Lawsuit victory for state’s largest fire district could devastate state’s Open Meeting Act
Lawsuit victory for state’s largest fire district could devastate state’s Open Meetings Act
Oklahoma’s largest fire district scored a grand slam Friday with Rogers County District Judge Sheila Condren’s final order dumping a fired employee’s final claims against it in a 2017 wrongful termination and discrimination lawsuit.
But plaintiff Debra Cooper’s lawyer will donate his legal fees to mount a no-holds-barred state Supreme Court Appeal to keep the decision from inflicting grave collateral damage that he and other citizens and attorneys concerned about government transparency fear could cripple the Open Meeting Act (OMA).
“The decision is such an important one for attorneys and all the citizens of Oklahoma that that’s what I’m doing,” said attorney Brendan McHugh of Claremore. “I’ve already ordered the (trial) transcript.” His client will pay that cost and the filing fee for the appeal; all his fees will be waived.
Many other allegations had been dismissed on various grounds during the course of the case’s trip through state (Rogers County Case No. CJ-17-207) and federal (Northern District of Okla. Case No. 4:17-cv-320) court, leaving only multiple allegations of Northwest violations of the OMA to go to trial. Among the key issues raised by the state court order for those concerned about government transparency:
It appears to let officials suggest by verbal and physical acts that an individual (who has not yet been fired by any vote) should leave the public meeting immediately, and feel she must do so, as long as that is not the proven intent of the officials but only the perception of the individual.
It did not address the fire district’s contention that it had the right to ask “a particular individual such as a terminated employee” to leave, with no mention of any requirement that some disruption by the individual was involved. [Not mentioned is the April 1981 Attorney General Opinion (1981 )K AG 109) which states, “No hard and fast rule can be prescribed as to where an individual’s conduct in a public meeting disrupts the meeting to the point that it interferes with the ability of the public body to carry out its business.” No disruption of any kind was alleged against Cooper during the trial or post-trial proposed findings by the fire district.]
It appears to overturn the 39-year-old Supreme Court precedent which requires minutes and/or other recording to be kept of executive sessions, though they are sealed unless a public body violates the OMA. (Berry v. Board of Governors, 1980 OK 46).
It ruled, “No impermissible action was taken in executive session” without offering any further explanation of or basis for the decision. The issue was decided a full page in the order before the brief discussion of whether executive session minutes were required and the acknowledgment none were kept Feb. 13.
It ruled that only “a minor scrivener’s error” occurred when district staff mislabeled and the board approved the Feb. 13 minutes as covering a “Regular” rather than “Special” meeting, and said it did not affect Cooper or whether proper meeting notice had been given. McHugh said the special meeting replaced a “regular meeting”, schedules for which must be filed annually with the County Clerk and which require at least 10 days’ notice to cancel or change. Far less notice was provided. Minutes are the only official permanent record of any body’s public meetings once approved, he noted.
It ruled that the agenda, normally prepared and signed jointly by the Administrative Assistant and the Fire Chief, was not prepared and posted until after Cooper had left work for the day on Thursday, Feb. 9, but was up a sufficient number of hours later Thursday, Friday and Monday before 7 p.m. to meet the statutory 48 hours required (which does not count the hours during the intervening weekend). “Despite the fact that the agenda was posted after Plaintiff left work for the day, it nevertheless complied with the statutory time frames for posting,” the order said. [When Cooper saw the agenda before the meeting as she was preparing documents for distribution to the public, she signed the copies given to public attendees “Not present” on the blank line over her name in the signature section to indicate she had not seen it prior to distribution.]
Although “new business” [defined as items which could not have been anticipated when the agenda was posted] is prohibited at special meetings, an item allowing it was on the agenda. Chair Mel Dainty started to bring up filling the vacancies created by Cooper’s firing and the departure of a firefighter, whose form of separation and any reason for it were not disclosed following an executive session. This journalist, who was covering the meeting, stated that such discussion was not permitted. The Fire Chief and another board member agreed, ending the discussion except to strike the agenda item. The order found this did not affect or invalidate Cooper’s termination because, “No action was taken, and any mention of new business during the meeting is unrelated to the Board’s action in terminating Plaintiff.” However, during the items Remarks from Board members, Dainty instructed that applications for both positions be opened as soon as possible and Director John Robinson instructed that high quality air filters be installed in the fire station to deal with massive mold contamination which was first publicly disclosed that night. No vote was taken on either, the minutes confirm, but the district took both actions.
Long-term impact on citizens
Perhaps the most serious OMA issue raised by the case for average citizens is how far public officials can go without violating the OMA in suggesting that an individual could leave a public meeting even if the person is causing no disturbance.
Among the case’s few undisputed facts are that Cooper left the public meeting and was escorted from Northwest headquarters before the board emerged from executive session, the public meeting resumed, and it actually voted to fire her. (Employees at Northwest are hired and fired by the board; the OMA requires that such actions under those regulations can only be taken by a recorded vote taken during a public meeting).
