Oklahoma Bar Journal
Municipalities and the Open Meeting Act
By Julie Trout Lombardi
“If you’re guided by a spirit of transparency, it forces you to operate with a spirit of ethics. Success comes from simplifying complex issues, address problems head on, be truthful and transparent.” – Rodney Davis
“Trust happens when leaders are transparent.” – Jack Welch
The Oklahoma Open Meeting Act (OMA), found in Title 25 of the Oklahoma Statutes, Sections 301 through 314, was intended to “encourage and facilitate an informed citizenry’s understanding of the governmental processes and government problems.”1 A version of the OMA was originally enacted in 1959 and has been substantially revised on numerous occasions since then. The bulk of what comprises the OMA today was signed into law by Gov. David Boren in June 1977.
The spirit of the OMA, from the beginning, was to create, ensure and protect transparency at all levels of Oklahoma government. The act is intended to encourage the public to participate in state government while better understanding the governmental processes. In furtherance of this important goal, the OMA contains provisions governing notice of meetings, meeting agendas, business to be discussed and resolved during meetings and what transpires during meetings. It is the responsibility and duty of all attorneys representing municipalities to have a thorough mastery of the act and its mandates. The Oklahoma Court of Appeals has made clear that public officers must have a clear understanding of the OMA:
The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes as soon as the Act became effective … Lack of familiarity is no excuse.2
While the language and requirements of the OMA are generally clear and understandable, potential peril awaits those who fail to fully comprehend each discrete section of the act. Having a comprehensive appreciation for the OMA and all it compels and prohibits will keep your city, town and elected officials secure from adverse penalties, including conviction of a misdemeanor crime with an accompanying fine and invalidation of actions taken by the public body.
MEETINGS THAT ARE SUBJECT TO THE OMA
The OMA comes into play whenever a public body holds a meeting. “Public body” is defined in §304(1) of Title 25 and includes all governing bodies of all municipalities as well as all boards, commissions, authorities and public trusts. Essentially, any public body charged with the responsibility of expending public funds or administering public property is included within the reach of the OMA. This encompasses city councils or commissions, planning commissions, boards of adjustment and other municipal bodies with decision-making authority, bodies supported in whole or part by public funds and those entrusted with expending public funds. The definition of a public body does not include the judiciary, Legislature or meetings of administrative staff employed by a public body. A public body additionally does not include committees that are purely informational or charged solely with fact-finding or advisory committees with no decision-making authority.3
In conjunction with §304(1), §304(2) defines a “meeting” as conducting business of a public body by a majority of its members meeting together. Meetings shall not include informal gatherings of a majority of the members of the public body when no business regarding the public body will be discussed. However, attorneys should be aware of several potential pitfalls when determining whether or not a meeting is actually being held. First and foremost, attorneys for public bodies should be vigilant when a majority of the members are in attendance at a social event such as a reception, chamber of commerce meeting, ribbon cutting or opening of a new business, or holiday parade or celebration. Members of a public body should be cautioned not to gather closely in groups sufficient to constitute a quorum and to refrain from discussing any business affecting the public body. Members of a public body are best advised not to travel to such events in the same vehicle or congregate within a small group at the event. Having a staff member or citizen stand with members of a public body is also advisable because they may later testify that no public business was discussed while they were present.
Far more insidious than gathering at community and social functions are the accidental meetings that occur when members of a public body congregate prior to a meeting or linger afterward while visiting. If a quorum is present in such a group and public business is discussed, a new meeting has been convened and necessarily violates the OMA because the required notice has not been given, and no agenda advising the public of the meeting and topics to be discussed has been posted. This often, unfortunately, occurs when several members of the public body begin rehashing an item on the agenda once the meeting has ended. Likewise, one member of a public body may not meet with other members outside of a public meeting to obtain a consensus on an item of business.4 Caution should also be exercised with email. A meeting is created and the OMA is violated whenever a public body member sends an email regarding business of the public body to the other members or even responds with “reply all” to such emails. Municipal attorneys, and all attorneys representing public bodies, should be vigilant both prior to and after scheduled meetings to prevent members from congregating, discussing and creating an illegal meeting.
BASICS OF THE OMA
Four types of meetings are addressed under the OMA: regularly scheduled meetings, special meetings, emergency meetings and continued or reconvened meetings. For regularly scheduled meetings, §311 of the OMA requires that notice of all meetings scheduled for the following year be filed with the municipal clerk no later than Dec. 15 of each year. Such notice must include the date, time and place of each meeting, and the meeting time and date may only be changed with 10 days’ notice.
