Tulsa city councilors: Public can't sue to enforce Open Meeting Act

Oklahomans have no right to file lawsuits to enforce their state's Open Meeting Act, say six Tulsa city councilors.

In a July 23 motion to dismiss an Open Meeting Act lawsuit against the six councilors, their attorneys rely heavily on a federal judge's statement that "there is no basis to imply a private right of action under the" statute.

However, an examination of that federal case and of several cases in which state civil courts have enforced the Open Meeting Act cast doubt on the councilors' claim.

A lawsuit filed July 14 by three Tulsans accuses the City Council of violating the Open Meeting Act during an executive session to discuss a criminal investigation of the mayor's chief of staff. (Lawsuit accuses Tulsa City Council of violating Open Meeting Act)

According to the lawsuit, the Council violated the law on June 17 by:

• Meeting in executive session to discuss "pending litigation" when there was none.
• Voting during executive session to exclude Mayor Dewey Bartlett from the closed-door meeting.

In the motion to dismiss, attorneys for councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott contend:

Clearly, the Legislature did not contemplate enforcement of the OMA in a civil proceeding. The OMA simply does not include any provision for any enforcement in a private action.

To support that assertion, attorneys Clark O. Brewster and Mark B. Jennings of Brewster & DeAngelis point to Shero v. City of Grove. (2006 WL 3196270 (N.D. Okla. Nov. 2, 2006)) (Case No. 05-CV-0137-CVE-PJC) (not reported)

However, that case dealt with whether a resident of Grove could win monetary damages against the city under the Oklahoma Governmental Tort Claims Act for violations of the state's Open Records and Open Meeting laws.

U.S. Chief District Judge Claire V. Eagan rejected the resident's claim "that both statutes imply a private right of action for monetary damages." (Shero, 2006 WL 3196270 at *8)

"Money damages are not available against a governmental body under either the OOMA or OORA," Eagan ruled. (Id. at *9)

Or, as the judge explained in a May 2007 ruling, "The Court also found that Shero's GTCA claim was barred as a matter of Oklahoma law, because his claim for monetary damages was not cognizable under the OORA or the OOMA." (Shero v. City of Grove, 2007 U.S. Dist. LEXIS 39261 at *8 (N.D. Okla. May 29, 2007))

The federal judge never said provisions of the Open Meeting Act could not be enforced by a civil court.

Stillwater attorney Doug Wilson agreed with that assessment of the judge's ruling. Wilson, who has successfully litigated open government lawsuits and is a member of FOI Oklahoma's board of directors, added:

While the Open Meeting Act does not expressly grant private individuals the right to bring suit to enforce its provisions, there is a long line of judicial precedent accepting, with little or no discussion, that aggrieved individuals have an implied private right of action under Oklahoma's Open Meeting Act to bring suit for declaratory, mandamus and/or injunctive relief to enforce its provisions.

In June, for example, the Oklahoma Supreme Court ruled in favor of Pitcher residents in their Open Meeting Act lawsuit against the Tar Creek relocation trust. (LaFalier v. The Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶ 42)

The trust had violated the state Open Meeting Act by allowing the state secretary of environment and appraisers into its executive sessions to discuss appraisals and property purchases, said the court. (See Executive session to discuss property appraisal, purchase limited to public body, its attorney, staff; State settles OMA suit against Tar Creek trust)

By an 8-1 vote, the state Supreme Court ordered a district judge to determine if the violation was willful, in which case the minutes of the executive sessions will be made public. (See OKLA. STAT. 25, § 307(F))

It seems unlikely that a state court would agree with the Tulsa city councilors that Tulsans have no right to enforce the Open Meeting Act through a civil lawsuit. If it does, then that should top the list of improvements to our state's open government laws next legislative session.

In the meantime, though, it's disappointing that two of the councilors making this claim had signed FOI Oklahoma's Open Government Pledge when they ran for office in 2009.

Christiansen and Turner had promised to support Oklahomans' right to know. Contending that Oklahomans cannot sue to uphold that right certainly isn't supporting it.

(To read other coverage: Motion filed to dismiss lawsuit against Tulsa Council, By P.J. Lassek, Tulsa Word, 7.24.10)


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and 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.