitoring a specific inmate would not begin checking the parole dockets until the time drew near for the legal consideration of the inmate," Prater wrote. "Outside of Board members, no person had the ability to determine what inmate would or could be the next fortunate soul to emerge from the darkness of the 'Docket Modification' portion of the Board's business with an undeserved opportunity to attain an early and illegal release.
 
"This result illustrates why compliance with the Open Meeting Act is vital to public awareness and governmental transparency. At the least, the public deserves the opportunity to observe a public board violate the the law in the light of day," he wrote.
 
Prater also accused the board members of "gross partiality" for placing "certain inmates on the early parole docket without any apparent policy or procedure."
 
"Though the patent violations of the Open Meeting Act are condemnable, it is the apparent presence of patent partiality, operating in the darkness of Board meetings that is equally disturbing," he wrote. "This practice of partiality could not have survived had the Board complied with the Open Meeting Act."
 
Prater is clearly angry over the board's secrecy, perhaps in part because district attorneys were kept in the dark. Now, he knows how frustrated many Oklahomans become when public bodies heedlessly violate the Open Meeting Act.
 
But unlike the rest of us, Prater can do something to stop such violations. By prosecuting the Pardon and Parole Board, he can send a message to other public bodies that they must comply with the spirit and the letter of the Open Meeting Act.
 

 
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.

Delaware County district attorney refuses to prosecute Open Meeting Act violations in Bernice

The Bernice Board of Trustees won't face criminal charges over several Open Meeting Act violations detailed by a state audit in April, Delaware County District Attorney Eddie Wyant's office said last week.
 
"Basically, after we have looked at what we've got here, it appears that the things that they did were under the advice of their counsel, and that in our opinion makes it difficult to find that it was a willful violation," Wyant's first assistant told the Tulsa World
 
"We don't necessarily agree with their counsel, but it certainly mitigates against it being a willful violation," said Ben Loring.
 
But that excuse ignores a long line of contrary opinions by Oklahoma courts.
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
The court said the violation by the Beggs Public Works Authority, "although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
 
"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," the Court of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
So should the Bernice Board of Trustees have known the law? In at least one instance, they were warned by a resident that an executive session would be illegal under the particular circumstances. But they did it anyway.
 
Keep in mind, too, that since 2005, all municipal officials elected for the first time must undergo training that includes the Open Meeting Act's requirements and prohibitions. (OKLA. STAT. tit. 11, § 8-114(A))
 
Violating the Open Meeting Act is a misdemeanor punishable by up to a $500 fine and one year in the county jail.
 
As a penal statute, the Open Meeting Act must be strictly construed, the Oklahoma Court of Criminal Appeals said in 1992.
 
"Any cause of action based upon such a statute must be clear and without a doubt," the court said. "Statutes which create and provide penalties for criminal offenders must be sufficiently explicit so persons of common intelligence may understand their provisions and so that their meaning does not require speculation," the court said. (State v Patton, 1992 OK CR 57, ¶ 3)
 
In Bernice, the state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had unquestionably violated the Open Meeting Act by:

• Discussing contracts of independent contractors in executive session;
• Not taking minutes of executive sessions;
• Not listing the statutory authorization for executive sessions or listing the wrong one;
• Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
• Voting in an executive session; and
• Discussing the creation of a job, rather than hiring a specific person, in executive sessions. (A violation that was pointed out on this blog last April.)

These aren't violations of new requirements or prohibitions under the Open Meeting Act. And, as the audit pointed out, the Oklahoma Court of Civil Appeals has said:

The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes [sic]. Lack of familiarity is no excuse. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶18 )

But in Delaware County, public officials' ignorance of the Open Meeting Act is being excused.
 
Loring also gave one more reason why Bernice trustees wouldn't be prosecuted for robbing the public of their right to an open government: It did not appear that any of the trustees personally benefited from the violations described in the audit.
 
