By JOHN M. WYLIE II
To view the court filings, see Rogers County District Court, Cooper v. Northwest et al, CJ-2017-207
Oklahoma’s Open Meeting Act would be gutted if a judge grants the wishes of the Northwest Rogers County Fire Protection District.
Northwest fired Administrative Assistant Debra Cooper Feb. 13, 2017. She countered with a lawsuit in Rogers County District Court.
The district forced the case into federal court in Tulsa, where federal District Judge Claire Eagan reviewed all issues raised in the lawsuit, dumped some defendants and issues, then kicked the case back to Rogers County with just one decision left for District Judge Sheila Condren: Did the firing violate Oklahoma’s Open Meeting Act?
Northwest insists it did not, but it does not deny taking actions that appear to refute that claim.
Its most chilling position for advocates of government transparency is its proposed “conclusion of law” filed Friday which states, “No provision in the OMA prohibits the board from requesting that a particular individual such as a terminated employee leave such a meeting” as the one where Cooper was fired and employee exposure to massive mold contamination was disclosed.
Cooper and Northwest agree that both the actual firing and disclosure came after Cooper left the building. Whether she left voluntarily or was forced to leave is hotly disputed.
Cooper testified in a Jan. 12 trial before Judge Condren that she was called into an executive session, told she was fired and ordered to leave the building—adding that Chairman Mel Dainty yelled at her for not leaving fast enough after she was escorted to clear out her office and turn in her keys.
Dainty denied that, but acknowledged that on advice of an attorney he had ordered her escorted to clear her office and turn in her keys.
“We told her if she didn’t want to stay she didn’t have to so she would not have to so she would not have to face the embarrassment of being terminated in public,” Dainty said according to my notes. The transcript of the hearing was not yet publicly available when this was written.
Northwest says in its Thursday filing that the “alleged action in asking the Plaintiff to leave the meeting, whether or not it occurred as alleged, does not violate the OMA because the meeting was open to and attended by the public.”
“Public” is not defined in the OMA, but Black’s Law Dictionary defines it as “Relating or belonging to an entire community, state or nation; open and available for all to use, share or enjoy.”
The district’s position would turn that definition on its head by proclaiming that any public body can pick and choose WHO is allowed to attend a public meeting.
That may work in dictatorships, totalitarian states and medieval monarchies but it won’t fly in Oklahoma. Oklahoma’s Open Records Act expresses it most succinctly: Under the state constitution, “It is the public policy of the state of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.”
Only in a dictatorship would a public body claim that it is hunky dory for an individual it has fired to be asked to leave a public meeting—especially since the district insists that at the time the individual was “allegedly” asked to leave, she had not yet been fired.
So the person with the most interest in knowing the official reason she IS “a terminated employee” can be asked to leave the meeting BEFORE she is officially terminated and, by implication, so can anybody else the board wants to exclude.
Board members testified it was because of an unfavorable audit, the same reason they gave in the public meeting where she was not present. But that does not compute. As I reported at the time, after sitting through the entire meeting and reading the entire audit, my news report (which was admitted as a trial exhibit when I was called to testify) said the audit recommended additional training for staff and hiring a new outside payroll service but did NOT recommend firing any staff.
I wish I could refer you to that audit on the State Auditor and Inspector’s website, where such audits are required to be filed by state law. But Northwest didn’t follow that law until it finally filed its most recent audit last Christmas Eve—six months after it was finished. Previous audits are still AWOL.
So Cooper could not get a copy of the audit on which her firing was based without going to court, since she was barred from Northwest’s offices although she was as a member of the public entitled under the Open Records Act to go and obtain a copy.
She also could not get the reports on the results of mold tests showing such severe contamination that the building in which she worked 40 hours a week was evacuated and personnel were moved to a mobile office parked in the back lot. They were discussed during the part of the meeting from which she was absent after “allegedly” being told to leave.
If it sounds as if Northwest operates like the Queen of Hearts in Alice in Wonderland, whose favorite line was “Off with his/her head”, and believed in the concept of verdict before trial, the comparison is apt. It would take a book thicker than Lewis Carrol’s classic to capture all the examples in recent years, although for many years Northwest was a model for following both acts to the letter.
The decline is tragic because now in battling this lawsuit it is endangering the core principles of the Act.
When its attorney asked Judge Condren for permission to file conclusions of law she initially balked, saying such filings were generally so one-sided and self-serving that they were of little or no value. But she relented and allowed both parties to make such filings.
She was meticulous in handling the case. It was clear she was reviewing legal issues during breaks in the trial, and she skipped lunch in order to listen to a tape of the public portion of the meeting while testimony about it was being presented, so she had heard that piece of evidence herself while its contents were discussed by witnesses.
No record was kept of the executive session, although one penalty for violating the law is public disclosure of THE minutes and any recordings of such sessions.
If the judge rules that Northwest’s position is correct, it will mean the law likely needs to be amended for clarity. And any time that statute is reopened, advocates of closed government will always try to slip in other changes designed to further shut the public out.
The judge can’t consider issues not presented at trial, so many of the issues discussed here won’t form any part of her ruling.
Because the issues were narrowed before she got the case back from federal court, she is limited in what she can consider.
That’s why those wanting to continue Oklahoma’s public policy that “the people have an inherent right to know” must watch this case closely.
Secrecy in government breeds evil. Sunshine is the best deterrent.
To view the court filings, see Rogers County District Court, Cooper v. Northwest et al, CJ-2017-207