The Opinions may be obtained by calling or writing the Office of Attorney General Drew Edmondson, 2300 N. Lincoln, Oklahoma City, Ok. 73105, (405) 521-3921.

On Feb. 18, 1998, the Attorney General issued an important Opinion interpreting the requirements of the Open Meeting Act with respect to posting a meeting agenda. The Act requires that a public body holding a regular or special meeting must give public notice of the meeting by posting an agenda "in prominent public view" for at least twenty-four hours, excluding weekends and holidays. In interpreting the meaning of "in prominent public view," Attorney General Opinion No. 97-98 held that the public notice required by the Act must be posted in a location which is easily accessible and convenient to the public at any time during that [twenty-four hour] period." Previously, it was the practice of some public bodies to post the agenda on such places as the door to the public body's office within an office building. Such a location, though perhaps technically a public place, might nevertheless be inaccessible from a practical standpoint, or otherwise inconvenient to the public. Moreover, at night the building in which a public body's offices are housed, might be locked.

The Attorney General noted in the Opinion that the twenty-four hour posting requirement becomes meaningless if the public has access to the posting for just a few of those twenty-four hours. The Opinion stresses the definition of "prominent" as "CONSPICUOUS, STRIKING[.]" (Emphasis in original.) Public bodies are encouraged in the Opinion to post the agenda in more than one location in those circumstances where additional postings would facilitate the requirement that the notice be accessible to the public.

Attorney General Opinion No. 97-61 ruled that "[a] public body may not keep confidential the purpose of an executive session authorized pursuant to the Open Meeting Act at 25 O.S.Supp.1997, _307(B)(1) in which it discusses the employment, hiring, appointment, promotion, demotion, disciplining or resignation of an individual salaried public employee."

The Opinion noted that a public body's duty is absolute under the Open Meeting Act, to specify on the agenda all matters to be undertaken in a meeting. Since the Act requires a public body to "identify the items of business and purposes of the executive session," the Opinion reasoned, an "agenda item for a meeting of a public body in which personnel matters are to be discussed and for which an executive session is proposed must identify either the position or the individual salaried employee who is the subject of the discussion."

Opinion 97-61 noted that the Open Meeting Act does not specify that a person must be identified by name; however, in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification. If the action is a hiring, the agenda item must clearly identify the specific position to be filled.

Attorney General Opinion No. 97-16, issued August 29, 1997, holds that documents comprising a background investigation performed by the OSBI for the Judicial Nominating Commission are confidential records and cannot be disclosed to the subject of the investigation or the public.

In so ruling, the Attorney General principally relied on state law that provides that all records relating to any investigation being conducted by the OSBI shall be confidential and shall not be open to the public. Citing a recent decision of the Oklahoma Supreme Court, the Attorney General also determined that the fact that the investigation is closed does not alter the confidential nature of the OSBI records.

The Attorney General has recently issued two Opinions relating to the availability of State employees' personnel records. Both A.G. Opinion No. 97-48 and A.G. Opinion No. 97-79 concern information that may or must be released to a prospective employer, about a current or former state employee.

Opinion No. 97-79, issued October 13, 1997, addressed the question of what information may be released to a potential employer doing an employment check on a former state employee who was discharged because of a positive random drug test result. The Attorney General ruled that pursuant to the Open Records Act, the State, as an employer, must disclose certain personnel records, including records of a former employee's termination of employment.

However, with respect to a former State employee's records of drug and alcohol test results and related information, the Attorney General found that the Standards for Workplace Drug and Alcohol Testing Act, codified at 40 O.S.Supp.1997, __551-565, imposes certain confidentiality requirements on employers who conduct such tests. Based upon this statute, the Attorney General held that State law requires records of drug and alcohol test results to be maintained separately from other personnel records and to be kept confidential. In the event drug or alcohol test results are found in otherwise disclosable personnel records, such information must be redacted before the personnel records may be made public.

Opinion No. 97-48, issued December 10, 1997, construed the provisions of 40 O.S.Supp.1997, _61. That statute authorizes a current or former employer to release employee job performance information "upon request of the prospective employer and with consent of the current or former employee or upon request of the current or former employee."

In the Opinion, the Attorney General first determined that individual state agencies, rather than the State, are employers of their respective employees, for purposes of the statute. The Opinion finds that a state agency may, under the statute, disclose "'knowledge of a particular event or situation' including but not limited to an employee's service evaluations, so long as it is done so (sic) with the consent of the former or current employee or at the request of that employee."

Finally, in Opinion No. 97-48, the Attorney General addressed the impact of the Open Records Act, on the provisions of _61of title 40. Noting that the Open Records Act provides that a "public body may" keep certain personnel records confidential, the Attorney General found that nothing within the Open Records Act prevents an employer from disclosing an employee's service evaluation or job performance information pursuant to _61. Under the law, however, the disclosure must be made pursuant to a request from or the consent of a former or current employee.