"Our attitude would be a whole lot different if there is personal gain from it," Loring told the Tulsa World.
 
When did that become a requirement for prosecution of an Open Meeting Act violation?
 
Personal gain wasn't apparent, or mentioned, when the Muskogee County district attorney prosecuted Boynton town trustees in 2010 for Open Meeting Act violations.
 
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
 
Wyant's excuses for not prosecuting are frustrating for the public not only because they ignore the law but also because a Washington County judge has said Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the government body's alleged violation.
 
The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," said Associate District Judge Russell Vaclaw said in November.
 
But Wyant's refusal to prosecute blatant violations underscores the need to create an independent state authority with the expertise and willingness to pursue violations. Oklahomans simply cannot rely on local district attorneys to consistently do the essential job of protecting an open government.
 
In 2008, the Court of Civil Appeals said: "The Act is designed to 'encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting." (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
 
However, that purpose is defeated when district attorneys shrug off violations of the Open Meeting Act.
 

 
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.

AG's Office to Public Officials: Be specific on agendas; Ignorance of Open Meeting, Open Records laws not an excuse

Agendas for meetings of public bodies must be specific, the Attorney General's Office emphasized to government officials this week.

"Don't try to hide the ball," warned Janis Preslar, chief of the Attorney General's Office's general counsel office.

Preslar spoke on the state Open Meeting Act during a Monday seminar in Muskogee. The next workshop on the state freedom of information laws will be Nov. 7 at the Metro Technology Center in Oklahoma City.

The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

Read Tulsa World and Muskogee Phoenix coverage of Monday's seminar.

Preslar said the Attorney General's Office reviews the agendas of all state agencies it advises and urged public bodies to have their agendas reviewed by their attorneys before posting.

Preslar also warned that ignorance of the law doesn't make a violation non-willful.

"Ignorance is not an excuse," she said. "Willful violation can mean that you didn't know about a law that you should have."

Pruitt should remind district attorneys of that.


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


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

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.

Grand jury tells Skiatook school board to learn state Open Meeting Act to avoid possible violations

A Tulsa County grand jury investigating wasteful spending by Skiatook Public Schools said Friday the school board "needs to be educated about the Oklahoma Open Meeting Act laws to avoid future potential violations."

So has the board already violated the Open Meeting Act? Unfortunately, we might never know what the grand jury uncovered in this regard.

Any such crimes should not be shrugged off because the school board members were willfully ignorant of the laws.

State law already requires that all newly elected or appointed municipal officials undergo training on the Open Meeting Act. (OKLA. STAT. tit. 11, § 8-114(A)) The same should be required of school board members.

But even without it, they should know what's expected of them under the Open Meeting Act.

The grand jury also recommended that the school board immediately "hire a new attorney who can assist the Board in being more open and communicative to the public."

"The public forum should be routinely incorporated into all School Board meetings," the grand jury also said.

Two indictments by the grand jury remain sealed.

Skiatook parent Rob Ridenour told the Tulsa World he thought the school board often abused the Open Meeting Act by frequently conducting executive sessions.

"Ultimately, executive sessions prevent the fair exchange of information to the citizens. Without input, they can't really serve the interests of the public," he said.

Amen, brother.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Washington County DA won't prosecute Open Meeting Act violation, says it was unintentional

Washington County District Attorney Rick Esser won't prosecute three members of a Bartlesville city committee, saying an Open Meeting Act violation was a clerical error and not intentional, the Tulsa World reported.

But Esser's reason ignores a warning by the state attorney general's office that proving a willful violation of the state Open Meeting Act requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

The FOI Oklahoma blog two weeks ago reported that the agenda for the Design Review Committee's special meeting on Dec. 15 did not specify that action could be taken on two project applications that the committee approved during the meeting.

In contrast, the agenda said the committee would "discuss and take possible actions to develop Residential Design Guidelines for the Downtown Redevelopment District."

