Tulsa City Council using small group meetings in attempt to avoid Open Meeting Act

Two weeks ago, six of the nine Tulsa city councilors jointly filed a response to a lawsuit accusing them of violating the Open Meeting Act in June. (See Tulsa city councilors: Public can't sue to enforce Open Meeting Act)

How could they come to that decision without violating the Open Meeting Act?

The Open Meeting Act defines a meeting as “the conducting of business of a public body by a majority of its members being personally together or . . . together pursuant to a videoconference." (Okla. Stat. tit. 25, § 304(2))

Attorney Clark O. Brewster of Brewster & DeAngelis is representing Tulsa city councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott. Brewster is working pro bono.

A Tulsa reporter was told that Brewster spoke to some of the six council members individually and some in groups of three. In other words, they purposefully met in groups smaller than a majority with the intent of not triggering the Open Meeting Act.

But a 1981 state attorney general opinion prohibits serial meetings among the members of a public body.

“Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed,” said then-Attorney General Jan Eric Cartwright. (1981 OK AG 69, ¶ 17)

In other words, members of a public body cannot meet secretly in smaller groups to decide public business.

The six councilors must have thought they were conducting public business if they thought it necessary to avoid meeting as one group.

They certainly made a decision by accepting Brewster’s services to defend them against the lawsuit alleging a violation of the Open Meeting Act.

Agreeing to a legal strategy to defend a majority of the City Council against an Open Meeting Act lawsuit strikes me as a decision made in the course of transacting public business.

The councilors are being sued in their official capacity as members of the Tulsa City Council, said Doug Wilson, a Stillwater attorney and FOI Oklahoma board member.

He explained:
Although the Petition (lawsuit) is poorly drafted by stating in its caption that each person is being sued individually and in his or her official capacity as a Tulsa City Councilor, a review of the entire Petition shows that there is no relief sought against any individual save and except in his or her capacity as a Tulsa City Councilor. Accordingly, I would disagree that they are being sued as individuals.

The people violating the law need to be defendants because any sort of mandamus or injunctive relief must bind the acts of human beings (as opposed to some legal fiction such as the Tulsa City Council), but the acts sought to be enjoined are only those acts which the individuals take in their official capacity as Tulsa City Councilors.
At Thursday's council meeting, councilors "voted to accept as a donation free legal services for individual representation for seven of the councilors in the lawsuit," the Tulsa World reported.

(Attorney Gary Richardson is representing Councilor John Eagleton for free.)

The council also voted to pay for separate attorneys for councilors G.T. Bynum and Jim Mautino.

"I was working as a city councilor," Bynum had told the Tulsa World. "This is standard procedure when a city employee is sued when working within the scope of their duties."

The newspaper said Mautino agreed with Bynum's reasoning. "It's only right" for the city to cover his legal bills, Mautino told the Tulsa World.

But the council also voted to have City Attorney Deirdre Dexter appoint legal representation to the council, the newspaper said.

The Tulsa World also said councilors might again use small meetings as an attempt to avoid the requirements of the Open Meeting Act. The newspaper reported:
During an afternoon special meeting, some councilors said they would like to meet informally with the mayor — without their attorneys — to hash out their differences rather than enter into formal mediation, as has been suggested.

"We need to do this face-to-face and man-to-man, giving it one last, honest shot to resolve our issues," Christiansen said.
Such meetings would have to take place in small groups of councilors or individually so as not to violate the Open Meeting Act, he said.

Resolving issues and hashing out differences over how to run the city of Tulsa are the same as coming to a consensus on how to conduct the public’s business. As such, there should be no “informal” meetings in secret.

Christiansen and fellow councilors Bynum, Mautino and Turner signed FOI Oklahoma's Open Government Pledge during their 2009 campaigns.

In doing so, they endorsed the purpose of the Open Meeting law “to ensure and facilitate the public’s understanding of governmental processes and problems.”

They pledged to “support at every opportunity” the inherent right of Oklahomans to “know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

They also promised that they and the Tulsa City Council would “comply with not only the letter but also the spirit” of the state Open Meeting law.

Christiansen and the others sincerely seem to want to live up to that pledge. But that requires more than just finding ways to avoid violating the Open Meeting law.

They should keep in mind this admonition from then-Attorney General Jan Eric Cartwright:

“The Open Meeting Act should be liberally construed in order to effectuate its purpose ... [and] should be interpreted in such a way as to avoid establishing potential evasion loopholes.” (1982 OK AG 212, ¶ 13)

That means not secretly meeting in groups of four or less to discuss - much less decide - the public’s business.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.