McAlester City Council closes meeting under exemption for union negotiations but discusses furloughs for all city employees and other budget woes

The McAlester City Council recently met behind closed doors to discuss unpaid furloughs for all 235 city employees and apparently other budget woes – all under the guise of discussing negotiations with employee labor unions.

Not all McAlester city employees are represented by labor unions. As the McAlester News-Capital pointed out, the furloughs cover city department heads, upper management and other employees who don’t belong to the police or fire unions.

The furloughs were among several actions approved by the council following the nearly two-hour executive session on Dec. 1, the newspaper reported.

None of the actions was listed on the agenda for the special meeting – even though the newspaper had reported days earlier that the council was expected to discuss possible furloughs during the closed session.

Some of the other actions also clearly went far beyond negotiations with labor unions. For example, the council voted unanimously to place on a future agenda a vote to modify the city budget to reflect some $353,000 in savings the city manager and department heads have achieved.

The council also voted unanimously to support an incentive plan for a “voluntary resignation” program for city employees.

And, the council approved a show of support for the city manager’s authority to invoke lay-offs if needed. As the newspaper noted, the city manager has the power to hire and fire “most” city employees.

According to the newspaper, the council and Acting City Manager Pete Stasiak can order the non-uniformed – i.e., nonunionized – employees to take the furlough days. Stasiak told the newspaper he planned to meet with the police and fire union members in an attempt to persuade them to also take the furlough days.

The council met in executive session under an Open Meeting Act exemption: “Discussing negotiations concerning employees and representatives of employee groups.” (OKLA. STAT. tit. 25, § 307 (B)(2))

The state’s Municipal Employee Collective Bargaining Act also exempts from the Open Meeting Act “Negotiating sessions, including strategy meetings of municipal employers or exclusive bargaining representatives, …” (OKLA. STAT. tit. 11, § 51-213 (C))

Clearly, the council does not “negotiate” with department heads, upper management and nonunionized employees. And, based on the newspaper’s reporting, the furloughs apparently aren’t part of the city’s labor agreement with members of the police and fire departments. The story indicates that Stasiak will try to persuade them to take the furloughs, not enter into negotiations on a new collective bargaining agreement.

Also, the council voted on items that officials seemed to know about well in advance. Those items should have been listed on the agenda as required by the Open Meeting Act. (OKLA. STAT. tit. 25, § 305)

The statutory exemption was the sole wording listed on the agenda for the executive session. But the Open Meeting Act requires that the agenda also “identify the items of business and purposes of the executive session.” (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

The council’s agenda did not give the public actual notice of the items of business and purpose of the executive session.

Public bodies are permitted – not required – to conduct closed-door sessions under the Open Meeting Act only for specific topics spelled out by the state Legislature.

In deciding if an executive session is warranted, “a public body should consider all the facts and circumstances surrounding the proposed executive session and the general policy of openness that underlies the Open Meeting Act should be afforded great weight,” said then-Attorney General Susan Loving in 1992. (1992 OK AG 23, ¶ 7) (emphasis added)

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.” (1981 OK 95, ¶ 7)

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 stated purpose of the Act is “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (OKLA. STAT. tit. 25, § 302)

A 1980 attorney general opinion said, “The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken.” (1980 OK AG 215, ¶ 12)

Current state Attorney General Drew Edmondson said in 2000, “[A] governmental body must operate with such openness that the citizenry is informed of its activities.” (2000 OK AG 7, ¶ 30)

McAlester City Council members failed to do so when they hid from the public their nearly two-hour discussion of how to address the city’s budget problems. They failed to do so by not giving taxpayers adequate notice of what they intended to discuss and do.

No exemption exists to allow public bodies to discuss budget issues in secret. Other exemptions cannot be used as a subterfuge to conduct such discussions behind closed doors.

See also: A closed door is not transparent

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OKC refuses to disclose DOB of employee placed on administrative leave during investigation

Disclosing the birth date of a city employee placed on paid adminstrative leave as officials investigate mismanagement of public funds would constitute an warranted invasion of privacy, an Oklahoma City official told The Oklahoman on Thursday.

But, Assistant City Attorney Richard Smith indicated to the newspaper, disclosing the birth date of an employee not under investigation wouldn't be an invasion of privacy.

Say what?

Smith's explanation flies in the face of a revised opinion issued this week by state Attorney General Drew Edmondson.

Dates of birth of government employees are presumed open and should be released unless the agency can demonstrate that the employee's privacy outweighs the public interest in the record, Edmondson said. (2009 OK AG 33)

The opinion notes that agencies and other public bodies may not enact blanket policies declaring all employee DOBs confidential.