In addition to regularly scheduled meetings, a public body may hold a special meeting after giving 48 hours’ notice of the date, time and place of the meeting. Notice of the special meeting must be given in writing, in person or by telephone to the municipal clerk as well as those who have submitted written requests to receive notice of a meeting.5 New business is not permitted at special meetings.6
Reconvened or continued meetings are governed by §311(A)(11) of the OMA, which provides that only matters contained on the original agenda may be discussed. Notice of such a meeting, like regularly scheduled and special meetings, must be given. Care should be taken by the public body’s attorney to ensure that discussion and action by the body do not exceed the boundaries of the original meeting. When the original meeting is recessed, the time, date and place of the meeting to be reconvened must be announced.
An emergency meeting of a public body may be held if needed. An emergency sufficient to justify a meeting is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss.7 Prior to an emergency meeting, a public body must only give notice that is reasonable under the circumstances, but it must be given as soon as possible per §311(A)(13) of the OMA.
A public body must post notice and the meeting’s agenda in prominent view for a regular or special meeting.8 The 24-hour period excludes weekends and holidays, the agenda must be visible the entire 24 hours in advance,9 and it must be posted at the principal office or at the meeting location.10 In addition, a public body must post regularly scheduled meetings on its website, but this does not substitute for the posting requirements above under §311.11
Equally as important as posting adequate notice is the wording of a public body’s agenda. Section 311(B) of the act requires that the agenda contain sufficient information for the public to identify the items of business to be discussed and resolved. In Haworth Bd. of Ed. v. Havens,12 the court stated, “Agendas must be worded in plain language, directly stating the purpose … The language used should be simple, direct, and comprehensible to a person of ordinary education and intelligence.” Simply stated, a public body cannot discuss an item or take action upon it if the item is not on the agenda. Items must be sufficiently detailed to give a reasonable person information regarding what specifically will be discussed and voted upon at the meeting. Descriptors such as “Fire Chief Report” are likely insufficient and require additional details describing what information will be covered in the report. While a citizen might be uninterested in the fire department’s latest response statistics, the same citizen may very much care that a new fire station has been proposed for construction and may wish to attend the meeting where the item is discussed.
Any discussion of the OMA would be remiss not to include the recent case involving the city of Norman. In Fraternal Order of Police v. City of Norman, 2021 OK 20, the district court determined that language in the city’s Dec. 4, 2020, agenda “was deceptively worded or materially obscured the stated purpose of the meeting and is, therefore, a willful violation of the Act.” At issue was an agenda item listing consideration of the city’s proposed budget. The district court found that while a reasonable citizen might have anticipated that the budget might or might not be approved, such person would not have understood that there might be a defunding (of the police department) or a reallocation or modification of any department’s budget. The city of Norman appealed the matter and ultimately obtained a ruling from the Supreme Court of Oklahoma. That court upheld the district court’s ruling and found the agenda language had been deceptively vague and did not provide notice to the public that new, additional amendments would be entertained at the meeting. As a result of this opinion, many municipalities modified language on their agendas to show that all items may be approved, denied, amended, postponed, acknowledged, affirmed or tabled. This change is designed to provide notice of any possible action a public body might take and avoid “deceptively vague” language. In addition, most municipalities have tightened up their agenda language in general and are much more observant in advising when the public body is “off the agenda.”
New business is covered in §311(A)(10) of the OMA and is described as “any matter not known about or which could not have been reasonably foreseen prior to the time of posting (the agenda).” “Reasonably foreseen” does not cover items mistakenly omitted from the agenda or a subject that staff or a member of the public body recently learned about and considers important. New business should only be used occasionally, at best, and only when an item is not reasonably foreseeable prior to posting the agenda.
The vote of each individual member in a meeting must be publicly cast and recorded in the meeting minutes.13 Failure to meet either requirement may result in invalidation of the action.14 The vote of each member should be individually recorded in the minutes. The minutes should also include identification of all members present and absent, a listing of all matters considered and all actions taken and an official summary of the proceedings.15 Minutes of public meetings should always be open and available to the public, and it is presumed that they should be available for quick access once drafted and subsequently approved. Delaying a request for meeting minutes to “check with the city manager or mayor” is a dangerous practice and will not be indulged by the courts.