Joel Rabin, an FOI Oklahoma member, filed a police complaint accusing the committee's three members who were present of violating the Open Meeting Act.

But Esser told the Tulsa World he won't file charges.

"It looked like from the information obtained there was no intention to violate the Open Meeting Act," Esser said. "I can't find that the Design Review Committee, from what the report indicates, intended to violate the law. The statue clearly says you have to have intention to purposefully violate the act."

No. As this blog has emphasized repeatedly and the state attorney general's office reminded officials in August, proving a willful violation of the state's Open Meeting and Open Records laws requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

The state Supreme Court in 1984 said proving that a violation was willful "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 [Open Meeting] Act." (emphasis added) (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

The court was relying upon a 1981 Oklahoma Court of Civil Appeals ruling.

The lower court had said if willful were narrowly interpreted to include only violations "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.” (emphasis added) (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 26, 637 P.2d 1270)

Esser's public comments encourage that kind of willful ignorance on the part of officials.

Esser told the Tulsa World the agenda "could have been made a little bit clearer, but I think the secretary just forgot to carry it forward, and she's going to make changes in how she writes the agenda in the future."

Try that excuse if you are caught cruising through downtown Bartlesville at 70 mph: Sorry, officer, I forgot the speed limit.

The Open Meeting Act requires that each agenda “identify all items of business to be transacted” by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

The Oklahoma Court of Civil Appeals has said agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)

The purpose of the statute “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 court said.

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. That includes any action exceeding the scope of action defined by the agenda.

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

Esser apparently didn't want to jail the committee members. But he could have filed charges and then negotiated a plea agreement in which the members apologized and promised to abide by the Open Meeting Act in return for the charges being dismissed after a certain amount of time.

Short of that, Esser could have served the public's interest by issuing a stern public warning not only to the Design Review Committee but also to all other city committees that future violations will not be tolerated. Then he could live up to that warning.


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

Apparent Open Meeting Act violations by the Alva City Council

Alva's City Council meeting on Monday night seemed to violate state law in four ways.

Possible Violation No. 1: Vague agenda items failing to give the public actual notice of the business to be discussed and acted upon.

Possible Violation No. 2: During executive session, discussing business not listed on the agenda for the executive session.

Possible Violation No. 3: Taking action on business not listed on the agenda.

Possible Violation No. 4: Failing to post agendas.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice,” the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 9)

But Alva City Council agendas didn’t “give the public actual notice.” For example, its second item of business on Monday was “Council consideration and action on the approval of claims.”

Council members approved more than half-a-million dollars in claims -- a near-record amount -- under that agenda item, reported Helen Barrett of the Alva Review-Courier.

The more than $536,500 in claims included more than $320,000 to Dobson Construction for work done at the airport, more than $48,000 to the Oklahoma Municipal Group insurance plan, and nearly $22,000 to the Alva Utility Authority.

But the public couldn’t have known that by reading the agenda prior to the meeting.

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 Court of Civil Appeals said. (Haworth, ¶ 8)

At an open government workshop in September, public officials were cautioned against “cryptic” agenda language. A public body should not try to hide what it will be doing at a meeting, said Gay Tudor, chief of the Attorney General's General Counsel Section.

Another item on the Council’s agenda Monday was “Business Manager’s Report Items.” No information was listed under the report.

Last month, though, Tudor said the Attorney General’s Office prefers for such reports “to have bulleted points for items under the report.”

“Don’t try to hide items of business by putting it under ‘report,’” she warned.

The incomplete nature of Alva City Council agendas became apparent when Barrett contacted me about an action taken in apparent violation of the Open Meeting Act.

Barrett noted that the council, meeting as the Alva Utility Authority, entered into an executive session “to discuss the appraisal of 35 acres located in the Industrial Park” as noted on the agenda.

After returning to open session, however, Councilman Roger Hardaway made the motion to “authorize the city manager to continue negotiation with Mr. Ryerson on the property at the airport and the 35 acres at the industrial park.”

