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Reporter Numbers:
Not Published
Court:
Oklahoma Supreme Court
Case Docket Number:
117938
Date Decided:
August 18, 2020
Opinion By:
Kenneth L. Buettner
Votes:
Bell, P.J., and Goree, J. concur
County:
Rogers
District Court Case No.:
CJ-2017-207
Trial Court Judge:
Sheila Condren
Appellant Lawyer(s):
Dana Jim, Brendan McHugh
Appellees Lawyer(s):
Lindsey E. Abers, Adam R. Burnett, Jo Anne Deaton, Steven Hickman
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Cooper v. Northwest Rogers County Fire Protection District (2020)

Public body is required to take minutes during executive sessions; however, failure to do so will not invalidate action taken by the public body, as long as the action was taken publicly. Minutes are only required to be made public after a willful violation of the OMA.

NOT FOR OFFICIAL PUBLICATION
IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA
DIVISION I

Case No. 117,938

 

Cooper

v.

Northwest Rogers County Fire Protection District

                                   

                                   

APPEAL FROM THE DISTRICT COURT OF

ROGERS COUNTY, OKLAHOMA

AFFIRMED

 

Opinion by Kenneth L. Buettner, Judge:

¶1        Plaintiff/Appellant Debra M. Cooper appeals from summary judgment entered in favor of Defendant/Appellee James Mathew Shockley, Defendant/Appellee Mel W. Dainty, and Defendant/Appellee Northwest Professional Firefighters Local No. 4057 (“Union”) on Cooper’s claims for malicious interference with contract, and from judgment entered in favor of Defendant/Appellee Northwest Rogers County Fire Protection District (“District”) following a bench trial on Cooper’s claim for violation of the Oklahoma Open Meetings Act (OMA). We affirm.

¶2        Cooper was employed by District as its Administrative Assistant from 2012 to February 2017. Following termination of her employment, she filed this suit against District; its Fire Chief, Shockley; its Board Chairman, Dainty; and Union.[1] Cooper alleged claims for violation of the OMA against District and malicious interference with contract against Dainty, Shockley, and Union. 1 Following a hearing, the trial court entered its Order May 17, 2018 in which it found no dispute of material fact on Cooper’s claims for malicious interference with contract and granted summary judgment to Union, Shockley, and Dainty. Also in that order, the trial court found material facts remained in dispute on Cooper’s claim for violation of the OMA. Following a bench trial on that claim, the trial court entered its Order March 28, 2019 in which it made findings of fact and conclusions of law and entered judgment in favor of District. Cooper now appeals both orders.

¶3        We first review the order entering summary judgment in favor of Union. Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 12 O.S.2011, Ch. 2, App.l. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK7,¶7,976P.2d1043. Summary judgment is not proper where reasonable minds could draw different inferences or conclusions from the undisputed facts. Id. We review the evidence de novo, in the light most favorable to the party opposing summary judgment. Vance v. Fed. Natl. Mortg. Assn., 1999 OK 73, ¶6, 988 P.2d 1275.

¶4        In its motion for summary judgment, Union asserted there was no dispute that:

  • Cooper began employment with District in 2012; 2) in October 2016, Cooper asked District to contribute to a retirement plan for her and District’s Board voted in January 2017 to pay the requested benefit, effective October 12, 2016; 3) pursuant to its collective bargaining agreement, Union filed a grievance February 7, 2017, in which it asserted the retirement contribution was effectively a pay raise for Cooper, a non-member, while Union members had not received a raise; in the grievance, Union asked either for Cooper’s raise to be rescinded or for Union members to receive an equal raise; the grievance did not mention nor request termination of Cooper’s employment; 4) Cooper’s only claim against Union was that its grievance was unprivileged, interfered with her contractual relationship with District, and caused her employment to be terminated; 5) Shockley had recommended termination of Cooper’s employment in January 2017, due to an audit report, and indicated then the issue should be discussed at District’s February 2017 Board meeting; 6) also in January 2017, Dainty contacted an employment attorney about Shockley’s recommendation; and 7) when District terminated Cooper’s employment, Union’s grievance had never been brought before the Board or discussed by the Board, and it played no part in her termination. Union argued Cooper could not prove the essential element of causation as a matter of law because Shockley had recommended termination of Cooper’s employment before Union filed its grievance, the grievance was never brought before the Board, and the grievance did not seek Cooper’s termination. Union also argued it had a right to file a grievance and therefore its grievance was privileged conduct which could not be considered interference with Cooper’s employment as a matter of law.

