Theoretically, if two of Oklahoma’s three Corporation Commissioners hold even an informal gathering where issues at hand are discussed, it is considered an illegal meeting.
Such is the case in point raised last week during the contentious public discussion prior to the commission’s 2-1 vote in favor of approving nearly $6.6 billion in fuel adjustment requests and added costs stemming from the Winter Storm Uri in 2021. Those costs were approved for OG&E, ONG and PSO.
Much of the debate focused on what Corporation Commissioner Bob Anthony argued was a total lack of investigation of the true historic costs endured by the three utilities. He carried most of the discussion until Commissioner Kim David offered her thoughts in support of approval of the fuel cost adjustment requests. It was her first extensive comments on the issue in which she agreed the storm was “devastating what happened in Oklahoma.”
David indicated she was still relying on Attorney General Gentner Drummond after she wrote him in February asking for an investigation of the alleged “price manipulation” that might have led to the historic fuel costs for the three utilities.
“I hope the Attorney General continues looking into this,” she stated.
Her comments sparked Anthony to point out, “With the Open Meeting law, we don’t get to talk to each other very often—so I appreciate having the exchange.”
The public might have the perception that the three commissioners get together to discuss issues prior to any public meeting. That’s not the case. If they don’t accidentally encounter one another while taking the elevator ride to their offices in the Jim Thorpe building, their only communication might be through an exchange of emails. Maybe.
Their offices are separate on the third floor of the state building. They have their own staff members including aides and attorneys. They might show up early and stay late or not come to the office at all, preferring to only attend for the public meetings.
Anthony adheres strictly to the Open Meeting law, to the point that some years ago, two fellow commissioners he caught having coffee together reportedly chided him about his polite objection to their meeting.
There are those who believe Anthony might be taking the law too far. Others might say he’s just being careful to avoid any impropriety or even the “perception” of impropriety. Sometimes, the “perception” is considered far worse.
Oklahoma state law defines a “meeting” as actually conducting business by a majority of the members meeting together. Because Oklahoma’s Corporation Commission consists of three members, any gathering of two could possibly constitute an illegal meeting. If they talk business.
Here’s where the law differentiates.
“Meetings shall not include informal gatherings of a majority of the members of the public body when no business regarding the public body will be discussed.”
“When no business—will be discussed” is the key point. Two commissioners drinking coffee together and talking about last night’s Thunder basketball game would not be considered an illegal meeting. Start throwing in the topic of rate hikes or oil and gas matters, then you might have an illegal meeting.
If the Corporation Commission consisted of let’s say ‘five’ members, the gathering of two would not be considered a possible illegal meeting. Three would.
The Oklahoma Bar Association cautions that attorneys for public bodies should be vigilant when a majority of the members are in attendance at a social event such as a reception, a chamber of commerce meeting, ribbon cutting or even a holiday parade.
” Members of a public body should be cautioned not to gather closely in groups sufficient to constitute a quorum and to refrain from discussing any business affecting the public body,” advises the OBA.
The Bar Association even recommends that a staff member should be in attendance to possibly later testify that no public business was discussed when they were present.
“Far more insidious than gathering at community and social functions are the accidental meetings that occur when members of a public body congregate prior to a meeting or linger afterward while visiting. If a quorum is present in such a group and public business is discussed, a new meeting has been convened and necessarily violates the OMA because the required notice has not been given, and no agenda advising the public of the meeting and topics to be discussed has been posted,” stated the OBA in its recommended actions.
As for the exchange of email, the Bar Association suggested that even the caution should also be used in such communications. It contends that a meeting is created and the state law violated if one commissioner were to send another an email regarding business of the public body.
The reason for the law is to promote transparency, fairness and openness so the public can attend meetings and know that decisions were not previously made in secret, only to be rubber-stamped without discussion before the taxpayers.
Some public bodies got around the law by holding what they called “work” sessions where there was open discussion and haggling out of issues. The public could attend but there would be no formal vote taken. By the time the actual official public meeting was held, sometimes votes were taken without discussion, leaving those who didn’t attend the “work” session wondering what just happened.