Edmondson told the newspaper last week he thinks agencies are "going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy.”

“My view is that the conditions under which birth dates would be confidential would be rare,” he said.

In contrast, OKC officials don't seem hesitant to make the claim. OKC seems to think the public has little or no interest in an employee placed on administrative leave when city officials discovered federal grant funds had been mismanaged in a program overseen by the employee.

If not under these circumstances, when would the public have an interest that outweighs the employee's protection against a clearly unwarranted invasion of privacy?

The Oklahoman requested the birth date in an effort to conduct background research after the employee was identified as part of the investigation.

As reporter Bryan Dean noted, "Without a birth date to match to common names, it is impossible to determine a public employee’s criminal record or other vital background information."

Edmondson seems to have faith that government officials will give serious consideration to the public's interest in the disclosure of employee birth dates.

Oklahoma City officials are proving him wrong.

But they are demonstrating why the decision to release records should not be put in the hands of individual officials.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

AG tells state agencies the burden is on them to prove disclosure of employee DOB is clearly an unwarranted invasion of privacy

Oklahoma Attorney General Drew Edmondson told state agencies, boards and commissions this week that the birth dates of their employees are presumed to be public records and should be released upon request.

"The only exception ... would be if the agency makes a specific finding that the release of the record would constitute a 'clearly unwarranted invasion of personal privacy,'" Edmondson said in a letter telling the agencies of his revised formal opinion on the subject.

"If the exception is claimed the burden would be on the agency to demonstrate that the employee's personal privacy interest outweighs the public interest in producing the record," Edmondson said.

If a court overturns that determination, the agency would be liable for the plaintiff's attorney fees, he reminded agency officials.

(Unfortunately, that monetary penalty might not motivate many public officials to give serious weight to the public's interest because the money comes from taxpayers, not their own pockets.)

Edmondson also told agencies they could not enact blanket policies under which all employee birth dates would be considered private.

In a press release Tuesday, Edmondson said the new opinion "revised some admittedly confusing language."

For more on the revised opinion, 2009 OK AG 33, read the earlier posting on this blog.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OSU Residence Hall Association violates Open Meeting Act

OSU'S Residence Hall Association violated the Open Meeting Act in November by not posting its agenda 24 continuous hours in advance and by voting to give money to three groups even though the votes were not listed on the agenda, the campus newspaper reported Tuesday.

The Daily O'Collegian said the student organization also failed to post its agenda online as required by state law. (OKLA. STAT. tit. 74, § 3106.2(A))

RHA has been subject to the Open Meeting Act since a 1979 attorney opinion reasoned that RHA is a sub-entity of the board of regents and has decision-making authority. (1979 OK AG 134)

A violation of the Open Meeting Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail for each count. (OKLA. STAT. tit. 25, § 314)

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism & Broadcasting

AG revises opinion: DOBs of government employees presumed open, public bodies must determine privacy interest on a case-by-case basis

Government employee birth dates are presumed open unless the public body can demonstrate that the employee’s privacy outweighs the public’s interest in disclosure, according to a revised opinion issued by the state attorney general Tuesday.

Oklahoma Attorney General Drew Edmondson said public bodies must decide each case individually and may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

In the revised opinion, Edmondson also deleted a sentence questioning the public interest in knowing government employee birth dates.

However, just as in the opinion issued last week, Edmondson said public bodies have the discretion to determine if disclosing an employee’s DOB is an “unwarranted invasion of privacy.”

“In making such a determination, the public body must weigh the employee’s interest in nondisclosure against the public’s interest in disclosing the record,” Edmondson said. “If the public body determines that the employee’s interest in nondisclosure is greater, it may keep the birth date confidential….”

(Read earlier posting for background on opinion.)

Last week’s opinion seemed weighted in favor of nondisclosure and was criticized for leaving the decision in the hands of public officials. An editorial by The Oklahoman today expressed doubt that public officials would be likely to disclose the birth dates of employees.

“Instead, we foresee them regularly parsing the definitions of 'unwarranted' or the like when reporters or others try to dig for information in an effort to serve the public interest,” The Oklahoman said.

But the revised opinion is more in line with what Edmondson told The Oklahoman last week when he defended his previous writing.

“My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy,” Edmondson had told the newspaper. “My view is that the conditions under which birth dates would be confidential would be rare.”

To the new opinion, Edmondson added:

“It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. This determination, since it involves a determination of ‘personal’ privacy must be individual in application. A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body.”

