OHP orders Nowata County sheriff not to release bail amount, mugshot of man arrested in connection with hit-and-run fatality

The Oklahoma Highway Patrol ordered the Nowata County sheriff not to release the bail amount or the mugshot of a man arrested and jailed in connection with a hit-and-run in which a pedestrian was killed, the Tulsa World reported early Monday evening.

The OHP's explanation for why such information should be kept secret and under what statute OHP has the authority to issue such an order were not explained in the story.

The Tulsa World said only that Nowata County Sheriff’s Sgt. Donald Lynn declined to release the bail amount or a mugshot of Roy Dale Cheatham, 46, of Delaware, Okla., upon orders of the OHP local division.

NewsOn6 and KTUL each used a previous mug shot of Cheatham in their stories posted online.


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

BRTA refuses to settle open government lawsuits

The Bartlesville Redevelopment Trust Authority has refused two offers to settle open government lawsuits filed against it, the local newspaper reported Wednesday.

The BRTA filed an amended motion Wednesday to dismiss the Open Meeting Act lawsuit, according to court records.

The Bartlesville Examiner-Enterprise reported that under the settlement offer, the BRTA would issue a statement fully describing what occurred during an Aug. 11 executive session and would hold a meeting during which the public could ask what was discussed during that closed session.

The lawsuit, filed by Joel Rabin and Sharon Hurst, alleges 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 does not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).

In addition to the Open Meeting Act lawsuit, Hurst and Rabin also filed an Open Records Act lawsuit against the BRTA in October.

The Bartlesville Examiner-Enterprise reported that the BRTA did not take action on a settlement offer at its meeting Monday and rejected a previous offer during its April 13 meeting.

McMahan told the newspaper that the settlement offers would require BRTA trustees to say "they did things that they didn’t do.”

"It’s not something the trustees were willing to do," he said.

McMahan said the settlement offers also "asks for attorneys’ fees in the Open Records case, as well as the Open Meetings case, in amounts that are greater than what a court could order."

The court could not authorize any attorney fees in the Open Meeting Act lawsuit, he said.

That's correct. Unlike the Open Records Act, the Open Meeting Act lacks a specific provision authorizing successful plaintiffs to recover reasonable attorney fees. Thus, such plaintiffs are not entitled to payment for attorney fees because the state follows the American rule regarding their recovery. (Crutchfield v. Marine Power Engine Co., 2009 OK 27, ¶ 26)

“It provides that each litigant pay for legal representation and that courts are without authority to assess attorney fees in the absence of a specific statute or contract. Exceptions to this rule are narrowly defined because attorney fee awards against the non-prevailing party have a chilling effect on open access to the courts. For an award of attorney fees to be authorized under a particular statute, the authorization must be found within the strict confines of the statute,” the state Supreme Court explained in 2009. (Id.)

A successful plaintiff, though, could recover court costs at the discretion of the judge.

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 in the lawsuits.

Also of interest in the Examiner-Enterprise story Wednesday was McMahan's claim that attorneys’ billing statements may be kept secret under the Open Records Act as part of a litigation file.

"With the exception of a dispute of attorneys' billing statements, we believe that we have 100 percent delivered every record that's been requested by the plaintiffs," McMahan told the newspaper.

McMahan said the BRTA may keep any attorney records as confidential in its litigation file and noted that billing statements are a way attorneys communicate with a client.

"If the lawsuit were to go away, we would have no basis for objecting to turning over our attorneys' records," 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.

Will state Senate stand in way of truly open conference committee process?

It was a smart move by Speaker Kris Steele when he got the House to pass a rule opening up House conference committee meetings. But the next few weeks will demonstrate how well the new openness works.

The Senate has not passed such a rule calling for openness in conference committee meetings. Therefore, the public will not be privy to what happens when bills go to Senate conference committees.

A joint conference committee has both House and Senate members who need to approve a measure before it goes to the full House and Senate.

