State education board denies violating Open Meeting Act with incomplete agenda item

The state Education Board didn't violate the Open Meeting Act in September by omitting from the agenda the item of business that would be discussed in an executive session, a spokeswoman said Thursday.
 
The department's reasoning boils down to 'cause we say we didn't.
 
"We believe the actions of the Board, both with regard to posting and procedure, were in compliance with the Open Meeting Act. We are evaluating established processes of the Department to ensure they are and remain fully complaint with the law," said Tricia Pemberton in an email to Kurt Gwartney, KGOU news director.
 
Gwartney, who had questioned the vague agenda item, said Friday that he intends to bring a complaint to Oklahoma County District Attorney David Prater next week.
 
I explained in early October why the omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
 
As Gwartney later noted, "The agenda item basically gave the reader absolutely no idea what the board would be discussing."
 
Let's hope Prater agrees that the board violated the Open Meeting Act and at the very least tells the board to change its ways.
 

 
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.

State education board meeting's vague agenda item didn't identify possible elimination of programs

The state Board of Education last week cut several programs even though its meeting agenda noted only "discussion and possible action on the FY2012 Common Education Budget Work Program."

"Some board members complained during the meeting that they only received the budget details the evening before the meeting and they wanted more time to look over the numbers," reported Oklahoma Watchdog Editor Peter J. Rudy.

"The budget details were not posted online and the press did not receive copies until just before the meeting started," Rudy noted. "It could be argued that ... stakeholders (like National Board Certified teachers) had no idea looking at the agenda that their programs were being eliminated."

The board cut funding for National Board Certified teacher bonuses, adult education, charter school startup grants, new robotics programs, and middle school mathematics laboratories, The Oklahoman had reported.

The newspaper had also noted that board members complained about not having enough time to study the budget prior to being asked to vote on it.

"I just think it's kind of unfair to give it to us the day before and want us to try to vote on it," board member Gayle Miles-Scott said. "Could we not have a special meeting?"

State schools Superintendent Janet Barresi told Rudy that staff had worked on the budget "up to the 11th hour."

"We had to make a decision yesterday that we had to move forward with this," she said.

(Watch Barresi's reaction in the video as Rudy explains that the Oklahoma County District Attorney's Office is investigating the Oklahoma Human Services Commission for a possible Open Meeting Act violation because its agenda's budget item did not specify increased co-payments for clients who receive child-care benefits and reduced income eligibility.)

So it literally wasn't possible to call a special meeting to give board members and the public time to mull over the budget details? And to include those important details on the agenda for a special meeting?

The Open Meeting Act says each agenda "shall identify all items of business to be transacted by a public body at a meeting." (OKLA. STAT. tit. 25, § 311(B)(1))

The state education board's agenda didn't do that. Barresi should have asked for a special meeting so the agenda could specify such important budget cuts. The public and the board members being asked to vote on that budget deserved more time to consider it. The board's vote is not supposed to be a rubber-stamp.


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.

State Board of Education meets in questionable executive session

The state Board of Education met in executive session Thursday to investigate its “legal powers and duties” to implement a state law that some school districts are refusing to comply with, the Tulsa World reported today.

The meeting agenda cited a state Open Meeting Act exemption permitting executive sessions for

Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))

When Kay Harley, the board’s attorney, was asked what pending investigation, claim or action the board discussed during the closed-door session, she said it was to have "a confidential conversation with their attorney about the implementation of the Lindsey Nicole Henry Scholarships," which she said was an investigation, the Tulsa World reported.

The newspaper added:

When asked who was being investigated, Harley said, "We are investigating our legal powers and duties."

Based on that explanation, the board violated the Open Meeting Act. A public body determining its “legal powers and duties” does not constitute the kind of investigation covered by the exemption. If it did, then every discussion about research into an issue would constitute an investigation. Say good-bye to open government.

And how would a public discussion "seriously impair" the board's actual authority to implement the statute?

Just because an attorney was involved in the discussion did not automatically justify an executive session. Not every discussion between a public body and its attorney – even about a lawsuit – is exempted from public scrutiny, state Attorney General Drew Edmondson said in 2005.

Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will ‘seriously impair’ the body’s ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest. (2005 OK AG 29, ¶ 11)

In other words, the exemption for a confidential discussion between a public body and its attorney does not exist so that public bodies can do an end run around the Open Meeting Act. It was not intended to allow public bodies to discuss in secret what they should be discussing in front of the public.

Unfortunately, we don’t vote for the members of the state Board of Education with the exception of the state school superintendent of public instruction. But we do vote for the governor, who appoints the other six members of the board.

Regardless of whom we hire on Nov. 2 as governor, let’s hope she will demand her appointees abide by the letter and the spirit of our Open Meeting law or replace them with those who will.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications