State Board of Education meets in questionable executive session

The state Board of Education met in executive session Thursday to investigate its “legal powers and duties” to implement a state law that some school districts are refusing to comply with, the Tulsa World reported today.

The meeting agenda cited a state Open Meeting Act exemption permitting executive sessions for

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))

When Kay Harley, the board’s attorney, was asked what pending investigation, claim or action the board discussed during the closed-door session, she said it was to have "a confidential conversation with their attorney about the implementation of the Lindsey Nicole Henry Scholarships," which she said was an investigation, the Tulsa World reported.

The newspaper added:

When asked who was being investigated, Harley said, "We are investigating our legal powers and duties."

Based on that explanation, the board violated the Open Meeting Act. A public body determining its “legal powers and duties” does not constitute the kind of investigation covered by the exemption. If it did, then every discussion about research into an issue would constitute an investigation. Say good-bye to open government.

And how would a public discussion "seriously impair" the board's actual authority to implement the statute?

Just because an attorney was involved in the discussion did not automatically justify an executive session. Not every discussion between a public body and its attorney – even 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)

In other words, the exemption for a confidential discussion between a public body and its attorney does not exist so that public bodies can do an end run around the Open Meeting Act. It was not intended to allow public bodies to discuss in secret what they should be discussing in front of the public.

Unfortunately, we don’t vote for the members of the state Board of Education with the exception of the state school superintendent of public instruction. But we do vote for the governor, who appoints the other six members of the board.

Regardless of whom we hire on Nov. 2 as governor, let’s hope she will demand her appointees abide by the letter and the spirit of our Open Meeting law or replace them with those who will.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & 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.