Wilson v. City of Tecumseh

• Decision Date: 16 May 2008
• Docket Number: No. 105,610. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,105,610. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
• Parties: Greg S. WILSON, Don Holland and Trace Brown, Plaintiffs, v. CITY OF TECUMSEH, Defendant, and City of Tecumseh and The Tecumseh Utility Authority, Third-Party Plaintiffs/Appellees, v. David D. Johnson, Third-Party Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

194 P.3d 140

2008 OK CIV APP 84

Greg S. WILSON, Don Holland and Trace Brown, Plaintiffs, v. CITY OF TECUMSEH, Defendant, and City of Tecumseh and The Tecumseh Utility Authority, Third-Party Plaintiffs/Appellees, v. David D. Johnson, Third-Party Defendant/Appellant.

No. 105,610. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

May 16, 2008.

Certiorari Denied September 15, 2008.

Appeal from the District Court of Pottawatomie County, Oklahoma; Honorable Douglas L. Combs, Trial Judge.

AFFIRMED

Matthew John Love, Margaret McMorrow Love, Oklahoma City, OK, for Third-Party Plaintiffs/Appellees.

Eric J. Groves, Oklahoma City, OK, for Third-Party Defendant/Appellant.

CAROL M. HANSEN, Judge.

¶ 1 Third-party Defendant, David D. Johnson [Defendant], was employed as City Manager of the City of Tecumseh [City] and Manager of the Tecumseh Utility Authority [Authority].¹ On November 9, 2006, following municipal elections resulting in a turnover of three city council seats as of January 2007, Defendant submitted a written notice of resignation effective December 8, 2006.

¶ 2 Prior to December 4, 2006, the next regularly scheduled meetings of City and Authority, the City Clerk prepared a draft of the agendas for those meetings, and Defendant reviewed and approved those agendas.²

¶ 3 Less than a week before the December 4th meetings, Defendant spoke with the outgoing mayor [Greg S. Wilson], an outgoing council member [Don Holland], and one holdover council member [Trace Brown] regarding his intent to ask City and Authority for a "bonus" of $30,000.00 at that next meeting.

¶ 4 Item 18 on the City's agenda provided:

"Consideration of an executive session to discuss the employment, hiring, resignation of David Johnson, City Manager (25 O.S.2001 § 307(B)(1))."

Item 21 on the City Council agenda provided:

"Consideration of action related to executive session."

Item 22 on the agenda provided:

"Consideration of resignation from City Manager, David Johnson, effective December 8, 2006."

Item 37 on the Authority's agenda provided:

"Consideration of an executive session to discuss the employment, hiring, resignation of David Johnson, Manager of Tecumseh Utility Authority (25 O.S.2001 § 307(B)(1))."

Item 40 on the Authority agenda provided:

"Consideration of action relating to executive session."

Following an executive session of the City Council, a motion was passed to authorize the $30,000.00 payment. At Authority's meeting, no such motion was passed by Authority.³

¶ 5 In March 2007, twelve taxpayers served written demands on City requesting that appropriate action be taken against Defendant. They threatened a treble damages qui tam lawsuit against former mayor, Greg Wilson, council members Dan Holland, Trace Brown, and others should City not pursue an action against Defendant to recover the $30,000.00 payment. They asserted Defendant and others violated the Open Meetings Act [Act] by posting a legally insufficient agenda for the December 4th meeting.

¶ 6 Plaintiffs Wilson, Holland, and Brown filed the present declaratory judgment action against City to determine the payment was not invalid under the Act.⁴ As Third-Party Plaintiffs, City and Authority sued Defendant Johnson seeking a declaratory judgment the payment was unlawful. Defendant filed a counterclaim against City and Authority challenging various actions taken by City at ten different City Council meetings, as well as the use of "consent agendas" by both City and Authority. The counterclaim involved issues arising from the notice requirements of the Act.

