City of Kingfisher v. State

1998 OK CIV APP 39, 958 P.2d 170, 69 O.B.A.J. 1435, 1998 Okla. Civ. App. LEXIS 18, 1998 WL 167026
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 10, 1998
DocketNo. 90402
StatusPublished
Cited by3 cases

This text of 1998 OK CIV APP 39 (City of Kingfisher v. State) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Kingfisher v. State, 1998 OK CIV APP 39, 958 P.2d 170, 69 O.B.A.J. 1435, 1998 Okla. Civ. App. LEXIS 18, 1998 WL 167026 (Okla. Ct. App. 1998).

Opinion

OPINION

STUBBLEFIELD, Presiding Judge.

¶ 1 The City of Kingfisher, a “home rule” city; filed a petition in the district court seeking a declaratory ruling that Attorney General Opinion No. 80-218, 12 Okla. Op. Att’y Gen. 371 (Opinion), is invalid. The Opinion stated that section 307 of the Open Meeting Art, 25 O.S.1981 §§ 301-314(Act), does not allow a municipality to enter executive sessions where the charter of the municipality requires all municipal meetings to be public.

¶2 City asserted that it had received a complaint that its executive sessions were in violation of the Act and that City officials had refrained from holding such sessions for fear of legal reprisal. However, City also asserted that it needed to: (1) consult with attorneys regarding pending state and federal litigation and a petition being circulated regarding a bond issue; (2) meet with its attorneys regarding negotiations for the purchase of real estate and utility easements; and, (3) discuss personnel matters, which, if done in open meeting, might violate state and federal labor laws. Thus, City sought declaration that the Opinion is null and void and that its Board could meet in executive session as provided by section 307. -

¶3 After the trial court overruled the Attorney General’s motion to dismiss, City filed a motion for summary judgment. In response, the Attorney General contended that there was no conflict between the Act and a municipal charter providing for all meetings to be open, because a municipal charter may expand open meeting requirements beyond that required by State law.

¶ 4 The Oklahoma Municipal League, Inc. (OML), filed an amicus curiae brief in favor of City’s position. Its primary position was that a charter requirement that alhcity council meetings shall be open to the public does not foreclose the council from discussing certain subjects in closed session. It contends:

An executive session is part of an open meeting. It is not convened separately. Nor does it occur in a vacuum. The subject of the session is listed as an item of business for an openly convened meeting, is taken up in open meeting, and is acted on in open meeting. The fact that a discussion of a particular matter occurs without an audience does not render the entire meeting a closed meeting. The meeting is open.

¶ 5 The OML also maintained that any construction of a charter that prohibits executive sessions for the purposes set forth in section 307 is invalid because it irreconcilably conflicts with the statewide public policy of that statute.

¶ 6 Brown, Brown, Wood and Sehoelen, Inc., (Brown), a corporation involved in pending litigation against City, filed a brief as amicus curiae in opposition to City’s petition. Brown claimed that any executive sessions held by the city commissioners would be in violation of both the City Charter and the Act. Brown asserted that a violation of the Act would occur, even though the Act allows executive sessions for the purposes delineated by City, because the City Charter, pursuant to 11 O.S.1991 § 13-109, repeals the Act provisions for specific executive sessions, and the only unrepealed operative section of the Act is the prohibition: “No public body shall hold executive sessions.... ” Section 307.

¶ 7 The trial court . granted summary judgment to City, overruling the Opinion, and holding that home rule charter cities may conduct executive sessions- for purposes allowed under 25 O.S. Supp.1997 § 307, of the Open Meetings Act, even if city charters state that all meetings must be open to the public. The State and Attorney General appeal, asserting that the trial court erred as a matter of law (1) by ruling that a home rule charter municipality may conduct executive sessions under the Act despite the provision of the municipal charter that all sessions of the municipality governing board must be open to the public; and (2) by overruling the Opinion.

¶ 8 The facts of this case are not in dispute, and our review is solely upon a question of law. An appellate court indepen[172]*172dently reviews questions of law as it is its role to define the law. Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, 874 P.2d 68.

¶ 9 In defense of the lower court’s judgment, City points to the fact that the court in Oklahoma Association of Municipal Attorneys v. State, 1978 OK 59, 577 P.2d 1310, overruled Attorney General Opinion 77-222, 10 Okla. Op. Att’y Gen. 190, which concluded, under the 1977 version of the Open Meeting Act, a public body could not meet in executive session for the purpose of privately conferring with its lawyers. The court in that case, noting the attorney-client privilege recognized for public officers and agencies in 12 O.S. Supp.1977 § 418.2,1 established that there are exceptions to the then-statutory limitation on executive session. The court held that a public body could engage in executive session with its attorney “concern[ing] a pending investigation, claim, or action, and disclosure of matters discussed would seriously impair the ability of the public body to process the claim or conduct the pending investigation, litigation or proceeding in the public interest.” Id. at ¶ 19, 577 P.2d at 1315.2

¶ 10 City’s Charter, adopted in June 1910, art. IV, § 3, in regard to the City’s governing Board provides: “All sessions of said Board, whether regular or called shall be opened to the public.” (Emphasis added.) That charter was amended in 1984, but the provision relative to open meetings remained unchanged.

¶ 11 The Open Meeting Act, 25 O.S. Supp.1997 §§ 301-314, was promulgated in 1977. The Act has been amended twelve times. However, except for certain provisions relative to a board of education and exempting specifically enumerated “public bodies,” there were no significant changes in the statutes relative to permissibility of executive sessions until 1993.

¶ 12 The two amendments made in 1993 broadened significantly those instances in which executive sessions were permissible under section 307 by providing:

A. No public body shall hold executive sessions unless otherwise specifically provided in this section.
B. Executive sessions of public bodies will be permitted only for the purpose of:
1. Discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee;
2. Discussing negotiations concerning employees and representatives of employee groups;
3. Discussing the purchase or appraisal of real property;
4. Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest;
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6. Discussing matters involving a specific handicapped child; or
7. Discussing any matter where disclosure of information would violate confidentiality requirements of state or federal law.

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1998 OK CIV APP 39, 958 P.2d 170, 69 O.B.A.J. 1435, 1998 Okla. Civ. App. LEXIS 18, 1998 WL 167026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-kingfisher-v-state-oklacivapp-1998.