8 pledge signers elected Tuesday

Eight of the 13 municipal candidates who had signed FOI Oklahoma's Open Government Pledge were elected Tuesday.
 
They have promised that they and their city governments "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Four were challengers: three in Norman and one in Stillwater.
 
Three pledge signers were involved in close elections. In Guthrie, Ward 3 incumbent Gaylord Z. Thomas won by nine votes.
 
In Norman, challenger Stephen Tyler Holman was elected over another pledge signer, incumbent Linda Lockett, for the Ward 7 seat by 27 votes.
 
Another pledge signer in Guthrie, Trey Ayers, lost his bid for mayor but remains on the council as the Ward 1 representative.
 
Here is the list of winners by city:

• Guthrie City Council
• • John Wood, Ward 1 (re-elected)
  • Gaylord Z. Thomas, Ward 3 (re-elected)
  
  
• Norman
• Cindy Rosenthal, mayor (re-elected)
• Greg Heiple, Ward 1 (challenger)
• Robert Castleberry, Ward 3 (re-elected)
• Lynne Miller, Ward 5 (challeger)
• Stephen Tyler Holman, Ward 7 (challenger)


• Stillwater
• Gina Noble, Seat 2 (challenger)

Each pledged "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
What if they don't live up to these promises now that they've been elected?
 
Then voters should show them the door at the next election and elect people with the integrity to conduct our government in the open. Ultimately, it's up to the voters to hold our elected officials accountable.
 

 
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.

Norman mayor says she routinely seeks 'input' from entire council outside of public meetings

Norman Mayor Cindy Rosenthal said she routinely sends memos to the rest of the City Council seeking "input" on whom she intends to appoint to boards and commissions, The Oklahoman reported today.
 
"The item is then on the agenda and a public vote is taken," Rosenthal told the newspaper.
 
Rosenthal said City Attorney Jeff Bryant approved sending a memo in February to all her fellow council members in which she asked for "input" on new details of a recommended compensation increase for the city manager and asked them to "let me know what direction you would like to move."
 
Rosenthal wrote in the memo that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
She told The Oklahoman that accusations she is violating the Open Meeting Act are just "politics ... there's nothing to it."
 
But the Open Meeting Act, as well as judicial and attorney general pronouncements on the statute for decades, clearly forbids the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act requires that "the vote of each member must be publicly cast and recorded." (Okla. Stat. tit. 25, § 305)
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 306)
 
In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as “no business of the public body is discussed."
 
In 1981, the Oklahoma Court of Civil Appeals had emphasized, "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting. (1981 OK AG 69, ¶ 17)
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
A 1982 attorney general opinion said:

The requirements that members be physically present for meetings to take place and that voting be done only at meetings, provide protection against secret decision-making and further the Legislative intent of facilitating the understanding of government by informed citizens. (1982 OK AG 7, ¶ 7)

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." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is “very simple," the state Court of Civil Appeals has said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
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, Etc., 1981 OK CIV APP 57, ¶18)
 
"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)
 
Rosenthal and the rest of the Norman City Council are responsible for knowing the requirements and prohibitions of the Open Meeting Act.
 
She and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge. They promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Kovach had told The Norman Transcript about the memo, which revealed that the council -- including Kovach -- had apparently violated the Open Meeting Act by reaching a consensus during an executive session to move forward on the pay increase for the city manager.
 
With Rosenthal up for re-election in two weeks, she says Kovach accusing her of violating the Open Meeting Act by sending the memo is just "politics." The Oklahoman article noted that Kovach is a consultant for Tom Sherman, one of Rosenthal's opponents.
 
But the political motivations behind revealing open government violations don't negate the violations themselves. Norman City Council members should not be reaching consensus to take actions in executive session or seeking "input" and "direction" from a majority of the council outside of meetings.
 

 
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.
 

Apparent Open Meeting Act violations by Norman City Council

The Norman City Council came to a "consensus ... to move move forward with a compensation increase" for the city manager during an executive session last month but didn't vote on the action in open session, The Norman Transcript reported Saturday.
 
Norman Mayor Cindy Rosenthal committed another apparent violation of the Open Meeting Act when she asked in a Feb. 19 memo for each council member's "input" on new details of the recommended increase and to "let me know what direction you would like to move."
 
The Norman Transcript obtained a complete copy of the memo last week after City Attorney Jeff Bryant refused to release a redacted version, claiming it was an extension of the executive session, the newspaper also reported Saturday.
 
But the City Council's executive session discussion could not have continued after the meeting. The council had voted to adjourn its executive session and re-enter the regular session, according to minutes of the Feb. 12 meeting.
 
When the council re-entered the regular session, Rosenthal announced that no action and no votes had been taken in the executive session.
 
Under the Open Meeting Act, "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." (Okla. Stat. tit. 25, § 307(E)(3))
 
But according to Rosenthal's memo, the council had reached a "consensus ... that the City Manager's compensation and benefits package be adjusted to track with AFSCME and NonUnion wage adjustments in FYE12 and FYE13."
 
"I asked the City Attorney to review these recommendations and advise if he thought there were additional issues that should be considered," Rosenthal wrote in the memo.
 
