The Wagoner County Commission agenda for Tuesday’s meeting violated the state Open Meeting Act by failing to list the specific item of business to be discussed in the executive session.
After the meeting, commissioners refused to tell KJRH what they discussed in the closed-door session. However, the TV station reported that the subject was likely the resignation of Chief Deputy Shannon Clark of the Wagoner County Sheriff’s Office.
The Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are “strictly complied with.” (OKLA. STAT. tit. 25, § 307(E))
The commission’s agenda listed only
Consider Executive Session Pursuant to Title 25, O.S. §307 §(B)4 for discussion and possible action regarding: A. 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.
However, the agenda must not only state the specific provision authorizing the executive session but also “identify the items of business and purposes of the executive session.” (§ 311(B)(2)(b))
As a top official in the Attorney General’s Office explained in 2012, “The item should also contain sufficient information to allow a citizen to determine from the agenda what matters will be discussed at the proposed executive session.”
A 1997 attorney general opinion had said public bodies have an “absolute” duty under the Open Meeting Act to specify the purpose of an executive session beyond simply stating the statutory authorization. (1997 OK AG 61)
That opinion dealt with whether a public body had to reveal the specific purpose of an executive session to discuss personnel. But then-Attorney General Drew Edmondson’s answer was not dependent upon the wording of the personnel exemption. Rather, his reasoning was based on the statutory requirements applying to all executive sessions.
“Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session,” he said. (¶ 3.)
Relying upon appellate court interpretations of the statutory requirements, Edmondson said, “It is quite evident that the word ‘identify,’ as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion.” (Id.).
For an executive session to discuss personnel issues, the agenda must include the name or unique title of the employee to be discussed. (¶ 5)
Attorney General Scott Pruitt has used the same reasoning to conclude that public bodies must do more than cite the attorney-client provision on the agenda. They must identify the specific investigation, claim or action to be discussed.
In 2011, for example, Pruitt told a state board that its agenda was too vague when it listed an executive session “for the purpose of considering a settlement of a lawsuit(s)” under the attorney-client privilege. The agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation when the public body went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case, Pruitt said.
Pruitt’s then-top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City the same year. Listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would violate of the Open Meeting Act, Rob Hudson said.
The agenda item should list information such as the name of the parties in the lawsuit. If the lawsuit or claim has not been filed, then the agenda item should include “at least the nature of it,” Hudson said.
“More is better,” he said. “How else would the average person know what you are talking about? The public has a right to know what you are going to discuss in an executive session.”
Hudson warned officials: “The Open Meeting Act is the law. Don’t break the law.”
The purpose of 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)
The Court of Civil Appeals held that “strict adherence to the letter of the law is required” and that “substantial compliance” is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
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)
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
In prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
The state Supreme Court has said, “Willfulness 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 County, 1984 OK 95, ¶ 14)
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
Attorney general opinions and other pronouncements boil down to one conclusion: Wagoner County Commissioners James Hanning, Chris Edwards and Tim Kelley must do more than state the statutory provision when they meet behind closed doors with their attorney. They must identify on the agenda the specific business they intend to discuss.
Wagoner County residents are entitled to know.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
Mass Communication Law in Oklahoma
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, its board of directors or the commentator’s employer. Differing interpretations of open government law and policy are welcome.