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For two months, a committee of Stillwater school district employees and others from the community discussed -- and then proposed -- a controversial calendar for next school year.
No public notice. No agendas. No meeting minutes.
Now, an attorney for the district says only one document with the names of the committee members exists and it's only "a partial list of members."
And a district parent wanting to inspect the committee's emails will have to pay a search fee because the request "would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.
(A later posting on this blog will address why the Open Records Act prohibits a search fee from being charged to the parent.)
Rainey also told Mitsi Andrews that she would have to pay a $250 deposit before the district would begin compiling the emails for her inspection.
Andrews received two letters from Rainey on Wednesday evening, the day after the school board voted to keep the traditional school calendar for 2012-13. But a continuous learning academic calendar will be up for consideration again next year, the Stillwater NewsPress reported.
School Superintendent Ann Caine told the board she had proposed the expanded calendar idea to the district’s annual calendar committee.
District parents learned of the continuous learning calendar proposal in an email from the "SPS Calendar Committee" at 4:10 p.m. on Dec. 2. They were given four days to respond to an online survey about the proposal.
According to that email, the committee consists of a teacher, parent, support staff member and administrator from each school site.
"Additionally, representatives from Oklahoma State University, Meridian Technology Center, the City of Stillwater, and local childcare providers also participated and provided valuable input," the email said.
"As a result of the deliberations of the committee, a proposal is being put forth to move the district to a continuous learning calendar," the email said.
Andrews said that was the first she had heard of the committee and the proposed change for the next school year, so she telephoned and emailed Caine asking for a list of the Calendar Committee members, and agendas and minutes of its meetings.
In an email Dec. 7, Caine responded, "We do not have an agenda or minutes from our committee meetings."
Caine's administrative assistant had told Andrews the committee was not appointed by the school board.
If the committee wasn't appointed by the board, then it isn't subject to the state Open Meeting Act. But no agendas? No minutes? No notes of any kind? How did members know what they were considering from meeting to meeting?
As for the names of the committee members, Caine responded, "I do not feel comfortable releasing the names of the committee because I do not have permission from them to do so."
Andrews asked again but used a more formal request letter.
Rainey responded on behalf of the district. He said the committee has about 51 members, of which 36 are district employees.
The "partial list" of 43 members includes only district employees, parents and Board Member Debra Vincent.
Missing are the names of representatives from OSU, Meridian Technology Center, the city of Stillwater and local childcare providers.
How convenient given Caine's refusal to identify those members. And it's difficult to believe for the same reason.
Caine and other district officials know, of course, who the other members are. They know whom they invited to participate. Certainly, they know who accepted. Didn't the district have sign-in sheets for the meetings?
And how else could Caine reconvene the committee in January -- as she told the school board she would -- to begin drafting another proposal to go into effect in 2013.
But in Rainey's letter, he emphasized, "The District is not required to respond to questions or interrogatories, only to provide documents that are in existence."
In other words, don't bother asking because we aren't going to tell you.
But the public is entitled to know who helps shape public school policy.
The Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Oklahoma’s Open Records Act starts with the following statement of principle:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is 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. (OKLA. STAT. tit. 51, § 24A.2)
The stated purpose of the Open Records 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."
These important principles apply even in Stillwater.
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 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.
Seems like the Budget Committee for the Oklahoma Commission for Human Services is violating the Open Meeting Act, based on what one commissioner told the Tulsa World.
Steven Dow also said that when the commission approved the Department of Human Services budget Tuesday, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.
An important decision. But no mention of it was made on the meeting agenda Tuesday.
Chairman Richard L. DeVaughn told the newspaper in a release that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
In other words, until Pruitt or a court tells DeVaughn to be more transparent, the public can go to hell.
(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 2012.)
Dear Mr. Pruitt, please tell DeVaughn to add more details to the agendas so that the public can know in advance what the commission is up to. Better yet, tell them all to follow not only the letter but also the spirit of the Open Meeting Act.
The stated purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Therefore, then-Attorney General Drew Edmondson said in 2000, "a governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, 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 that year: "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 contrast, the Oklahoma Commission for Human Services has a budget committee that meets in secret.
The commission purposefully places no more than four of its nine members on the Budget Committee in at attempt to avoid the requirements of the Open Meeting Act. That loophole only applies, however, if the committee has no actual or de facto decision-making power.
