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The Okfuskee County Commission meeting had adjourned Monday and a newspaper reporter had left when she saw the county's budget writer Dan Hall walking into the meeting room, the Okemah News Leader reported today.
The reporter returned to the room and saw the three commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- and County Clerk Dianne Flanders discussing the 2013-14 budget with Hall, the newspaper reported.
Hall gave the commissioners a cash flow/cash funds report, told them that this year's budget is better than last year's, and said the sales tax increased about $100,000, according to the newspaper.
And this wasn't just a discussion, the newspaper reported, explaining:
The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.
Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
All that occurred with no public notice of the meeting, much less a posted agenda, wrote the newspaper's editor, Lynn Thompson.
If the newspaper's account is correct, Wilson, Smith and Henry held a secret meeting on the county budget in blatant violation of the state's Open Meeting Act.
The Open Meeting Act 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." A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))(emphasis added)
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body even discusses public business, much less makes decisions.
Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)
"Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process,'" the court said. (Id. ¶ 7)
A 1982 state attorney general opinion said:
Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
It is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act. (¶ 11)
In 2012, Attorney General Scott Pruitt said, "A public body is thus engaged in the 'conduct of business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction." (2012 OK AG 24, ¶ 10)
Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'" (¶ 9)
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (quoting Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment. (¶ 9)
The bottom line, as then-Attorney General Drew Edmondson said, "A governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
So why is public decision-making important?
The public policy stated in 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)
In 1978, the Oklahoma 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 Mun. Attys v. State, 1978 OK 59, ¶ 10)
And as the 1982 attorney general opinion said, "An open deliberative process reveals rejected alternatives about which the public might not know if access to study sessions and deliberative meetings were denied." (1982 OK AG 212, ¶ 5)
Thompson noted that the Open Meeting Act "is not a new law that has just gone into effect."
"This is a 30-plus year old Act that has been in effect and that all elected officials should not be unaware or ignorant of the Act," he wrote.
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body discusses public business. The county budget is certainly the public’s business.
It's a blatant violation of the Open Meeting Act for a county commission to discuss the county budget with no public notice of the meeting. Any elected official who has so little respect for the people and the law should be prosecuted and sent to jail.
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
In 1981, the state Court of Criminal Appeals upheld the convictions of the city of Medicine Park's board of trustees for failing to post meeting agendas. "Posting is required even for the most typical meeting," the court said. (Hillary v. State, 1981 OK CR 78, ¶ 6)
In 2002, three of Nowata's five city commissioners pleaded no contest to violating the Open Meeting Act by discussing city business at a restaurant. A police informant recorded them deciding which of the three would serve as mayor and as city treasurer and discussing "the police department budget … cutting city jobs," and disciplining the city manager.
What will District Attorney David Max Cook do about the Okfuskee County commissioners meeting secretly to decide the county budget?
The Court of Civil Appeals said in 1981 that it would not wink at Open Meeting Act violations, explaining:
[F]or to wink at violations in one case is to invite them in another. The Oklahoma Legislature, elected voice of the people of this state, mandated open meetings, including observance of the notice and agenda provisions. ... [W]ithout vigorous enforcement in the courts, laudable legislation is reduced to "mere words." Well, not this laudable legislation, not in this Court, not in this case. The Legislature has said, "Let the sun shine on government." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57,¶ 31)
Let's hope Cook refuses to wink at the blatant violation in Okfuskee County. Otherwise, there's not much point in having an Open Meeting Act.
Joey Senat, Ph.D.
Associate Profesor
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 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.
The new chairman of the Oklahoma District Attorneys Council is the same DA who refused to prosecute the Bernice Board of Trustees for several Open Meeting Act violations revealed by a state audit in 2012.
Eddie Wyant also seems likely to be asking state legislators next year to close public access to police dash camera recordings of arrests.
The council is the state agency that provides training as well as administrative, financial and personnel support for the state's 27 district attorneys.
Wyant, district attorney for Ottawa and Delaware counties, will serve as its 2013-14 chairman by virtue of being president of the Oklahoma District Attorneys Association. He served as the previous vice chairman of the council and president-elect of the association.
In June 2012, Wyant decided not to file criminal charges against Bernice trustees despite a state audit detailing several violations of the Open Meeting Act.
The state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had abused the statute's "new business" provision and 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.
One of Wyant's reasons for not prosecuting the trustees for robbing the public of its right to an open government: It did not appear that trustees personally benefited from the violations.
But personal gain isn't a requirement for prosecution of an Open Meeting Act violation.
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 other reason: Trustees had apparently operated under the advice of their attorney.
That excuse ignored 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)
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)
Wyant now seems interested in having state legislators overturn a recent state Court of Civil Appeals ruling that police dash camera recordings must be released to the public under the Open Records Act.
In July, the Oklahoma District Attorneys Association declined to file a friend of the court brief asking the state Supreme Court to hear the appeal of that decision. Wyant made the motion for the council to take no action on the city of Claremore's request, the Tulsa World reported.