He also deleted a statement that seemed to favor nondisclosure.

“Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential,” the original opinion had stated.

Like the old one, today’s opinion says a public agency may keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute “a ‘final’ or ‘disciplinary’ action, nor a ‘final disciplinary action resulting in loss of pay, suspension, demotion, or termination.’”

Edmondson also again rejected Oklahoma City’s argument that the federal Driver’s Privacy Protection Act blocked access to the birth dates of its employees.

Update: The attorney general's spokesman told The Oklahoman that Edmondson wanted to "clarify the intent of the opinion."

"It bothered him (Edmondson) that some of the language in the original opinion caused people to believe that an agency of government could simply say, ‘We’re not going to give you any birth dates,’” said Charlie Price.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Owasso officials enter into secret settlement to end federal lawsuit, refuse to say how much money was paid

Owasso city officials are refusing to disclose how much money they paid to settle a federal lawsuit filed by a former police officer, the Tulsa World reported this week.

Under state law, "Judgments, orders, and settlements of claims shall be open public records unless sealed by the court for good cause shown." (OKLA. STAT. tit. 51, § 158(G))

A federal judge recently refused a request by city officials and the former officer to order confidentiality for the settlement terms, the newspaper reported.

U.S. District Judge Gregory K. Frizzell wrote that it "must be denied, as the court no longer has jurisdiction over the case, the parties have not advised whether the settlement is made with any public monies, whether the information is subject to the Open Records Act, whether a confidentiality order could supersede the Open Records Act, and why this court ought to enter an order which might impede an Open Records Act request."

Thank you, Judge Frizzell.

But despite Frizzell's decision, Owasso city officials still refuse to disclose the amount to the Tulsa World.

City Attorney Julie Lombardi told the Tulsa World the city's self-insurance fund is being used to pay the settlement. She claimed the city is barred by the terms of the settlement from disclosing the amount agreed upon last month.

Dear Legislators, why is the city allowed to enter into a secret settlement in the first place? It's the public's money -- even if paid from self-insurance fund or by an insurance company to which the city pays premiums.

The taxpayers of Owasso are entitled to know -- need to know -- how their elected officials spend public funds.

The Owasso City Council unanimously approved the settlement terms in November.

Absent legislative language prohibiting public bodies from entering secret settlements, the voters of Owasso are left with electing City Council members who won't agree to such terms.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

AG: Gov’t may keep confidential employee DOBs and names of employees placed on paid administrative leave

Public bodies may keep employee dates of birth confidential when officials believe the employee’s privacy outweighs the public’s interest in disclosure, under a state attorney general opinion released this week.

Attorney General Drew Edmondson also said a public agency may keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute “a ‘final’ or ‘disciplinary’ action, nor a ‘final disciplinary action resulting in loss of pay, suspension, demotion, or termination.’”

But once the investigation is complete and a final disciplinary action occurs, “the record(s) indicating that action must be available for public inspection and copying,” Edmondson said.

The written opinion stemmed from The Oklahoman’s request for the birth date of an Oklahoma City employee placed on paid administrative leave during an investigation into the management of a federal grant. City officials also refused to identify another employee placed on paid administrative leave during the investigation.

At that time, Edmondson publicly said governments should err on the side of transparency regarding the release of employee birth dates. He said it would be difficult to contend that DOBs are private when they are found in a number of public records.

At the request of Oklahoma City officials, state Sen. Debbe Leftwich requested a formal opinion from Edmondson.

In that opinion, released on the AG Web site Wednesday, Edmondson said public bodies have the discretion to determine if disclosing an employee’s DOB is an “unwarranted invasion of privacy.”

“In making such a determination, the public body must weigh the employee’s interest in nondisclosure against the public’s interest in disclosing the record,” Edmondson said. “If the public body determines that the employee’s interest in nondisclosure is greater, it may keep the birth date confidential….”

Edmondson seems to have faith that officials will sincerely balance these two competing interests and not reflexively discount the public’s interest in disclosure.

But the opinion seems to provide government agencies with a ready-made answer favoring nondisclosure, stating:

“Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

The opinion does have one bright spot for open-government advocates. Edmondson rejected Oklahoma City’s argument that the federal Driver’s Privacy Protection Act blocked access to the birth dates of its employees.

Using the same reasoning as this blog did in August, Edmondson said the statute doesn’t list DOBs among the personal information on a driver’s license that should not be disclosed and the statute applies to the state Department of Public Safety, not the city.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism