New law quietly lets state board conduct meetings with virtual quorum

Buried in a 70-page bill passed this past legislative session was a paragraph granting a statewide board the right to conduct meetings without any members being physically present at the meeting site.

Notwithstanding any other section of law, any member of the Board attending a meeting via teleconference shall be counted as being present in person and shall count toward the determination of whether a quorum of the Board is present at the meeting. (codified as Okla. Stat. tit. 62, § 34.27(D))

(Under the Open Meeting Act, the term "teleconference" is synonymous with the term "videoconference." (Okla. Stat. tit. 25, § 304(7))

The Governmental Technology Applications Review Board became -- to my knowledge -- the only public body exempted from the state Open Meeting Act's requirement that at least a quorum be “present in person” at the meeting site. (Okla. Stat. tit. 25, § 307.1(A)(1))

The GTARB consists of "both public and private sector members." Its duties range from "approval of convenience fees for online transactions to approving" the state chief information officer's plan for for consolidating information technology.

GTARB's next meeting is Wednesday. No videoconference sites are listed on the agenda. Presumably all nine members will be present at the Office of Management and Enterprise Services, 3115 N. Lincoln Blvd.

But for its July 10 meeting, two members participated via videoconference, according to eCapitol's coverage of the meeting. Vikki Dearing was two miles away at the Oklahoma State Regents for Higher Education, 655 Research Parkway. Derrick Silas was about 100 miles away at the Autry Technology Center in Enid.

"Responding to a comment made in the board room, Silas said it 'felt great' not to have to drive to Oklahoma City for the meeting," wrote Shawn Ashley for eCapitol.

But Rep. Jason Murphey, co-author of House Bill 2062, said: "I don't think it was necessary to exempt them from the quorum requirement. That 'notwithstanding' should have been accompanied with some criteria."

For example, the Guthrie Republican said, "The No. 1 criteria for any of these meetings should be that they are made available online henceforth and forever.

"All content should be recorded from the second the video initiates even if board members are connected several minutes before the chairman gavels the meeting to order," he said.

"At some point in the future, as technology allows, members of the public should be allowed to attend the live meeting via video conference," he added. "This could actually happen now through the use of Google Hangouts. Someone who lives in Idabel could weight in during public comments without traveling to OKC."

But if the exemption wasn't necessary and no criteria for virtual quorums were included, how did the exemption become law?

Murphey said he "helped negotiate the major provisions of the bill and advanced it out of the committee that I chair."

Allowing GTARB to meet with a virtual quorum "was one of the smaller provisions which didn't receive much attention and flew under the radar," said Murphey.

"I did have a one or two conversations with Mark Thomas [executive vice president of the Oklahoma Press Association] about it and knew he had some concerns. But I am not sure I spent the time with him to understand or distill the specifics of the concern," Murphey said. "That was my mistake."

But Murphey isn't to blame. The provision in HB 2062 simply exemplifies a larger problem with how exemptions to our state's open government laws are created.

Opposing exemptions is like playing a game of Whac-A-Mole

Murphey is a member of FOI Oklahoma's board of directors and arguably the strongest supporter of government transparency that we have in the Legislature. But he conceded that he didn't really grasp that the provision was creating an exemption to the Open Meeting Act's videoconferencing requirements.

That's because the paragraph looks innocuous. It doesn't mention the Open Meeting Act by name or legal citation (or even use the term "videoconference"). Consequently, it doesn't show up when searching for bills creating exemptions to the state's sunshine laws.

"The 'notwithstanding' didn't raise any real flags as I didn't have an appreciation for the history of that law and I don't think I thought about the quorum issue aside from it possibly coming up in my hallway conversations with Mark," said Murphey. "Had I realized the existence of or importance, it would have been very easy to put the criteria in at that time."

It is practically impossible for the public and even legislators to know when exemptions to the Open Meeting and Open Records statutes are being considered because such provisions are buried in a myriad of bills and can be heard by any legislative committee.

But in some states, all exemptions are funneled to a designated committee in each chamber of the Legislature. Some states also require each exemption be accompanied by a stated public purpose sufficiently compelling to override their FOI statutes’ strong presumption of openness and that the exemption be narrowly tailored to directly achieve that purpose.

Subsequently, the public can easily identify and weigh the pros and cons of each proposal.

In the coming months, other public bodies in Oklahoma likely will be asking the Legislature for permission to conduct their meetings with virtual quorums. Perhaps their reasons are justified.

But until these reforms are adopted, Oklahomans likely won't know such proposals are even being considered, much less have an opportunity to voice an opinion.

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.