Washita County District Attorney Angela Marsee has rejected a request from The Cordell Beacon to call for an investigative audit of the Cordell Public Schools Board of Education. The Beacon’s request alleged several distinct violations of the Oklahoma Open Records Act and the Oklahoma Open Meetings Act between Jan. 13, 2020, and March 19, 2020.
Under Oklahoma law, the State Auditor’s office is charged with investigating and enforcing alleged violations of the acts, but they can only open an audit if requesting by the governing body of jurisdiction - in this case the Board of Eduction itself, the district attorney or the attorney general, or by the people upon submission of a petition signed by at least 10 percent of the registered voters within the district. Marsee refused to request an investigation by the State Auditor.
In the complaint, filed March 19, 2020, the Beacon alleged three violations stemming from closed executive sessions held during board meetings. During the Jan. 13, 2020, meeting, the complaint alleged, the board violated the Open Meetings Act first by entering into executive session to discuss the appointment of a new board member, and second by failing to identify the individual(s) being discussed.
Marsee opined that the executive session was permissable under state law, citing Title 25 §301(B)(1), which reads: “Executive sessions of public bodies will be permitted only for the purpose of: (1) discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee.”
She further argued that withholding the name(s) of the individual(s) being discussed was also permissable “because the position itself is so unique as to allow adequate identification and avoids invading the privacy rights of individuals that were ultimately not appointed to the board.”
What Marsee failed to demonstrate, however, is how the exception applies to this case. The Oklahoma State Department of Education classifies board members as public officers, not employees, and they are not salaried. Further, she failed to explain how an agenda item to “discuss specific individuals for possible appointment to vacant board seat #5” provides adequate idenfication of who was being considered prior to the executive session.
Attorney General Opinion 97-61states the necessity of providing such information. “In contrast, a public body’s duty to specify on the agenda plainly and directly in language comprehensible to a person of ordinary intelligence all matters - including the items of business and purposes of executive sessions - to be undertaken in a meeting is mandatory. Therefore agenda items to discuss personnel matters for which an executive session is proposed must identify either the position or the individual salaried employee who is the subject of the discussion. ‘Identification by name is necessary unless the position held by the person is so unique as to allow adequate identification.’”
At the time of the executive session the board seat was vacant, and hence listing the position did not provide sufficient information for anyone reading the agenda to know who was the topic of discussion. Marsee’s opinion seemingly makes the case that it is permissable for a board to appoint someone to fill an elected office without providing the general public with knowledge of who that appointee is prior to the meeting, eliminating the public’s ability to comment on the person chosen to represent them.
The complaint included a similar allegation with regard to the appointment of the school’s encumbrance clerk and activity fund custodian following a March 9 executive session, which was similarly dismissed by Marsee.
Additionally, the board decided to further withhold the names of any other individuals who had submitted application for the vacant board seat. Marsee argued that it was permissable for the board to withhold that information, again under the umbrella of protecting an employee or job applicant’s right to privacy, citing subsection A(2) of Title 51 §24A.7, “the Legislature directed public bodies to keep personnel records confidential, disclosure of which ‘would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications of unsuccessful candidates..’”
Marsee’s opinion is again based on the classification of board members as employees. They are not legally classified as such and records such as employee evaluations and payroll deductions do not apply to them. The district attorney’s opinion seemingly makes the argument that an individual should be allowed to seek elected office, through appointment, confidentially.
The complaint by the Beacon also referenced a dinner meeting held by superintendent Brad Overton and four of the five members of the Board of Education (Ronnie McKee, David Thain, Mike Reimer, and Nocona Cook) on March 9, 2020. The dinner was held on school property, just down the hall from Overton’s office, immediately prior to the regular board meeting.
Marsee stated in her response to the complaint that the meeting wasn’t a violation because “informal” gatherings are permissable under state law as long as no business is conducted and that no evidence had been offered that business had been conducted. While she did counsel the board to “be diligent in avoiding situations which may give rise to the appearance of impropriety,” she refused to take further action.
Marsee did not provide any legal definition of what constitutes an “informal” gathering. Her argument in defense of the board’s actions also creates a shield of circular logic that the act is designed to prevent. Because the “informal” meeting was closed to the public, there is no way for anyone outside of those accused of wrongdoing to provide such evidence.
The final piece of the Beacon’s complaint stems from the recently decided lawsuit between Cordell Public Schools and Nurnberg Roofing LLC. A Washita County jury decided, on Jan, 8, 2020, that the school’s decision to not pay for the roofing work performed by Nurnberg in 2016 was unlawful and awarded Nurnberg the full price of the contract ($31,700) plus legal fees. On Feb. 26, the Beacon filed a public records request for all billing and payment information for attorneys, expert witnesses, architects, or design professionals involved in the suit. At the time of the complaint, those records had not been provided, but later, on April 9, redacted copies of some of the bills were provided. Additional redacted copies were provided April 23.
When pressed for unredacted copies, Overton responded that he “sent what the DA asked” him to send. Marsee would not directly answer whether or not she told him to redact the documents, but in her response to the complaint she wrote, “In communication with Julie Miller (legal counsel for the Oklahoma State School Board Association) the requested bills appear likely to contain information that may be confidential due to Attorney/Client privelege pursuant to Title 12 §2502. However, it is my understanding that the bills were reviewed and provided to the complainant to the extent that exempt materials could be redacted in compliance with ORA Title 50 §24A.5.”
Under Oklahoma law, however, the attorney-client privelege is limited with regard to public bodies.
According to Title 12 §2502.D.7: “There is no privilege under this section . . . as to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.”
The litigation in question has been resolved. Cordell Public Schools was ordered by a jury to pay for the services rendered. In addition to Nurnberg’s legal fees, which have yet to be determined by the court, the school board has spent approximately $40,000 more on their own legal fees, but refuses to disclose exactly what constitutes those fees by redacting the descriptions of the work performed in the invoice. Additional bills for roofing consultants involved in the trial were similarly redacted.
Marsee concluded that the actions of the school board were consistent with the provisions of both the Open Meetings Act and Open Records Act, and refused to request a formal investigation by the State Auditor’s office, despite noting that “the noice and agenda requirements are the ‘very heart’ of the Open Meetings Act. Strict adherence to the letter of the law is required. ‘Substantial compliance’ is insufficient.”