If a public body or its attorney discovers that action taken by the body did not comply with the OMA, corrective action should be taken swiftly. In fact, the public body must completely redo and repeat the action in its entirety while adhering to OMA requirements. Failure to do so will result in invalidation of the item and other potential issues.
A quorum is required to hold a meeting of a public body. Generally speaking, a quorum is defined as a majority of all the members of a public body,16 although charter cities may enact different requirements. If a quorum is not present at a scheduled meeting of a public body, the meeting cannot be held and must be rescheduled. The cancellation of a meeting should adhere to the same posting requirements provided for the notification of meetings. Strict attention must be paid to the existence of a quorum if a member of the public body recuses themselves from discussion and consideration of an item. Specifically, best practices require a recusing member to physically remove themselves from the meeting room, and the quorum must still exist after the recusing member leaves the room.
Generally speaking, executive sessions are not permitted unless they are specifically authorized in §307 of the OMA. Permissible purposes for an executive session, in pertinent part, include:
- Personnel matters including hiring, appointment, promotion, demotion, disciplining or resignation
- The purchase or appraisal by the public body of real property
- Confidential communications with the public body’s attorney concerning a pending investigation, claim or action
- Discussion of matters where disclosure would violate confidentiality requirements of state or federal law
- Discussion of negotiations concerning employee groups
Proposed executive sessions must be noted on the agenda and include a specific citation of authority under §307 allowing the executive session. An affirmative vote of a majority of the public body is required to convene an executive session. Votes on an item cannot be taken in executive session but must be taken in the open meeting once reconvened. Notes must be kept of all discussions in executive session but may be general in nature and reflect that the subject matter of the executive session, as listed on the agenda, was discussed.
If an executive session is convened to discuss a personnel matter, several restrictions must be recognized and honored. First, the employee to be discussed must work directly for the public body and not one of its employees. For example, most city managers, and some city attorneys, are employed by a municipality’s city council or commission. An executive session to discuss a city manager’s hiring, termination, discipline, salary or annual evaluation is permissible, and the job title should be listed with specificity on the agenda. However, an employee of the city manager, such as the finance director or parks superintendent, would not be appropriate or permissible because those employees do not work directly for the public body. An executive session is inappropriate for the public body to discuss such an employee or even to advise the city manager of the public body’s position regarding the employee’s employment, promotion, demotion, discipline, etc. Failure to follow this strict requirement may greatly assist an aggrieved employee in stating a cause of action against the municipality if litigation ensues and may even violate the municipality’s charter. At best, such action is invalid.
Executive session is also an appropriate vehicle for a public body to discuss legal claims and litigation matters with its attorney. Pursuant to §307 of the act, the specific litigation or claim must be listed with specificity under the item on the agenda, and the public body’s attorney must be present in the executive session. If the public body’s attorney is not in attendance, the executive session is both invalid and illegal. Executive session is only lawful under §307 if the public body’s attorney has determined that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation in a pending or imminent legal matter.
Discussion of the purchase or appraisal of real property restricts who may be present in an executive session. The public body may include staff and its attorney in an executive session discussion, but under no circumstances may a landowner, real estate salesperson, broker, developer or other people who may profit directly or indirectly by a proposed transaction be present or participate in an executive session under this section unless they have executed an agreement to represent the city.
ALLOWING PUBLIC COMMENT AT MEETINGS
A public body is not required to provide an opportunity for citizens to speak at meetings but may do so if the public body chooses.17 However, this issue is fraught with potential pitfalls for the unwary. If a public body chooses to permit public comment at meetings, it is advisable to implement a policy limiting the time allowed for each speaker and what subjects may be covered. One option is to limit citizen comment only to items listed on the agenda. If public comment is not restricted to the agenda items, members of the public body must not engage in the discussion or comment lest they violate the OMA’s notice and agenda provisions.
While citizens are not restricted to discussion of items listed on the agenda, members of the public body must always adhere to that requirement. However, even if members of the public body refrain from commenting on non-agenda matters, other hazards exist. If no time limit is imposed, a citizen may speak for a long period of time and resist attempts by the mayor, chair or parliamentarian to cease. Public body members may additionally find themselves involved in a recitation of a citizen’s personal grievances against themselves or another citizen, listening to potentially defamatory comments against a staff member, neighbor, citizen or, as occurred in at least one case in another state, be forced to endure a diagnosis of the citizen’s marital woes and claimed spousal deficiencies. None of this content is appropriate for a public meeting, and care should be taken to guide and limit citizen comment. A better alternative may be to eliminate the agenda item authorizing general citizen comment altogether.