At the trial she testified that she was ordered multiple times to leave, at one point being shouted at by Chairman Dainty for not doing so quickly enough. District witnesses acknowledge she was offered the right to leave to avoid humiliation by being fired in public while present but said there was no shouting or direct orders given to leave. She was supervised in cleaning out her office and turning in her keys, and was escorted from the building.
While Dainty said he had not discussed firing Cooper with any other board members, he had consulted an attorney not involved the Cooper-NW litigation to get step-by-step instructions on the procedures to be followed in doing so.
No trial transcript is yet available. This journalists courtroom notes indicate Dainty testified, “He [the outside attorney] gave me instructions of what to do and how to do it…Get her keys back…Chief Shockley took her to the office [in which she worked, to get personal items] and locked the door.”
Asked if a vote to fire her was taken in executive session, he replied, “I felt the other board members were going to follow me. They’d had enough of Ms. Cooper.”
Judge Condren’s ruling said:
Cooper’s keys were confiscated before she was officially fired;
She was told she “could leave” the public meeting before a vote “if she wanted to avoid the embarrassment of being fired publicly”; and,
After taking minutes as usual before an executive session into which she was called, felt she had to ask permission after leaving to retrieve her purse from her meeting room workspace—before the open meeting resumed or any vote was taken—after finding her seat and space occupied by the Captain in charge of operations that night.
The judge ruled that only the intent of the directors and district officials, not her understanding of it, was relevant. Thus she would have been free to stay and did not have to ask permission to return to the meeting room or her work spot and was not in any way excluded from the public meeting because she did not prove she was prohibited from staying, only that she felt she was.
Cooper was a fire district resident and taxpayer as well as an employee, but that hadn’t kept Northwest from arguing, when the case was in U.S. District Court before Federal District Judge Claire V. Eagan, that the Plaintiff lacked standing to file an OMA complaint because she was a district employee, not part of “the general public”.
Judge Eagan firmly rejected that idea, saying that the OMA had directly said since 2014 that “any person…[m]ay bring a civil suit.”
The judge added, “Plaintiff is a person and therefore, by law, has a private right of action.”
The district’s most troubling proposed finding to transparency advocates was not addressed by Judge Condren.
That District claim was that even if the board had ordered Cooper to leave it “does not violate the OMA because the meeting was open to and attended by the public.” Since Judge Condren ruled Cooper “was not prohibited from leaving,” the broader issue raised by Northwest was not addressed.
[While Cooper was fired based on a motion by Dainty to fire her due to unfavorable audit results, the male firefighter’s job ended the same night based on a motion that was recorded in the minutes as being “to terminate” him. However, this journalist’s meeting story based on a recording he made of the entire meeting said Dainty’s motion was that the firefighter “is no longer an employee” without any further explanation of whether his departure was voluntary or forced. That article was admitted as evidence during the trial after the author testified as to its accuracy based on his recollection, extensive notes, and reviewing the entire meeting tape the night before the trial. The District located its tape of the meeting just days before trial, and it also was admitted as evidence. Judge Condren listened to part of it during the lunch recess. In her ruling, in writing about Cooper and the other firefighter, she said, “There was another gentleman that was terminated the same evening as Plaintiff. The other gentleman attended the special meeting and remained for the entire duration.”]
In each ruling, the judge’s question was whether any issue involving the OMA raised by Cooper was serious enough to void her firing and make her financially whole.
The other penalty if she had found a violation of the law involving any aspect of the executive session restrictions would be the requirement that the minutes and/or recording of the executive session be made public.
That became a major trial issue because it turned out none had been kept—at the Feb. 13 executive session or, apparently, by Northwest at any time in recent memory.
Among other OMA issues covered in Judge Condren’s ruling, the judge ruled that, “No impermissible actions were taken in executive session,” but cited no basis for her decision. Both sides agreed that no minutes or recordings were kept of the executive session, and both cited the seminal 1980 State Supreme Court case on the issue, Berry v. Board of Governors (611 P.2d 629).
Northwest said the case only reiterated that minutes were required for the public portions of the meeting, but McHugh countered that it required minutes and/or recordings of both public and executive sessions, although the latter could be sealed. He noted that one penalty for violation if the Act (25 OS 306F2) is to “Cause the minutes and all other records of the executive session, including tape recordings, to be immediately be made public.” No such provision would be needed, he argued, if executive session minutes were not required.
In addition, he said the Berry decision specifically said, “although the municipal attorneys case permits executive sessions on the advice of counsel in certain specified instances, it does not abrogate the statutory requirement tht minutes be kept and recorded…The Act is extremely clear that minutes must be kept and recorded.”
Condren’s ruling was that, “The provisions of the OMA do not require the invalidation of the District’s action in terminating Plaintiff’s employment due to the fact that the Board did not maintain minutes or recordings of the executive session.” No further explanation was provided, thus not directly answering the question of whether not the complete lack of minutes violates the OMA. McHugh said he expects to raise that issue on appeal.