So how will they do this? How can the House meet in the open and the Senate not abide by the same rule?

It appears the result will be that only half the process will be open to the public, that is the activity on the House side.

"Conference committees were previously closed meetings," Steele's communications director John Estus noted Wednesday. "In reality, the meetings often never occurred. Votes were taken instead via signature."

The Senate will apparently continue conducting its conference committee deal-making in closed session.

A House conference committee met publicly last Wednesday for the first time and approved a bill to prohibit people younger than 18 from being featured in state lottery advertisements.

Steele heralded the House action in a press release, stating, "Today's meeting was a landmark step in the House's effort to increase transparency."

But no senators were present. So the public may never be privy to discussion and negotations in Senate conference committee meetings.

....
Under the House rules:

• All meetings of standing conference committees shall be open to the public, subject to the authority of the chairperson to maintain order and decorum. (Rule 7.15)
• All standing conference committees shall provide reasonable, public notice of a meeting. (Rule 7.16)
• The notice shall state the date, time and place of a meeting.
• The notice shall include a listing and sufficient title for identification of the bills to be considered by the standing conference committee holding the meeting.
• Standing conference committees shall meet at the call of the chairperson within the dates, times and locations designated by the Speaker. (Rule 7.17)
• No standing conference committee shall sit during a floor session of the House without special leave from the Speaker.
• All votes cast in standing conference committees shall be conducted in open, public meetings. (Rule 7.18)
• In a standing conference committee, only the vote to recommend adoption of the conference committee report shall be recorded.
.....

Mick Hinton
Freelance Journalist
FOI Oklahoma Inc. Member


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.

Wagoner DA OKs unposted meetings by county commissioners after he narrowly interprets definition of 'conducting public business'

Wagoner County commissioners didn't violate the state Open Meeting Act when they met with residents in unposted meetings to discuss a possible ad valorem tax on county residents, District Attorney Brian Kuester told the Broken Arrow Ledger on Thursday.

"It was not public business. They were not conducting business. They were not deliberating, they were not making decisions, and they were not taking formal action," Kuester told Neighbor Newspapers Executive Editor William Swaim.

"As I understand it, there was one commissioner fielding questions from the crowd," Kuester said. "And that was extent of the commissioners' involvement in the discussion."

Swaim disagrees with Kuester's interpretation of the Open Meeting Act -- and for good reason.

The Open Meeting Act defines a meeting as "the conduct of business of a public body by a majority of its members being personally together" or by 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))

Swaim contends the majority of commissioners were discussing the public's business at the meetings.

"When you clear away the excuses, at the heart of the issue is that you have a topic that is a matter of public concern being discussed without making all county residents aware of the issue," Swaim wrote in a column published online Friday.

"They were fielding questions, which were asked of them because they are county commissioners and not just county residents," wrote Swaim. "The commissioners, in their official capacity, discussed and took input on the possible petition and proposal for a 'county' ad valorem tax in a public place about an issue they will be deciding in their 'official' capacity at some point. Presumably if the petition gathers enough signatures."

Undisputed is that no public notices and agendas were posted for the meetings held in Coweta churches on Feb. 17, March 10 and 24. All three commissioners attended the first meeting, and two attended the March ones.

The meetings have been described as a grassroots effort to come up with suggestions for fire coverage once Coweta's rural fire service area is adjusted. The Coweta-American reported April 11 that Wagoner County officials want Coweta to pull the city’s fire service to the city limits and let rural fire districts cover the surrounding area.

According to the newspaper, Wagoner County Commissioner James Hanning that night told a meeting of some 500 people that the way to solve the rural fire service issue would be to vote on an ad valorem tax, a property tax assessed by the county.

Hanning and fellow Commissioner Tim Kelley attended the February and March meetings.

Kuester said he had known about these meetings "due to the fact I had an assistant DA at two of the three meetings."

Kuester contends those meetings didn't violate the Open Meeting Act because the commissioners didn't conduct public business.

