The Oklahoma Bar Journal December 2024

agenda item prior to a meeting. A 1981 Oklahoma attorney general opinion makes clear that decision- making by public bodies in non public meetings is “the very evil against which the Open Meeting Act is directed.” 14 Public bodies must make their decisions in public, and that does not occur if members have promised to vote one way or the other ahead of time based on private discussions among them – even when there is no quorum present in those private discussions. Ex parte communication can also be a problem, especially for quasi-judicial bodies, such as boards of adjustment. The Oklahoma Supreme Court has made clear that the “constitu tional guaranty of due process of law” applies to quasi-judicial proceedings and that due process requires a “full, fair and ade quate” hearing. 15 Accordingly, a board of adjustment must make decisions “based upon the facts presented to the board.” 16 For this reason, ex parte communications with neighbors or other interested parties outside of the hearing should be kept to a minimum; in other words, “[e]vidence needs to be gathered at the hearing, not through the grapevine .” 17 What about members who have made up their minds ahead of time but have not gone so far as to promise to vote a certain way? Case law suggests familiarity with the facts of a matter, “even to the point of having reached a tentative conclusion prior to the hearing,” is not necessarily a problem. 18 What is important is that the member “maintained an open mind and continued to listen to all the evi dence presented before making the final decision.” 19

organization does not necessarily mean that the person is actively involved with or aware of the organization’s positions in a legal dispute. 10 However, given allega tions that the two public officials in this case had either recently held, or were about to hold, signif icant leadership positions at the church when the vote was taken, the court remanded for additional discovery to determine whether these leadership roles gave rise to a disqualifying conflict. 11 Notably, the court urged that its ruling “should not discourage public officials from working for religious institutions, community groups or other organizations,” but instead, that recusal is a “simple solution” for the “rare circumstance in which public responsibilities and volun teer commitments conflict in a land use dispute.” 12 Another very common situa tion is when a member of a public body is friends with an applicant. Experts on ethics and land use suggest that while members of the public may perceive a conflict in such cases, a determination should depend on how close the rela tionship really is. 13 Especially in smaller cities and towns, it might be impossible to have a quorum if merely knowing someone was enough to warrant recusal. Beyond conflicts of interest, municipal attorneys must also be aware of attempts to circumvent the Open Meeting Act – especially in ways that members of a public body may not realize contravene the act. One such way would be for a member to meet one-on one with other members to gain a consensus on an upcoming BEYOND CONFLICTS OF INTEREST

duties; for they, like Caesar’s wife, must be above reproach. 6

In Woodward v. City of Anadarko , several council members and the mayor were subject to scrutiny for creating a public trust for elec tric utility service, the Anadarko Public Works Authority, and serving as trustees for the trust in addition to their roles with the city. The court found that there was no conflict because the city was a beneficiary governmental entity, and the duties involved in each role were not in conflict or for opposing interests. 7 Cases from other jurisdictions can also provide insight on how courts might draw the line regard ing potential conflicts of interest. For example, in 2015, the New Jersey Supreme Court held that when a member of a public body holds, or will soon hold, “a position of substantive leadership” in an organization, and that organization has an interest in a zoning applica tion, then the member has a con flict of interest and should not vote on the matter. 8 In this case, two public officials who had voted on a particular zoning application were both members of the same church . The church, in turn, was the owner of property directly adjacent to the site at the center of the zoning application. While the church itself was not the applicant – nor was it an objector – the court found that the church’s status as the neighbor ing property owner meant that the church “clearly” had an interest in the zoning application. 9 The question, then, was whether the church’s interest in the appli cation could be imputed to all its members, including the two public officials. The court found that a person’s membership in an

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

28 | DECEMBER 2024

THE OKLAHOMA BAR JOURNAL