Tulsa city councilor's attorney agrees: Small group meetings cannot be used to mediate disputes with mayor, all votes must be public

Tulsa city councilors meeting in groups of less than a quorum to mediate disputes with the mayor would be a violation of the state Open Meeting Act, an attorney for one of the councilmen advised.

All council votes to settle the disagreements would have to be made in the public portion of its meeting, Ronald E. Durbin II also said in his Aug. 11 letter to the mayor's attorney.

On these two points, Durbin came to the same conclusions as those published by this blog on Aug. 9.

Some councilors believed they could meet with Mayor Dewey Bartlett Jr. in small groups or individually to avoid violating the Open Meeting Act.

But Durbin warned -- just as this blog had done -- that such meetings would be "not only inadvisable but would also result in a clear violation of the OMA," explaining:

In this situation, it is obvious that any plan to use smaller numbers of Councilors would inevitably result in the need for those Councilors in attendance to share information and discuss settlement proposals with those Councilors not in attendance. This activity would be a clear violation of the OMA, and thus, only an executive session including a quorum of the Councilors should be utilized if any mediation session is to be closed to the public.

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))

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 Open Meeting Act also requires that "any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded." (OKLA. STAT. tit. 25, § 307(E)(3))

Another provision of the statute requires that "[i]n all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. 25, § 305)

As such, Durbin agreed, "Any decision by the City Council to affirm terms reached during the proposed mediation must be taken outside of the executive session."

Though not an issued addressed by Durbin, the public should expect the councilors to clearly explain the details what they are voting on. Just saying they are voting on what was decided behind closed doors would be an insult to the voters of Tulsa.

In his 11-page letter, Durbin explained why he believes the council is entitled to meet in executive session to mediate the various disagreements with Bartlett.

Durbin relied largely upon exemptions allowing a public body to meet in executive sessions to discuss individual salaried employees and to discuss investigations and pending litigations with its attorney. He noted that under the latter exemption, the council would have to "determine that 'disclosure will seriously impair' the body's ability to deal with the issues in the public interest."

Durbin also believes the council may invite into the executive session the several attorneys representing councilors individually, saying:
While in my personal opinion, as well as the opinion of my client, Councilor G.T. Bynum, that the purposes of mediation will best be served if the Councilors and the Mayor have frank and open communication with as few attorneys present as possible, I recognize the fact that it may become necessary for some attorneys to attend the proposed mediation.

Durbin relied upon a 1978 attorney general opinion deciding that a school board could have permitted a legislator to attend an executive session by "

exercising its judgment and discretion."

(1978 OK AG 144)

I've heard the current attorney general, Drew Edmondson, tell public officials that they may invite whomever they want into an executive session absent a specific statutory prohibition.

However, what the Tulsa City Council may do and should do are two different things in this situation.

The city attorney's office is representing the council against the lawsuit accusing councilors of violating the Open Meeting Act during an executive session in June. The other attorneys should be representing the councilors only as individuals should they be later prosecuted for violating the statute.

Those attorneys, including Durbin, have no more right than the rest of Tulsa to attend that closed door meeting. If the council is going to exclude the public, then those attorneys should have to wait outside as well.

* Durbin's letter can be found online as part of the Tulsa World's coverage: Mediation between Tulsa mayor, council could break law, by Brian Barber and P.J. Lassek.

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