¶5        Cooper disputed Union’s facts numbered 3, 6, and 7. Cooper asserted the grievance was implicitly a significant motivating factor because she was terminated six days after Union’s grievance and Shockley told her there was “no way out” of the grievance. Cooper disputed that the grievance was privileged, asserting the CBA did not require or compel Union to ask that a non-member’s pay be reduced or vested rights be rescinded. Cooper asserted District’s stated reason for terminating her was a ruse and that the grievance was in fact the cause. Cooper asserted the grievance caused her termination because Shockley suggested Cooper’s termination “resolved” the grievance. Cooper relied on cases in which a union expressly sought termination of non-union members or an agreement not to hire non-members.

¶6        To recover on a claim for malicious interference with business or contract, a plaintiff must show:

  1. That he or she had a business or contractual right that was interfered with.
    2. That the interference was malicious and wrongful, and that such interference was neither justified, privileged nor excusable.
  2. That damage was proximately sustained as a result of the complained-of interference.

Mac Adjustment, Inc. v. Property Loss Research Bureau, 1979 OK 41, 595 P.2d 427. “The element of malice, for malicious interference, is defined as an unreasonable and wrongful act done intentionally, without just cause or excuse …. This element clearly requires a showing of bad faith.” Tuffy ‘s, Inc. v. City of Oklahoma City, 2009 OK 4, ¶14, 212 P.3d 1158. In its Order, the trial court found it was undisputed that the grievance was not discussed at the Board meeting at which Cooper was terminated. The trial court further found there was no evidence that the grievance played any part in the Board’s decision to terminate Cooper and no evidence that Union filed the grievance with malicious or wrongful intent. The CBA between District and Union expressly provided that Union could file a grievance to allege violations of the CBA. Union’s grievance asserted the increased pay to Cooper resulted in her pay being higher than the pay Union contracted for in the CBA. The grievance stated the resolution it sought was either rescinding the additional retirement pay to Cooper or increasing the pay of all firefighters. The summary judgment record includes no evidence from which we may infer the grievance was malicious or wrongful. Cooper’s reliance on cases involving the proof necessary for a retaliatory discharge claim are inapposite to her claim against Union for malicious interference with contract. Cooper was not a Union member or employee, nor did Union terminate her employment. The summary judgment record also shows no dispute of fact on the element of causation. Shockley recommended termination of Cooper, based on audit results, before he received Union’s grievance and there is no record evidence showing the Board knew of the grievance at the time it voted to terminate Cooper’s employment. The undisputed facts show Union was entitled to judgment as a matter of law.

¶7        We next consider Cooper’s appeal of summary judgment granted to Shockley and Dainty on Cooper’s claim for malicious interference with contract. Shockley and Dainty alleged several undisputed facts pertinent to this claim against them, including: Shockley was District’s Fire Chief and Dainty was Chairman of District’s Board of Directors at the time Cooper was terminated; the Fire Chief had authority to recommend termination of employees to the Board, but the Fire Chief did not have authority to terminate employment; the Board of Directors was charged with voting on the Fire Chief’s recommendations; termination of employment required the vote of a majority of the Board members and Dainty, as Board Chairman, did not have authority to terminate employees without a vote; the Administrative Assistant position was classified as a clerical job and supervised by the Fire Chief; the Administrative Assistant had different duties than firefighters or the Fire Chief; from the time her employment began, Cooper received some retirement benefits from District and District matched her contributions; firefighters were part of Union and had a separately negotiated pension program; Cooper was not eligible to participate in the firefighters’ pension program because she was not a firefighter; between the time Cooper began employment with District and October 2016, the firefighters received a 3% increase in their pension; Cooper was responsible for submitting retirement contribution information to the firefighters’ pension program; Cooper noticed in October 2016 that she had not received the same 3% increase and she notified Shockley, who presented the issue to the Board; the Board voted in January 2017 to give Cooper the same 3% increase, effective from October 2016; before the February 2017 Board meeting, Cooper was aware her employment was at risk due to her job performance; prior to the February 2017 Board meeting, Cooper was aware the issue of her employment would be discussed; as Administrative Assistant, Cooper’s duties included bookkeeping and payroll; while employed by District, Cooper took over doing taxes for District and received a raise for taking on increased responsibility; Cooper was trained in accounting practices by District; Shockley recommended terminating Cooper’s employment in January 2017, after he received an email from District’s CPA with 2016 audit results; District also received a negative audit in 2015, after which the auditor worked with Cooper to help her fix mistakes; the 2016 audit was worse than the 2015 audit and Shockley decided District should get a more competent administrative assistant; after Dainty received Shockley’s recommendation, Dainty contacted an employment attorney to discuss the matter January 31, 2017; Union presented its grievance to Shockley February 7, 2017;

