Norman City Council cleared of Open Meeting Act allegations

An executive session discussion on how to finance the purchase of right-of-way for a road project did not violate the Open Meeting Act, the Payne County district attorney has concluded.

According to media reports, Rob Hudson said the Norman City Council's discussion of financing options for property associated with the Rock Creek Road overpass project was allowed under the exemption for the "purchase or appraisal of real property."

Hudson concluded that talking about funding sources “is a natural and normal aspect of purchasing real property,” The Norman Transcript reported.

Hudson also indicated that the councilors were protected because City Attorney Jeff Bryant participated in the executive session and should have told them that the discussion was potentially illegal.

The OSBI investigation into the June 2009 meeting was requested by Norman City Councilman Tom Kovach, who is a Democratic candidate for House District 44.

Perhaps because of the OSBI investigation, open government seemed to be a campaign issue in Norman's municipal election this past spring. Among the four candidates who signed FOI Oklahoma's Open Government Pledge were Mayor Cindy Rosenthal and Ward 4 Councilor Carol Dillingham, both of whom were re-elected.

For background on the legal issues surrounding the executive session: OSBI investigating complaint that Norman City Council violated Open Meeting Act

For more coverage of Hudson's decision not to prosecute: Norman council members cleared of allegation they violated Open Meeting Act, Jane Glenn Cannon, The Oklahoman, July 14, 2010.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

Executive session to discuss property appraisal, purchase limited to public body, its attorney, staff; State settles OMA suit against Tar Creek trust

Only the public body, its attorney and immediate staff may attend an executive session to discuss the purchase or appraisal of real property, the Oklahoma Supreme Court ruled Tuesday.

The Tar Creek relocation trust violated the state Open Meeting Act by allowing the state secretary of environment and appraisers into its executive sessions to discuss appraisals and property purchases, said the court. (LaFalier v. The Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶ 42).

By an 8-1 vote, the court ordered a district judge to determine if the violation was willful, in which case the minutes of the executive sessions will be made public. (See OKLA. STAT. 25, § 307(F))

Judge J. Dwayne Steidley had ruled on summary judgment against the more than 100 residents of the Picher-Cardin area in their lawsuit against The Lead-Impacted Communities Relocation Assistance Trust. Steidley, a Rogers County district judge, was assigned the case after Ottawa County judges recused themselves.

In overturning Steidley's ruling on the Open Meeting issue, the majority pointed to Section 307(D) of the Open Meeting Act:

An executive session for the purpose of discussing the purchase or appraisal of real property shall be limited to members of the public body, the attorney for the public body, and the immediate staff of the public body. No landowner, real estate salesperson, broker, developer, or any other person who may profit directly or indirectly by a proposed transaction concerning real property which is under consideration may be present or participate in the executive session. (OKLA. STAT. 25, § 307(D))

Writing for the majority, Justice Steven W. Taylor rejected the trust's contention that "the second sentence is expansive in that all those named in the first sentence may attend the executive session and anyone else who does not stand to profit from the executive session may also attend." (LaFalier, at ¶ 39)

Taylor noted that the statute "uses the phrase 'shall be limited.'"

Here, we deem 'shall' as mandatory, meaning anyone not listed is excluded from the executive session. Further, by listing those who may attend the executive session, the Legislature must have intended to exclude everyone not listed. Section 307(D)'s clear language is an expression of legislative intent that no one other than those enumerated are allowed to attend the executive sessions wherein the appraisal or the purchase of real property is discussed. (Id. at ¶ 40)

Section 307(D)'s second sentence excludes any landowner, real estate salesperson, broker, developer, or any other person who may profit from the purchase or appraisal of the real property under discussion.

As we construe section 307(D), any person allowed to attend the executive session in the first sentence is excluded if the person stands to profit from the transaction. This is the only plausible construction of section 307(D), and the only construction which honors both sentences of section 307(D). The Trust's position would make unnecessary section 307(D)'s first sentence because, under its position, anyone not standing to profit from the proposed transaction could attend the executive session. (Id. at ¶ 41)

Taylor said that even though an executive order makes the environment secretary "responsible" for the trust, "this does not mean that he is responsible for the Trust's operation." (Id. at ¶ 42)

"Rather, he is a liaison between for the Governor and the Trust," wrote Taylor. "When attending the Trust's meetings in his capacity as the Secretary of the Environment, he is there on behalf of the Governor." (Id.)

