DA refuses to prosecute Lone Grove City Council for open meeting violation, says 'no collusion' between members; OSBI report closed to public

The Lone Grove City Council last May fired the city manager and hired a temporary replacement even though neither action was listed on the meeting agenda, The Lone Grove Ledger reported this week.

But the council will not face prosecution for the obvious violation of the state Open Meeting Act because Bryan County District Attorney Emily Redman says no collusion occurred among the councilors, the newspaper said.

However, as the newspaper points out, "collusion" is not required for a violation of the Open Meeting Act to be considered willful and, therefore, to be prosecuted.

Willfulness does not require that the councilors had acted in bad faith, maliciously or with an intent to violate the law during the vote.

Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (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 explained. (Id. at ¶ 26) (emphasis added)

"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)

The Oklahoma Supreme Court adopted the lower court's reasoning in 1984, saying, “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)

A violation of the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)

Taking actions not listed on an agenda are clear violations of the Open Meeting Act. And the Lone Grove City Council should know the law.

Under the Open Meeting Act, 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.

In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."

The "School Board’s actions were limited by its own notice to 'discussion' and 'interviews," the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)

The Lone Grove City Council's meeting agenda listed merely a performance review of the city manager, the newspaper reported.

"There was no mention of any possible action, let alone what that action might be. There was absolutely no mention of the possibility of hiring an acting city manager," wrote Gary Hicks, the newspaper's publisher.

(He noted that the recording of the May 17 meeting was "lost," or "misplaced," or "there was a power surge," or "the recorder wasn't turned on." "Which scenario is chosen depends on which city official was talking at the moment," wrote Hicks.)

Despite the apparent Open Meeting Act violation, the council won't be prosecuted because Redman said she found no willful violation.

In her letter to Carter County District Attorney Craig Ladd, Redman said an OSBI investigation did not show collusion among the three city councilors who voted to fire the city manager.

(Ladd had the case assigned to Redman because one of his staff members is the sister of councilor Chris Young and because the city attorney in May was a former member of his staff, the newspaper reported.)

Without a prosecution, the public will never know what the Oklahoma State Bureau of Investigation found. OSBI officials have refused to release the investigative report to The Lone Grove Ledger.

Under Oklahoma law, OSBI officials noted, "All records relating to any investigation being conducted by the Bureau, including any records of laboratory services provided to law enforcement agencies ... shall be confidential and shall not be open to the public." (OKLA. STAT. tit. 74, § 150.5(D)(1))

"The fact that the investigation is closed does not alter the confidential nature of those records," the state Supreme Court said in 1993. (Hicks v. Thompson, 1993 OK 57)

So bottom line: Taxpayers footed the bill for an investigation into criminal conduct by elected officials, but they will never know what investigators found because a district attorney refuses to prosecute based on a dubious understanding of what constitutes a willful violation.

This situation exemplifies why prosecution of open government violations should be put in the hands of someone else, perhaps at the state level.

That will be a topic of discussion at FOI Oklahoma's fourth annual Sunshine Week Conference on March 12 in Oklahoma City. An internationally recognized expert on open government laws will offer his insight on creating a state agency that Oklahomans can go to for help when public officials wrongly withhold records or restrict access to open meetings.

More information on the conference and a registration form can be found on FOI Oklahoma's website.


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

Lone Grove committee met secretly to narrow list of candidates for city manager

The Lone Grove City Council likely will select a city manager tonight from a list of three candidates recommended by a committee that met secretly to winnow the list from 31 applicants, says Gary Hicks, owner of The Lone Grove Ledger.

The committee, composed of two councilors, the city clerk and two residents, was appointed by the council to screen applicants for the city manager position.

Under Oklahoma law, a committee that exercises actual or de facto decision-making power is subject to the Open Meeting Act.

Hicks says Lone Grove officials, however, will likely try to slip through the same loophole used by other public bodies. The same one used by the OSU A&M Board of Regents when it chose Burn Hargis as OSU president.

For all intents and purposes, a committee cuts the list of applicants. But the full board officially is able to consider all the applicants.

For example, almost three years ago today, OSU regents selected Hargis after he was unanimously referred by a 33-member search committee. To defend that committee's secret meetings, the governing board's attorney said the regents alone had the responsibility to choose and employ a president, reject all candidates or reopen the search.

But this was the regents spokesman's explanation of the committee's process:

• 102 “potential candidates,” including 53 nominees, were in contact with the search committee.
• The committee considered whether applicants and nominees were qualified and narrowed the pool to 27 applicants.
• Six candidates interviewed with the committee.
• Three were interviewed.
• The committee unanimously referred Burns Hargis to OSU’s governing board “for further consideration.”

Seems like the committee made several decisions.