There was: The council cannot adjust base pay for previous fiscal years, so "the proposed pay adjustment" would leave the city manager about $5,400 short of comparable treatment of AFSCME and NonUnion pay raises, Rosenthal wrote.
 
"As a matter of equity, we may wish to add to the one time stipend to close that gap," Rosenthal wrote. "Attached to this memorandum are comparison calculations. I welcome your input.
 
"Please review this information and let me now which direction you would like to move," she wrote.
 
Rosenthal wrote that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
But for decades, the law has clearly prohibited the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 305)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting." (1981 OK AG 69, ¶ 17)
 
The statute prohibits a member from obtaining a consensus upon an item of business through a series of private one-on-one meetings, according to that attorney general opinion.
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
Rosenthal's memo is the same as meeting one-on-one to obtain a consensus.
 
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." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is “very simple," the state Court of Civil Appeals said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
Also troubling is that Rosenthal and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge.
 
They promised to "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."
 
They broke that promise by coming to a consensus in an executive session and not voting publicly. They did so again if they were among a majority of the council that later discussed and came to a consensus on the pay proposal outside a public meeting. Kovach said he alerted the newspaper to Rosenthal's memo and advised his colleagues against responding to it because doing so seemed to be a violation of the Open Meeting Act.
 
These apparent violations of the Open Meeting Act should be investigated and prosecuted by Cleveland County District Attorney Greg Mashburn.
 
Because 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."
 

 
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.

Norman mayor renews supports for open government

Norman Mayor Cindy Rosenthal has re-signed FOI Oklahoma's Open Government Pledge as she seeks re-election on April 2.
 
As she did in 2010, Rosenthal promised to comply with the letter and spirit of Oklahoma's open government laws.
 
Rosenthal also pledged to "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
Rosenthal has served as mayor since 2007 after serving as a council member for the previous three years.
 
One of Rosenthal's two opponents, Thomas E. Sherman, signed the pledge in January.
 
FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Signers are listed on the FOI Oklahoma website.
 

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

Norman councilman proposes city advisory committees meet publicly, city officials end practice of deleting emails daily

Committees advising the city of Norman would have to abide by the state Open Meeting Act and city emails would be kept for at least one year, under a proposal by Councilman Tom Kovach.

Kovach also wants executive sessions of the city's public bodies to be recorded.

His proposal is on the agenda for the City Council's regular meeting Tuesday.

Under what would become Norman's first records retention policy, "all records, written and electronic, shall be retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."

"I have received stiff opposition to even this limited time," said Kovach. "Staff insists this will put a burden on our existing storage capacity and is trying to limit this. It not perfect but it is better than what they do now, which is delete every day."

Under Kovach's proposal, "all meetings of committees, sub committees and ad hoc committees" would be subject to the Open Meeting Act and to a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.

Kovach said this provision is intended to cover advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.

Kovach is one of five Norman council members to have signed FOI Oklahoma's Open Government Pledge as candidates. The others are Carol Dillingham, Hal Ezzell, Roger Gallagher and Mayor Cindy Rosenthal.

Each promised to "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Kovach's proposal would do just 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.

Incumbents promising open government win re-election in Norman

Norman Mayor Cindy Rosenthal and Ward 4 Councilor Carol Dillingham were re-elected Tuesday night, the Norman Transcript reported.

Each has pledged, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

By signing FOI Oklahoma Inc.'s Open Government Pledge, Rosenthal and Dillingham also promised “to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

The Oklahoma State Bureau of Investigation is looking into a Norman city councilman's complaint that the council violated the Open Meeting Act during an executive session on June 9.

Councilman Tom Kovach, who also has signed the Open Government Pledge, had contacted FOI Oklahoma on June 18 about the meeting. He believes that the council's discussion about financing the Rock Creek Road overpass at Interstate 35 violated the law because the agenda item for the executive session listed only the acquisition of right-of-way for the construction.

Perhaps because of the OSBI investigation, open government seemed to be a campaign issue in Norman.

Rosenthal's opponent, Ward 3 Councilor Hal Ezzell, signed the pledge in December.

Rosenthal received 54 percent of the vote.

In the Ward 4 race, one of Dillingham's three opponents, Austin Dyches, had also signed the pledge.

Dillingham received 72 percent of the vote.

Let's hope open government remains a priority for the mayor and council and that they live up to their promises.


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

Norman, McAlester muni candidates pledge support for open government

Norman Mayor Cindy Rosenthal has signed FOI Oklahoma's Open Government Pledge as she runs for re-election in the city's municipal election on March 2.

Rosenthal's opponent, Councilman Hal Ezzell, signed the pledge in December. He was the first candidate in a 2010 election to sign the pledge.

In McAlester, a former acting city treasurer, Steve Harrison, signed the pledge as a candidate for the City Council's Ward 2 seat. The primary election will be March 2.

By signing the pledge, each candidate promised that their respective city governments would "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”

They also promised “to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

For the 2008 and 2009 elections, 58 candidates for local or statewide offices signed the pledge. Of those, 28 were elected.

Signers are listed on the FOI Oklahoma Web site, where the pledge form is available for download.

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