Boynton officials under investigation for open records, meeting violations close City Hall

Boynton officials are being investigated by the Muskogee County sheriff and district attorney for violating the state’s Open Records and Meeting laws, The Muskogee Phoenix reports.

Town officials are accused of locking the public out of a public meeting in order to keep refreshments from being eaten and of ending three trustee meetings rather than letting sheriff’s deputies record the meetings as allowed by state law. Boynton police threatened to arrest one deputy if he didn’t turn off the recorder, Sheriff Charles Pearson told the newspaper.

Public records have been denied not only to residents but also to District Attorney Larry Moore.

“We have requested certain council meeting minutes and understand the mayor took those meeting records, that some have been returned and others have been lost or may no longer exist,” Moore told the newspaper.

Mayor Marie Wilson also refused to release public records on Tuesday, the newspaper said.

Other allegations under investigation include nepotism, police writing unlawful traffic tickets, and the three town trustees not calling a required election to fill two empty seats.

Two of the three trustees are sister and brother: Marie (Lang) Wilson and Clairborne Lang. Wilson was elected while her brother was appointed. Boynton Police Officer Martin Lang is their brother, the newspaper reported.

Town Administrator Melvin Easiley of Tulsa told the Tulsa World that it’s difficult to comply with nepotism rules because “over 98 percent” of Boynton's residents are related.

Easiley told the newspaper he thinks the criticism of the predominantly black town is racially-motivated.

“This is about some black people running City Hall,” he said.

But Pearson apparently sees it differently, telling The Muskogee Phoenix:

Boynton residents are getting tired of the long arm of the Langs. Boynton is becoming a nation unto itself.

Just when it seemed that the situation couldn't get any stranger, Wilson ordered City Hall closed for Wednesday and the rest of the week, the newspaper reported.

Meaning that because of the Labor Day Holiday on Monday, residents won't be able to pay their water bills until Tuesday.

How ironic, given that Pauline Osburn, the town’s clerk/treasurer, was arrested in May 2009 after refusing town trustees access to the town’s water records.

Once officials had the records in hand, they learned the town of fewer than 300 residents had about $15,000 in the bank but more than $40,000 in debts.

At the same time, the city was owed thousands of dollars for delinquent water bills. One resident owed more than $8,000, The Muskogee Phoenix had reported.

Last October, Osborn pleaded guilty to two counts of violating the state’s Open Records Act. She was given a suspended one-year sentence for each count and required to pay a $250 fine on each count, plus about $800 in court costs and a monthly probation supervision fee of $40 per month, The Muskogee Phoenix had reported.

But the 73-year-old Osburn didn’t seem to understand that she had done anything wrong, indicating to the judge she would likely do it again given the same circumstances, The Muskogee Phoenix had reported.

So we shouldn’t be too surprised by the current attitude of town officials toward open government.

This time, however, Moore should refuse any plea agreements if he decides to bring charges. If Boynton officials are convicted of violating of the Open Records and Meeting acts, he should push for the maximum punishment of one year in jail and a $500 fine for each count.

Maybe that will send a message that no matter how small the town, all locally elected officials are expected to know and abide by our open government laws.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communications

Boynton trustee pleads guilty to Open Meeting Act violation

A Boynton trustee pleaded guilty Tuesday to violating the state Open Meeting Act when he voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Trustee Elmer Claiborne Lang received a suspended one-year sentence and a $500 fine, according to news reports.

Lang also forfeited his office effective Tuesday because the guilty plea led the revocation of his probation on a 2009 nepotism charge.

All three town trustees were charged earlier this month with violating the Open Meeting Act on Sept. 27. The OSBI also is investigating whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

News coverage of Lang's guilty plea:

• Boynton official pleads guilty, loses his post, by Susan Hylton, Tulsa World, 10.27.10.
• Boynton trustee pleads guilty, by Muskogee Phoenix, 10.26.10.

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

Boynton trustees charged with Open Meeting Act violation

Boynton's three town trustees were charged Tuesday with violating the state Open Meeting Act when they voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Under way is an OSBI investigation into whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Trustee Elmer Claiborne Lang, 51, was arrested at his home Tuesday and then bonded out of jail. Mayor Susie Marie Wilson, 54, and Trustee Sheila Younger, 50, surrendered themselves this morning and were making arrangements to pay their $2,500 bonds, The Muskogee Phoenix reported today.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

Under the statute, each agenda must “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.

The Open Meeting permits "any person attending a public meeting" to record the proceedings has long as it doesn't "interfere with the conduct of the meeting." (OKLA. STAT. tit. 25,  § 312(c))

News coverage:

• Warrants issued for town officials, Donna Hales, The Muskogee Phoenix, 10.5.10
• 3 Boynton officials charged with Open Meeting Act violations, Susan Hylton, Tulsa World, 10.6.10

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

Former Boynton official's trial on open records violations set for October

Former Boynton Town Clerk/Treasurer Pauline Osburn’s jury trial on two counts of violating the state Open Records Act has been scheduled for Oct. 26.

Osburn was charged in May after refusing to grant town trustees access to the town's water records. She resigned May 26.

