School Board Appoints Cook After Closed-Door Session

Last week the Cordell Public Schools Board of Education voted to appoint Nocona Cook to fill the vacant seat (Seat 5) on the board, after meeting behind closed doors to discuss “specific candidates” to fill the position. The vacancy was created by the resignation of Chris Johnson from the board late last year.

While most of the meeting was open to the public, the agenda also included a proposal to enter into executive session “to discuss specific individuals for possible appointment to vacant board seat #5 Pursuant to 25 O.S. Section 301(B)(1) and 70 O.S. Section 5-118.”

Immediately before the meeting started, The Cordell Beacon hand-delivered a formal objection to the proposed executive session to Superintendent Brad Overton and each of the four members of the school board: Ronnie McKee, David Thain, Dale Selman, and Mike Reimer. The objection was based upon two faults in the proposed executive session. First, the Oklahoma Open Meetings Act does not provide an allowance for an executive session to discuss the appointment of officers; and second, the proposal for the executive session did not specify the individual(s) being discussed, as required by law.

Upon receipt of the objection, Overton told the board members he had discussed the executive session with the school district’s attorneys and was told the board could proceed as planned on the agenda. He also referred The Beacon to Julie Miller, deputy executive director and general counsel for the Oklahoma State School Boards Association. When contacted by The Beacon the next day, the OSSBA referred the call to Christy Watson, communications and marketing director. Watson declined to say what, if any, information or advice the OSSBA may have given Overton about the proposed executive session, but referred to Title 70 Section 5-118 as the statute authorizing a school board to enter into executive session.

“All meetings of the boards of education shall be public meetings, and in all such meetings the vote of each member must be publicly cast and recorded,” the statute reads. “Executive sessions will be permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, discipline, or resignation of any or all of the employees or volunteers of the school district...”

Watson also referenced two Oklahoma Attorney General’s Opinions on the subject, opinions 96-040 (footnote 1) and 97-061.

The referenced section of 96-040 reads: “Additionally, under the provisions of 70 O.S. 1991, Section 5-118, boards of education are permitted to conduct executive sessions to discuss such matters relating to volunteers as well as employees, to discuss negotiations with employee groups, and to hear evidence and discuss the expulsionor suspension of a student.”

Attorney General Opinion 97-061 also addresses the legality of executive sessions.

“Although public bodies must have open meetings pursuant to 25 O.S. 191, Section 303, they are ‘permitted’ to convene in executive session for certain enumerated reasons set forth in 25 O.S. Supp. 1997, Section 307(B). This includes ‘[d]iscussing the employment, hiring, appointment, promotion, demotion, disciplining, and resignation of any individual salaried public officer or employee.”

School board members, however, are legally considered neither employees nor volunteers. They are public officials, usually elected, and legally classified as officers, according to the Oklahoma State Department of Education.

“I got a quick answer from our General Counsel: they are volunteers, but for the purposes of the laws, they are officers. They are not employees,” OSDE assistant executive director of communications Carrie Burkhart wrote in an email to The Beacon.

The second fault in the board’s agenda is the failure to provide specific information about the candidates under discussion. If, as claimed by the school district, the executive session is legal under the exemption for employment-related matters, then the board agenda must specify the names of the person(s) being discussed. The agenda only listed “specific individuals” as the topic of discussion.

Attorney General Opinion 97-061, as referenced by Watson, clarifies the legal disclosure requirement.

“Section 311(B)(2)(b) of the Act requires a public body to ‘identify the items of business and purposes of the executive session.’ In light of case law and standard rules of construction, we conclude that an agenda item for a meeting of a public body in which personnel matters are to be discussed and for which an executive session is proposed must identify either the position or the individual salaried employee who is the subject of the discussion. The Act does not specify that a person must be identified by name; however, in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification.”

Not only did the Cordell Public Schools Board of Educatioin fail to provide sufficient information about the individual(s) being discussed in their executive session, Overton has continued to refuse to release that information. In response to a public records request filed by The Beacon, Overton provided Cook’s answers to a brief application questionnaire, adding “See the attached application for Nocona Cook. This application is all that was required to be submitted to the board. I have been advised that any other applicant’s names and materials should remain confidential.”

Interestingly, other specific personnel matters were both listed on the agenda and openly discussed during the public portion of the meeting. The board discussed the hiring of Amy Koon and Rosa Sealey as substitute teachers, as well as Jean Balzer as a teacher’s aid. They also discussed the resignation of Julia Scalf.

Oklahoma law, as specified in both Title 70 and Title 25, provides remedy and both civil and criminal penalties for violations of the Open Meetings Act, including fines of up to $500 and one year in jail, as well as invalidating any action stemming from the illegal meeting.

Oklahoma courts have also determined that not only the letter of the law be followed very strictly, but also that the law be interpreted in such a manner as to favor the public.

“The Open Meeting Act is not ‘obsure or incomprehensible.’ Lack of familiarity with the Open Meeting Act is no excuse for violating its provisions. The notice and agenda requirements are the ‘very heart’ of the Open Meeting Act. Strict adherence to the letter of the law is required. ‘Substantial compliance’ is insufficient.” (1981 OK CIV APP 57, 637 P.2d 1270)