The Oklahoma Bar Journal November 2022

body’s attorney is not in attendance, the executive session is both invalid and illegal. Executive session is only lawful under §307 if the public body’s attorney has determined that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation in a pending or immi nent legal matter. Discussion of the purchase or appraisal of real property restricts who may be present in an execu tive session. The public body may include staff and its attorney in an executive session discussion, but under no circumstances may a landowner, real estate salesperson, broker, developer or other people who may profit directly or indi rectly by a proposed transaction be present or participate in an executive session under this sec tion unless they have executed an agreement to represent the city. ALLOWING PUBLIC COMMENT AT MEETINGS A public body is not required to provide an opportunity for citi zens to speak at meetings but may do so if the public body chooses. 17 However, this issue is fraught with potential pitfalls for the unwary.

If a public body chooses to permit public comment at meetings, it is advisable to implement a policy limiting the time allowed for each speaker and what subjects may be covered. One option is to limit citi zen comment only to items listed on the agenda. If public comment is not restricted to the agenda items, mem bers of the public body must not engage in the discussion or com ment lest they violate the OMA’s notice and agenda provisions. While citizens are not restricted to discussion of items listed on the agenda, members of the public body must always adhere to that requirement. However, even if members of the public body refrain from commenting on non-agenda matters, other hazards exist. If no time limit is imposed, a citizen may speak for a long period of time and resist attempts by the mayor, chair or parliamentarian to cease. Public body members may additionally find themselves involved in a recitation of a citi zen’s personal grievances against themselves or another citizen, listening to potentially defamatory comments against a staff member, neighbor, citizen or, as occurred in at least one case in another state, be

session but must be taken in the open meeting once reconvened. Notes must be kept of all discus sions in executive session but may be general in nature and reflect that the subject matter of the executive session, as listed on the agenda, was discussed. If an executive session is con vened to discuss a personnel matter, several restrictions must be recognized and honored. First, the employee to be discussed must work directly for the public body and not one of its employees. For example, most city managers, and some city attorneys, are employed by a munic ipality’s city council or commission. An executive session to discuss a city manager’s hiring, termination, discipline, salary or annual evalua tion is permissible, and the job title should be listed with specificity on the agenda. However, an employee of the city manager, such as the finance director or parks superin tendent, would not be appropriate or permissible because those employ ees do not work directly for the public body. An executive session is inappropriate for the public body to discuss such an employee or even to advise the city manager of the public body’s position regarding the employee’s employment, promotion, demotion, discipline, etc. Failure to follow this strict requirement may greatly assist an aggrieved employee in stating a cause of action against the municipality if litigation ensues and may even violate the municipality’s charter. At best, such action is invalid. Executive session is also an appropriate vehicle for a public body to discuss legal claims and litigation matters with its attorney. Pursuant to §307 of the act, the specific litigation or claimmust be listed with specificity under the item on the agenda, and the public body’s attorney must be present in the executive session. If the public

20 | NOVEMBER 2022

THE OKLAHOMA BAR JOURNAL