But the Budget Committee "has de facto decision-making authority," said Dow, executive director of the Community Action Project of Tulsa County.
"They did not decide to approve the overall budget, but it did decide the details of that budget," he said.
Ooops!
(Friday's posting explains the loopholes that the commission is trying to exploit.)
Nothing in the Open Meeting Act prevents the Oklahoma Commission for Human Services from posting agendas and keeping minutes of its Budget Committee meetings or from posting more details on its agenda.
Only a desire for secrecy is stopping it.
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 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.
A reporter for The Oklahoma Daily was prohibited by the legal counsel for The University of Oklahoma Board of Regents on Wednesday from attending four committee meetings where, as the student newspaper points out, "public business regarding university building plans and fees were discussed."
The reporter was barred from meetings of the board's audit and finance, Norman campus, Health Sciences Center campus and athletics committees, the newspaper reports today .
In an e-mail to the newspaper, OU regents legal counsel Anil Gollahalli called the meetings "informational subcommittee meetings to allow members of the Board to more fully find facts relevant to items that may considered by the full Board in public session."
The Open Meeting Act clearly states that the definition of public body "shall include all committees or subcommittees of any public body." (OKLA. STAT. tit. 25, § 304(1))
But Gollahalli told the newspaper, "To ensure that the entire Board always gathers in meetings open to the public, subcommittees are composed of no more than three members of the Board such that subcommittees lack a quorum."
In other words, the regents purposefully meet in groups smaller than a quorum of the full board as a way to avoid discussing the public's business in front of the public.
A loophole in the Open Meeting Act's definition of "meeting" allows a group smaller than the majority of a public body to meet secretly to discuss the public’s business.
But does that apply if the three members of a public body constitute the entire membership for a committee of that public body? A quorum of the committee is meeting to discuss public business.
So how does Gollahalli attempt to bypass that problem? By saying the committees have no independent decision-making authority.
"The informational nature of the subcommittees are such that no subcommittee has independent decision-making authority, ensuring that no decision of the Board ever occurs without participation of the full Board and the public's knowledge," he told the newspaper.
That relies on an exception the state Supreme Court carved out for sub-entities -- typically ad hoc committees or citizens advisory committees -- empanelled only for the purpose of furnishing information and recommendations to a governing or decision-making entity.
A subordinate entity -- a Citizen's Advisory Committee in that case -- with no actual or de facto decision-making authority would be exempt from the Open Meeting Act, the court said in Sanders v. Benton, 1978 OK 53.
HOWEVER, Sanders was based on language found in the 1971 Open Meeting Act, which was in effect when the Citizen’s Advisory Committee met.
The current statutory language including "all committees or subcommittees of any public body" in the definition of public body was added 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." (1981 OK AG 214)
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. (¶¶ 7-8)
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)
But the key question in International Association of Firefighters was whether the Sanders rule on subordinate entities applied to "an individual."
The court concluded that the Legislature had not intended for the 1977 revisions to expand the Sanders doctrine to include an individual.
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 overridden the rule set forth in Sanders? Attorney General Cartwright believed so in 1981.
So we're back to asking what the OU regents' committees do? If they make recommendations, do they cull options from the list? That would be making a decision and require them to comply with the Open Meeting Act.
And does the Sanders rule apply to standing committees of a public body?
But the real question here is why shouldn't the public be allowed to attend "informational subcommittee meetings" in which members of a public body "more fully find facts relevant to items that may considered by the full Board in public session."
It is, after all, the public's business.
Our state Court of Civil Appeals has said the "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 12)
Our state Supreme Court has said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)
Because the Open Meeting Act was "enacted for the public’s benefit," the Oklahoma Supreme Court has said, 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)
Gollahalli said, "The University and its governing Board are committed to openness and transparency and endeavor to ensure full compliance with all applicable laws."
But the OU regents and their legal counsel are using a strict compliance with the letter of the law to defeat its purpose, which is "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."
When a public body does the legal equivalent of the limbo to avoid the Open Meeting Act, it doesn’t build the public's trust or confidence in government. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. And it certainly doesn't demonstrate a commitment to openness and transparency.
Unfortunately, OU regents aren't alone among university and college administrators in this regard. But perhaps OU's regents will reconsider. One can only hope.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