Barrett, a member of the FOI Oklahoma board of directors, challenged the legality of the executive session if the airport land had been discussed because that property wasn’t listed anywhere on the agenda.

According to Barrett’s article, Alva City Attorney Rick Cunningham said at the meeting that the vote on the airport property was under Agenda Item No. 5.

But, as Barrett correctly noted, that agenda item doesn’t mention Richard Ryerson’s airport property. It states, “Board consideration and action on the disposition of 35 acres located in the Industrial Park.”

The Open Meeting Act requires that each agenda “identify all items of business to be transacted” by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

Alva's agendas didn’t do that.

Why require that agendas provide the public with actual notice of the business to be discussed and the action to be taken?

Because “without such information,” Attorney General Drew Edmondson has said, “the public is deprived of its right to be present and to know when decisions affecting the public are being made.” (2000 OK AG 7, ¶ 27)

The Oklahoma Court of Civil Appeals has said any act or omission that “has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting” would be a “willful” violation of the Open Meeting Act. That includes any action exceeding the scope of action defined by the notice. (Haworth, ¶ 8)

A violation of the Open Meeting Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail for each count. (OKLA. STAT. tit. 25, § 314)

To top off matters, the city also violated a state statute requiring that agendas for regular meetings be posted on the city’s Web site. (OKLA. STAT. tit. 74, § 3106.2(A))

To respond to Barrett’s complaint, I had download the council and utility authority agendas. All I got were blank .pdf’s. A city official told Barrett the blank agendas were a technical glitch.

All in all, not a stellar night for open government in Alva.


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

Reminder to public officials: Willful violation does not require showing intent, but rather showing the official knew or should have known the law

Public officials were reminded Thursday that proving a willful violation of the state's Open Meeting and Open Records laws requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

Assistant Attorney General Gay Tudor also reminded a packed meeting room in Muskogee that it is illegal for a quorum of a public body to meet via e-mail to discuss or decide public business, The Muskogee Phoenix reported.

Attorney General Drew Edmondson warned the audience that grand juries tend to look more harshly on open government violations than do district attorneys, the newspaper said.

In the audience for the seminar on the state's FOI laws were officials of nonprofit agencies receiving grants from the City of Muskogee Foundation because they are required to comply with the Open Meeting and Records laws, the newspaper reported.

The next seminar will be Tuesday in Woodward. The workshops are free and open to the public.

Criminal violations of the state's open government laws can result in up to one year in jail and/or up to a $500 fine.

The state Supreme Court in 1984 said proving that a violation was willful "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 [Open Meeting] Act."
(Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

The court was relying upon a 1981 Oklahoma Court of Civil Appeals ruling.

The lower appellate court had said if willful were to be narrowly interpreted to include only violations "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.”
(Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 26, 637 P.2d 1270)

As of Nov. 1, 2007, newly appointed city officials must undergo training that includes the state's FOI laws. Legislators had placed the requirement upon newly elected municipal officials the previous year. Under state law, these officials lose their jobs if they fail to take the training in roughly their first year in office.

(“Each person elected for the first time to a position of a municipality on or after January 1, 2005, or appointed for the first time on or after July 1, 2006, shall be required within one year after taking the oath of office to attend an institute for municipal officials.” (OKLA. STAT. tit. 11, § 8-114(A))

“The curriculum for the Institute shall include, but not be limited to: municipal budget requirements, the Oklahoma Open Meeting Act, the Oklahoma Open Records Act, ethics, procedures for conducting meetings, conflict of interest, and purchasing procedures.” (OKLA. STAT. tit. 11, § 8-114(C)))

Oklahomans should expect all their public officials to know their particular obligations under the state's Open Meeting and Records laws.

And the public shouldn't have to take the grand jury approach to enforcing our FOI laws. We should expect that our elected district attorneys consider violations to be serious breaches of the public trust and that they act accordingly by prosecuting.

