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Question Submitted by: The Honorable Bernest Cain, Oklahoma State Senate
1982 OK AG 63
Oklahoma Attorney General
Cite as: 1982 OK AG 63, __ __
¶0 Attorney General Cartwright is in receipt of your request for an official opinion in which you ask, in effect, the following question:
Is the Budget Council of the University of Oklahoma, which was established by order of the President of that University for the purpose of recommending and advising the President and other appropriate administrators on matters concerning fiscal policies and resources of the University; and which is composed of faculty members, administrative staff members and university students, required to comply with the provisions of Oklahoma’s Open Meeting Act, 25 O.S. 301 (1981) et seq.?
¶1 Whether the provisions of Oklahoma’s Open Meeting Act apply to the Budget Council depends on whether that body comes within the term “public body” as defined by the Act at 25 O.S. 304 (1980), which provides:
“1. ‘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, boards of public and higher education in the State of Oklahoma and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body. It shall not mean the state judiciary or the State Legislature or administrative staffs of public bodies, including, but not limited to, faculty meetings and athletic staff meetings of institutions of higher education, when said staffs are not meeting with the public body.”
¶2 A recent decision of the Oklahoma Supreme Court has given broad and expansive application to Oklahoma’s Open Meeting Act. In that case, International Association of Firefighters Local No. 2479 v. Thorpe, Okl., 632 P.2d 408, (1981), the issue was whether the collective bargaining negotiations between the city manager and the firefighters’ bargaining agent was subject to the provisions of the Open Meeting Act. Under the facts presented in that case, the Court found that the Act did not apply. In reaching this result, the Court noted that if the manager could have bound the city, the act would apply, stating:
” . . . If the city manager has authority to bind the city commission on any issue, that portion of the contract negotiations must also be open to the public….” 632 P.2d at 412.
¶3 The Court also addressed the argument that the city manager was not a “public body” as that term was used in the Open Meeting Act, stating:
“Whether the individuals who composed the group were private citizens or public officials or employees has not been a distinguishing factor in previous cases. The key consideration should be the public nature of the work of the group…. 632 P.2d at 410.
” . . . .
“The usual meaning of the words ‘committees’, ‘task force’ and ‘study groups’ denotes a group of individuals, working together on a specific project or general goal. We hold that the City Manager and the Bargaining Agent negotiating together are clearly included as a committee, task force or study group. Although this may not be what is traditionally thought of as a committee, task force or study group, clearly the function of the meetings between the City Manager and the Bargaining Agent is the same as that of meetings of more traditional committees, task forces or study groups.
“The Open Meeting Law, because it is enacted for the public’s benefit, is to be construed liberally in favor of the public.” 632 P.2d at 410-411.
¶4 In the case of Sanders v. Benton, Okl., 579 P.2d 815, (1978), the Oklahoma Supreme Court, in determining whether a subordinate entity came within the purview of the definition of “public body” in 301 of the Open Meeting Act stated:
“Where a parent-entity, coming within the purview of 25 O.S. 201 as a matter of law, establishes a subordinate entity and such subordinate entity’s authority is derived solely through its parent-entity, the question of whether the subordinate entity may also come within the purview of 201 depends upon the purpose for which it was established and the responsibilities it exercises. If the subordinate entity in the performance of its assigned duties and responsibilities exercises actual or de facto decision-making authority, it must comply with the open meetings law. Under such circumstances, the fact the subordinate entity may or may not be supported in whole or in part by public funds would not be controlling. In the absence of any exercise of actual or de facto decision-making authority by the subordinate entity, as for example in the performance of purely administrative or ministerial tasks, the provisions of 201 are not called into play….” 579 P.2d at 820.
¶5 The Court went on to note that:
“Here also, any consideration of whether the subordinate entity is or is not supported in whole or in part by public funds would not be controlling. Full or partial publicly funded support is one of the criteria used to determine which parent-entities, not otherwise defined by express language in 201 or within its terms as a matter of law by reason of their constitutional or statutory origin, would come within the purview of the open meetings law.”
¶6 In Inter’n Ass’n. of Firefighters v. Thorpe, supra, the Oklahoma Supreme Court noted that the Sanders standard quoted above, though decided on the basis of a prior version of Oklahoma’s Open Meeting Act applied to the present Act.
¶7 Based on the above authority, we conclude that if the work of the Budget Council is “public in nature” and if the Council exercises either actual or de facto decision-making authority, the Council comes within the purview of the definition of “public body” as that term is used in the Oklahoma Open Meeting Act, and accordingly, the Council would have to comply with the provisions of that Act. Of course, whether the work of the Council is public in nature, and whether it exercises actual or de facto decision-making authority are questions of fact, which cannot be addressed in an Attorney General’s Opinion.
¶8 It is, therefore, the official opinion of the Attorney General that whether the Budget Council of the University of Oklahoma falls within the definition of “public body” as that term is used in the Open Meeting Act, 25 O.S. 301 (1980), et seq., cannot be answered as a matter of law, because such determination depends upon whether the Council exercises actual or de facto decision-making power, and whether the work performed by the Council is public in nature, both of which are fact questions which cannot be addressed in an Attorney General’s Opinion.
JAN ERIC CARTWRIGHT
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT ATTORNEY GENERAL
DEPUTY CHIEF, CIVIL DIVISION