Oklahoma DA Council's new leader refused to prosecute blatant Open Meeting Act violations, seems opposed to public access to police dash-cam video
The new chairman of the Oklahoma District Attorneys Council is the same DA who refused to prosecute the Bernice Board of Trustees for several Open Meeting Act violations revealed by a state audit in 2012.
Eddie Wyant also seems likely to be asking state legislators next year to close public access to police dash camera recordings of arrests.
The council is the state agency that provides training as well as administrative, financial and personnel support for the state's 27 district attorneys.
Wyant, district attorney for Ottawa and Delaware counties, will serve as its 2013-14 chairman by virtue of being president of the Oklahoma District Attorneys Association. He served as the previous vice chairman of the council and president-elect of the association.
In June 2012, Wyant decided not to file criminal charges against Bernice trustees despite a state audit detailing several violations of the Open Meeting Act.
The state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had abused the statute's "new business" provision and unquestionably violated the Open Meeting Act by:
- Discussing contracts of independent contractors in executive session;
- Not taking minutes of executive sessions;
- Not listing the statutory authorization for executive sessions or listing the wrong one;
- Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
- Voting in an executive session; and
- Discussing the creation of a job, rather than hiring a specific person, in executive sessions.
One of Wyant's reasons for not prosecuting the trustees for robbing the public of its right to an open government: It did not appear that trustees personally benefited from the violations.
But personal gain isn't a requirement for prosecution of an Open Meeting Act violation.
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
Wyant's other reason: Trustees had apparently operated under the advice of their attorney.
That excuse ignored a long line of contrary opinions by Oklahoma courts.
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, 1981 OK CIV APP 57, ¶¶ 24-25)
"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)
Wyant now seems interested in having state legislators overturn a recent state Court of Civil Appeals ruling that police dash camera recordings must be released to the public under the Open Records Act.
In July, the Oklahoma District Attorneys Association declined to file a friend of the court brief asking the state Supreme Court to hear the appeal of that decision. Wyant made the motion for the council to take no action on the city of Claremore's request, the Tulsa World reported.
But Wyant told the newspaper that doesn't mean prosecutors won't seek legislation to change the decision. He said release of the videos could impair a defendant's right to a fair trial because a statement on camera could later be ruled inadmissible by a court.
That argument against public disclosure is specious. Arrest reports and police affidavits including defendant statements are public records. Dash-cam videos also have been made public by local law enforcement agencies across the state for years.
At the District Attorneys Association meeting in July, prosecutors questioned why police recordings should be public but those of the Oklahoma Highway Patrol should be kept secret.
The state Department of Public Safety’s audio and video recordings were public records until legislators in 2005 gave DPS officials the power to keep them secret. That legislation came after an Oklahoma County trial judge ruled that the OHP videos were public because they contained facts about arrests.
The Department of Public Safety and OHP aren't role models for government transparency. They release the videos when it suits them, not the public.
The recent Court of Civil Appeals ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
And as the Open Records Act states, Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)
That should include when government officials carrying badges and guns interact with the public.
As then-Sen. Jim Wilson of Tahlequah said in 2009:
Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide.
Tell your legislators to not only reject any attempt to close public access to police dash-cam recordings but also remove OHP's exemption.
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.