Actions taken in willful violation of the OMA are invalid, and any citizen may bring a civil suit to enforce this provision.18 Additionally, a willful violation of the OMA is a misdemeanor offense and is punishable by a fine up to $500 and/or up to one year incarceration in the county jail.19 “Willful” does not require a showing of bad faith, malice or wantonness but instead encompasses “conscious, purposeful violations of law or blatant or deliberate disregard of the law by those who know or should know …”20
Pursuant to §307.1 of the act, a public body may hold meetings by videoconference if each member of the public body is visible and audible to each other and the public through a video monitor. If a public body wishes to conduct a videoconference, several requirements must be met. First, a quorum must be present at the meeting site, and the notice and agenda must both list each video site as well as the location, address and telephone number of each site. In addition, the notice and agenda must list the identity of each member of the public body and the site where they will be physically present during the meeting.
Each videoconferencing site shall be located within the municipality or other political subdivision from which the member is elected, and each site shall be open and accessible to the public. Any materials shared electronically between members of the public body shall be immediately accessible to the public on the public body’s website. The public shall be allowed to participate and speak in the meeting to the same extent they would if the public body members were all physically present at one site. If a videoconference feed stops working, the meeting must immediately cease until the connection is re-established. The public must be able to watch the meeting in real time via videoconference link. If a meeting notice states that a meeting will be held at least partially by videoconference, the public must be able to hear/watch the meeting electronically even if all members ultimately opt to attend in person. Keep in mind that the OMA in no way prevents staff or other nonmembers of the public body from appearing electronically in meetings and only governs the appearance of elected officials.
Public bodies are not allowed to conduct executive sessions by audioconference. Temporary legislation effective during the pandemic did allow executive sessions to be conducted by videoconferencing subject to several restrictions. However, the public health emergency compelling this change is no longer deemed to be an immediate and serious threat, and that is no longer permitted.
The OMA is designed to provide transparency and allow citizens to be informed about discussions and actions taken at meetings. Given that the purpose of the act is to create accountability and clarity regarding the actions and discussions of public bodies, the act is quite likely to be liberally construed in favor of citizens and should be treated as such. A municipal attorney, or another attorney for a public body, should always err on the side of transparency and openness when advising a public body. Convenience for a public body and its staff is definitely not a limiting factor or consideration under the act, and the expectation that municipalities provide transparent and pellucid government through its council, commissions and boards should govern decision-making. Attorneys advising municipalities and other public bodies should understand and recognize both the unambiguous technical requirements within the OMA as well as its overarching intentions to create a clear and comprehensive government in Oklahoma. Failure to do so may have draconian results for the municipality, public body and individual members of the public body.
ABOUT THE AUTHOR
Julie Trout Lombardi was admitted to the bar in 1986 and has practiced in the areas of civil litigation, employment, constitutional and municipal law. She has been the city attorney in Owasso since 2005.
- Okla. Stat. tit. 25 §302.
- Matter of Order declaring Annexation, etc., 637 P.2d 1270, 1273 (Okla. App. 1981).
- Andrews v. Ind. School District No. 29 of Cleveland Co., 737 P.2d 929 (Okla. 1987).
- 1981 OK AG 69.
- Okla. Stat. tit. 25 §311(A)(12).
- 19 OK AG 141.
- Okla. Stat. tit. 25 §304(5).
- Okla. Stat. tit. 25 §311(A)(9).
- 1997 OK AG 98.
- Okla. Stat. tit 25 §311(A)(9).
- Okla. Stat. tit. 74 3106.2.
- Haworth Bd. of Ed. v. Havens, 637 P.2d 902 (Okla. Civ. App. 1981).
- Okla. Stat. tit. 25 §305.
- Oldham v. Drummond Bd. Of Ed., 542 P.2d 1309 (Okla. 1975).
- Okla. Stat. tit. 25 §312.
- Okla. Stat. tit. 11 §1-102.
- 2002 OK AG 26.
- Okla. Stat. tit. 25 §313 and §314(B).
- Okla. Stat. tit. 25 §314.
- Rogers v. Excise Bd. Of Greer County, 701 P.2d 754 (Okla. 1984).
Originally published in the Oklahoma Bar Journal – OBJ 93 Vol 9 (November 2022)