Two Bartlesville residents contend the City Council violated the Open Meeting Act when it agreed to rezone property to general commercial rather than to light industrial as listed on the meeting agenda. General commercial allows more uses than the proposed light industrial, Terry Grogan and Joel Rabin complained in a letter to the council on Monday.

For example, general commercial allows an auto body work or paint shop that would be prohibited in a light industrial district, according to Bartlesville's zoning regulations.

During public comment at the council meeting Monday, Grogan and Rabin said the rezoning approved in November exceeded the public notice given in the agenda.

"You five councilmen not only blindsided the residents opposing rezoning by throwing a last-minute loophole and an entirely new rezoning request on the table, you also blatantly denied us due process by not providing us required advance notice of the changes in the proposal previously submitted,” said Grogan, according to the Bartlesville Examiner-Enterprise.

Grogan and Rabin have a strong argument that the Bartlesville City Council violated the Open Meeting Act.

Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "[W]ithout public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 19)

The Open Meeting Act requires that each agenda "identify all items of business to be transacted by a public body at a meeting." (OKLA. STAT. tit. 25, § 311(B)(1))

Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the Oklahoma Court of Civil Appeals said. (Haworth Bd. of Educ. of Indep. Sch. Dist. No. I-6, McCurtain Cnty. v. Havens, 1981 OK CIV APP 56, ¶ 9)

The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting." (Id.)

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. That includes any agency action exceeding the scope of action defined by the notice. (Id. ¶ 8)

It's reasonable to argue that the Bartlesville City Council's vote to rezone the property to general commercial exceeded the scope of action listed on the agenda and failed to give the public actual notice.

Rabin and Grogan said the council also seems to have violated a city ordinance requiring that notice of a public hearing on a rezoning application must include the proposed zoning classification.

Residents of any town understandably would be upset if their city council approves a zoning designation different from the one on the agenda. The new zoning could be one that neighbors would have wanted to attend the meeting to oppose or even support.

A simple solution would have been for the Bartlesville City Council to postpone voting on the different zoning -- once that was proposed -- so that it could be placed on the next meeting's agenda and, therefore, give the public actual notice of what the council was considering.

Rabin and Grogan have asked the council members to rescind their action and hold a public hearing on the merits of rezoning the 8.6-acre tract of land from residential agriculture to general commercial.

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.