Norman Mayor Cindy Rosenthal said she routinely sends memos to the rest of the City Council seeking "input" on whom she intends to appoint to boards and commissions, The Oklahoman reported today.
 
"The item is then on the agenda and a public vote is taken," Rosenthal told the newspaper.
 
Rosenthal said City Attorney Jeff Bryant approved sending a memo in February to all her fellow council members in which she asked for "input" on new details of a recommended compensation increase for the city manager and asked them to "let me know what direction you would like to move."
 
Rosenthal wrote in the memo that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
She told The Oklahoman that accusations she is violating the Open Meeting Act are just "politics ... there's nothing to it."
 
But the Open Meeting Act, as well as judicial and attorney general pronouncements on the statute for decades, clearly forbids the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act requires that "the vote of each member must be publicly cast and recorded." (Okla. Stat. tit. 25, § 305)
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 306)
 
In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as “no business of the public body is discussed."
 
In 1981, the Oklahoma Court of Civil Appeals had emphasized, "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)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting. (1981 OK AG 69, ¶ 17)
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
A 1982 attorney general opinion said:

The requirements that members be physically present for meetings to take place and that voting be done only at meetings, provide protection against secret decision-making and further the Legislative intent of facilitating the understanding of government by informed citizens. ( 1982 OK AG 7, ¶ 7)

The Oklahoma Supreme Court has said that 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)
 
The principle is “very simple," the state Court of Civil Appeals has said. "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, ¶18)
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
The court said the violation by the Beggs Public Works Authority, "although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court 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)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the Court of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
Rosenthal and the rest of the Norman City Council are responsible for knowing the requirements and prohibitions of the Open Meeting Act.
 
She and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge. They promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Kovach had told The Norman Transcript about the memo, which revealed that the council -- including Kovach -- had apparently violated the Open Meeting Act by reaching a consensus during an executive session to move forward on the pay increase for the city manager.
 
With Rosenthal up for re-election in two weeks, she says Kovach accusing her of violating the Open Meeting Act by sending the memo is just "politics." The Oklahoman article noted that Kovach is a consultant for Tom Sherman, one of Rosenthal's opponents.
 
But the political motivations behind revealing open government violations don't negate the violations themselves. Norman City Council members should not be reaching consensus to take actions in executive session or seeking "input" and "direction" from a majority of the council outside of meetings.
 

 
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.