"These meetings were scheduled by concerned citizens out there, concerned about losing their fire protection. And they invited the commissioners to come," Kuester said. "The simple fact is they were not conducting business.

"Although two or three of the commissioners were present, one of them spoke, fielding questions from the crowd. There were certainly no decisions to be made that night. It was really informative for the public if they had questions," Kuester said.

"There were no decisions that could be made that night," Kuester said. "In order for this fire protection district to be created, it requires a petition by the citizens, not the commissioners. So there was nothing those commissioners could have done that night with regards to the fire protection district."

However, county commissioners would have to approve the election for the public to vote on the ad valorem tax.

And does it matter under the Open Meeting Act that commissioners didn't take formal action at those meetings?

Kuester points to a 1982 attorney general opinion to support his narrow interpretation of what constitutes conducting public business.

In the opinion, then-Attorney General Jan Eric Cartwright said:

Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. 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)

That sentence says the entire decision-making process includes deliberation, decision or formal action. It doesn't exclude other discussions by a majority of the public body about the public's business. To the contrary. Cartwright's opinion expands the definition of conducting public business.

For example, in the sentence immediately preceding the one seemingly relied upon by Kuester, Cartwright said, "'Business,' not having been defined in the Open Meeting Act, must be given a construction in consonance with the ordinary meaning of the term and in harmony with the purposes of the Open Meeting Act; and as stated, supra, a liberal interpretation must be indulged. (Id.)

And in the sentence immediately following it, he said, "Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act."

Cartwright began the opinion by noting the state Supreme Court in 1978 had "recognized that one of the policies sought to be advanced by the Legislature in adopting the Open Meeting Act was to facilitate an informed citizenry's right to participate in government and understand why government acts affecting their lives are taken." (Id. ¶ 1)

Elsewhere in the opinion, Cartwright also made the following points:

Statutes are to be construed with reason to accomplish the Legislature's purpose, as opposed to construing them in a manner to encourage the evil against which such statutes are directed. The Open Meeting Law, because it is enacted for the public's benefit, is to be construed liberally in favor of the public. (Id. ¶ 2)

The Oklahoma Supreme Court in Oklahoma Ass'n of Mun. Att'ys v. State stated that the process of decision making as well as the end results must be conducted in full view of the governed. (Id. ¶ 7)

No open meeting legislation should open to public scrutiny purely private conduct. However, if government officials use their private or social time to discuss agenda items and, even more importantly, to determine how they will vote, the purpose of the open meeting law will have been circumvented. Public access to a mere "rubber stamp" vote is all but useless. (Id. ¶ 7)

The goal of the Oklahoma Legislature in enacting the Open Meeting Act was not simply to prevent or punish deliberate violations, but to restore sadly sagging public confidence in government, a goal which is hurt by every noncomplying meeting regardless of whether or not the noncompliance resulted from evil motives. (Id. ¶ 11)

The Open Meeting Act should be liberally construed in order to effectuate its purpose. Also, the Act should be interpreted in such a way as to avoid establishing potential evasion loopholes." (1982 OK AG 212, ¶ 13)(Id. ¶ 13)

To answer the specific questions asked of him, Cartwright concluded that the requirements of the Open Meeting Act must be complied with when:

• "Members of a public body meet among themselves to discuss the appropriation of funds,"
• "A public body meets with a group of experts in order to gain insight into a particular matter," and
• "A majority of members of a public body are together in an informal setting and begin discussing matters concerning the business of the public body." (Id. ¶ 7)
  

"Each situation is part of the 'deliberation process,'" Carwright said. (Id. ¶ 13)
 
He had relied upon earlier decisions by the state appellate courts:

• "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)
• 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)

Furthermore, 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." (1981 OK CIV APP 57, ¶ 19)
 
The principle is "very simple," the court said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State."
 
Why does it matter that Wagoner County commissioners didn't let everyone know about the meetings by posting public notices?
 
