On the topic of prerogative and more musings
As I mentioned on my delightful-but-brief moment on KWON Radio with Mr. Tom Davis- there is an excellent book worth consideration called 'Is Administrative Law Unlawful?' In it, the author with the Biblical yet tasty name of Philip Hamburger writes about the concept of 'prerogative'- or the power of kings to bind subjects through edicts issued outside Parliament and the regular courts. He notes that the Constitution was written expressly to forbid the use of such extralegal or supralegal power.
Properly exercised executive power in our most local of applications has been intentionally splintered into a council of 5 persons, each vested with a vote. Unilateral action, therefore, is to be avoided when possible. Proper inform must be given to each member of the council, so that they may adequately reflect on the decisions of the city as pertinent to the interests of those they represent. For a member of such an august council to admit surprise and learn of the action the same day as the public- well- this does not seem to be aboveboard, does it?
In my prior posting, I referred to 1981 OK AG 69- a series of questions submitted by Robert Macy, the District Attorney of Oklahoma County. (linked here: https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=53345&fbclid=IwY2xjawUIbIJwZG9mAWV4dG4DYWVtAjEwAGJyaWQRMWFJTTR0MFRmWjYwTmUxUDhzcnRjBmFwcF9pZBAyMjIwMzkxNzg4MjAwODkyAAEep9UuUZUTZ0HhTFE-2h2pFeOXy7Sa6AsUfZVPvzVBABoqMjYhTnOGfCzJmGE_aem_lTud2lhUSopyzyS5VhmVwQ )
Contained therein are many useful considerations upon which I will expand and explore together with you. I shall be skipping a few paragraphs, but please do read the document in its entirety, it is very clear and extremely well thought out and written. Facebook, in typical boorish fashion, disallows me to bold or italicize, so my thoughts and summary are separate beneath each paragraph with a '--------'. I shall emphasize the important statements by <> brackets.
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¶6 All meetings of "public bodies," as defined in 25 O.S. 304, 1 are subject to the Open Meeting Act. 25 O.S. 303 (1977). Therefore, the city council of a charter municipality is subject to the provisions of the Open Meeting Act, since it is the governing body of the municipality. <In the event of conflict between a city charter and the Open Meeting Act, the Open Meeting Act would prevail.> The Open Meeting Act establishes the minimum acceptable standards of "openness" for meetings of public bodies in Oklahoma. As stated in Attorney General Opinion No. 80-218, <a city charter may require a higher degree of "openness" than the state law, but it may not require less.> The provisions of the Open Meeting Act calling for the conduct of public business in open meetings, conveniently accessible to the public, after adequate and informative notice, establish a policy of statewide concern sufficient to override any conflict with a city charter. City charter provisions must yield to conflicting laws of general concern wherein the state has a sovereign interest. Baughman v. Weicker, 136 Okl. 33, 276 P. 208 (1929).
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To wit- this act supersedes any city contracts in case of any conflicting verbiage. The city's language concerning openness may be more strict than the state's, but it may not be less.
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¶8 Unless a contrary intent appears, words used in a statute are given their ordinary meanings. Applications of Oklahoma Turnpike Authority, Okl., 277 P.2d 176 (1954). "Business," not having been defined in the Open Meeting Act, must be given a construction in consonance with the ordinary meaning of the term and in harmony with the purposes of the Open Meeting Act; and as stated, supra, a liberal interpretation must be indulged.
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Summary: 'when in doubt, assume it is business, and therefore assume it is subject to the Open Meeting Act'
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11 Okl. Op. A.G. 543, 545, Atty. Gen Opinion No. 79-331, observed:
Though 'business' is not defined by the act, it should be assumed to include the entire decision making process including deliberation, <decision or formal action.'> See Time Publishing Company v. Williams, 222 So.2d 470 (Fla. 1969).
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To put into a simple syllogism: If "Formal" then "business" ergo "Open Meeting". Upon this rests the unassailable pivot: anything formal by necessity tips towards "Open meeting", while informal tips away.
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¶11 A city manager is the chief administrative officer of municipal government in cities having a city manager form of government. Certainly, deliberation, decision- or <formal action >by a city concerning the termination of a city manager would be among the types of "governmental process[es] and governmental problem[s]" the Legislature intended to subject to public scrutiny in the Open Meeting Act. <A matter concerning the termination of a city manager would therefore be "business" within the meaning of 25 O.S. 304(3).> That is not to say, however, that such a proposal could only be taken up at a "regularly scheduled meeting," as that term is used in 25 O.S. 304(3). A proposal to terminate a city manager would be "business" for the purpose of a regularly scheduled meeting; a "special meeting" [25 O.S. 304(4)]; perhaps an "emergency meeting" [25 O.S. 304(5)], under the proper statutory conditions; or a "continued or reconvened meeting" [25 O.S. 304(6)].
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"Formal Action"- there are those words again, in specificity with regards to termination considerations, also helpfully bracketed.
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¶12 Your third question deals with whether the city council may dismiss or demand the resignation of the city manager by a vote taken outside a public meeting or executive session and without notice to the public. As stated above, all "business" conducted by a public body is subject to the Open Meeting Act. 11 Okl. OP. A.G. No. 79-331, 543, 545.
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I may be belaboring the point here, if "business" then "Open Meeting" seems quite clear. Onwards!
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¶13 Certain personnel matters may be discussed in an executive session, pursuant to 25 O.S 307 (1977):
Executive sessions of public bodies will be permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee;. . . <Provided, however, that any vote or action thereon must be taken in public meeting with the vote of each member publicly cast and recorded.>
¶14 The Legislature intended that personnel matters were to be subject to the Open Meeting Act or there would have been no reason to provide for executive sessions to discuss personnel matters. As stated in Berry v. Bd. of Governors of Reg. Dentists, Okl., 611 P.2d 628, 631 (1980):
". . . The Act requires that: minutes of meetings of public bodies be kept; the members present and absent benoted; all matters considered and actions taken be reflected, and that the vote of each member be publicly cast and recorded...." (Emphasis added).
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Summary: even items considered in an "executive session"- which are by definition private due to sensitive nature- the resulting votes must be publicly given and thus recorded. This is not optional. You cannot "hand wave" this requirement away.
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¶16 Your fourth question inquires whether a single member of a city council may lawfully meet privately with each of the other council members separately, obtain the signatures of a majority of the council on a document and use that document to take an action otherwise required to be considered and voted upon at an open meeting. Title 25, O.S. 306 (1977) provides:
No informal gatherings or electronic or telephonic communications among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter.
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Well, here is a major wrinkle! No communications (including electronic- though one might notice 'psychic' and 'spiritual' has not been forbidden, a loophole I hope to remedy ) shall be used to conduct "business"- no formal actions may take place outside of a clear and Open Meeting! The next paragraph takes a moral turn
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¶18 Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone <decision making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed.> The Open Meeting Act's prohibition against this type of decision making is not dependent upon whether a majority of the members of a governing body gather together at the same place at the same time in the presence of each other. City of Miami Beach v. Berns, Fla., 245 So.2d 38 (1971), relying on Bd. of Public Instruction v. Doran, 224 So.2d 693 (1969), construed the Florida Sunshine Law to hold:
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Here we have very strong language indeed- secretive business is called an 'evil' which is a moral judgement of 'not good'. Further moral observations I shall leave for a later time.
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"A secret meeting occurs when public officials meet at a time and place to avoid being seen or heard by the public. When at such meetings officials . . . <transact public business> at a future time in a certain manner they violate the government in the sunshine law, <regardless of whether the meeting is formal or informal.">
See also Bigelow v. Howze, Fla., 291 So.2d 645 (1974), which held:
. . . the philosophy of the cases which have construed the Sunshine Law clearly indicates that the <decision making process of a public body composed of more than one member of that body must be held in public, >even though such members constitute less than a quorum of the public body.
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If any formal decisions are made, they must be public, and subject to recorded vote. We come nearly to the end, just one more paragraph and then a summary of questions. You are doing great, keep going!
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¶19 Your final question inquires whether a provision in a city charter providing that the city council may appoint, suspend or remove the city manager "at any time" allows the council to so act without an open meeting. A public body, i.e. a city council, <cannot transact business outside a public meeting,> and all meetings of public bodies are subject to the Open Meeting Act. <As explained in the answer to your first question, city charter provisions in conflict with the Open Meeting Act must yield. No city charter provision can relieve a city council of compliance with the Open Meeting Act in reaching a decision to terminate the city manager or ask for his/her resignation.>
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Here we have the strongest point possibly made. No 'business' can be done informally- not via electronic communications, not via executive session. Any contract language contrary to Open Meeting act (which requires the council to give a vote) must yield to this ruling. And very very specifically- this is especially with regards to requesting the termination of a city manager.
At last- we have the summary:
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¶20 It is, therefore, the official opinion of the Attorney General that:
1. The city council of a charter city is subject to the Open Meeting Act, 25 O.S. 301 et seq. (1977).
2. Matters pertaining to the proposed termination of a city manager fall within the meaning of "business of a public body," as that term is used in 25 O.S. 304(3) (1977) and in the remainder of the Open Meeting Act.
3. The city council of a charter city may not dismiss or demand the resignation of the city manager by a vote taken outside a public meeting or within an executive session and without notice to the public.
4. A single member of the city council of a charter city may not lawfully meet privately with each of the other council members separately to obtain signatures of a majority of the council upon a document and use that document to take an action otherwise required to be considered and voted upon at an open meeting.
5. A provision in a city charter providing that the city council may appoint, suspend or remove the city manager "at any time" does not permit the city council to so act in conflict with the Open Meeting Act.
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If you have followed me through these 11,388 characters (and counting!) you have done very well- pat yourself on the back, maybe get a nice cold drink, you deserve it!
If there is some new law which renders all of this subject entirely moot- I would laugh very heartily and absolutely concede any points as appropriate. I would also probably buy you a beer.
Final note: appeals to authority (legal or otherwise) are an informal logical fallacy, and as such, I am disinclined to entertain them as a serious challenge, and will yawn with boredom. I expect that if I am to be refuted on any of these points, the refutations must be specific, direct, and referenced. I eagerly await to be informed on where I am incorrect with enthusiasm and joy.
Happily yours,
Cameron Byers, prospective ward 2 candidate