Atoka County commissioners met secretly to discuss pay raises for themselves

All three Atoka County commissioners met secretly with other elected county officials on July 9 to discuss granting a pay raise for the entire group, according to the Atoka County Times in its July 15 edition.

The pay raise was placed on the County Commission's agenda for July 13. Commissioners didn't discuss the raise at the meeting prior to voting to approve the salary increase, the newspaper reported.

Commissioners denied that the secret meeting violated the Open Meeting Act because no roll call or vote was taken.

However, as the newspaper correctly points out, 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))

In 2007, legislators added language to the statutory definition of “meeting” to clarify that a majority of a public body can gather informally as long as “no business of the public body is discussed.” ( OKLA. STAT. tit. 25, § 304(2))

Judicial and attorney general opinions had made clear for the previous 25 years that members of a public body are prohibited from discussing the public’s business during social gatherings. A pay raise for elected officials is certainly the public's business.

“Sunshine legislation reaches, not just ‘formal’ meetings, but the ‘entire decision-making process,’” the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, 637 P.2d 1270, 1272)

Why is this important?

"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)

It's not sufficient for the Atoka County Commissioners to just vote publicly after having privately discussed the raises. As then-Attorney General Jan Eric Cartwright said in 1982:

“If government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere ‘rubber stamp’ vote is all but useless.” (1982 OK AG 212, ¶ 7)

The law in this area is clear and well-established. If Atoka County commissioners think it’s permissible to met secretly to discuss pay raises for themselves, what else do they believe is acceptable under the Open Meeting Act?

It’s a crime to violate the Open Meeting Act. Perhaps someone with the authority to do so will hold the commissioners accountable.

Either way, voters should keep it in mind the next time they are asked to cast ballots to rehire these commissioners.

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

AG's open meeting and records seminars start Aug. 6

Have questions or concerns about Oklahoma's Open Meeting and Records laws?

You can ask state Attorney General Drew Edmondson directly during his biennial statewide series of seminars on the state's freedom of information laws.

Edmondson and Assistant Attorney General Gay Tudor will answer FOI-related questions and explain the requirements on access to public records and the conduct of public meetings.

The seminars are free and open to the public. Registration is not required. Each will be from 1 p.m. to 4 p.m. The first is Aug. 6 at the Indian Capital Technology Center in Muskogee.

The workshops are sponsored by Edmondson, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

Click here for the list of dates and locations. For more information, contact Lisa at OPA, (405) 499-0040, toll-free in Oklahoma at 1-888-815-2672 or lpotts@okpress.com.


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

Court battle brewing over request to see Broken Arrow school board's detailed billing records from law firm

Should the public know the details of what law firms do for the state and local government agencies that hire them with taxpayers' money?

"I don't really think the public is entitled to know exactly what we spend our legal bills on,” said a member of the Broken Arrow Public Schools Board of Education in a March meeting.

“I mean, I’m elected to represent the public. This is not a democracy. This is a republic. That means that I am elected and you guys trust me to make decisions and because you all don’t have the time to go into and research everything. That’s what I’m elected to do, to research and study all this stuff,” said Maryanne Flippo, who didn’t seek re-election to the school board this past spring.

In fiscal year 2007-08, the school district spent about $8,500 on legal fees, says Chris Tharp, whose children attend Broken Arrow Public Schools.

That amount increased to more than $200,000 in the 2008-09, says Tharp.

Since September 2008, Tharp and the citizens group Broken Arrow Parents for Truth have been asking for billing records that establish the nature and amount of charges incurred by the school district for legal services provided by the Tulsa firm Rosenstein, Fist & Ringold.

Tharp wants the information to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”

School district officials will tell him how much the law firm has been paid but won’t provide the detailed billing records for the services provided.

Doug Mann of Rosenstein, Fist & Ringold contends that attorney-client privilege shields the information from public view.

Tharp isn’t satisfied with that answer.

“I am just a taxpayer requesting copies of the legal bills per FOI. Me and some others have (been) turned down repeatedly. Well, I went ahead and hired an attorney,” Tharp recently told the FOI Oklahoma Blog.

On June 11, an attorney for Tharp requested documents demonstrating what legal services Rosenstein, Fist & Ringold has provided for the district since being hired on Aug. 6, 2008.

In turn, school board members on June 29 voted 3-2 to hire the Tulsa law firm of Crowe & Dunlevy to advise them whether to release the records.

That prompted a letter from Tharp’s attorney, Marvin Laws of Hayes Magrini & Gatewood in Oklahoma City, asking to see the district’s engagement letter with Crowe & Dunlevy and detailed billing records submitted to the district by the firm.

In Laws' June 11 letter to the school district, he referred to the Oklahoma Open Records Act's preamble:

“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is 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.” (OKLA. STAT. tit. 51, § 24A.2)

The purpose of the Oklahoma Open Records Act 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.”


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

Tulsa library panel asks for OMA training

The Tulsa City-County Library Commission met Tuesday to vote in public on what it had illegally decided during an executive session last week, the Tulsa World reported today.

County Commissioner Karen Keith, a member of the library board, said she has asked library administrators to order books on public meetings and records from the Oklahoma Press Association and to schedule a training session for the commissioners.

Keith said the entire board should take responsibility for the violations last week.

"There are others of us who should have known as well," Keith said. "And we had our attorney here, too."

The training will be provided either by attorney Tom Hilborne, who represents the county, or by Attorney General Drew Edmondson in an upcoming open government program in Tulsa..


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

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

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

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

Minutes of executive session discussions must be kept, the state Supreme Court said in 1980.

(Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶12, 611 P.2d 628, 631. (“Although the municipal attorneys' case permits executive sessions on the advice of counsel in certain specified instances, it does not abrogate the statutory requirement that minutes be kept and recorded.”))

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

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

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

Edmondson noted that Legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act (OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public. (OKLA. STAT. tit. 25, § 307(F)).

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

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

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

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