Updated 3/17 @ 4:15pm: This post has been updated to reflect the most recent developments concerning the legislation.

This afternoon the Oklahoma House of Representatives passed SB661, a carryover bill from 2019 that was amended to contain the language necessary to amend the state’s Open Meeting Act to enable public entities to continue to meet remotely while also remaining in compliance with the OMA. The bill language is basically an amended version of what the Senate passed this morning as HB3888.

WHAT CHANGED IN SB661

The sunset date for the provision was changed from March 2021 to “November 15 or when the (Oklahoma) state of emergency ends, whichever comes first.”   The House wanted three months, the Senate wanted a full year, so the compromise was to sunset the law “Nov. 15 or when emergency ends.”

WHAT HAS NOT CHANGED

Not much else was changed.  Minutes are required to be kept of all telephonic meetings and executive sessions (but not tape recordings). 

From what we have heard, Attorney General Mike Hunter and his office are working on an Frequently Asked Questions (FAQ) sheet to help clarify what this legislation means and push these public bodies towards transparency in the application of these new rules.

OUR POSITION

As we stated in our post earlier today (which is included below), there are some remaining issues we’d like to see addressed in the text of the legislation. However, we are optimistic that many of those issues will be addressed by the AG’s office.

We want to reiterate that we recognize the unprecedented nature of the situation and appreciate the legislature working with members of FOI Oklahoma, the Oklahoma Press Association, the Attorney General’s office and others to develop policies that are effective for government operations and also increase transparency for the public.

Our original post is included below for reference only.

This morning the Oklahoma Senate passed HB3888, which proposes sweeping changes to the state’s Open Meeting Act. The legislature stated that they were seeking to make changes to the OMA in order to give public bodies flexibility so that they can continue meeting while complying with CDC guidance for “social distancing” to limit the spread of COVID-19. While we are sympathetic to the extenuating circumstances and agree that some flexibility is warranted, the language of HB3888 contains many loopholes and other uncertainties that could result in a decrease in transparency for Oklahoma citizens.

Below is a list of specific concerns we have about the bill:

• Why do the changes expire in a year? In their March 16 press conference, Speaker McCall said he would not support the changes if they were proposed to continue into 2021;; and yet, the very next day they have passed a law that extends those rules into the next legislative session. We believe the rules should extend for a maximum of 90 days and then require executive reauthorization, if necessary.

• The bill needs to be amended to address when a meeting must reconvene after it is “stopped and reconvened” because the audio is lost.    A window of time should be set for reconvening in this circumstance just as it is for an in-person meeting that is stopped and reconvened.  Current language would allow a public body to “lose audio” and reconvene later without notice, effectively bypassing the entire purpose of the Open Meeting Act.

• Another needed change to the bill is to add to  the agenda the “fixed location for the duration of the meeting.” Otherwise public officials will be driving around in their cars calling in to public meetings (and the chance of losing audio is much higher too.)

• The bill should not allow switching from audio/video to a physical meeting site. The proposed measure says “provided, however, those members who were identified as appearing remotely may be permitted to physically appear at the meeting site, if any, for the meeting.” This could allow an agenda to tell the public an official was going to be calling in and then moved their fixed location to another place (the place of the meeting).

• Allowing Executive Session by phone is ripe for abuse.  If that provision is allowed to become law, a mandatory tape recording of each executive session should become law also and those audio or video recordings should be required to be kept and stored by the public body as is currently required by law. 

• Public bodies should still be required to continue to physically post meeting agendas where they normally hold in-person meetings, in addition to using one of the other methods allowed to post it on their web site and email it to persons who request it.  Otherwise there would be no agenda posting if a public body did not have a website or email capability which surprisingly many small public bodies don’t have.

Underpinning these concerns, is the fact that this bill was rolled out on the first day of the Capitol visitation restrictions. Before making sweeping changes to any law, particularly one as sensitive and important to government oversight as the Open Meeting Act, we would hope the state legislative leaders and bill authors would allow sufficient time for an advance review of the bill by the media and the public.

If the legislature is truly interested in upholding our transparency laws, they should make every effort to amend this bill before passage to ensure it addresses these concerns and protects the public interest. Furthermore, Governor Stitt has repeatedly called for increased transparency in government, and should this bill appear on his desk, we ask him to think very carefully about the ramifications of this measure before signing it.

It is often said that “desperate times call for desperate measures.” With this measure and others, we implore the legislature and Governor to act out of prudence, not desperation.