Any Oklahoman may sue to enforce Open Meeting Act, appellate court rules

Oklahomans can sue to enforce the state Open Meeting Act without having to prove they were individually injured by the alleged violation, a three-judge panel of the state Court of Civil Appeals has ruled.
 
The Open Meeting Act "was specifically and especially enacted for the benefit of the public," meaning the "general public," said Judges Jerry L. Goodman, P. Thomas Thornbrugh and W. Keith Rapp.
 
Oklahomans don't have to rely upon local district attorneys to enforce the Open Meeting Act because the statute provides them with a "private right of action" to sue over violations, said the appellate judges in the decision filed Thursday.
 
They unanimously overturned Washington County Judge Russell Vaclaw's 2011 dismissal of a lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Trust Authority. They remanded the case to the trial court to determine if the BRTA had violated the Open Meeting Act.
 
Vaclaw had held that Joel Rabin and Sharon Hurst had no standing to sue because they "made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
 
He said plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA." The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
 
But the appellate judges said Vaclaw "misread" the state precedent upon which he relied.
 
In Holbert v. Echeverria, 1987 OK 99, the state Supreme Court created a three-part test for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

The Court of Civil Appeals disagreed with Vaclaw's application of all three parts.
 
Unlike the statute at issue in Holbert, the Open Meeting Act "states its public policy is to inform the public citizenry. Thus, the special class is the general public, of which Rabin-Hurst are members," wrote Goodman for the appellate court.
 
Goodman said state legislators had intended to create a private remedy because the statute includes remedies outside of criminal prosecution:

• An illegal executive session subjects each member of the public to criminal prosecution "and shall "cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public." (OKLA. STAT. tit. 25, § 307(F))
• "Any action taken in willful violation of this act shall be invalid." (§ 313)

"The criminal penalty of fines and imprisonment is different and apart from forcing minutes to be made public and actions to be made invalid," Goodman wrote.
 
"Although a district attorney prosecuting a criminal action could invoke those remedies, we find no reason why those remedies should be invoked strictly within the confines of a criminal case subject to the prosecutorial discretion of a district attorney," Goodman wrote. "The general public, the intended beneficiary of the [Open Meeting Act], would not be well served should that narrow interpretation prevail.
 
"The only way to effectively serve the public would be to permit these remedies to be invoked in a private action, by a member of the very public the [Open Meeting Act] was intended to serve."
 
Goodman noted a number of cases brought by private individuals wherein Oklahoma appellate courts had granted injunctive or declaratory relief under the Open Meeting Act.
 
"Had the legislature not intended for citizens to bring suit under the [Open Meeting Act] nor for civil courts to enforce §§ 307(F) and 313, it could have amended the OOMA to disallow such causes of action," Goodman said. "Failure to do so indicates the intent of the legislature to allow private actions to be brought to remediate the violation."
 
He said the two remedies also are consistent with the underlying public policy of the Open Meeting Act "to educated and inform the public on governmental processes."
 
"As the underlying purpose of the [Open Meeting Act] is, at its very core, to maintain governmental transparency through open meetings, the remedies provided for in the statute, and requested by Rabin-Hurst, logically uphold the purpose of the OOMA," Goodman wrote.
 
He disagreed with BRTA's argument that criminal prosecution was the only appropriate remedy.
 
"Suffice it to say, a criminal action subject only to prosecutorial discretion of a district attorney is likely to result only in a fine, and does not 'right the wrong' of an OOMA violation," Goodman wrote. "Whereas, making public the minutes of an improperly-held executive session and invalidating action take at same does 'right the wrong' of the violation.
 
"If the wrong is keeping secret information that should be publicly known, then the logical remedy is to disclose the secret to the public. Such remedies are meaningful and vigorously uphold the purpose of the OOMA."
 
The Court of Civil Appeals decision refutes not only Vaclaw's ruling but also a notion that began with six Tulsa City Council members in 2010.
 
In a motion to dismiss an Open Meeting Act lawsuit against councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott, their attorneys argued that private individuals had no right to sue over alleged Open Meeting Act violations. Tulsa County Judge Deborah C. Shallcross agreed in 2011 prior to Vaclaw's ruling.
 
Rabin said today that he and Hurst have spent tens of thousands of dollars fighting their case -- which hasn't even gone to trial yet to determine if a violation occurred. They deserve public recognition and gratitude for defending the basic right of all Oklahomans to sue to enforce their right to know under the Open Meeting Act.
 
Because as the appellate judges seem to realize -- Oklahomans can't rely upon district attorneys to vigorously and consistently enforce the law.
 
The next step should be state legislators amending the Open Meeting Act to explicitly grant attorney's fees and court costs to successful plaintiffs. Private individuals shouldn't have to foot the bill when it falls on them to prove government officials violated 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.

Court of Civil Appeals to decide if Oklahomans unharmed by violation may sue to enforce the Open Meeting Act

The state Court of Civil Appeals has refused to dismiss the appeal of an Open Meeting Act lawsuit against the Bartlesville Redevelopment Authority.
 