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

Criminal complaint filed over secret meeting of Atoka County commissioners

Atoka County Times editor Joe McClour has asked for a criminal investigation of the secret meeting held by Atoka County commissioners on July 9 to discuss a pay raise for themselves and other county elected officials.

McClour filed a complaint with Atoka police on July 17, he told the FOI Oklahoma Blog.

McClour said he's been told that the complaint was given to Police Chief John Smithart and would be sent to the OSBI.

The Atoka County Times broke the story about the meeting in its July 15 edition. The newspaper had been tipped off the meeting was occurring, but McClour was barred from attending it.

At the time, commissioners denied that the secret meeting had violated the Open Meeting Act because no roll call or vote was taken. The newspaper correctly pointed out that the Oklahoma Open Meeting Act defines a meeting as “the conduct of business of a public body by a majority of its members being personally together." ( OKLA. STAT. tit. 25, § 304(2)) (Read an earlier FOI Oklahoma Blog posting on the law related to this secret meeting.)

Commissioner Phillip Culbreath later conceded to The Oklahoman that the meeting might have violated the Open Meeting Act. The newspaper noted that Culbreath, a recently installed commissioner, admitted to not having had any training on the meeting law.

According to McClour, Culbreath was elected June 9 and sworn in June 15. But before being elected to the commission, Culbreath had spent seven years serving on the county excise board, which also is subject to the Open Meeting Act.

Gilbert Wilson is in his 13th year as an Atoka county commissioner. The third commissioner, Marvin Dale, was elected Feb. 10 and sworn in Feb. 19.

Proving that a violation was willful "does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court said in 1984. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

Shouldn't the three commissioners have known that meeting secretly to discuss pay raises for themselves and other elected officials would violate the state's Open Meeting Act?

For now, the next move is up to law enforcement.

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

Tulsa Library Commission violates Open Meeting Act

In an updated Tulsa World story, the Tulsa City-County Library Commission chairwoman says the panel conducted public business by voting in an executive session, which is a violation of the Open Meeting Act.

Tulsa World: Commission Chairwoman La Verne Ford Wimberly told the Tulsa World today a vote was taken in executive session to review the use of employee flexible time and no vote was taken to return to a public meeting.

"It was an error for not going back into open session, and we are trying to re-schedule a meeting on Tuesday to correct that," Wimberly said. "I didn't expect the meeting to last that long, and in my haste to leave, I made a mistake and now I am going back to clean it up."

Violation No. 1: The use of employee flexible time is not one of the nine topics that may be discussed in executive session. (See OKLA. STAT. tit. 25, § 307)

Violation No. 2: The Library Commission cannot vote in executive session. No motion for a vote should have been made until after the panel resumed its meeting in public.

County Commissioner Karen Keith, a member of the panel, told the newspaper that a motion was made and seconded during the executive session but no action was taken because the library commission became side tracked on other business.

What other business? Discussions are limited to the agenda item, and only certain topics may be discussed in executive session. As an earlier posting noted, the posted agenda item of "staff employment issues" was not a permissible topic.

Redoing the meeting won't excuse the criminal violation of the Open Meeting Act’s executive session provision. (Read this earlier posting for an explanation.)

Keith told the Tulsa World that no one had willfully intended to violate the law.

But “willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court said in 1984.

When drivers are pulled over for speeding, they don't get a refresher course on the speeding limit. They most likely get a ticket because they're expected to know the speed limit.

The same is true for public bodies. The library commissioners -- especially Mayor Kathy Taylor and Keith -- and the commission's attorney should know what's required for conducting an executive session before the agenda is posted.

It's a crime to violate the Open Meeting Act. Perhaps someone in Tulsa will take the matter to the police.

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

Possible open meeting violations by the Tulsa City-County Library Commission

In an FOI version of "Where's Waldo?," can you find the possible open meeting violations committed by the Tulsa City-County Library Commission on Wednesday night?