But Wyant told the newspaper that doesn't mean prosecutors won't seek legislation to change the decision. He said release of the videos could impair a defendant's right to a fair trial because a statement on camera could later be ruled inadmissible by a court.
That argument against public disclosure is specious. Arrest reports and police affidavits including defendant statements are public records. Dash-cam videos also have been made public by local law enforcement agencies across the state for years.
At the District Attorneys Association meeting in July, prosecutors questioned why police recordings should be public but those of the Oklahoma Highway Patrol should be kept secret.
The state Department of Public Safety’s audio and video recordings were public records until legislators in 2005 gave DPS officials the power to keep them secret. That legislation came after an Oklahoma County trial judge ruled that the OHP videos were public because they contained facts about arrests.
The Department of Public Safety and OHP aren't role models for government transparency. They release the videos when it suits them, not the public.
The recent Court of Civil Appeals ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
And as the Open Records Act states, Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)
That should include when government officials carrying badges and guns interact with the public.
As then-Sen. Jim Wilson of Tahlequah said in 2009:
Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide.
Tell your legislators to not only reject any attempt to close public access to police dash-cam recordings but also remove OHP's exemption.
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.
Two Jet town officials have pledged to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
City Clerk/Treasurer Stephanie L. Carson and Town Trustee Matt Morris were elected in April.
By signing FOI Oklahoma's Open Government Pledge, Carson and Morris pledged "to support at every opportunity ... the inherent right [of Oklahomans] to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
Instructions and a list of signers for the 2013 and previous elections can be found on FOI Oklahoma’s website.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Owasso City Councilman Patrick Ross believes that only a vote of the council can keep secret the findings of the investigation that led to the resignation of the city manager.
Following an executive session on June 25, Mayor Doug Bonebrake told the Owasso Reporter that the investigation report compiled by Tulsa lawyer Guy Fortney would be kept confidential as a personnel record for City Manager Rodney Ray.
However, Bonebrake told the newspaper that the report would be kept by Fortney and not placed in Ray’s record. Such an arrangement raises additional doubt about whether the report can be considered a personnel record.
The City Council accepted Ray's resignation during the June 25 meeting and agreed to pay him more than $185,000. The council had placed Ray on administrative leave May 24 and authorized Fortney's investigation of an internal complaint against Ray.
In an email interview today, Ross said City Attorney Julie Lombardi told the council during an executive session June 21 that the report was considered a confidential personnel record.
But the council should have made that decision, Ross argued in a July 3 letter to the other council members, Owasso Police Chief Scott Chambliss and Tulsa County District Attorney Tim Harris.
"The Oklahoma Open Records Act does not require that personnel records be kept confidential," Ross pointed out.
Instead, the law says, "A public body may keep personnel records confidential." (OKLA. STAT. tit. 51, § 24A.7(A) (emphasis added))
"Therefore," Ross contended, "before sealing (or, alternatively, publishing) the results of Fortney’s investigation, the Owasso City Council was tasked with deciding whether or not it would designate such results as confidential.
"Further, in order for that decision to be valid, the City Council was required to adhere to the formalities of the [Open Meeting] Act, including placing the item on the agenda and publicly voting on the item. Neither happened here.
"Instead, the June 25th agenda contained only three items ... on which the City Council was allowed to vote, namely: (1) whether to go into executive session; (2) whether to enter into a resignation agreement with Rodney Ray; and (3) whether to appoint Warren Lehr as Interim City Manager.
"Nowhere on the agenda did it indicate that the City Council would be addressing and separately deciding whether or not to exercise Section 24A.7's confidentiality option with respect to Fortney’s investigative report."
Though not noted by Ross, the council's agendas for June 21 and June 25 might be considered violations of the Open Meeting Act for another reason.
Both agendas listed an executive session "for the purpose of discussing personnel matters relating to the Office of the City Manager, including matters related to job performance, such executive session provided for in O.S. 25, Section 307(B)(1)."
However, 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," according to a 1997 attorney general opinion. (1997 OK AG 61, ¶ 5)
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.
In a matter unrelated to the internal investigation, Ray pleaded not guilty Wednesday to charges of writing a bogus check in excess of $1,000 and filing a false police report.
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.
Gov. Mary Fallin is claiming an executive privilege to hide records that reveal political considerations behind her decisions on state policy.
Included would be documents telling Fallin "who might be supportive of certain policy agendas in the legislature, both now and in the future, whether such support would exist after an upcoming election, and whether facts exist to help persuade the legislatures and others to support the governor's agenda," according to the formal response to an Open Records Act lawsuit against the governor.
The Lost Ogle, represented by the ACLU of Oklahoma, is challenging Fallin's claim that executive and deliberative process privileges permit her to withhold 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.
Fallin is the first Oklahoma governor to claim these privileges even though as a candidate she pledged to "support at every opportunity" the state's policy that "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."
Fallin's unprecedented use of executive privilege in Oklahoma earned her FOI Oklahoma's annual Black Hole Award in early March.