Because, as Swaim wrote:

There is so much misinformation being peddled out there right now about the [possible ad valorem tax] (one only has to look at the message boards to see it), that county residents were robbed of the opportunity to become more informed by not having posted notice of these meetings and having the opportunity to discuss, with their elected leaders, a topic that concerns the public.

"At the very least," as Swaim pointed out, "commissioners should have erred on the side of the public’s best interest to be informed."
 

 
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.

Wagoner County Commission chairman defends unposted meetings, says assistant district attorney gave OK

Unposted meetings attended by Wagoner County commissioners were called by residents to discuss Coweta's decision to scale back its fire protection district, the County Commission chairman told a newspaper Wednesday.

"I am also a citizen, and this does affect me," James Hanning told the Muskogee Phoenix. "We (the commissioners) were there, if anything, for moral support — my concern is that the people have the power and knowledge they need to make an informed decision."

So why not post public notices and agendas for the meetings?

The Broken Arrow Ledger reported Tuesday that because Coweta is pulling back on its fire service area, the meetings concerned a possible ad valorem tax on county residents to fund a rural fire district.

No public notices and agendas were given for the meetings, which were held in Coweta churches on Feb. 17, March 10 and 24, the Broken Arrow Ledger reported. All three commissioners attended the first meeting, and two attended the March ones.

The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))

"At least one county commissioner at each of these meetings actively took part in the discussion," the Broken Arrow Ledger's executive editor said in a letter to District Attorney Brian Kuester.

"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," said William Swaim, Oklahoma Neighbor Newspaper executive editor.

"Commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal," Swaim said.

Hanning told the Phoenix the topics discussed during those meetings were not county issues. However, he conceded that the commission would have to vote to approve an election to pass an ad valorem tax.

The Coweta-American reported April 11 that Wagoner County officials want Coweta to pull the city’s fire service to the city limits and let rural fire districts cover the surrounding area.

According to the newspaper, Hanning told a meeting of some 500 people that the way to solve the rural fire service issue would be to vote on an ad valorem tax, a property tax assessed by the county.

The newspaper reported that Hanning explained how the tax would be assessed and the mechanism for calling an election on the ad valorem tax.

"No matter what proposal comes to the table, our need is not a fire station, it is a fire district," Hanning said. "Our goal is to create options to have a fire district that will sustain a station."

At the same meeting, the newspaper reported, a member of the Wagoner County Excise Board said he appreciated the "great amount of effort" the county commissioners had put in to coming up with solutions.

Sure sounds like a county issue involving the commissioners despite Hanning's characterization to the Muskogee Phoenix.

Hanning also defended the unposted meetings as permissible because no decisions were made at them. However, that is irrelevant under the Open Meeting Act.

In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body can gather informally as long as "no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))

Judicial and attorney general opinions, though, had made clear for the previous 25 years that members of a public body are prohibited from discussing the public's business during social gatherings.

"Sunshine legislation reaches, not just ‘formal’ meetings, but the 'entire decision-making process,'" the Oklahoma Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)

Hanning also told the Phoenix that Assistant District Attorney John David Luton assured him the commissioners could attend the three unposted meetings without violating the Open Meeting Act.

The newspaper said a telephone call to Luton was not returned Wednesday.

Oklahoma's public policy, as 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)

Therefore,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (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)

That didn't happen in Wagoner County.


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


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.

Wagoner County commissioners met without public notice in apparent violation of state Open Meeting Act

Wagoner County commissioners met three times to discuss a possible ad valorem tax on county residents to fund a rural fire district but didn't post public notices and agendas for the meetings, the Broken Arrow Ledger reports.

The Oklahoma Open Meeting Act requires 48 hours advance notice for special meetings in which a majority of a public body discusses public business and that agendas be posted 24 hours prior to such meetings. (OKLA. STAT. tit. 25, § 311(A)(11))

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)

Yet, Wagoner County commissioners failed to post notices and agendas for meetings Feb. 17 at the First Baptist Church in Coweta, and March 10 and 24 at the First United Methodist Church in Coweta, according to a letter from Oklahoma Neighbor Newspaper Executive Editor William Swaim to a number of public officials.