Once officials had the records in hand, they learned the town had about $15,000 in the bank but more than $40,000 in debts. At the same time, the city was owed thousands of dollars for delinquent water bills. One resident owed more than $8,000, The Muskogee Phoenix reported.

The newspaper originally reported Osburn’s jury trial was scheduled for July 27.

However, that was apparently the date set for her disposition hearing, which was then rescheduled for this past Thursday.

An editor at the newspaper confirmed Monday that Osburn’s jury trial has been set for Oct. 26.

Osburn was 73 when she was charged.

A violation of the Open Records Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail. (OKLA. STAT. tit. 51, § 24A.17(A))


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

Guilty plea but no remorse from former Boynton official for violating state Open Records Act

Former Boynton Clerk/Treasurer Pauline Osburn pleaded guilty Monday to two counts of violating the state’s Open Records Act, The Muskogee Phoenix reported today.

But the 73-year-old Osburn didn’t seem to understand that she was wrong to refuse town trustees access to the town's water records in May. She indicated to the judge she would likely do it again given the same circumstances, the newspaper reported.

Once officials had the records in hand, they learned the town had about $15,000 in the bank but more than $40,000 in debts. At the same time, the city was owed thousands of dollars for delinquent water bills. One resident owed more than $8,000, The Muskogee Phoenix reported.

On Monday, Osburn told the Muskogee District Court judge, “We had a bunch of people who had caused problems” – apparently referring to the other town officials who wanted to see the public records.

Osburn was given a one-year suspended sentence for each count. She must pay a $250 fine on each count, plus court costs and a monthly probation supervision fee of $40 per month. The Muskogee Phoenix reported the court costs were nearly $800 as of Monday morning.

Osburn faced a maximum sentence of one year in the county jail and a $500 fine for each of the two misdemeanors. (OKLA. STAT. tit. 51, § 24A.17(A))

A jury trial for Osburn had been scheduled for Oct. 26. She resigned in May.


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

Ex-Boynton official faces trial for Open Records Act violations

Former Boynton Town Clerk/Treasurer Pauline Osburn was charged in May with two counts of violating the state Open Records Act.

Osburn had refused to grant town trustees access to the town's water records. She resigned May 26.

This is a prime example of why public access to government records is so important.

From the records, officials learned the town has about $15,000 in the bank but more than $40,000 in debts. At the same time, the city is owed thousands of dollars for delinquent water bills. One resident owes more than $8,000.

Osburn's jury trial is scheduled for July 27.

Donna Hales of the Muskogee Phoenix has written some excellent stories outlining the problems facing the town.


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

OU Graduate Student Senate passes two unlisted bills in apparent violation of Open Meeting Act

OU's Graduate Student Senate apparently violated the state Open Meeting Act on Sunday when it approved two bills not listed on the agenda for that night's regular meeting, The Oklahoma Daily reported today.

The GSS unanimously approved five members to the spring election board and established polling sites for the election, the student newspaper reported.

The author of the two bills said she had submitted them to the appropriate officials the previous Monday. But, somehow, the bills weren't listed on the agenda.

Graduate Student Senate Chair Derrell Cox told the newspaper that GSS leaders decided to propose the bills despite the lack of public notice.

“It was our consensus in the executive meeting that [the legislation] would go forward,” Cox said. “I don’t know exactly who dropped the ball, but someone within the Senate dropped the ball in getting that posted.”

GSS leaders apparently felt pressured to approve the bills because of a requirement that the number and location of polling places be established at least three academic weeks prior to the elections on March 29 and 30.

The election is more than four weeks away, but the GSS won't have another regular meeting until March 6. Spring break is March 14-18.

However, calling a special meeting for this week would have given the public the required notice and avoided a violation of the Open Meeting Act.

Anyone convicted of violating the Open Meeting Act can by punished by up to one year in jail and a $500 fine. Also, any action taken in "willful violation" of the statute is "invalid." (OKLA. STAT. tit. 25, § 313)

In 2010, Boynton's three town trustees were charged with violating the Open Meeting Act after voting to appoint a town manager even though no such item was on the agenda for the special meeting.

The Open Meeting Act clearly 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))

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. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)

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. That includes any agency action exceeding the scope of action defined by the notice.

Any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider," the Court of Civil Appeals said in 2009. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)

The statute defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." (OKLA. STAT. tit. 25, § 311(A)(9))

At OU, the bills selecting members of the election board and establishing polling places were submitted to legislative leaders six days before the meeting. And those leaders should have known they were facing a deadline for the election.

The Open Meeting Act also permits emergency meetings. An emergency "is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss." (OKLA. STAT. tit. 25, § 304(5))

Establishing election board members and polling sites four weeks in advance of an election does not meet the statutory definition of an emergency meeting.

The Open Meeting Act is not a nuisance law to be ignored when it's inconvenient for elected officials, including college students who have taken responsibility for governing their classmates.

As our Court of Appeals said, 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." (1981 OK CIV APP 56, ¶ 8)

That holds true even on the University of Oklahoma campus.


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

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.