In the court filing May 31, the Attorney General's Office said an "expanded, non-deliberative process component of the executive privilege protects communications needed for the executives to function in pursuit of their policy decisions...." (P. 4)
The response contends that The Lost Ogle must show "a substantial or compelling need for the documents" before the judge can privately inspect the records to determine if "the public interest in confidentiality" outweighs "the Plaintiff's demonstrated need for disclosure of each document." (P. 8)
For more background on the lawsuit and Fallin's claims of executive privilege:
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.
Oklahomans can sue to enforce the state Open Meeting Act without having to prove they were individually injured by the alleged violation, a three-judge panel of the state Court of Civil Appeals has ruled.
The Open Meeting Act "was specifically and especially enacted for the benefit of the public," meaning the "general public," said Judges Jerry L. Goodman, P. Thomas Thornbrugh and W. Keith Rapp.
Oklahomans don't have to rely upon local district attorneys to enforce the Open Meeting Act because the statute provides them with a "private right of action" to sue over violations, said the appellate judges in the decision filed Thursday.
They unanimously overturned Washington County Judge Russell Vaclaw's 2011 dismissal of a lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Trust Authority. They remanded the case to the trial court to determine if the BRTA had violated the Open Meeting Act.
Vaclaw had held that Joel Rabin and Sharon Hurst had no standing to sue because they "made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
He said plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA." The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
But the appellate judges said Vaclaw "misread" the state precedent upon which he relied.
In Holbert v. Echeverria, 1987 OK 99, the state Supreme Court created a three-part test for determining if a private cause of action can be inferred from a regulatory statute:
- The plaintiff is one of the class for whose special benefit the statute was enacted;
- There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
- Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
The Court of Civil Appeals disagreed with Vaclaw's application of all three parts.
Unlike the statute at issue in Holbert, the Open Meeting Act "states its public policy is to inform the public citizenry. Thus, the special class is the general public, of which Rabin-Hurst are members," wrote Goodman for the appellate court.
Goodman said state legislators had intended to create a private remedy because the statute includes remedies outside of criminal prosecution:
- An illegal executive session subjects each member of the public to criminal prosecution "and shall "cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public." (OKLA. STAT. tit. 25, § 307(F))
- "Any action taken in willful violation of this act shall be invalid." (§ 313)
"The criminal penalty of fines and imprisonment is different and apart from forcing minutes to be made public and actions to be made invalid," Goodman wrote.
"Although a district attorney prosecuting a criminal action could invoke those remedies, we find no reason why those remedies should be invoked strictly within the confines of a criminal case subject to the prosecutorial discretion of a district attorney," Goodman wrote. "The general public, the intended beneficiary of the [Open Meeting Act], would not be well served should that narrow interpretation prevail.
"The only way to effectively serve the public would be to permit these remedies to be invoked in a private action, by a member of the very public the [Open Meeting Act] was intended to serve."
Goodman noted a number of cases brought by private individuals wherein Oklahoma appellate courts had granted injunctive or declaratory relief under the Open Meeting Act.
"Had the legislature not intended for citizens to bring suit under the [Open Meeting Act] nor for civil courts to enforce §§ 307(F) and 313, it could have amended the OOMA to disallow such causes of action," Goodman said. "Failure to do so indicates the intent of the legislature to allow private actions to be brought to remediate the violation."
He said the two remedies also are consistent with the underlying public policy of the Open Meeting Act "to educated and inform the public on governmental processes."
"As the underlying purpose of the [Open Meeting Act] is, at its very core, to maintain governmental transparency through open meetings, the remedies provided for in the statute, and requested by Rabin-Hurst, logically uphold the purpose of the OOMA," Goodman wrote.
He disagreed with BRTA's argument that criminal prosecution was the only appropriate remedy.
"Suffice it to say, a criminal action subject only to prosecutorial discretion of a district attorney is likely to result only in a fine, and does not 'right the wrong' of an OOMA violation," Goodman wrote. "Whereas, making public the minutes of an improperly-held executive session and invalidating action take at same does 'right the wrong' of the violation.
"If the wrong is keeping secret information that should be publicly known, then the logical remedy is to disclose the secret to the public. Such remedies are meaningful and vigorously uphold the purpose of the OOMA."
The Court of Civil Appeals decision refutes not only Vaclaw's ruling but also a notion that began with six Tulsa City Council members in 2010.
In a motion to dismiss an Open Meeting Act lawsuit against councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott, their attorneys argued that private individuals had no right to sue over alleged Open Meeting Act violations. Tulsa County Judge Deborah C. Shallcross agreed in 2011 prior to Vaclaw's ruling.
Rabin said today that he and Hurst have spent tens of thousands of dollars fighting their case -- which hasn't even gone to trial yet to determine if a violation occurred. They deserve public recognition and gratitude for defending the basic right of all Oklahomans to sue to enforce their right to know under the Open Meeting Act.
Because as the appellate judges seem to realize -- Oklahomans can't rely upon district attorneys to vigorously and consistently enforce the law.
The next step should be state legislators amending the Open Meeting Act to explicitly grant attorney's fees and court costs to successful plaintiffs. Private individuals shouldn't have to foot the bill when it falls on them to prove government officials violated the law.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
