Open Meeting Act Enforcement Problems in Oklahoma
<a href="http://www.foioklahoma.org/OpenMeeting.pdf" target="”_blank”">Oklahoma's Open
Meeting Act,</a> which applies to local governments, ends with an
unusual provision. That provision is the only provision in the act that
deals with enforcement. It says that a willful violation of a provision
is a misdemeanor, and that someone guilty of a violation may be fined
up to $500 and/or imprisoned in a county jail for up to one year.<br>
<br>
Is there any other nation in the world that would allow someone to be
imprisoned for not properly going into executive session? And is there
any other nation in the world that would use such an expensive,
difficult, hamfisted enforcement process for a transparency law?<br>
<br>
You may not have guessed it yet, but this is partially another legislative
immunity blog post. According to <a href="http://www.tulsaworld.com/news/article.aspx?subjectid=334&articleid=201…; target="”_blank”">an
article in Tuesday's Tulsa <i>World</i></a>, three citizens brought a civil
action against the Tulsa council for a violation the open meeting act.
It wasn't as if the district attorney was going to go after the council
for an executive session infraction, was it?<br>
<br>
Not only did the county judge determine that the citizens did not have
standing to bring a civil suit under the open meeting act, but she
also determined that the court lacks jurisdiction because the council
members have absolute legislative immunity and cannot be sued in the
matter.<br>
<br>
In other words, because they were acting as legislators, the open
meeting act cannot be applied to them. Since the open meeting act only
applies to these legislators' meetings, this means that all local
legislators, including members of many boards and commissions other
than the council, are effectively excluded from the open meeting act.<br>
<br>
I think we can all agree that the drafters of the constitutional Speech
or Debate Clause did not foresee its use to prevent legislators from
being subject to transparency laws. I think we can also agree that the
legislators who draft these transparency laws believe that the laws
apply to them.<br>
<br>
If everyone agrees that legislators should be subject to transparency
laws, then why not let them be subject to transparency laws? The
alternative is self-regulation, which is clearly not something
legislators are good at.<br>
<br>
Take this instance. The mayor refused to leave when the council went
into executive session, so the council voted to exclude him from the
session, since it was about him. However, officials are prohibited from taking votes while in
executive session. The council's attorney told the council that the
vote was proper because the executive session had not started because
the door was not shut. But an executive session begins when a vote is
taken to go into executive session.<br>
<br>
Is the council expected to determine whether its attorney was right or
wrong? Who will they go to for advice, their attorney?<br>
<br>
Transparency programs, like ethics program, require independent, expert
advice, and independent, civil or administrative enforcement. And
legislators have to be willing to ignore the Speech or Debate Clause
and allow themselves to be subject to citizen complaints against them
heard by an independent individual or body. Arguing that a transparency law cannot be enforced against them is not going to do great things for the public's trust in them.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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