Legal Opinion Regarding Open Meeting Act

Monday, June 20, 2011

DA agrees meeting violations occurred but refuses to prosecute, lambasts those who filed complaint

Public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption, the district attorney for the Oklahoma Panhandle recently told a hospital board.

The agenda also must identify by name or position the employee to be discussed under the personnel exemption, said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.

An agenda must also identify the "potential action [to be] taken as a result of the executive session," said Boring in a June 10 letter to three doctors who filed an Open Meeting Act complaint against the board.

Boring said these required pieces of information were left off a May 24 meeting agenda for the Board of Control overseeing the Memorial Hospital of Texas County in Guymon.

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)

But Boring said he won't prosecute because these omissions weren't "a willful violation of the OMA by the BOC that would support or justify criminal prosecution."

Boring blamed the violations on the "extremely short notice and time period" that the hospital's CEO had to "prepare, post and file a revised agenda in order for the BOC to be able to address" the issue that required an executive session. (Read The Oklahoman article for an explanation of the conflict over a doctor's suspension.)

"It is also worthy of noting that this complaint is the only complaint ever received by this office against the BOC of MHTC with respect to the OMA," Boring said.

However, May 24 wasn't the first time the board's agenda omitted some or all of the information that Boring said is required to conduct an executive session.

Eleven of the board's previous 15 agendas since Nov. 24, 2009, lacked the necessary information for its closed-door sessions. (Read the agendas for Jan. 25, 2011; Dec. 20, 2010; Sept. 28, 2010; Aug. 24, 2010; May 25, 2010; April 27, 2010; March 30, 2010; Feb. 23, 2010; Feb. 2, 2010; Dec. 22, 2009; and Nov. 24, 2009.)

So, a lack of time doesn't seem to have been the cause of the violations.

Perhaps the lack of complaints is because the public attending the meetings didn't know the law.

That's not an excuse for the board. As Boring pointed out, the hospital's CEO is not responsible for the Open Meeting Act violations even though he puts together the agenda.

"He is not a member of the BOC," said Boring. "The provisions of the OMA impose obligations upon the board of a public body."

The board members are Chairman Wayne Manning, Vice Chairman Dallas Mayer, Secretary/Treasurer Jim Webster, John Nye, John Board, Mary Beth Ebersole and Kelly McMurry.

Why don't they know the law? Boring's conclusions and the law he relied upon regarding what the statute requires are decades old. The Act states, "If a public body proposes to conduct an executive session, the agenda shall:

Contain sufficient information for the public to ascertain that an executive session will be proposed;
Identify the items of business and purposes of the executive session; and
State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

A 1997 attorney general opinion says agenda items for an executive session under the personnel exemption must include either the employee's name or job title if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)

The reasoning in that opinion and the statute's language also make clear that a specific item of business must be listed under the exemption for attorney-client privilege.

Boring agreed, saying,

It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session.

So what is required for a violation to be prosecuted?

Boring explained that his "office is not authorized to file criminal actions against anyone on its own initiative."

"My office files criminal actions based upon the receipt of an 'affidavit of arrest' or an 'affidavit for issuance of an arrest warrant' from a law enforcement officer," he said.

Boring said his office may "receive and gather information relating to allegations of criminal activity, especially when such activity relates to actions taken by public bodies."

"Subject to obtaining relevant facts that may indicate criminal action has occurred, this office may then submit the information to the appropriate law enforcement agency for formal investigation," he said.

Boring said it's "not unusual" for his office "to receive complaints relating to violations of the OMA." His office then attempts to obtain all the pertinent information and determines if the Open Meeting Act has been violated, he said.

"If we find a violation, we must then consider if such a violation could be deemed a 'willful violation' of the OMA before referral is made to law enforcement," Boring said.

He noted that in 1984, the state Supreme Court said that for the purposes of the Open Meeting Act:

Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act. (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)

He also noted that in the same opinion, the court said, "Notice of meetings of public bodies which are deceptively vague and likely to mislead constitute a willful violation." (Id.)

Boring said that in reading the board's May 24 agenda, "It is not possible to say that it would be comprehensible to a person of ordinary intelligence what matters were proposed to be discussed in the executive session and what action, if any, was contemplated to be taken on the matters to be discussed in the executive session.

"The duty to specify on the agenda plainly and directly in language comprehensible to a person of ordinary intelligence the purpose of the executive session proposed ... was not satisfied," Boring said. "The notice provided to the public in ... the revised agenda fails to satisfy the requirements of minimum notice of the contemplated action that would be taken following the executive session."

So why isn't Boring forwarding the violations to a law enforcement agency for formal investigation and then prosecution? He explained:

It does not appear to me that there is any basis whatsoever to assert, much less establish and prove beyond a reasonable doubt in a criminal prosecution, that the BOC had any intention of acting in bad faith or with malice or wantonness to circumvent the provisions of the OMA.

There is absolutely nothing in the record that would indicate that any of the obvious hostility between the medical staff and the CEO, and perhaps any feelings the CEO might have toward members of the medical staff, were, should, or could be imputed to the individual members of the BOC.

Further, I can not conclude and certainly do not feel the facts would support a finding beyond a reasonable doubt that the actions of the BOC were taken in conscious, purposeful, blatant, or deliberate disregard of the OMA.

In addition, I do not believe or find any facts that would legitimately support a proposition that there was any intention on the part of the BOC to be deceptively vague or to mislead the public about the nature of the matters to be addressed in the executive session.

I conclude and find there was not a willful violation of the OMA by the BOC that would support or justify criminal prosecution of the BOC of MHTC.

What a steaming pile of buffalo chips.

Boring said the OMA puts the obligation on the public body, but then he excused them for being ignorant of a law that's nearly 35 years old. He's doing exactly what our Court of Civil Appeals in 1981 warned against:

If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.

Instead of prosecuting the Open Meeting Act violations, Boring lambasted the three doctors who filed the complaint with his office, saying:

It is the policy of this office that, to the extent possible, we will avoid being drawn into political disagreements associated with municipal and county entities, including the functioning of various boards established under municipal or county authority. This office is not willing to permit the power of the office through a threat of criminal prosecution to be used as the arbiter of such disagreements.

The complaint received by this office is laden with indications of it being instigated as the result of an internal or political disagreement or dispute between certain members of the medical staff and the CEO of MHTC.

Boring said he is relatively sure that if the board had upheld the doctor's suspension by the three doctors, they would not have filed the complaint. He doesn't explain why that should affect his decision on whether the board willfully violated the Open Meeting Act. But Boring did add:

This matter has consumed almost four full days of my time in order to sort through and determine the actual facts as well as doing the necessary legal research and drafting of this response. These four days represent four additional days of time that other criminal matters and county business requiring my attention have been placed on hold. That means victims are waiting, defendants are waiting, judges are waiting, attorneys are waiting, and county officers are waiting while I have been dealing with this complaint.

That's all he did for those four days? So much for multi-tasking. And if it's "not unusual" for Boring's office to receive Open Meeting Act complaints, shouldn't he already know the law? This is another example of why the public should be able to go to someone at the state level who specializes in open government law.

In the meantime, Boring has provided some insight into the difficulty of getting district attorneys to treat this form of public corruption seriously.

P.S. The board's agendas also routinely list items of business under "New Business." Boring should explain to the board that the Open Meeting Act defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." Nothing should be listed on the agenda under "new business." (OKLA. STAT. tit. 25, § 311(A)(9))


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications