¶0 The Attorney General is in receipt of your request for an official opinion wherein you ask, in effect:
1. Do Boards of County Commissioners have the authority to enact resolutions regulating solid waste landfills?
2. Where such a resolution is passed without being placed upon the official agenda for County Commissioners meeting, nor any prior agenda, does such procedure comply with the Open Meeting Law, and what is the effect upon that resolution if it does not?

¶1 In answer to your first question, Atty. Gen. Opin. No. 81-037 is dispositive of the issue in the affirmative, and you are directed to that opinion.

¶2 Section 25 O.S. 311 of the Open Meeting Act, 25 O.S. 301 (1977) et seq., requires the posting of an agenda at least twenty-four (24) hours prior to regularly scheduled meetings of public bodies. Subsections 9, 10, 11 provide:

“9. In addition to the advance public notice in writing required to be filed for regularly scheduled meetings, all public bodies shall, at least twenty-four (24) hours prior to such meetings, display public notice of said meeting, setting forth thereon the date, time, place and agenda for said meeting, such twenty-four (24) hours prior to public posting shall exclude Saturdays and Sundays and holidays legally declared by the State of Oklahoma; provided, however, the posting of an agenda shall not preclude a public body from considering at its regularly scheduled meeting any new business. Such public notice shall be posted in prominent public view at the principal office of the public body or at the location of said meeting if no office exists. ‘New Business’, as used herein, shall mean any matter not known about or which could not have been reasonably foreseen prior to the time of posting.

“10. In the event any meeting is to be continued or reconvened, public notice of such action, including date, time and place of the continued meeting, shall be given by announcement at the original meeting. Only matters appearing on the agenda of the meeting which is continued may be discussed at the continued or reconvened meeting.

“11. Special meetings of public bodies shall not be held without public notice being given at least forty-eight (48) hours prior to said meetings. Such public notice of date, time and place shall be given in writing, in person or by telephonic means to the Secretary of State or to the county clerk or to the municipal clerk by public bodies in the manner set forth in paragraphs 2, 3, 4, 5 and 6 of this section. In addition, all public bodies shall, at least twenty-four (24) hours prior to such special meetings, display public notice of said meeting, setting forth thereon the date, time, place and agenda for said meeting. Only matters appearing on the posted agenda may be considered at said special meeting. Such public notice shall be posted in prominent public view at the principal office of the public body or at the location of said meeting if no office exists. Twenty-four (24) hours prior public posting shall exclude Saturdays and Sundays and holidays legally declared by the State of Oklahoma.”

¶3 Board’s of County Commissioners are public bodies within the definition of the Act:

“‘Public body’ means the governing bodies of all municipalities located within the State of Oklahoma, boards of county commissioners of the counties in the State of Oklahoma. . .”

¶4 Thus, the Board must comply with the notice requirements as set out above for various types of meetings.

¶5 Your question indicates that the resolution in question has never been placed on any agenda for any meeting. This would not necessarily preclude the board from considering such resolution as “new business” if the meeting in question was a regularly scheduled meeting within the context of 25 O.S. 311(9). “New business” according to that section, however, is limited. “Any matter not known about or which could not have been reasonably foreseen prior to the time of posting” the agenda for the meeting. Whether a particular resolution is within this definition is a question of fact and cannot be answered as a matter of law.

¶6 At meetings which have been continued or reconvened only matters appearing on the original agenda for the meeting which is continued or reconvened may be considered under 25 O.S. 311(10). Likewise at special meetings, only matters appearing on the agenda for the special meeting may be considered according to 25 O.S. 311(11). See Atty. Gen. Opin. No. 81-141.

¶7 Consideration and passage of a resolution by a Board of County Commissioners in contravention of 25 O.S. 311(9) / 25 O.S. 311(10) or 25 O.S. 311(11) would be of no effect for want of power to so act. Berry v. Board of Governors of Reg. Dentists, Okl., 611 P.2d 628 (1980).

¶8 Further, if the resolution was passed, outside of the exceptions, noted above, notice should be taken of Title 25 O.S. 313 (1977), which states:

“Any action taken in wilful violation of this act shall be invalid.”

¶9 Title 21 O.S. 92 (1971) states that

“The term “wilfully” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”

See also, Atchison T. & S.F.R.Y v. State, 33 Okl. 371, 125 P. 721 at P. 723. (1912).

¶10 Whether any set of acts constitute a willful violation under the terms of the above definition is a question of fact and may not be answered as a matter of law.

¶11 It is, therefore, the official opinion of the Attorney General that:
1. Pursuant to Atty. Gen. Opin. 81-037 Boards of County Commissioners have the authority to pass resolution regulating solid waste landfills.
2. Under the Open Meeting Act, 25 O.S. 301 (1977) et seq., a Board of County Commissioners may not pass a resolution during a regularly scheduled meeting in the absence of an appropriate entry on the agenda posted for the meeting, unless the appointment of such new member falls within the definition of “new business”, set forth in 25 O.S. 311(9) (1977); and
3. “New business” is defined by 25 O.S. 311(9) (1977) as “any matter not known about or which could not have been reasonably foreseen prior to the time of posting” the agenda for a regularly scheduled meeting; and
4. Whether the passage of a resolution regulating solid waste landfills during a regularly scheduled meeting falls within the definition of “new business” for purposes of the Open Meeting Act is a question of fact, which cannot be answered as a matter of law; and
5. At a re-scheduled or reconvened meeting of a Board of County Commissioners only matters appearing on the original agenda of the re-scheduled or reconvened meeting may be considered pursuant to 25 O.S. 311(10) (1977); and
6. At a special meeting of a Board of County Commissioners only matters appearing on the agenda for the special meeting may be considered according to 25 O.S. 311(11) (1977); and
7. Consideration and passage of a resolution by a Board of County Commissioners in contravention of 25 O.S. 311(9) / 25 O.S. 311(10) or 25 O.S. 311(11) (1977) would be of no effect for want of power to so act; and
8. Any action taken in willful violation of 25 O.S. 301 (1977) et seq. is invalid, and
9. Whether a specific set of facts constitutes a willful violation is a question of fact and may not be answered as a matter of law.

JAN ERIC CARTWRIGHT
ATTORNEY GENERAL OF OKLAHOMA
WILLIAM W. GORDEN JR.
ASSISTANT ATTORNEY GENERAL