Even so, the regents went into executive session supposedly to consider all the applicants. The closed-door session lasted about 15 minutes -- including the time regents spent walking to and from another room.

It was a sham. During the executive session, OSU spokesman Gary Shutt handed out news releases announcing the regents had voted unanimously to choose Hargis. The news release even included quotes from state officials about the selection of Hargis.

Remember: The board was still behind closed doors and hadn't returned to vote in public.

Unlike the OSU regents, Lone Grove council members might not have already made up their minds. Councilors are slated to interview all three recommended candidates in executive session tonight.

The public never learned who else the search committee had considered for the OSU job. At least in Lone Grove, the names of the three applicants are on the agenda for tonight.

So why was it necessary for the committee to meet secretly? To abide by the Open Meeting Act, the committee would only have had to notify the public of its meetings and posted agendas for those meetings. It could have gone into executive session to discuss and review applicants. Only votes to select the finalists would have had to be conducted in open session. And the public learned those names when the agenda was posted.

More important, how does this loophole exist when the Open Meeting Act clearly says the definition of public body “shall include all committees or subcommittees of any public body”? (OKLA. STAT. tit. 25, § 304(1))

We can thank our state Supreme Court. In 1978, justices carved out an exception for ad hoc committees or citizens advisory committees empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity. (Sanders v. Benton, 1978 OK 53, ¶ 16)

A subordinate entity with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton.

Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the advisory committee at issue had met.

The statutory language adding “all committees or subcommittees of any public body” to the definition of public body was enacted in 1977.

A 1981 attorney general relied upon that “expanded definition” to decide that Job Content Evaluation Committees were “the subcommittees of a public body, the State Personnel Board.” Then-Attorney General Jan Eric Cartwright explained the effect of the change in statutory language since the Sanders decision, saying:

In construing this former act, the Oklahoma Supreme Court held that whether a subordinate entity came within the purview of the Act depended on the authority the subordinate entity exercises, and not upon the source of its financial support.
 

Thus, under the old open meeting law, a determination of whether a subordinate entity came within the Act was dependent upon the decision-making power of the entity. Such, however, is no longer the law. Under the new Open Meeting Act, the term ‘public body’ was enlarged to include, ‘. . . all committees or subcommittees of any public body.’ The Job Content Evaluation Committees come within this expanded definition, for they are the subcommittees of a public body, the State Personnel Board. (1981 OK AG 214, ¶ 7)

Despite that explanation and reasoning, the state Supreme Court said the Sanders rule regarding subordinate entities and their decision-making authority still applied to the current Open Meeting Act because the “1977 changes merely added several new categories to the definition of ‘public body.’” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 9)

Its reasoning emphasized that when the Open Meeting Act was revised, the House in Conference Committee had rejected a Senate amendment that would have changed the definition of public body to include “advisory groups, advisory committees, or persons appointed to advise, consult or make recommendations for any board, bureau, commission, agency, task force or study group….” (Id. ¶ 11-12) In the court’s view, that language would have “broaden[ed] the coverage of the Open Meeting Law to groups, committees, etc.” (Id. ¶ 11)

However, an equally plausible explanation is that the amendment was rejected because legislators did not intend for the Open Meeting Act to apply to individuals. The court failed to address what the Legislature had meant when it changed the statute to explicitly state that the definition of public body “shall include all committee or subcommittees of any public body.” Had legislators intended to override the rule set forth in Sanders? Attorney General Cartwright seemed to believe so in 1981.

Only a more thorough investigation of legislative records would shed light on the Legislature’s intent. In the meantime, it should be assumed that the Sanders doctrine applies: An advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Open Meeting Act.

“Not making decisions means not making any decisions,” Edmondson reminded Oklahoma public school boards in late 2004. “If you’re looking for a new superintendent or a new coach and you appoint a subcommittee to go through all the resumes and then come back and make a recommendation, that’s fine. But if the subcommittee can cull out some of the applicants, then they’re making decisions. That makes them in breach of the Open Meeting law.” (Becky Tiernan, Attorney general clarifies Open Meeting Act rules, THE DAILY OKLAHOMAN, Nov. 18, 2004, at 15A)

In 1984, then-Attorney General Michael C. Turpen said, “[W]hen a subordinate entity reviews and eliminates bids for contracts from consideration by a parent entity then the subordinate entity is exercising actual or de facto decision making authority and is subject to the Open Meeting Law.” (1984 OK AG 53, ¶ 6)

Unfortunately, some government officials in this state have ignored these warnings and twisted Sanders to avoid the Open Meeting Act.

The only solution is to have our state legislators make clear in the statute that all advisory committees, even those with no decision-making power, are subject to the Open Meeting Act. Because, unfortunately, we cannot trust our government officials to abide by anything less.


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