Not all DHS commission committee meetings to be open to public

The Budget and Rules committees of the statewide commission overseeing the state Department of Human Services will meet publicly and comply with Open Meeting Act requirements, the Tulsa World reported Monday.

"We are a public agency serving more of the public than any other agency and need to be as open as possible. It's all about the public, not about us," said Brad Yarbrough, chairman of the Oklahoma Commission for Human Services.

That's a big step forward for a public body that wasn't too keen on open government until Yarbrough was appointed chairman by Gov. Mary Fallin in the fall.

But the story indicates that public notices and agendas won't be posted for two of the commission's six standing committees.

Yarbrough told the Tulsa World that the Special Review Committee and the Evaluation and Compensation Review Committee will be closed because of separate statutory exemptions for confidential child- and adult-welfare information and for considering pending personnel actions.

Why shouldn't public notice and agendas be posted for those committees as well?

This is especially true for the Evaluation and Compensation Review Committee, which seems to act as the commission's personnel committee.

Under the Open Meeting Act, a public body may meet in executive session to discuss "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1))

But such closed-door discussions may occur only if the executive session is listed with sufficient information on the publicly posted agenda and only after the officials vote in open session to go into executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

And an AG opinion requires that the names or unique titles of those employees be listed on the meeting agenda. (1997 OK AG 61, ¶ 5)

On Tuesday, I sent emails to DHS spokeswoman Sheree Powell and Diane Clay of the state Attorney General's Office asking whether another state statute requires the evaluation committee to meet without posting public notice and an agenda.

They haven't responded.

Yarbrough had told the Tulsa World his first action as chairman was to contact Attorney General Scott Pruitt's office for help.

"I asked for help in determining what might be the best process for building and posting the agenda," he said. "They are now reviewing those before they are posted to ensure we are complying with the Oklahoma Open Meeting Act.

"Because the commission was being looked at by the district attorney of Oklahoma County for alleged violations of the Open Meeting Act, I felt it was very important to work with officials outside the agency to make sure we are doing things by the law."

That's commendable.

But more openness is called for.

In lieu of a state statute requiring complete secrecy, all the commission's committees should meet publicly and follow the Open Meeting Act requirements for entering into executive sessions.


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.

DHS took six months to respond to Tulsa World request for records

The state Department of Human Services took half a year to provide the Tulsa World with information about lawsuit settlements related to child abuse and neglect, the newspaper noted today.

The newspaper made three requests March 8, each related to records of legal costs and lawsuit settlements.

DHS did not provide information on two requests until the newspaper told officials it was preparing to publish a story about the department's failure to comply with the records request.

The records revealed that DHS has settled 24 lawsuits related to child abuse and neglect since 2005 for more than $3.4 million - $1.4 million from the agency and $2 million from insurance, the Tulsa World reported Sunday.

The amount paid in a 2010 case is being kept secret from the public because the settlement was sealed by a district judge.

DHS officials told the Tulsa World that the records request took six months to answer because legal staff had to search past files in storage to cull the information requested and because cases are not separated by category such as child welfare.

DHS officials apparently didn't already know how much the department has spent on outside legal counsel and has paid to settle child abuse-related lawsuits since 2005.

Meaning the department apparently has no tracking system for legal settlements and attorney costs.

That raises doubts about how efficiently and how effectively DHS officials are handling the public's money.

Moreover, this kind of scattered record-keeping is a breeding ground for incompetence and corruption.

Also questionable is whether DHS officials complied with the state Open Records Act by taking six months to respond to the records request.

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)

DHS officials told the Tulsa World that much of the legal staff's resources and time were being used to defend the class-action lawsuit. So why were records made available only after the newspaper threatened to publicize how long DHS was taking to provide the information?

Oklahoma public agencies and officials have a "duty" to provide public records to the public. Then-Attorney General Drew Edmondson said:

The purpose of the Act is 'to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)

That purpose is defeated if government officials can deny access by delaying access.


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.

DHS response to Prater denies Open Meeting Act violation, defends committee structure intended to avoid Open Meeting Act

The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.

But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.

Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.

However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.

In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.

Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.

Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."

"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.

Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.

Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.

In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."

Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."

The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.

(For a detailed explanation of how public bodies try to exploit a loophole in the Open Meeting Act, read how the OU Regents use a strict compliance with the letter of the statute to defeat its purpose.)

Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))

And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.

But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.

DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.

One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.

DeVaughn told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.

Prater has done just that, warning the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."

Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."

Dow had also complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."

Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.

However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."

As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."


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.

DHS Commission adjourns without public vote; Member says budget committee avoids Open Meeting Act

The statewide commission overseeing the Oklahoma Department of Human Services doesn't seem too keen on open government.

On Tuesday, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, reported Oklahoma Watchdog Editor Peter J. Rudy.

And Commissioner Steven Dow complained to Rudy that he -- Dow -- is not allowed to attend the commission's budget committee hearings.

Rudy said he has provided information about the lack of a public vote to adjourn -- an apparent violation of the Open Meeting Act -- to the Oklahoma County district attorney.

Rudy said he was the only person in the meeting room when commissioners returned from about a 15-minute executive session. Rather than dealing with the next agenda item or even voting to adjourn, commissioners "started gathering their things and leaving," Rudy reported.

Rudy said he was told the meeting was over. During a subsequent interview, he was told that the commission's clerk "asked each member individually for their vote on whether to adjourn."

However, the Open Meeting Act states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

That doesn't mean voting behind closed doors at the end of the executive session or in the hallway walking back to the meeting room.

Leaves me wondering what else commissioners vote on outside the view of the public.

Also indicative of the commission's disrespect for an open government was Dow's complaint of being barred from the commission's budget committee hearings.

"They do not want the committee subject to the Open Meetings Act. There is no agenda, no minutes, no way for me to find out what the deliberations were,” said Dow, executive director of the Community Action Project of Tulsa County.

Apparently the budget committee isn't a majority of the commission members, but having Dow there would put it over the magic number.

Yes, it's that old game again.

For a detailed explanation, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.

Here is a summary of how it works: (1) The Open Meeting Act's definition of "meeting" allows less than the majority of a public body to meet secretly to discuss the public’s business. (2) The Open Meeting Act says it applies to "all committees and subcommittees of any public body." But a state Supreme Court decision years ago said that despite that language, the statute doesn't apply to committees that are strictly advisory.

Public bodies use these loopholes by saying the committee -- consisting of less than a majority of the public body -- isn't subject to the Open Meeting Act because the committee doesn't make decisions.

Seems odd that the budget committee wouldn't make any decisions.

Nothing in the statute prohibits the committee from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing. That's outrageous.

And the Legislature needs to address these loopholes by clarifying that ALL means ALL, even those committees that just advise or recommend, and especially those committees whose members are from the parent public body.

On Tuesday, Dow was one of two commissioners to vote against the proposed budget for the Department of Human Services, Rudy reported in a separate story.

Dow's complaints about the budget and the budgeting process are worth reading.

The nine-member commission, established by the Oklahoma Constitution, "approves program budgets, funding, and policies and procedures that direct the Department's program and service delivery."

The other commissioners are Chairman Richard L. DeVaughn, Vice Chairman Aneta F. Wilkinson, Jay Dee Chase, Linda English Weeks, Michael L. Peck, Robert D. Rawlings, Anne M. Roberts, and George E. Young Sr.

They do an important job that should be done in the open. But that doesn't seem to be the commission's mind-set.


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.