Swaim said at least two of the three commissioners were at each meeting and discussed a proposed county ad valorem tax for the funding of a county rural fire district.

"It is our belief the county commissioners are also working toward a consensus on the item and topic at hand, which is to propose and pass an ad valorem tax," Swaim said.

According to Swaim:

• Commissioners James Hanning, Tim Kelley and Chris Edwards attended the Feb. 17 meeting with people comprising a grassroots effort to come up with suggestions for fire coverage once Coweta's rural fire service area is adjusted.
• Hanning and Kelley attended the March 10 meeting with 80-90 people. Hanning told a reporter that an assistant district attorney had said no meeting notice or agenda was required.
• Hanning and Kelley also attended the March 24 meeting that included about 200 people.

A notice and agenda weren't posted until an April 7 meeting at the Coweta High School gymnasium in which all three commissioners again attended, Swaim said.

"These meetings, concerning what has developed into a volatile topic, did not keep Wagoner County residents properly informed of the discussion of an ad valorem tax to fund a fire district in the county," said Swaim in the letter. "At least one county commissioner at each of these meetings actively took part in the discussion.

"Because of these violations, commissioners have circumvented the process while we believe attempting to garner support for an ad valorem tax proposal. Residents now may not fully understand the issue or other reasonable options available as they were not properly notified of these public meetings that may effect them," said Swaim.

"These are issues we take seriously and believe the county commissioners should follow the law and should be held accountable for the specific violations that occurred," Swaim said in the letter, which was sent to Wagoner County District Attorney Brian Kuester.

Indeed, these would be outrageous violations of the Open Meeting Act. Absolutely criminal violations if they occurred as described. If true, then those commissioners stole from Wagoner County residents their right to understand and participate in their county government.

The Legislature's goal in enacting the Open Meeting Act "was not simply to prevent or punish deliberate violations, but to restore sadly sagging public confidence in government, a goal which is hurt by every noncomplying meeting regardless of whether or not the noncompliance resulted from evil motives," then-Attorney General Jan Eric Cartwright said in 1982. (1982 OK AG 212, ¶ 11)

The public policy stated in 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,"a governmental body must operate with such openness that the citizenry is informed of its activities," said then-Attorney General Drew Edmondson in 2000. (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)

Unfortunately, Wagoner County Commissioners Hanning, Kelley and Edwards didn't follow Oklahoma's open-meeting policy.

Violations of the Open Meeting Act are a misdemeanor punishable by a fine of up to $500 and up to one year in the county jail. (OKLA. STAT. tit. 25, § 314)

These meetings by Hanning, Kelley and Edwards warrant the fullest investigation and prosecution by the district attorney. What is Kuester going to do?


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.

Broken Arrow school district's explanation indicates school board violated Open Meeting Act

I criticized the Broken Arrow School Board on Wednesday for apparently violating the Open Meeting Act. The school district's subsequent responses to The Broken Arrow Ledger validate that condemnation.

The school board's agenda for Monday night had cited the personnel exception as the authorization for an executive session.

Under the personnel exception, an executive session is "permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1)) (emphasis added)

But a district official told the newspaper that the school board only discussed reorganizing the district's administration -- not specific personnel -- during that closed-door session.

That means the board violated the Open Meeting Act because it wasn't entitled to conduct such a discussion behind closed doors. A 2006 attorney general opinion, for example, prohibits closed sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

"The legislative history of [the personnel] exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," the opinion said. (Id. ¶ 8) (emphasis added)

The agenda item for the school board's executive session failed to list any specific employees to be discussed -- another apparent violation of the Open Meeting Act.

