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Okfuskee County District Attorney Max Cook likely will ask Attorney General Scott Pruitt to investigate a secret budget meeting of the County Commission or appoint another prosecutor to do so, Cook told the Okemah News Leader late last week.
"Since it is a pending case and I am not suppose to comment on a pending case, I can say very little," Cook told the newspaper.
"It is very likely because of ethics for prosecutors in the state of Oklahoma, it will require that I disqualify my office. I will ask the attorney general to handle the matter or appoint another district attorney."
The three county commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- did not provide public notice or post an agenda for a budget session with the county budget writer and County Clerk Dianne Flanders this past Monday.
The Open Meeting Act requires public notice and a posted meeting agenda when the majority of a public body even discusses public business, as this blog explained Wednesday.
The commissioners conducted the session after adjourning from their regular meeting. Okemah News Leader reporter Shakara Shepard had left but saw the county budget writer, Dan Hall, walking into the meeting room. She followed him back into the room.
According the newspaper's account of the session, the commissioners did more than discuss the county budget. The newspaper reported:
The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.
Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
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 Okfuskee County Commission meeting had adjourned Monday and a newspaper reporter had left when she saw the county's budget writer Dan Hall walking into the meeting room, the Okemah News Leader reported today.
The reporter returned to the room and saw the three commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- and County Clerk Dianne Flanders discussing the 2013-14 budget with Hall, the newspaper reported.
Hall gave the commissioners a cash flow/cash funds report, told them that this year's budget is better than last year's, and said the sales tax increased about $100,000, according to the newspaper.
And this wasn't just a discussion, the newspaper reported, explaining:
The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.
Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
All that occurred with no public notice of the meeting, much less a posted agenda, wrote the newspaper's editor, Lynn Thompson.
If the newspaper's account is correct, Wilson, Smith and Henry held a secret meeting on the county budget in blatant violation of the state's Open Meeting Act.
The Open Meeting Act defines a meeting as "the conducting of business of a public body by a majority of its members being personally together or ... together pursuant to a videoconference." A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))(emphasis added)
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body even discusses public business, much less makes decisions.
Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)
"Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process,'" the court said. (Id. ¶ 7)
A 1982 state attorney general opinion said:
Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
It is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act. (¶ 11)
In 2012, Attorney General Scott Pruitt said, "A public body is thus engaged in the 'conduct of business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction." (2012 OK AG 24, ¶ 10)
Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'" (¶ 9)
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (quoting Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment. (¶ 9)
The bottom line, as then-Attorney General Drew Edmondson said, "A governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
So why is public decision-making important?
The public policy stated in the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
In 1978, the Oklahoma Supreme Court 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 Mun. Attys v. State, 1978 OK 59, ¶ 10)
And as the 1982 attorney general opinion said, "An open deliberative process reveals rejected alternatives about which the public might not know if access to study sessions and deliberative meetings were denied." (1982 OK AG 212, ¶ 5)
Thompson noted that the Open Meeting Act "is not a new law that has just gone into effect."
"This is a 30-plus year old Act that has been in effect and that all elected officials should not be unaware or ignorant of the Act," he wrote.
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body discusses public business. The county budget is certainly the public’s business.
It's a blatant violation of the Open Meeting Act for a county commission to discuss the county budget with no public notice of the meeting. Any elected official who has so little respect for the people and the law should be prosecuted and sent to jail.
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
In 1981, the state Court of Criminal Appeals upheld the convictions of the city of Medicine Park's board of trustees for failing to post meeting agendas. "Posting is required even for the most typical meeting," the court said. (Hillary v. State, 1981 OK CR 78, ¶ 6)
In 2002, three of Nowata's five city commissioners pleaded no contest to violating the Open Meeting Act by discussing city business at a restaurant. A police informant recorded them deciding which of the three would serve as mayor and as city treasurer and discussing "the police department budget … cutting city jobs," and disciplining the city manager.
What will District Attorney David Max Cook do about the Okfuskee County commissioners meeting secretly to decide the county budget?
The Court of Civil Appeals said in 1981 that it would not wink at Open Meeting Act violations, explaining:
[F]or to wink at violations in one case is to invite them in another. The Oklahoma Legislature, elected voice of the people of this state, mandated open meetings, including observance of the notice and agenda provisions. ... [W]ithout vigorous enforcement in the courts, laudable legislation is reduced to "mere words." Well, not this laudable legislation, not in this Court, not in this case. The Legislature has said, "Let the sun shine on government." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57,¶ 31)
Let's hope Cook refuses to wink at the blatant violation in Okfuskee County. Otherwise, there's not much point in having an Open Meeting Act.
Joey Senat, Ph.D.
Associate Profesor
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.
Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
The Open Meeting Act defines a meeting as:
[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))
Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:
- Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.
- Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."
- "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."
Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
Pruitt called such a practice "misleading to the public."
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of the law."
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.
