Two former Kay County commissioners apparently had violated the state Open Meeting Act by discussing public business outside of public meetings, according to a state investigative audit released Wednesday. Then-Commissioners Dee Schieber and Tyson Rowe participated in a 2012 meeting at a local company's offices to discuss a road-reconstruction project, according to the audit.

In 2013, Schieber held a pre-bid meeting -- attended by Rowe -- at his warehouse office prior to a bid solicitation for roller-compacted-concrete work, according to the audit.

Public notice and agendas weren't posted for either meeting, the audit said.

At both meetings, the audit noted, "A majority of the county commissioners would have been together where public business was discussed, which would appear to be a violation of the Open Meeting Act.

"Two county commissioners should not meet if they are considering discussion of information that will aid them in their decision-making," the audit said. "Even discussions that do not necessarily predetermine their official actions or cause them to form a reasonably firm position on the matter at that moment are prohibited."

The audit also accused Schieber and Rowe of numerous other potential criminal violations, including bid manipulation, favoritism and collaboration to thwart the state's competitive bidding law in awarding more than $5 million in bridge and road construction projects.

State Auditor and Inspector Gary Jones turned over the audit report to Garfield County District Attorney Mike Fields to review for possible criminal charges. Fields, who had requested the audit, was assigned the case after Kay County District Attorney Brian Hermanson stepped aside.

Schieber retired in 2014 after serving 20 years on the commission. Rowe lost his re-election bid the same year.

In finding that the pair had potentially violated the Open Meeting Act, the audit noted that the statute defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, … together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

The audit also relied upon a 2012 Attorney General opinion that had noted previous opinions “do not limit the types of discussion that fall under the Act to those that ‘effectively predetermine official actions,’ and speak in broader terms about discussion, deliberation, and voting as all being the ‘conduct of business.'" (2012 OK AG 24, ¶ 9)

In that opinion, Attorney General Scott Pruitt noted 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)

“As a result,” Pruitt reasoned, “the state law term ‘conduct of business’ might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily ‘effectively predetermine their official actions’ or cause the members to form a reasonably firm position on the matter at that moment. (2012 OK AG 24, ¶ 9)

“A public body is thus engaged in the ‘conduct of public business’ when a majority of the members are considering discrete proposals or specific matters that are within the agency’s jurisdiction.” (Id. ¶ 10)

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, its board of directors or the commentator's employer. Differing interpretations of open government law and policy are welcome.