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Compliance: Transparency and Open Meetings

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July 25, 2015

This week, the Tulsa World revealed that the Oklahoma Workers Compensation Commission met secretly with an information technology vendor and held at least four executive sessions to discuss budgetary and general personnel matters.  Although the matters are still being investigated by Oklahoma County District Attorney David Prater’s office, the serious nature of the allegations are substantial enough to warrant further discussion and analysis of the requirements of the Open Meetings Act, 25 O.S. 301 et seq. (the “Act”) and why it is critical that your school fully comply with the Act’s requirements.

Any analysis of the Act requires a start with the thorough review of the Act and the purpose thereof.  In its opening, the Act expressly provides that its purpose is to “encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.”  See 70 O.S. §302.  The legislature enacted the Act for the public’s benefit, and “it is to be construed liberally in favor of the public.” Wilson v. City of Tecumseh2008 OK CIV APP 84, ¶ 10, 194 P.3d 140, 144.

Closed Meetings are not Open Meetings…

The Act mandates that all meetings of public bodies, such as public schools, are to be open to the public.  See 70 O.S. §303. What is a meeting of a public body?  The Act defines “meeting” as “the conducting of business of a public body by a majority of its members being personally together.” While the commissioners have apparently defended their action(s) as being a meeting for purely informational purposes, it must be noted that informal gatherings among a majority of the members of a public body to decide any matter of public business are expressly prohibited.  See 70 O.S. §306.  According to the reports, all three commissioners attended the meeting with the vendor.  Shortly thereafter, the commission reportedly agreed to contract with that vendor.  Without reaching a conclusion as all of the facts are not known, it is to be cautioned that any attempt to circumvent the Act or to backdoor transacting public business is a violation of the Act.  What the commission should have known is that the “conducting of business” encompasses much more than voting or decision-making.  Further, Oklahoma law is clear that “the process of decision making as well as the end results must be conducted in full view of the governed.” Okla. Ass’n of Mun. Attorneys v. State577 P.2d 1310, 1313-14 (Okla. 1978). (Emphasis added).  These realities alone should require special consideration by school officials when making decisions about their “conducting of business,” including what may be perceived and be encompassed within that definition.  The penalties discussed below – broadened and strengthened this year – are not worth the risk.

 Agendas and Meeting Notices

Additional allegations of the commissioners pertain to their discussing and deciding matters of public finance and general personnel issues in executive sessions.  Importantly, with respect to the personnel matters, the commissioners purportedly failed to properly identify such matters on the meeting agendas.  Agendas for meeting of public bodies must inform the public of what matters will be discussed and what actions might be taken, and the language on the agenda must be specific and understandable.  Stated otherwise by the Oklahoma Supreme Court, the agenda must “be worded in plain language, directly stating the purpose of the meeting … [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence.” Andrews v. Independent School District No. 29 of Cleveland County, 1987 OK 40737 P.2d 929.  The Court of Civil Appeals held that camouflaging the action on the agenda is misleading and in violation of the Act.  See Haworth Bd. Of Ed. V. Havens, 1981 OK CIV APP 56.  The agenda posted by the Workers Compensation Commissioners stated that they would discuss “personnel, staffing needs and related budget priorities and the hiring, sharing and/or transfer of specific employees.”[1] Further, the agenda listed employee positions “including but not limited to insurance compliance personnel, labor compliance personnel, administrative law judges and law clerks.”  As an initial matter, Oklahoma law is settled that a public body may not take action on an agenda item if such item is only listed as being up for “discussion.”  See Haworth again. (Or in legalese, Id.)  In Haworth, the agenda filed with County Clerk read: “Discussion of hiring administrator,” and the agenda posted at the site of the meeting read “Interview a new administrator,” but at the meeting the school board hired a new administrator.  Id.  In further example of non-compliance with the Act, the use of “employment” on an agenda is not sufficient to take action on payment of a bonus.  See Wilson v. City of Tecumseh, 2008 OK CIV APP 84.

While it is unclear whether the agenda identified whether the commissioners would discuss such matters in executive session, based on the poor wording of the agenda, this lack of clarity is almost entirely irrelevant in this instance, as the agenda should have identified the specific employee(s).  The Act mandates that if a public body proposes to conduct an executive session, the agenda shall:

(a)   Contain sufficient information for the public to ascertain that an executive session will be proposed;

(b)  Identify the items of business and purposes of the executive session; and

(c)   State specifically the provision of Section 307 of this title authorizing the executive session.

See 25 O.S. §311(B)(2).

Further, the Act provides that a public body may convene in executive session to discuss the “employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee.”  See 25 O.S. §307(B)(1).  The Attorney General has previously interpreted this subsection of the Act as requiring that the proposed executive session agenda item must identify the officer or employee by name or by position, if the position is of such a nature as to not allow adequate identification otherwise.  See 1997 OK AG 61.

More recently, in 2006, the Attorney General interpreted the requirements of the Act such that executive sessions are not permitted to discuss a job opening for a public officer or employee if the specific individual is listed for the position.  See2006 OK AG 17.  As a result, it is proper and best practice to list an item on a board meeting agenda as “Possible discussion and action to hire Brad Clark as 6th Grade Social Studies Teacher for the 2014-2015 school year, at Kennedy Elementary.”  Again, the penalties for violating the Act are significant, and the risks of doing so without having contacted the OPSRC Legal Director are just not worth it.

Penalties

As one might surmise, “[a]ny action taken in willful violation of [OMA] shall be invalid.” 25 O.S. §313.  For purposes of §313, “[w]ilfullness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.” Rogers v. Excise Bd. of Greer County1984 OK 95, ¶14, 701 P.2d 754, 761; In the Matter of Order Declaring Annexation Dated June 28, 19781981 OK CIV APP 57, ¶29, 637 P.2d 1270, 1275. (Emphasis added).  Furthermore, until recently, the penalties for violation of the Act were punishment by: (1) a fine not exceeding $500; or, (2) imprisonment in the county jail for a period not exceeding one (1) year; or, (3) by both such fine and imprisonment.  See 25 O.S. §314.  This last legislative session, the Act was amended to include penalties that authorize any person to bring suit for relief, and if successful that person or entity shall be entitled to the recovery of reasonable attorney fees incurred.

OPSRC, through its Director of Legal Services, will be providing training to member schools, including the requirements of the Act and compliance therewith.  For more information, or should you have any questions in the meantime, please contact Brad Clark at (405) 563-7912 or e-mail him at Brad.Clark@opsrc.net.

[1] The  commissioners purportedly used the referenced language on the agenda to discuss and even amend the commission budget.  Notwithstanding the fact that there can be no action taken if that possibility is not set forth on the agenda, there is no privacy interest that is protected by the Act in the discussion and action on public finances.  Simply, you are safe to abide by the following: action and discussion of a public body’s budget is a matter of public interest, and is to be discussed and acted on in a public meeting.  Couching, camouflaging, or frankly being misleading in the description of an agenda item to circumvent the purposes of the Act will only land you in trouble.

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