State audit details Open Meeting Act violations, abuses by Town of Bernice trustees

The Bernice Board of Trustees violated several of the Open Meeting Act's requirements for executive sessions and abused the statute's "new business" provision, according to findings in a state audit released Wednesday.

"A review of town records and interviews with town officials indicated a variety of actions and issues that were at least questionable as to compliance with the Open Meeting Act," the audit said.

Mayor Bill Raven told auditors "that he sometimes talks to other trustees outside of meetings so
that they can 'all have an idea of what will be done' so that they 'are not surprised by issues' at meetings."

State Auditor Gary Jones recommended that Delaware County District Attorney Eddie Wyant "review and address the town trustees’ possible violations of the Open Meeting Act."

The 53-page audit, which was petitioned for by town residents and was conducted over the course of nearly a year, addresses a number of other complaints against town officials.

In a 12-page response on behalf of the town, attorney David E. Jones downplayed the Open Meeting Act findings.

"You indicate that a review of town records and interviews with town officials indicated certain actions and issues that were at least questionable as to compliance with the Oklahoma Open Meeting Act," wrote Jones. "The Town appreciates your efforts in this regard and endeavors to eliminate any action that could even be characterized as 'questionable.'"

"Questionable" is an understatement. Specifically, the state auditor’s special investigations unit found instances between July 1, 2008, and June 30, 2011, in which the town trustees unquestionably violated the Open Meeting Act by:

  • Discussing contracts of independent contractors in executive session;
  • Almost never taking minutes of executive sessions;
  • Not listing the statutory authorization for executive sessions or listing the wrong one;
  • Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
  • Voting in an executive session; and
  • Discussing the creation of a job, rather than hiring a specific person, in executive sessions. (A violation that was pointed out on this blog last April.)

The audit also criticized the five town trustees for taking action under "new business" on items that "frequently appeared to be more 'routine' and able to be specified as ordinary agenda items at subsequent meetings."

The Open Meeting Act defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting" the agenda.

But the audit said, "At least some, if not most, of the decisions and transactions ... were dubious applications and/or abuses of the 'new business' language."

The audit also described a meeting in which the board gave the appearance of having already decided an issue privately. "There was no discussion, a quick motion, and a quick vote to terminate the former town attorney's services," the audit said of the December 2010 meeting.

The meeting was videotaped by a resident. According to the audit:

During the meeting, immediately after Raven read the agenda item, he looked at [David] Dennis, who, appearing to read from a piece of paper, made a motion to change the Town’s law firm. Immediately after Dennis made the motion, he looked at Raven, who nodded and then looked over toward another trustee. [DeWayne] Langley then seconded Dennis’ motion, and Raven immediately called for a vote. The vote was unanimous ([Byron ] Anderson was absent).

A resident asked why the Town Board took that action, and Dennis said, "We just felt like maybe we could be better represented with another law firm." The resident asked if the new firm had agreed to represent the Town, and Raven said that it had. The resident said, "So it was all planned; you knew before you came in tonight," and Raven said, "Well, that would seem kind of foolish, wouldn't it, to hire a law firm if we had not talked to them?

According to Raven, all of the trustees wanted to terminate the Town's use of the now former town attorney's services and had previously "made comments to" him (Raven) about doing so.

The audit also was critical of the town trustees being polled by Town Clerk Connie King outside of a meeting. A resident had asked King to include some issues on the April 11, 2011, agenda.

According to the audit, "King wrote to the town trustees prior to the meeting that the issues would not be included on the agenda because she had, according to her, talked to three trustees, and they did not want the items included."

But, the audit said, "The informal 'poll' of a quorum of trustees and the de facto 'decision' to not include the issues requested by the citizen would seem contrary to 25 O.S. § 305."

Yes, it certainly would. That provision of the statute states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded."

And a 1981 attorney general opinion said the statute prohibits a member from obtaining a consensus upon an item of business through a series of private one-on-one meetings.

"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," the opinion said.

The audit acknowledged that town employees "can speak separately with a majority of the trustees about specific town business" but also warned "trustees should be careful not to informally make any decisions among themselves through those communications (e.g., a majority of trustees knowingly making a decision through separate conversations with the town clerk-treasurer)."

Among the other recommendations were:

  • "No town trustee should discuss town business with a quorum present or, in sequential fashion, separately with enough other trustees to make a quorum, outside of Town Board meetings."
  • "The Town Board should hold executive sessions only when absolutely necessary and only in the specific instances allowed by" the Open Meeting Act.
  • "Board agendas should clearly and specifically describe the matter to be discussed during the executive session and list the specific statutory authority for the session."
  • "If the matter to be discussed in an executive session is an employment matter, the agenda should identify a specific current or prospective employee, and the employee’s name or unique position should be specified on the agenda."
  • "During the 'new business' section of meetings, the Town Board should address matters only when town officials did not know about the matters or could not have reasonably foreseen them prior to the posting of the meeting agendas and when the matters are significant enough that they cannot wait until the next meeting to be addressed."
  • "The Town Board should not vote during executive sessions, and written minutes should be taken while in executive sessions."

None of these requirements is new. And, as the audit pointed out, the Oklahoma Court of Civil Appeals has said:

The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes [sic]. Lack of familiarity is no excuse.

The audit also warned, "It is important for elected officials to take it upon themselves to become
aware of the requirements and prohibitions of the Open Meeting Act because the political subdivisions that they serve are not authorized to legally defend them against criminal charges of violating the act."

Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.

In at least one instance, the Bernice trustees were warned by a resident that an executive session would be illegal under the particular circumstances. But they did it anyway.

If a Washington County judge is correct, then that same resident may not sue to enforce the Open Meeting Act without having been specifically harmed by the public body's alleged violation.

The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," said Associate District Judge Russell Vaclaw said in November.

So what will District Attorney Eddie Wyant do with the audit's findings? Will he treat these obvious violations seriously by prosecuting?

The public must rely on him to uphold the Open Meeting Act.

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.

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.