The Tulsa World reports today:

"The Tulsa City-County Library Commission met in executive session for more than two hours Wednesday to discuss 'staff employment issues.' It is uncertain whether a vote or any public action was taken in open or closed session.

"A Tulsa World reporter and two library staff members who were waiting for any public discussion, possible vote and the meeting's adjournment were not called back into the meeting room after the executive session, and commissioners left the Central Library building immediately.

"Standing in an elevator after leaving the meeting, commission Chairwoman La Verne Ford Wimberly told the Tulsa World that a vote was taken to review some 'internal employee' matters."

Possible Violation No. 1: Meeting Agenda

It lists:

EXECUTIVE SESSION
a) Staff Employment Issues (Action)

The Open Meeting Act, however, does not permit executive sessions for an item as vague as "staff employment issues." Instead, the laws allows closed-door discussions regarding the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee. (OKLA. STAT. tit. 25, § 307(B)(1).

An agenda item for an executive session to discuss such personnel matters “must identify either the position or the individual salaried employee who is the subject of the discussion,” Oklahoma Attorney General Drew Edmondson said in 1997. “The Act does not specify that a person must be identified by name; however, in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification.” (1997 OK AG 61, ¶ 5)

Possible Violation No. 2: Voting in secret

Unless the library commissioners can explain how such a vote was required by state or federal law to be confidential, the Library Commission may not vote during executive session. Any vote or action taken on an item considered in executive session must be publicly cast and recorded.

(OKLA. STAT. tit. 25, § 307(E)(3) “Except for matters considered in executive sessions of the State Banking Board and the Oklahoma Savings and Loan Board, and which are required by state or federal law to be confidential, any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded.”)

Even the vote to adjourn should have been cast and recorded in public.

A willful violation of the Open Meeting Act’s executive session provisions would subject each member to criminal sanctions (up to one year in jail) and cause the minutes and other records of the session, including tape recordings, “to be immediately made public.” (OKLA. STAT. tit. 25,§ 307(F)(1-2))

Any action taken in “willful violation” of the Open Meeting Act is “invalid.” (§ 313)

In 1984, the state Supreme Court said, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.”

The personnel exemption and voting in public are not new requirements under our open meeting laws.

Library commissioners, which that night included Tulsa Mayor Kathy Taylor and County Commissioner Karen Keith, should know their obligations under the state’s open meeting laws.

The public should also expect such apparent violations to be investigated by the police and prosecuted by the district attorney. Conducting the public's business in secret weakens our faith in government, paves the way for corruption and incompetency by officials, and warrants attention by those we trust and empower to protect us.

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

Can subsequent public discussion/action remedy an executive session violation under the OMA?

Question from an elected official: We held an executive session and the discussion went beyond what was on the agenda. What is the remedy for the subsequent action which the [public body] may or may not take since the discussion was not legal?

Placing the item on an agenda for subsequent public discussion and action will not excuse the original criminal violation of the Open Meeting Act’s executive session provision.

In 1981, the Oklahoma Court of Civil Appeals rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation. (Matter of Order Declaring Annexation, Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, 637 P.2d 1270, 1274)

In that case, school board members had violated the statute while acting on an annexation later ratified by county voters.

“The election did not rectify the harm to the public because the harm did not lie in the annexation itself,” said the court. “The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose. The election did not ‘cure’ these violations.”

Placing the item on the agenda for public discussion and action might keep that action itself from being declared invalid. Any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 307)

A willful violation of the executive session provisions also causes the minutes and other records of the session, including tape recordings, “to be immediately made public.” (OKLA. STAT. tit. 25, § 307(F)(1-2))

I would urge any public body in this situtation to make public the minutes, including any tape recording, of the executive session and fess up to the mistake. That might mitigate any prosecution or civil lawsuits over the violation. It would certainly go a long way toward maintaining the public's trust in its government officials.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
"Mass Communication Law in Oklahoma"