Simply revoting won't excuse Open Meeting Act violation by State Board of Education
The State Board of Education, which has a history of skirting the Open Meeting Act, clearly violated the statute this week by not giving the public enough notice that the location of its regular meeting Thursday had been moved from Oklahoma City to Enid. Because the board violated the Open Meeting Act, its votes Thursday are "invalid." (See Okla. Stat. tit. 25, § 313)
The board has called a special meeting for Tuesday to revote. But that won't excuse the board's violation of the Open Meeting Act, according to state appellate court and attorney general decisions dating back more than 30 years.
The harm to the public lay not in the actual votes, but "in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose," the Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)
The statute requires written notice of any change in the date, time or place of a regularly scheduled meeting be provided "not less than 10 days prior to the implementation of any such change." (Okla. Stat. tit. 25, § 311(A)(8))
But the board didn't notify the Secretary of State's Office of the location change until 8:13 a.m. Wednesday.
The Tulsa World noted that most of the votes on Thursday involved rules changes. But, the newspaper noted, the board also approved the Department of Education's request for a "$6.5 million supplemental budget appropriation to fully fund rising health-care costs for school employees this fiscal year."
Department spokesman Phil Bacharach told the Tulsa World that the special meeting on Tuesday will be to legitimize the votes taken during Thursday's illegal meeting.
"I suspect it will be mostly a formality," he said.
But simply revoting won't be enough to cure the violation.
Relying upon the 1981 Court of Civil Appeals ruling, an attorney general opinion that year warned a public body that a subsequent vote would not "cure the violation." (1981 OK AG 214, ¶ 16)
“[I]t would appear that any rehabilitative action taken by the Committee must include a full reevaluation of the matters considered in violation of the Open Meeting Act,” the opinion said. (Id. ¶ 17).
The appellate court had rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation.
Likewise in 2008, the Court of Civil Appeals said a subsequent revote by a city council was “irrelevant." (Wilson v. City of Tecumseh, 2008 OK CIV APP 84, ¶ 21)
"Even if the vote occurred, it did not cure the notice violations in the Act,” the court said.
Providing the public with advance notices and agendas for public meetings is at the “very heart” of the Open Meeting Act, the court had said in 1981. (Matter of Order, 1981 OK CIV APP 57, ¶ 19)
Unfortunately, Thursday's meeting wasn't the first time that the State Board of Education has failed under the Open Meeting Act. In 2012, the board omitted from a meeting agenda the item of business that would be discussed in executive session. The board took no action when it returned to open session.
That omission not only violated the wording of the Open Meeting Act but also conflicted with previous attorney general opinions and pronouncements by the current attorney general.
In 2011, the State Board of Education cut several programs even though its meeting agenda noted only “discussion and possible action on the FY2012 Common Education Budget Work Program.”
In 2010, the State Board of Education met in a questionable executive session to investigate its “legal powers and duties” to implement a state law that some school districts were refusing to comply with.
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314)
Joey Senat, Ph.D. Associate Professor OSU School of Media & Strategic Communications