Does Open Meeting Act permit public bodies to discuss hourly workers in executive session?
Under the Open Meeting Act, public bodies may meet in executive session to discuss the "employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (Okla. Stat. tit. 25, § 307(B)(1)) Does that mean public bodies may meet in executive session to discuss hourly employees?
I can’t find a court decision or AG opinion defining "salaried employee" in the context of the Open Meeting Act.
Even though "salaried" has not been defined in the context of the Open Meeting Act, the personnel exemption has been interpreted as not including independent contractors, including those providing professional services.
Observing that the Open Meeting Act does not define "public officer" or "employee," a 2005 AG opinion relied upon the state Political Subdivisions Ethics Act's definition of "[p]ublic employee” as "any person who is employed by and receives compensation from any governmental entity, but shall not mean independent contractors or public officials." (2005 OK AG 29)
But the word "salaried" wasn’t addressed.
A different state statute permits school boards to conduct executive sessions to discuss personnel matters relating to "any or all of the employees or volunteers of the school district." (Okla. Stat. tit. 70, § 5-118)
The word "salaried" is missing from that statute.
The Oklahoma Supreme Court has said that where possible, "statutes must be interpreted to render every word and sentence operative." (State ex rel. Thompson v. Ekberg, 1980 OK 91, ¶ 7 (Okla. 1980))
So "salaried" as used in the Open Meeting Act must mean something. Otherwise, the Legislature wouldn't have used that word and would have said only individual public officer or employee.
The court also has said common words in a statute are given their "plain and ordinary meaning” unless “a contrary intention plainly appears." (City of Durant v. Cicio, 2002 OK 52, ¶ 13. See also Okla. Stat. tit. 25, § 1.)
Merriam-Webster's Dictionary defines salary as "fixed compensation paid regularly for services."
According to the U.S. Department of Labor's Wage and Hour Division: "Being paid on a 'salary basis' means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work."
I am no expert on the intricacies of labor law, so perhaps I am missing something.
But based on this line of reasoning, the Open Meeting Act's personnel exemption wouldn't allow public bodies to meet in executive session to discuss hourly employees.
Please tell me if you have a more definitive answer.
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, board of directors or the commentator's employer. Differing interpretations of open government law and policy are welcome.