In 1997, the state Attorney General was asked if a public body could "keep confidential the purpose of an executive session" under the personnel exception. The answer was NO. Agenda items for such a closed session must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." The purpose is to give the public actual advance notice. (1997 OK AG 61, ¶ 5)

So based on the statutory language and the attorney general decisions, the Broken Arrow School Board was not entitled to discuss just reorganizing the positions. And if it actually discussed individual salaried employees with personnel changes in mind, then the names or unique titles of just those employees should have been listed on the agenda.

The board's agenda said only that the purpose of the executive session was to discuss "organization of district administration." On Wednesday, a district official explained to The Broken Arrow Ledger in an e-mail:

The meaning of that phrase was that any and all administrators were possible conversation topics during the executive session. The organizational chart that is posted on our website - click on "Departments" and then "BAPS Organizational Chart 2010-2011" - was the document that guided the executive session discussion. You will see that the chart contains some names, but mostly positions. The positions that were announced on Monday are on this chart.

With all that said, the last thing we want to do with any board agenda item is to cause confusion for the press or the public, so we can be more specific in future agenda wording. If listing all district administrators by name and title is a more efficient way to indicate that all district administrators are part of a conversation about "district administration," then we can list all district administrators by name and/or title. That seems to be a reasonable way to avoid any confusion.

According to that explanation, the board discussed individual administrators.

Furthermore, The Broken Arrow Ledger reported that after returning to the open session from the executive session, the school board approved five personnel changes:

• Appointing new high school and middle school principals;
• Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
• Moving a principal to director of instructional services; and
• Naming the Performing Arts Center director as the executive director of fine arts.

On Thursday, district spokeswoman Tara Thompson told the newspaper that the school board discussed the organizational chart in executive session and later voted for three changes to the chart in open session. Those changes were in the form of personnel actions promoting district employees to new jobs.

So based on this explanation, the superintendent went into that closed-door session with specific personnel actions in mind, but those employees weren't listed on the agenda under the executive session.

Thompson said two principals appointed during the open meeting at the same time the board approved the three personnel actions had not been part of the executive session discussion. Instead, she told the newspaper, those principals were listed under a general consent agenda item where other routine employment actions are considered.

However, the newspaper noted that the supplemental document to the general consent item listed only one of the principals.

The school board and district officials are either being disingenuous or simply don’t understand the law.

Thompson reiterated to the newspaper:

If we can be more efficient in our procedures, we will be happy to make those improvements, because ultimately, it's about customer service. If specifically naming all the administrators represented on the organizational chart will help the public better understand the topic of discussion during executive session, we will list, by title and name, all the administrators represented on the organizational chart and attach that to the agenda.

It’s awful nice of the school board to want to be more efficient. But based on attorney general decisions, the school board may not list all the district administrators and then discuss behind closed doors whomever they choose from that list.

Listing all the district’s administrators would serve only to camouflage from Broken Arrow taxpayers which ones the superintendent and school board intend to discuss. That's why the attorney general didn't provide it as an alternative to keeping secret the names of the employees who will be the subject of a closed meeting.

Simply put: The school board can't have it both ways. If it's going to discuss reorganizing positions regardless of which employees hold those jobs, then that discussion must be in front of the public. If it's going to discuss personnel changes involving individual salaried employees, then only those employee names or unique titles must be on the agenda.

The school district’s explanation is terribly disappointing but not surprising given this school board and district’s lack of transparency over the years. A culture of government secrecy can be difficult to change.

This is not just a matter of being more efficient; it’s a matter of complying with the Open Meeting Act’s requirements and respecting the right of Broken Arrow parents and other taxpayers to know what their government is doing beforehand.

Last July, Superintendent Jarod Mendenhall promised a commitment to the "spirit of full transparency and openness" by his new administration. "Transparency's got to be there," he said.

But the meeting agenda and the district's subsequent explanation don't live up to that promise. I sincerely hope that Mendenhall and the school board will reconsider how they conduct the public's business.


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.