Shockley never submitted the grievance to the Board because Cooper’s employment was terminated before the deadline for acting on the grievance; Shockley discussed payroll and tax problems with Cooper before the February 2017 Board meeting and Cooper was aware Shockley was not pleased with her performance; Board Treasurer Matt Hinson asked Cooper to correct a $200,000 discrepancy in January 2017, but Cooper had not fixed the problem by the February 2017 Board meeting; Shockley’s recommendation to terminate Cooper’s employment was motivated only by the 2016 audit results; District’s manual provides that employment was based on merit and fitness as determined by the Board and the Fire Chief; Shockley and Dainty did not personally benefit from Cooper’s dismissal; and after the Board discussed Cooper’s employment in executive session at the February 2017 Board meeting, the Board returned to regular session and voted publicly to terminate Cooper’s employment due to the audit results.

¶8        Dainty and Shockley argued there was an absence of evidence showing malice or bad faith in Shockley’s decision to recommend termination or in Dainty’s vote as a Board member. They noted the evidence showed it was undisputed Shockley recommended terminating Cooper based on the results of an audit showing bookkeeping errors and that the Board voted to terminate Cooper for that reason. They further argued that as agents of District, they could not be liable for interference with Cooper’s contractual or business relationship with District, citing Wilspec Technologies, Inc. v. DunAn Holding Group, Co., Ltd., 2009 OK 12, ¶l5, 204 P.3d 69.

¶9 Cooper did not offer evidence creating a dispute of material fact on the elements of malicious interference with contract. Cooper’s purported disputes were simply her belief that Shockley used the audit results as a pre-text for recommending termination because Cooper had asked for additional retirement contributions and because she had complained about mold in the building in which she worked. Cooper noted that employees may be liable individually for maliciously interfering with a business relationship because intentional or malicious acts would be outside the scope of employment.

¶10      In granting summary judgment to Shockley and Dainty, the trial court found it was undisputed that Dainty and Shockley were agents of District and acted on behalf of District in recommending and voting to terminate Cooper. The trial court also found there was no evidence they acted outside the scope of their agency and no evidence they acted with malice or bad faith. The summary judgment record shows no dispute of fact on the question of malice or bad faith. Shockley received an audit report critical of Cooper’s accounting practices and he recommended District’s Board terminate her employment. At the Board’s February meeting, Dainty made a motion to terminate Cooper and a majority of Board’s members voted to terminate Cooper. This evidence does not show the essential element of malice or bad faith as a matter of law.

¶l1 Generally, an agent cannot be held liable for interfering with a contract between the principal and a third party. Wilspec Technologies, supra. However, where an agent interferes with a contract between the principal and a third-party and the interference is for the benefit of the agent and against the interests of the principal, the agent may be held liable. Martin v. Johnson, 1998 OK 127, 975 P.2d 889. “If an employee acts in bad faith and contrary to the interests of the employer in tampering with a third party’s contract with the employer we can divine no reason that the employee should be exempt from a tort claim for interference with contract.”

Id. at ¶32. In analyzing Martin, the United States District Court has explained:

… (F)or the exception to the general rule to apply with the result that the tortious interference claim … survives, the agent accused of tortious interference must have acted against the interest of the principle (sic) and in furtherance of the agent’s own, personal interest. Moreover, to show that the agent was acting in his own interests requires more than a showing of bad faith; plaintiff must show that the agent was acting contrary to the business interest of his employer and in furtherance of the agent’s own, personal interests.

