Tulsa City Council considers mediating conflicts with mayor, Open Meeting lawsuit behind closed doors

Tulsa city councilors are considering an offer by two former judges to mediate what the Tulsa World today called "legal and relationship conflicts" between the council and mayor.

Former Oklahoma Supreme Court Justice Daniel Boudreau and former federal magistrate Sam Joyner met with the council on Thursday to discuss their offer to mediate between the two sides.

Joyner said the mediation could be conducted behind closed doors in an executive session, the newspaper reported.

The state Open Meeting Act permits closed sessions on certain topics but doesn't require them, two Oklahoma Attorneys General have said. Then-Attorney General Susan Loving explained in 1992:
[T]he fact that a public body is authorized to conduct an executive session to consider a particular matter does not mean that the public body is required to hold an executive session.

[I]n any given instance in which an executive session may be held, a public body must determine whether an executive session is warranted. In making the determination, a public body should consider all the facts and circumstances surrounding the proposed executive session and
the general policy of openness that underlies the Open Meeting Act should be afforded great weight. (1992 OK AG 23, ¶ 7) (emphasis added) (See also 1997 OK AG 61, ¶ 4)

Among the issues Joyner and Boudreau offered to mediate would be the lawsuit filed by three Tulsans accusing the council of violating the Open Meeting Act during an executive session in June.

Councilor Chris Trail questioned how the lawsuit could be part of the mediation since it wasn't filed by the mayor.

Joyner said the plaintiffs' attorney, Paul DeMuro, and the attorneys representing the individual councilors privately would participate in the mediation. Presumably, that means the council would be meeting in a closed-door session to negotiate an end to the lawsuit.

The state Open Meeting Act permits public bodies to meet in executive session to discuss "confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest." (Okla. Stat. tit. 25, § 307(B)(4))

Not every discussion between a public body and its attorney about a lawsuit is exempted from public scrutiny, state Attorney General Drew Edmondson said in 2005.
Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will ‘seriously impair’ the body’s ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest. (2005 OK AG 29, ¶ 11) (emphasis included)

In 1982, Attorney General Jan Eric Cartwright said, "Executive sessions between public bodies and their attorneys are allowed in order to further the public's interest in protecting public property and public rights involved in litigation.” (1982 OK AG 114, ¶ 12)

Given these opinions and the statutory language, the exemption seems intended to protect only the "confidential communications between a public body and its attorney."

Those attorneys representing the councilors individually are not representing the council as a public body. The council last week gave that job to the city attorney's office. So why would those private-interest attorneys be entitled to attend the meeting?

I don't know of another public body that has met in executive session not only with its attorney but also the plaintiff attorney to negotiate a settlement. If you do, please let me know, so I can share it on this blog.

Also among the other issues Joyner offered to mediate is the council's investigation into whether the mayor and his chief of staff lied to the council about a federal grant. As the Tulsa World noted, the case was sent to the state Attorney General's Office to determine whether criminal charges should be filed.

City Councilor Jack Henderson questioned how a possible criminal case could be resolved through mediation. Joyner responded that some facets of the council's investigative report could be mediated.

Other conflicts suggested for mediation were "a threatened defamation lawsuit by [Mayor Dewey] Bartlett against councilors, an ethics complaint the council filed against the mayor for using a city-contracted attorney to represent him personally at no charge, and the claim by the mayor that the council attorney's position is not authorized under the City Charter."

If the council agrees to meet in executive session to mediate any conflicts, the topics of discussion must be listed on the agenda along with the statutory exemption(s) permitting the closed-door talks for those reasons.

The council cannot vote in executive session. So what would happen afterward? Would the council reconvene before the public and vote to settle the lawsuit and other issues without telling the public what's been decided?

I applaud the council members for not resorting to meeting in small groups in an attempt to avoid the Open Meeting Act. But before they meet behind closed doors, they should remember these are the public's issues, not (just) their personnel grudges.

As then-Attorney General Jan Eric Carwright reminded public bodies in 1982:
Executive sessions are not permitted under the law because the matters to be taken up are in the private domain of public officials. Such matters are the business of the public. (1982 OK AG 114, ¶ 12)

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.