AG says agenda item for executive session with attorney must list name of lawsuit being settled
A state agency's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.
The Open Meeting Act permits public bodies to conduct executive sessions 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))
But the statute also states, "If a public body proposes to conduct an executive session, the agenda shall:
Contain sufficient information for the public to ascertain that an executive session will be proposed;
Identify the items of business and purposes of the executive session; and
State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.
Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.
In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.
Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)
In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, Wilson pointed out.
That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))
Another attorney with experience in open government cases said identifying the claim "is extremely important."
"Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.
Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.
"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.
(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)
In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.
"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.
Attorney General Scott Pruitt seems to agree.
The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.
A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.
(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)
Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.
On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:
The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.
Pruitt's advice apparently will improve the commission's future agendas as well.
"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.
Other public bodies should take note of Pruitt's opinion and do so as well.
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.