The Oklahoma Bar Journal November 2022

omitted from the agenda or a sub ject that staff or a member of the public body recently learned about and considers important. New business should only be used occa sionally, at best, and only when an item is not reasonably foreseeable prior to posting the agenda. The vote of each individual member in a meeting must be publicly cast and recorded in the meeting minutes. 13 Failure to meet either requirement may result in invalidation of the action. 14 The vote of each member should be individually recorded in the minutes. The minutes should also include identification of all mem bers present and absent, a listing of all matters considered and all actions taken and an official summary of the proceedings. 15 Minutes of public meetings should always be open and available to the public, and it is presumed that they should be available for quick access once drafted and subsequently approved. Delaying a request for meeting minutes to “check with the city manager or mayor” is a dangerous practice and will not be indulged by the courts. If a public body or its attorney discovers that action taken by the body did not comply with the OMA, corrective action should be taken swiftly. In fact, the public body must completely redo and repeat the action in its entirety while adhering to OMA require ments. Failure to do so will result in invalidation of the item and other potential issues. A quorum is required to hold a meeting of a public body. Generally speaking, a quorum is defined as a majority of all the members of a public body, 16 although charter cities may enact different requirements. If a quo rum is not present at a scheduled meeting of a public body, the meeting cannot be held and must

be rescheduled. The cancellation of a meeting should adhere to the same posting requirements provided for the notification of meetings. Strict attention must be paid to the existence of a quorum if a member of the public body recuses themselves from discus sion and consideration of an item. Specifically, best practices require a recusing member to physically remove themselves from the meet ing room, and the quorum must still exist after the recusing mem ber leaves the room. EXECUTIVE SESSION Generally speaking, executive sessions are not permitted unless they are specifically authorized in §307 of the OMA. Permissible purposes for an executive session, in pertinent part, include: Personnel matters includ ing hiring, appointment, promotion, demotion, disci plining or resignation The purchase or appraisal by the public body of real property Confidential communi cations with the public body’s attorney concerning a pending investigation, claim or action Discussion of matters where disclosure would violate confidentiality requirements of state or federal law Discussion of negotiations concerning employee groups and include a specific citation of authority under §307 allowing the executive session. An affirmative vote of a majority of the public body is required to convene an executive session. Votes on an item cannot be taken in executive Proposed executive sessions must be noted on the agenda

recent case involving the city of Norman . In Fraternal Order of Police v. City of Norman, 2021 OK 20, the district court determined that language in the city’s Dec. 4, 2020, agenda “was deceptively worded or materially obscured the stated purpose of the meeting and is, therefore, a willful violation of the Act.” At issue was an agenda item listing consideration of the city’s proposed budget. The district court found that while a reason able citizen might have anticipated that the budget might or might not be approved, such person would not have understood that there might be a defunding (of the police department) or a reallocation or modification of any department’s budget. The city of Norman appealed the matter and ulti mately obtained a ruling from the Supreme Court of Oklahoma. That court upheld the district court’s ruling and found the agenda lan guage had been deceptively vague and did not provide notice to the public that new, additional amend ments would be entertained at the meeting. As a result of this opin ion, many municipalities modified language on their agendas to show that all items may be approved, denied, amended, postponed, acknowledged, affirmed or tabled. This change is designed to pro vide notice of any possible action a public body might take and avoid “deceptively vague” language. In addition, most municipalities have tightened up their agenda language in general and are much more observant in advising when the public body is “off the agenda.” New business is covered in §311(A)(10) of the OMA and is described as “any matter not known about or which could not have been reasonably foreseen prior to the time of posting (the agenda).” “Reasonably foreseen” does not cover items mistakenly

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THE OKLAHOMA BAR JOURNAL