He noted that Section 308 of the Open Meeting Act specifically requires: "Any meeting between the Governor and a majority of the members of any public body shall be open to the public and subject to all other provisions of this act." (OKLA. STAT. 25, § 308)

"Section 308 cannot be avoided by having the Governor's representative attend an executive session. To so allow would gut section 308 of any real force," wrote Taylor. (LaFalier, at ¶ 42)

Justice James Winchester dissented, saying the district judge had properly relied upon a 1976 state attorney general opinion that "the decision as to who should be present is within the sound discretion of the board exercised in a reasonable manner based on the facts and circumstances in each instance.'" (Winchester dissenting, ¶¶¶ 1-3)

Winchester waived aside the fact that the attorney general opinion dealt with an executive session to discuss rehiring school personnel.

"Distinguishing that opinion by noting it regarded the rehiring of school personnel does nothing to limit the generalization made by the Attorney General. Is there some reason a school board can use sound discretion in an executive session, but the Trust cannot?" wrote Winchester. (Id. at ¶ 4)

To answer the Justice's question, perhaps the trust cannot because the Legislature placed an explicit statutory limitation on executive sessions to discuss property appraisals and purchases that it did not place on closed door meetings to discuss personnel.

Also on Tuesday, Gov. Brad Henry and legislative leaders approved a settlement of more than $366,000 to end a lawsuit in which two companies alleged the trust had violated the Open Meeting Act when it awarded a contract for demolition and cleanup at the EPA Superfund site.

Steidley had ruled against the trust in early May, saying the members had not awarded the $2.1 million contract during an open meeting. His ruling upheld a temporary restraining order issued by Ottawa County District Judge Robert Reavis in late April.

Reavis said the trust had violated the Open Meeting Act "by failing to properly post notice, agenda, or conduct any forum ... at which the bids received by the defendants were analyzed, considered, discussed or acted upon."

The trust "failed to publicly cast and record the votes of each participating member or maintain records of such proceeding," Reavis said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OSBI investigating complaint that Norman City Council violated Open Meeting Act

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, The Norman Transcript reported Saturday.

Councilman Tom Kovach 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.

Kovach noted that financing a construction project is not one of the nine topics permitted for executive sessions under the Open Meeting Act.

However, the purchase or appraisal of real property is a permitted topic. The meeting is “limited to members of the public body, the attorney for the public body, and the immediate staff of the public body. No landowner, real estate salesperson, broker, developer, or any other person who may profit directly or indirectly by a proposed transaction concerning real property which is under consideration may be present or participate in the executive session." (OKLA. STAT. tit. 25, § 307(D))

Councilman Doug Cubberley recused himself and left the room during the discussion of the acquistion. But when the discussion moved to paying for the project, Kovach said, Cubberley was brought back into the room "since the financing was a separate issue."

According to The Norman Transcript, Cubberley said he left the executive session because if the Council decided to condemn a certain property, the owner might hire Cubberley's law partner as legal representative. Cubberley said the city's legal staff said he did not need to recuse himself but that he felt uncomfortable staying for the discussion.

He returned to discuss options for purchasing rights of way.

The financing is part of a controversial Tax Increment Financing District.

At the Council's June 23 meeting, Kovach complained publicly that the Council had violated the Open Meeting Act during its executive session on June 9.

City Attorney Jeff Bryant does not believe the Council violated the law.

In a memo obtained by The Norman Transcript, Bryant told the Council, "The question here is whether the description of the business and purpose of the session (to discuss the acquisition of real property associated with the Rock Creek Road Overpass) was sufficient to include discussion of which property would be acquired, the mechanism by which it was proposed to be acquired (purchase) and how the property would be acquired, i.e. funding source."

He said he believes the council complied "with the spirit and intent of the Oklahoma Open Meeting Act," saying the the agenda "contained sufficient information to inform the public that an executive session would be proposed, identified the business and purpose of the session and stated the statute provision that authorized the executive session."

An FOI Oklahoma Blog posting in response to Kovach explained that subsequent public discussion and action would not excuse a violation of the Open Meeting Act.

In the memo, Bryant also addressed whether the law was violated by Councilman-elect Alan Atkins' presence during the executive session.

Bryant said no violation occurred because Atkins, who had not been sworn in, was present as an elected official, not as a private citizen, and did not stand to profit from the property acquisition.

An OSBI official told The Transcript that the investigation is in the "initial stages." The investigation was requested by Cleveland County District Attorney Greg Mashburn, the official said.


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