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Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.
Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.
An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.
"We should not even be here," said J. Schaad Titus.
Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.
(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)
Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session, the real subject of which was not permitted in an executive session.
The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.
In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.
In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.
The BRTA contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.
In a response, Rabin and Hurst's attorney said the Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act.
In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.
The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision."
The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action."
Attorneys for Hurst and Rabin also point to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.
"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.
At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."
But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.
But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.
McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?
McMahan's interpretation contradicts the language of the Open Meeting Act, which states:
If a public body proposes to conduct an executive session, the agenda shall:
- Contain sufficient information for the public to ascertain that an executive session will be proposed;
- Identify the items of business and purposes of the executive session; and
- State specifically the provision of Section 307 of this title authorizing the executive session."(OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.
Given the BRTA executive session at issue, perhaps that's what McMahan wants.
In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.
In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses.
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 Bartlesville Redevelopment Trust Authority has refused two offers to settle open government lawsuits filed against it, the local newspaper reported Wednesday.
The BRTA filed an amended motion Wednesday to dismiss the Open Meeting Act lawsuit, according to court records.
The Bartlesville Examiner-Enterprise reported that under the settlement offer, the BRTA would issue a statement fully describing what occurred during an Aug. 11 executive session and would hold a meeting during which the public could ask what was discussed during that closed session.
The lawsuit, filed by Joel Rabin and Sharon Hurst, alleges that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.
The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.
In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA does not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).
In addition to the Open Meeting Act lawsuit, Hurst and Rabin also filed an Open Records Act lawsuit against the BRTA in October.
The Bartlesville Examiner-Enterprise reported that the BRTA did not take action on a settlement offer at its meeting Monday and rejected a previous offer during its April 13 meeting.
McMahan told the newspaper that the settlement offers would require BRTA trustees to say "they did things that they didn’t do.”
"It’s not something the trustees were willing to do," he said.
McMahan said the settlement offers also "asks for attorneys’ fees in the Open Records case, as well as the Open Meetings case, in amounts that are greater than what a court could order."
The court could not authorize any attorney fees in the Open Meeting Act lawsuit, he said.
That's correct. Unlike the Open Records Act, the Open Meeting Act lacks a specific provision authorizing successful plaintiffs to recover reasonable attorney fees. Thus, such plaintiffs are not entitled to payment for attorney fees because the state follows the American rule regarding their recovery. (Crutchfield v. Marine Power Engine Co., 2009 OK 27, ¶ 26)
“It provides that each litigant pay for legal representation and that courts are without authority to assess attorney fees in the absence of a specific statute or contract. Exceptions to this rule are narrowly defined because attorney fee awards against the non-prevailing party have a chilling effect on open access to the courts. For an award of attorney fees to be authorized under a particular statute, the authorization must be found within the strict confines of the statute,” the state Supreme Court explained in 2009. (Id.)
A successful plaintiff, though, could recover court costs at the discretion of the judge.
In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.
In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses in the lawsuits.
Also of interest in the Examiner-Enterprise story Wednesday was McMahan's claim that attorneys’ billing statements may be kept secret under the Open Records Act as part of a litigation file.
"With the exception of a dispute of attorneys' billing statements, we believe that we have 100 percent delivered every record that's been requested by the plaintiffs," McMahan told the newspaper.
McMahan said the BRTA may keep any attorney records as confidential in its litigation file and noted that billing statements are a way attorneys communicate with a client.
"If the lawsuit were to go away, we would have no basis for objecting to turning over our attorneys' records," he said.
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 Bartlesville Redevelopment Trust Authority purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session, according to a lawsuit filed last week against the BRTA.
The agenda for the meeting said the closed-door session would be to “Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA.”
But in an e-mail sent a day earlier, a BRTA official told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
BRTA Downtown Development Director Patrick Treadway’s e-mail to the trustees is included in the lawsuit filed Thursday accusing BRTA members of violating the state Open Meeting Act.
Plaintiffs Joel Rabin and Sharon Hurst want a Washington County judge to order the minutes and other documents from the executive session to be made public.
Rabin and Hurst also filed a lawsuit earlier this month seeking information packets and other documents given to the BRTA board members for regular and special meetings.
The latest lawsuit notes the statutory exemption cited on the BRTA meeting agenda allows executive sessions for
Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))
The lawsuit accuses the BRTA board of entering into the executive session “without first determining that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.”
The BRTA members voted to go into the closed-door session even though they knew or reasonably should have known that the purpose was not to discuss pending and/or impending investigations, claims or actions affecting the BRTA “but rather to allow Dan McMahan to convey – through an illegal and misleadingly-noticed executive session – information he believed would be needed for future projects,” according to the lawsuit.
The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.
Rabin and Hurst are FOI Oklahoma members. They are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Two FOI Oklahoma members are suing the Bartlesville Redevelopment Trust Authority for copies of the information packets and other documents given to its seven-member board for regular and special meetings.
Joel Rabin and Sharon Hurst have been requesting the records in writing since late August, according to the lawsuit filed Wednesday in Washington County District Court.
The Osage County residents have received no response to their requests, according to the lawsuit.
The Bartlesville Redevelopment Trust Authority was formed by the Bartlesville City Council to help develop downtown Bartlesville. According to its website:
One way the BRTA seeks to do this is by acquiring properties within or near the downtown area and making those properties available for redevelopment by private parties.
According to the lawsuit, Bartlesville City Clerk/Treasurer and Finance Director Mike Bailey told Rabin on Aug. 23 that attorney Dan McMahan of Oklahoma City would handle open records requests for the BRTA.
Rabin and Hurst are requesting the information packets and other documents distributed at BRTA meetings since Jan. 1.
Information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act, a state trial judge held in April 2004. (See Shero v. City of Grove, No. 05-CV-0137-CVE-PJC, 2006 U.S. Dist. LEXIS 80462, at **4-5 (N.D. Okla. Nov. 2, 2006))
“It is clear that the packets are public records,” said Delaware County District Judge Barry Denney. “The city can keep confidential or delete records they believe to be of confidential nature before distributing them to those who request copies.”
Under the Open Records Act, “A public body must provide prompt, reasonable access to its records....” (OKLA. STAT. tit. 51, § 24A.5(5))
A 1999 attorney general opinion stated succinctly that “prompt, reasonable access” generally means “only the time required to locate and compile” the public records. (1999 OK AG 58, ¶ 15)
“There is no provision in the Open Records Act for a public body to ‘withhold’ records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record,” the opinion said. (Id. ¶ 11)
Rabin and Hurst are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.
The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