How the case evolved
What became a battle over the OMA began in 2017 as a bitter but relatively typical wrongful termination lawsuit alleging everything from gender discrimination to malicious interference with a contract to intentional infliction of emotional distress and a host of other allegations.
After starting in Rogers County District Court and being removed by Northwest to U.S. District Court (also typical), where the issues were pared down, it came back to Rogers County Judge Condren.
Fire Board Chairman Dainty, Fire Chief Mat Shockley and the Firefighters Union—which represents all employees except the chief and administrative assistant—all were dismissed as defendants.
The other issues also were dismissed by summary judgments, leaving only one issue for trial: Whether the District had violated the OMA seriously enough to require voiding Cooper’s dismissal. The bench trial (meaning there was no jury) was held Jan. 10 and lasted about 4-1/2 hours. Both sides then submitted proposed findings of fact and conclusions of law Jan 24 and 25.
Northwest’s woes since Feb 13, 2017
Northwest covers 214 square miles including two municipalities, Oologah and Talala, and part of Claremore. It also covers a range of posh rural subdivisions including one with an airport, expansive rural areas with large cattle herds and many miles of high-voltage power lines from the state’s largest central power distribution point at the giant PSO Northeastern Station power plant with two gas-fired and one coal unit. It also covers numerous smaller industrial sites, and all major water rescue efforts on 40 square miles of Oologah Lake plus the Caney and Verdigris Rivers in Rogers County.
Its $2.4-million budget covers manpower and equipment for three stations plus a remote marina facility for its main rescue boats to be housed and launched. According to the latest available financial report, it had spent over 76 percent of its budget with over 30 percent of the fiscal year left and makes almost 1,000 runs/year.
The same night Cooper was fired the board disclosed publicly for the first time—just after she had left—that all three stations had severe mold problems. They were soon declared unfit for human occupancy and trailers had to be rented at all three stations for well over a year while remediation and the most urgent repairs were made to the living quarters for firefighters (who work and sleep during 24-hour shifts at the stations) and office space for staff—including Cooper who was inside 40 hours a week. Meetings had to be moved to Oologah City Hall and other locations.
The District also had acquired three new trucks, signing a $2.08-million lease-purchase deal with the manufacturer March 9, 2016, the same night the trucks and terms were presented to the board for the first time and without realizing that bonding indebtedness authority would expire after the first payments were made.
The company said if it did not have an agreement by midnight, the trucks would be sold to China and Northwest’s needs might have to wait many months or even years before more trucks would be available. Because of the units’ unique features, advanced technology, and promised low maintenance and sterling warranty the board approved signing the lease-purchase order.
But the financial situation from the lack of indebtedness authority, the cost of mold remediation and structure replacement, and problems with the new trucks which weren’t always covered by warranty came back to bite the district.
Later in 2017 it began working on a $10-million package of bond issues. The $3-million portion would maintain existing tax levels and provide up to $500,000 annually. Truck lease payments were $208, 305.13 a year for 10 years before the district owned them outright, with remaining funds available for other vehicle purchases as needed. The district maintains three front-line pumpers, one or more backup units as needed, many grass and brush rigs, multiple larger water tankers for areas in the district without fire hydrants and various command, and water rescue support vehicles.
The $7-million would have allowed construction of new stations to replace the ones closed by mold and allow expansion by building smaller new stations for growing parts of the district not currently within close enough proximity to a station to assure favorable fire insurance coverage to property owners.
The district first tried to save money by digging up a pre-World War II law allowing fire districts to conduct elections on its own, without using election board registration, personnel, polling places or vote count verification procedures.
That drew such opposition that the County Election Board Secretary was working with lawmakers to repeal the statute (which was of questionable legality due to subsequent laws requiring all elections using the county to collect ad valorem taxes to be conducted by the Election Board).
Northwest withdrew that idea and instead set a standard election for April 3, 2018.
The bond issue for trucks drew little opposition and passed easily with over 63 percent of the vote. But there was vehement opposition to Proposition 2, saying the district had been negligent in maintaining the stations it had and now was proposing luxury quarters in a time of tight budgets.
It was clobbered with 73.7 percent of the voters saying, “No.”
The district then turned to the makeshift measures and just recently reopened stations knowing more work is needed.
It also has issued new protocols allowing it to limit assistance it gives ambulance crews on medical calls, and is still facing problems with the new engines.
Shockley reported at the most crucial unit, Engine 1, required siren, front seat and heater line replacement, which were covered by warranty. It also had a failed water sensor level in the pumper tank which again put it out of service, and this time the repair was not covered by the warranty.
The district’s old engines were all sold with all three bringing a total of under $60,000. A permanent solution to the residual mold disaster impact, little of which was covered by insurance, remains under study.
An email to Chief Shockley Friday seeking comment from any Northwest official available was not answered by deadline. Generally, public bodies involved in litigation do not comment on litigation in progress without meeting with counsel in executive session, a process that takes considerable time to arrange.