¶ 7 City and Authority filed a motion for summary judgment against Defendant on their claims and Defendant's counterclaim. The trial court sustained their motion, finding, among other things, the payment to Defendant of a $15,000.00 bonus from City account and a $15,000.00 from Authority account was a violation of 25 O.S.2001 § 303 and was null and void. The trial court further determined that at the December 4th meeting, Authority did not vote, as required by law, to approve the payment of $15,000.00 of the $30,000.00 bonus, and that there was no official action to ratify, with notice to the public. Thus, for that additional reason, Authority's action in payment of the $15,000.00 was null and void. Regarding Defendant's counterclaim, the trial court determined the ten agenda items from the various city council meetings challenged by Defendant did not violate § 303 and sufficiently advised the public of topics to be discussed and action taken. Defendant appeals.

¶ 8 Defendant argues the trial court erred as a matter of law in concluding the posted agenda for the December 4th meeting of the City Council failed to comply with 25 O.S.2001 § 303.⁵ The trial court concluded both the December 4th City and Authority agendas did not give the public sufficient advance notice that a payment of a bonus to Defendant was going to be considered.

¶ 9 Specifically, Defendant asserts the trial court erred in concluding provisions in the agenda calling for a discussion of "employment, hiring, resignation" did not sufficiently advise the public that City would consider a bonus equal to 6 months salary for Defendant, pursuant to the terms of his employment agreement as City Manager.⁶ Defendant submits the Act does not require language other than the words set forth in § 307(B)(1).⁷ Matters of compensation, such as a bonus, are subsumed by the broader statutory term—"employment."

¶ 10 The Act is designed to "encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S.2001 § 302. Because the Act was enacted for the public's benefit, it is to be construed liberally in favor of the public. I.A.F.F. Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. Advance notice to the public, via agendas, must "be worded in plain language, directly stating the purpose of the meeting ... [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." Andrews v. Independent School District No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929.

¶ 11 Item 18 of the City agenda and item 37 of Authority agenda called for consideration of employment, hiring, and resignation of Defendant, and item 22 of City agenda called for the resignation of Defendant. Although Defendant argues "employment" is sufficient to notify the public City and Authority was considering action to provide a bonus to Defendant, the language in the agendas is not sufficient, pursuant to §§ 302 and 303, to inform a person of ordinary education and intelligence the City or the Authority was considering an action to provide Defendant with a $30,000.00 bonus. The agenda did not directly state the purpose of the meeting. Andrews, supra. Thus, the trial court did not err in concluding, as a matter of law, the December 4th meetings of City and Authority failed to notify the public the bonus provision of the employment contract between City, Authority, and Defendant was going to be considered. The trial court did not err in finding the Act was violated.

¶ 12 While Defendant concedes any action taken in willful violation of the Act shall be invalid [25 O.S.2001 § 313], he urges the issue of willfulness is a question of fact to be determined by a jury, and the trial court erred in nullifying the payment of the bonus on the basis the violation of the Act was willful.⁸ Summary judgment should be sustained if the summary judgment submissions do not disclose controverted facts or reasonable minds could not differ even if the material facts are undisputed. See Head v. McCracken, 2004 OK 84, 102 P.3d 670.

¶ 13 For purposes of the Act, willfulness does not require a showing of bad faith, malice, or wantonness, but, rather, encompasses conscious, purposeful violations of law or blatant or deliberate disregard of law by those who know, or should know requirements of the Act; notices of meetings of public bodies which are deceptively vague and likely to mislead constitute willful violations. Rogers v. Excise Board of Greer County, 1984 OK 95, 701 P.2d 754.⁹

¶ 14 In Matter of Order Declaring Annexation Dated June 28, 1978, Issued by Gene Frazier, 1981 OK CIV APP 57, 637 P.2d 1270, the Court of Appeals stated:

... to weight down the term `willful' with the heavy synonyms appellees propose would not further the Act's praiseworthy purpose. If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.

In that case, the Court concluded the Act's violations were willful. "While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law."

¶ 15 Defendant stated in his affidavit he did not intend to camouflage items to be considered in the agenda. He also stated that prior to the December 4th meetings, he handed the city attorney a copy of his employment contract "so that he might review the paragraph which allowed an upward adjustment in compensation based on merit. After reviewing the Employment Contract, [the city attorney] advised me in words to this effect, `You can do it!' under the Employment Contract and under the agenda as posted."¹⁰

¶ 16 In Haworth Board of Education of Independent School District No. I-6, McCurtain County v. Havens, 1981 OK CIV...