Can subsequent public discussion/action remedy an executive session violation under the OMA?
Question from an elected official: We held an executive session and the discussion went beyond what was on the agenda. What is the remedy for the subsequent action which the [public body] may or may not take since the discussion was not legal?
Placing the item on an agenda for subsequent public discussion and action will not excuse the original criminal violation of the Open Meeting Act’s executive session provision.
In 1981, the Oklahoma Court of Civil Appeals rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation. (Matter of Order Declaring Annexation, Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, 637 P.2d 1270, 1274)
In that case, school board members had violated the statute while acting on an annexation later ratified by county voters.
“The election did not rectify the harm to the public because the harm did not lie in the annexation itself,” said the court. “The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose. The election did not ‘cure’ these violations.”
Placing the item on the agenda for public discussion and action might keep that action itself from being declared invalid. Any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 307)
A willful violation of the executive session provisions also causes the minutes and other records of the session, including tape recordings, “to be immediately made public.” (OKLA. STAT. tit. 25, § 307(F)(1-2))
I would urge any public body in this situtation to make public the minutes, including any tape recording, of the executive session and fess up to the mistake. That might mitigate any prosecution or civil lawsuits over the violation. It would certainly go a long way toward maintaining the public's trust in its government officials.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
"Mass Communication Law in Oklahoma"