DHS response to Prater denies Open Meeting Act violation, defends committee structure intended to avoid Open Meeting Act
The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.
But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.
Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.
However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.
In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.
Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.
Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."
"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.
Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.
Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.
In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."
Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."
The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.
(For a detailed explanation of how public bodies try to exploit a loophole in the Open Meeting Act, read how the OU Regents use a strict compliance with the letter of the statute to defeat its purpose.)
Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))
And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.
But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.
DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.
One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.
DeVaughn told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
Prater has done just that, warning the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."
Dow had also complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."
Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.
However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."
As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."
Joey Senat, Ph.D.
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.