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Question Submitted by: The Honorable David Young, District Attorney
1984 OK AG 128
Oklahoma Attorney General
Cite as: 1984 OK AG 128, __ __
¶0 The Attorney General has received your request for an official opinion asking, in effect:
Are the provisions of the Open Meeting Act, codified at 25 O.S. 301 (1981) et seq., as amended, applicable to committees and study groups appointed by the Sapulpa City Commission?
¶1 The Open Meeting Act governs the meetings of public bodies. Title 25 O.S. 304 (1983) defines “public bodies,” as follows:
“1. ‘Public body’ means the governing bodies of all municipalities located within 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….”
¶2 For purposes of this opinion, we are assuming that the Sapulpa City Commission is a public body as defined in this statute and subject to the Open Meeting Act.
¶3 In Sanders v. Benton, 579 P.2d 815 (Okl. 1978), the Oklahoma Supreme Court considered the applicability of the Open Meeting Act, 25 O.S. 201 (1971) et seq., to committees and study groups [hereinafter referred to as “subordinate entities”] of a public body. In the Sanders case, the Board of Corrections [hereinafter referred to as “Board”] and the Department of Corrections [hereinafter referred to as “DOC”] had created a subordinate entity, a Citizen’s Advisory Committee, to provide information and to assist the DOC in making recommendations to the Board concerning proposed locations for a Community Treatment Center. This Advisory Committee conducted an investigation of the proposed locations and submitted its evaluations and recommendations for use by the Board. The Court wrote:
“Where a parent-entity, coming within the purview of 201 [open meeting law] 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 [open meeting law] depends upon the purpose for which it was established and the responsibilities its 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.” Id., 579 P.2d at 820.
¶4 The Court held that because the subordinate entity was merely providing information and making recommendations, it was not exercising actual or de facto decision making authority and not subject to the open meeting law.
¶5 In 1977, 25 O.S. 201 (1971) et seq. were repealed and replaced with the present Open Meeting Act, codified at 25 O.S. 301(1981) et seq., as amended. The ruling in Sanders, supra, was thereafter reaffirmed in Int’l Ass’n. of Firefighters v. Thorpe, 632 P.2d 408, 411 (Okl. 1981), wherein the Court noted that the Legislature in its 1977 amendments to the Open Meeting Act specifically rejected the inclusion of advisory groups within the definition of public bodies.
¶6 The key element in determining if a subordinate entity of a public entity is subject to the open meeting law is not how the subordinate entity was created, but whether that subordinate entity, in the performance of its responsibilities, is exercising actual or de facto decision-making authority for the parent entity. If the subordinate entity is exercising actual or de facto decision-making authority, then the entity must comply with the open meeting law.
¶7 Whether, under these criteria, a subordinate entity appointed by a particular city commission is subject to the Open Meeting Act requires a factual conclusion. Such a determination is one that cannot be addressed in an Attorney General’s Opinion.
¶8 It is, therefore, the official opinion of the Attorney General that pursuant to the Open Meeting Act, codified at 25 O.S. 301(1981) et seq., as amended, when a subordinate entity, crated by a parent entity that is subject to the open meeting law, exercises actual or de facto decision-making authority, the subordinate entity must comply with the open meeting law. Whether a subordinate entity established by a particular city commission is exercising actual or de facto decision-making authority is a factual question that the Attorney General can not address.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT ATTORNEY GENERAL