Joel Rabin and Sharon Hurst sued the BRTA in 2010, saying it purposefully misled the public about the purpose of an executive session earlier that year.
 
Associate District Judge Russell Vaclaw dismissed the lawsuit last November, ruling that Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the public body's alleged violation.
 
Vaclaw said Rabin and Hurst made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
 
The Open Meeting Act does not explicitly permit winning plaintiffs to recover attorney fees and court costs as the Open Records Act does.
 
Therefore, Vaclaw said, the Open Meeting Act "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.
 
"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."
 
In an order dated Nov. 9, the Court of Civil Appeals gave Rabin and Hurst until Dec. 14 to file a brief addressing whether they have standing to bring a private right of action under the Open Meeting Act.
 
The BRTA will have until Jan. 11 to file its answer. Rabin and Hurst may file a reply by Jan. 31.
 

 
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.
 

Plaintiffs appeal Washington County judge's decision that Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

Oklahoma's Supreme Court is being asked to decide if residents may sue to enforce the state Open Meeting Act without having been specifically harmed by the public body's alleged violation.

Joel Rabin and Sharon Hurst are appealing a Washington County judge's dismissal of their lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Authority.

In November, Associate District Judge Russell Vaclaw said Rabin and Hurst made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."

Vaclaw reiterated that ruling in another decision on Jan. 3.

Vaclaw ruled that plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA."

The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual," he said.

The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury."

Rabin and Hurst alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

And in an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

Vaclaw did not rule on whether the BRTA violated the Open Meeting Act. Instead, he decided that Hurst and Rabin had no right to sue.

Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said.

Yes, the Legislature could resolve the issue this session by explicitly stating that Oklahomans have a private right to sue to enforce the Open Meeting Act.

I receive a steady stream of complaints about Open Meeting Act violations -- a number of which have been publicized on this blog. Unfortunately, police and district attorneys have shown little interest in pursuing complaints of government officials breaking this law.

But our legislators have the power to remedy this problem. Please clearly give your constituents another tool to enforce a law intended "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."


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.

Washington County Judge dismisses BRTA lawsuit, says Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

A Washington County judge sided with the Bartlesville Redevelopment Authority on Friday, dismissing a lawsuit alleging an Open Meeting Act violation by the public body.

In a 10-page ruling, Associate District Judge Russell Vaclaw said the plaintiffs, Joel Rabin and Sharon Hurst, made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."

Plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA," Vaclaw said. The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."

The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."

Rabin and Sharon alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

Vaclaw approved of the BRTA having used "impending" on the agenda. He noted that a 2005 attorney general opinion on the meaning of "pending" equated it with "impending." (2005 OK AG 29, ¶ 9)

In deciding that Hurst and Rabin had no right to sue, Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.


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.

Washington County judge hears arguments on motion to dismiss Open Meeting Act lawsuit against Bartlesville Redevelopment Trust Authority

Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.

Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.

An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.

"We should not even be here," said J. Schaad Titus.

Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.

(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)

Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response, Rabin and Hurst's attorney said the Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act.

In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.

The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision."

The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action."

Attorneys for Hurst and Rabin also point to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.

"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.

At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."

But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.

But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.

McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?

McMahan's interpretation contradicts the language of the Open Meeting Act, which states:

If a public body proposes to conduct an executive session, the agenda shall:

• Contain sufficient information for the public to ascertain that an executive session will be proposed;
• Identify the items of business and purposes of the executive session; and
• State specifically the provision of Section 307 of this title authorizing the executive session."(OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.

Given the BRTA executive session at issue, perhaps that's what McMahan wants.

In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.

In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses.


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.

Plaintiffs in BRTA case say state Supreme Court has ruled that no personal injury required for private plaintiff to sue under Open Meeting Act

The Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act, say plaintiffs in such a lawsuit against the Bartlesville Redevelopment Trust Authority.

Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).

On May 4, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA pointed to the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

The BRTA, relying upon that interpretation, contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute.

The BRTA also argues that based on the second prong of the test, private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response filed May 31, Rabin and Hurst's attorney pointed to a 2000 ruling in which the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation. (Okla. State Senate v. State Bd. for Prop. & Casualty Rates, 2000 OK 69)

The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision." (Id. ¶ 9)

The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action." (Id.)

The Senate also contended that it had standing based on another state statute. The court said that issue was controlled by a broad application of that statute.

The Court then ruled that the Senate had standing, but the Justices did so without explaining why. Was their ruling based on the Senate's contention that an Open Meeting Act violation "is a public injury," or on the Senate's other argument, or equally on both?

Regardless, the attorney for Hurst and Rabin also pointed to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.

"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.

Deciding that "the only remedy for a violation of the OMA is a criminal sanction ... would effectively nullify this body of precedential and persuasive Oklahoma court decisions determining OMA issues," she said.


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.