The Woodward News

September 10, 2012

Clashing opinions?

Johnny McMahan
Woodward News

Woodward, Okla. — The Oklahoma Open Meeting Act is important in a number of ways, but mainly in allowing citizens to see how public bodies operate and spend taxpayer money.

In a perfect world the law would go a lot farther.

In a perfect world city commissions, school boards, agencies and such would not hold executive sessions to discuss hirings and firings or property or anything - with maybe an exception to receive information on lawsuits.

In a perfect world, members of the Oklahoma Legislature wouldn't be able to exempt themselves from the provisions of the Open Meeting Act or other laws they pass.

But this isn't a perfect world and exceptions do exist – though possibly one less if a recent opinion by District Attorney Hollis Thorp stands up.

Mr. Thorp ruled - after receiving a request from a citizen and looking into the matter - that the Woodward Industrial Foundation is a public body subject to the requirements of the Open Meeting Act.

The foundation is disputing Mr. Thorp's opinion, saying that it is a private non-profit organization that contracts with the city to provide economic development and business recruitment services.

Who is right?

Mr. Thorp's view is that open meeting questions should be "construed liberally toward openness."

The district attorney has helped this newspaper out on a couple of open records issues - involving other agencies - during his time in office and his opinion is certainly valued. The Industrial Foundation has also always helped this newspaper out when we've needed and requested information so this not a criticism of that organization or its leadership. Industrial Foundations are essential for communities looking to grow.

But, while the Industrial Foundation is not a government agency, it does receive some taxpayer dollars so you can make an argument either way as to whether the foundation should be considered a public body.

I can see reasons why and agree that the Industrial Foundation needs to keep things like negotiations with businesses interested in moving to the area out of public view until those businesses make a decision. Negotiating in public with a business looking to change locations is not likely to end successfully. But those types of negotiations probably aren’t part of regular meetings anyway.

I also understand Mr. Thorp's position.

The question: Is it the correct opinion? (A Freedom of Information Oklahoma column  - - released after the opinion also asks that question.)

On the surface it is different than an attorney general's opinion from 2002 that ruled:

"Absent a contractual provision to the contrary, private organizations (either for-profit  or non-profit ) which contract to provide goods or services to the public on behalf of a governmental agency and receive payment from public funds merely as reimbursement for goods provided or services rendered, are not "supported" by public funds and therefore not subject to the requirements of the Oklahoma Open Meeting Act."

That ruling by then Oklahoma Attorney General Drew Edmondson and Assistant Attorney General Debra Schwartz (2002 OK AG 37) seems to fit the Woodward Industrial Foundation's situation.

It would obviously depend on the contract language and other variables, but the point is the Industrial Foundation looks to have a powerful argument on its side.

Who is correct?

In this view, which doesn’t come from a legal background by any stretch, the state attorney general's opinion should carry more weight. Regardless, there are now differing opinions now on the record.

Perhaps the matter does need to be taken to the current attorney general for an opinion. The Industrial Foundation can request an opinion if it so chooses. Mr. Thorp indicated to a News reporter he would encourage the foundation to do just that because it would carry more weight, serve as precedent and he would appreciate more clarification on the issue.

So would a lot of other people.

Johnny McMahan is managing editor of the Woodward News.