NORMAN — A memorandum drafted by the city attorney on behalf of Mayor Cindy Rosenthal was hand delivered to members of the city council recently.
The memo — dated Feb. 19 — summarizes the history of decisions concerning the city manager’s contract and compensation and summarizes a consensus of the council regarding the city manager’s contract. It presented new information regarding union and non-union compensation and closes with a request from the mayor for input and direction from other council members.
Some open government observers say that request from the mayor appears to be a violation of the Oklahoma Open Meetings Act.
Council member Tom Kovach alerted The Transcript to the existence of the memo earlier this week, commenting that it was Sunshine Week and he believes the mayor’s memo violates open meetings law. Rosenthal disagrees.
“My sole motive in consulting with the city attorney is to get it right. He has to draft the contract, obviously, so I have to work closely with him,” Rosenthal said.
The Transcript asked for a copy of the memo and Rosenthal referred the matter to the city attorney who refused all requests. The Transcript obtained a copy of the memo from a source who does not believe it falls into the category of privileged information.
The memo is addressed from Rosenthal to council members.
“The consensus of the council was to move forward ...” Rosenthal writes in the memo.
“They cannot vote in executive session,” said Dr. Joey Senat, associate a professor at the OSU School of Media and Strategic Communications. “So how did they reach a consensus? They avoided having a roll call vote, but they still voted.”
“I was asked to put on paper what did it mean to follow the same union and non-union pay raises,” Rosenthal said. “And I consulted with the city attorney to help draft that, but no final decision was made, no votes were cast.”
In addition to clarification, new information not previously introduced in executive session on possible pay adjustments is included in the memo.
“I asked our city attorney to review these recommendations and advise if he thought there were additional issues that should be considered,” the mayor says in the memo. “Attached to this memorandum are comparison calculations. I welcome your input.”
Input regarding calculations is tantamount to discussion. Because the memo went to the entire body of the city council, that equals a violation of open meeting laws. The last paragraph of the memo further requests discussion from the council: “Please review this information and then let me know what direction you would like to move.”
“That’s absolutely a violation of the open meeting act. She is a voting member of the council and she is asking not only for them to discuss it with her, but essentially to give her a vote,” Senat said.
“The issues that are discussed in that memo are the issues related to interpreting the direction in the salary increase,” Rosenthal said. “The information provides two ways of interpreting the guidance that came out of executive session.”
The council should have ended the closed executive session, then voted in public, as is standard procedure, Senat said.
“Why didn’t they come out of the executive session and vote to move forward or whatever they wanted to do?” he said. “That’s making a decision, and that’s doing it in front of the public. Right now, they can hide by saying, ‘I didn’t agree to that.’”
“As we do at the end of all the executive sessions, I announced that no actions were taken and no votes were cast,” she said. “Many things get put on the agenda without us voting. We were not at a point of making a decision. People were asking questions of what does this mean and how do the percentages apply, but there was no final decision made about the increase.”
The seemingly innocent request for input and direction, however, puts the mayor in dangerous territory regarding open records law.
“The second problem is now she’s asking each person to let her know — to send her input that’s discussion and to let her know what they want to do. That’s another form of taking action,” Senat said.
The memo does not qualify as either a public meeting or an executive session where discussion is allowed by a majority. No agenda was posted or notice given.
The law cannot be circumvented by using a memo. According to Title 25 section 306: “No informal gatherings or any electronic or telephonic communications, except teleconferences as authorized by Section 3 of this act, 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.”
A memo may be more convenient than scheduling another executive session, but it is not allowable under the law.
“The state Supreme Court said back in 1981, this (open meeting) statute is to be construed liberally in favor of the public,” Senat said. “Their interpretation seems to be the opposite.”
Rosenthal believes she did not violate the open meetings law.
“There were two interpretations there, and I can’t read people’s minds,” Rosenthal said. “The answer may still be to have another executive session.”
Senat said the law is seldom convenient.
“This speaks to a culture at Norman City Hall that’s not favoring the public’s right to know,” he said.