OPEN MEETING-OPEN RECORDS WORKSHOPS OFFERED
Workshops on Oklahoma's Open Meeting and Open Records laws are being presented in various locations throughout Oklahoma as a joint project of FOI Oklahoma Inc. and the office of Attorney General Drew Edmondson.

Remaining dates and sites are listed as follows:

March 23 -- Ada, Pontotoc Technology Center, Seminar Center, 602 W. 33rd. Contact: 405-436-0180 Carol Vandeveer. March 30 -- Okmulgee, Green Country Vo-Tech., Seminar Room B. Contact: 918-758-0840, Joe Leslie. April 1 -- Muskogee, Indian Capital, 2401 North 41st St. East, Administration Bldg., Rm. 500. Contact: 918-682-1965, Misty Gilley. April 7 -- Ponca City, Pioneer Vo-Tech, 2101 North Ash, Education and Business Center. Contact: 405-762-8336x273, Barbara Caldwell. April 9 -- Bartlesville, Tri-County Vo-Tech, 6101 SE Nowata Rd. Contact: 918-331-3233, Kathy King. April 13 -- Woodward, High Plains Vo-Tech, 3921 34th St. Contact: 580-571-6139, Delores Jones April 22 -- Sapulpa, Central Oklahoma Vo-Tech. Contact: Cheryl Hilliard 918-352-2551x250

Comments from the audience...
By WAYNE TROTTER

"When it comes to public meetings, the golden rule is to assume it's open."

That advice was given to a mixed group of elected officials, appointed officials and news people as Attorney General Drew Edmondson and Vic Bird, head of the state's civil division, conducted an Open Meetings / Open Records seminar last week. About 60 persons turned out for the seminar which was held at Gordon Cooper Technology Center under the sponsorship of The Shawnee Sun and The Shawnee News-Star. This was one of a series of seminars being conducted across the state. The Oklahoma Press Association and FOI Oklahoma also are participating.

"I have to confess a very self-serving interest," said Edmondson in remarks preceding the seminar. "The more information we can get out and the better informed people are, the less work we are called upon to do." Edmondson said the Open Meetings Act and the Open Records Act lead to more complaints than any other law. One or the other also is cited in practically every grand jury report, he added. Bird, considered the state's leading expert of Open Meetings and Open Records, conducted most of the seminar and sometimes was at odds with Edmondson, his boss.

It was Bird who told the crowd that the golden rule is to assume meetings are open. Noting that in Oklahoma, attorney general opinions have the force of law on government institutions, he said two new opinions are being issued on Open Meetings. One, which came out in late January, makes it plain that public bodies cannot keep confidential the purpose of a proposed executive session to discuss individual personnel matters. The second opinion, which should be issued shortly, will help clarify portions of the agenda requirement and when they must be posted. "You can't put it on the inside door of a building that shuts down at 5 o'clock," said Bird, explaining that the law requires that agenda be posted 24 hours before a meeting but doesn't count holidays or Saturdays or Sundays. Only a few strictly advisory government bodies escape the regulation of the Open Meetings Act, Bird explained, and sometimes the act applies to quasi-private groups which accept government money.

"Can a chamber of commerce be subject to the Open Meetings Act?" he asked. "Yes, it can if it receives public funds." Asked to expand on the chamber comment, Bird said chambers normally would not be covered unless they administer or receive public funds. In some instances, he said, the chamber could be acting as a vendor.

He said the thrust of the law is that a strictly local organization would be prohibited from holding a retreat outside the jurisdiction. "It's a common sense deal," he said.

"You need to have your meetings where your constituents are." Bird said new business may be considered at a meeting even if it's not on the agenda - as long as it's really new business. That is defined as matters which could not have reasonably been known about when the agenda was drafted, he said. "Make sure it is truly new business," he said.

"Put it on the agenda if there is a possibility it can show up."

Just because something is on an agenda, he said, doesn't mean action has to be taken. But if it isn't on there and isn't really new business, the law prohibits it from being considered. Bird said that while the law doesn't specify a time for public comment on the agenda, the attorney general's office encourages the state agencies it represents to include one. "You can maintain the decorum and order of a meeting" while allowing interested parties to voice their opinions, he said. "The whole purpose of the Open Meetings Act is to facilitate democracy." When a public body goes into an executive session, he said, it must keep minutes under order of the Oklahoma Supreme Court. He said those minutes don't have to be too detailed but should reflect what happened. "If you tape your meeting, keep in mind that a tape is a record." When personnel action is anticipated, Bird said, agendas must be specific as to who is affected and what is going to be discussed in an executive session. It is not necessary that the agenda actually name the affected employee, he said, although that is acceptable. It also would be acceptable to identify the employee by a specific title, such as superintendent or city manager.

Election of Officers and Board Members for 1998.

Appointment of Committees - Finance - Lex Holmes, Chair Membership - Jean McLaughlin, Chair Legislative - Francy Ford, Chair Seminar - Valli Covert, Chair Nominating - Sue Hale, Chair Grants - Janet Brooks, Chair Communications - Terry Clark, Chair Audit - Gretchen Harris, Chair Legislative Report, Grant Updates, By-law Amendments Requests from Members.