Question Submitted by Walke, 031320 OKAG, 2020 OK AG 4

Docket Nº:2020 OK AG 4
Party Name:Question Submitted by: The Honorable Collin Walke, Oklahoma State Representative, District 87
Attorney:MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA ABBY DILLSAVER GENERAL COUNSEL TO THE ATTORNEY GENERAL
Case Date:March 13, 2020
Court:Oklahoma Attorney General Opinions
 
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2020 OK AG 4

Question Submitted by: The Honorable Collin Walke, Oklahoma State Representative, District 87

No. 2020 OK AG 4

Oklahoma Attorney General Opinions

March 13, 2020

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA

ABBY DILLSAVER GENERAL COUNSEL TO THE ATTORNEY GENERAL

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions: 1. Does the Oklahoma Open Meeting Act, 25 O.S.2011 & Supp.2019, §§ 301 --314 (the "Act"), prohibit less than a majority of members of a public body from convening to discuss business of the public body if the gathering does not comply with the Act's requirements for a "meeting"?

2. Does the Act prohibit a member of a public body from presenting the same information related to the public body's business in separate sequential briefings, each with less than a majority of the body's members?

3. If members of a public body convene and are provided with information related to the business of the public body, may the members be prohibited from taking that information with them following the presentation or be sworn to secrecy about the substance of the presentation?

4. Does the Act apply equally to (i) a public body convening solely to receive an informational briefing without taking action, and (ii) a public body convening to discuss specific actions that ultimately may be voted upon?

I.

BACKGROUND

¶1 Transparency in government provides citizens with the opportunity to observe their government and understand how its decisions are made. This idea forms the underpinning of Oklahoma's Open Meeting Act, 25 O.S.2011 & Supp.2019, §§ 301 --314 (the "Act"). See, e.g., Wilson v. City of Tecumseh, 2008 OK CIV APP 84, ¶ 10, 194 P.3d 140, 144. Indeed, the Legislature expressly declared in the Act that "[i]t is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S.2011, § 302. To further this policy, the Act generally requires any "public body" to, among other things, hold its meetings at specified times and places that are convenient to the public and are preceded by advance public notice, cast public votes and have such votes recorded, and keep minutes of its proceedings. See id. §§ 303, 305, 312.

¶2 In general, the Act's requirements apply only to "meetings" held by a "public body," as those terms are defined in the Act. "Public body" is defined, in relevant part, as:

the governing bodies of all municipalities located within this state, boards of county commissioners of the counties in this state, boards of public and higher education in this state and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts..., task forces or study groups in this state supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body.

25 O.S.Supp.2019, § 304 (1). A "meeting" means "the conduct of business of a public body by a majority of its members being personally together or... [by] videoconference" as permitted by the Act. Id. § 304(2). Based on these definitions, a "meeting" occurs when (i) a majority of members of a public body is (ii) together in person or by videoconference, 1 (iii) conducting the public body's business. 2 If a gathering of members lacks one or more of these elements, the gathering is not a meeting and, therefore, not subject to the Act's requirements.

II.

DISCUSSION

A. The Open Meeting Act does not prohibit a minority of members of a public body from convening to discuss business of the public body, unless by doing so the members intend to circumvent the Act's requirements.

¶3 As described above, the Act generally does not apply to a gathering of less than a majority of members. See 25 O.S.Supp.2019, § 304 (2). "Without a majority, there [is] no 'meeting' under the Act[.]" Monkey Island Dev. Auth. v. Staten, 2003 OK CIV APP 64, ¶ 13, 76 P.3d 84, 88.

¶4 However, your request raises a slightly different issue: separate from the Act's clear requirements for "meetings," is there anything in the Act that would prohibit a minority of members from convening to receive information or to discuss matters related to the business of the public body, but not take formal action? Generally, the answer is no such prohibition exists, nor can one be reasonably deduced from the language of the Act. 3

See, e.g., Wylie v. Chesser, 2007 OK 81, ¶ 19, 173 P.3d 64, 71 (stating rule that courts may not "insert in a statute omitted words or read it in different words from those found in it" unless such intent is "plainly deducible from other parts of the statute" (citation omitted)). Indeed, a blanket prohibition against members discussing subjects related to the public body--whether one-on-one or in small (non-majority) groups--would risk "los[ing] the public benefit of personal discussion between public officials while gaining little assurance of openness." Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983). 4

¶5 This conclusion, however, comes with an important caveat. This office...

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