Grillot v. Oklahoma ex rel. University of Oklahoma Board of Regents, 2019 WL 3558183, (W.D.Okla. 2019) (emphasis in original). The summary judgment record includes no evidence creating a question of fact whether Dainty and Shockley acted against District’s interests or in their own personal interests in recommending and voting to terminate Cooper’s employment. Dainty and Shockley were entitled to judgment as a matter of law on this claim.

¶12      Finally, we consider Cooper’s appeal from the trial court’s Order entered following the bench trial of her claim for violation of the OMA. Cooper alleged District violated the OMA by “hiding” the special meeting agenda from her, voting to terminate her employment during executive session, ordering her to leave the public meeting after she was terminated, labeling the minutes of the meeting as a regular rather than special meeting, and failing to make a record of the executive session. Cooper asserts the trial court erred in finding no violation and argues she was entitled to reinstatement due to the alleged violations.

¶13      “If there is any competent evidence tending to support the findings and judgment of the trial court at a bench trial of a law case, the findings and judgment will not be disturbed, even if the record might also support a conclusion different from that reached by the trial court.” Gowens v.Barstow, 2015 OK 85, 364 P.3d 644. The trial court’s Order includes eight numbered paragraphs of findings of fact and seven paragraphs of conclusions of law. The trial court found that notice of the Board’s special meeting of February 13, 2017 was posted at 4:00 p.m. on February 9, 2017, more than the minimum 48 hours required by the OMA; Cooper was responsible for taking notes during Board meetings but at the February 13 meeting, Shockley asked Captain Pierce to be ready to take notes if necessary after executive session and when Cooper came out of the executive session room, Captain Pierce was in Cooper’s seat; Shockley and Cooper were called into the executive session and Cooper was questioned about the unfavorable audits; several Board members indicated to Cooper they intended to vote to terminate her employment; no vote to terminate was taken in the executive session; Dainty told Cooper she could leave the Board meeting before the vote if she wanted to avoid embarrassment; Cooper incorrectly took this to mean she had been terminated and was ordered to leave; Cooper’s work keys were taken before the vote; the Board returned to regular session and voted publicly to terminate Cooper’s employment; Shockley’s minutes from the meeting erroneously listed the meeting as a regular Board meeting instead of a special meeting; and during the meeting, Board members attempted to discuss new business but they were reminded by a reporter that new business could not be discussed at a special meeting and therefore new business was not discussed.

¶14      The trial court found the notice complied with the OMA, as did the vote to terminate, which was publicly cast in regular session. The court found the OMA did not require invalidating Cooper’s termination due to: the scrivener’s error labeling the minutes as a regular rather than special meeting; the Board’s brief attempt to discuss new business at the meeting; or the failure to take minutes or record the executive session.

¶l5       The trial transcript includes competent evidence supporting all of the trial court’s findings of fact. The agenda for the special meeting scheduled for 7:00 p.m. on Monday, February 13, 2017, admitted as Cooper’s Exhibit 2, states that it was posted on the door of the meeting place at 4:00 p.m. on Thursday, February 9, 2017. Cooper had left work for the day before the agenda was posted, but no evidence showed the agenda was hidden from Cooper or posted too close to the meeting time. The agenda provides, in pertinent part:

  1. Discussion and possible action to adjourn into Executive Session as per 25 O.S. §307(B)(l) to discuss the employment, hiring, appointment, promotion, demotion, disciplining or resignation of (Cooper).
  2. Action to return to regular session.
    11. Discussion and possible action on the employment,

hiring, appointment, promotion, demotion, disciplining or resignation of (Cooper).

The OMA provides that executive sessions of public bodies are permitted for this purpose. 25 O.S.2011 §307(B). The record shows nothing more than speculation that the Board terminated Cooper’s employment during executive session. The minutes from the meeting show that after the Board adjourned the executive session and returned to regular session, Dainty made a motion to terminate Cooper’s employment and the Board voted on the motion publicly, as required by 25O.S.2011 §305.

¶16 The only potential violation of the OMA shown is that District did not take minutes during the executive session in which they discussed Cooper’s employment.[2] The OMA provides that “(t)he proceedings of a public body shall be kept … in the form of written minutes which shall be an official summary of the proceedings showing … members present and absent, all matters considered by the public body, and all actions taken by such public body. The minutes of each meeting shall be open to public inspection.” 25 O.S.2011 §312(A). Cooper argues District violated the OMA by failing to keep minutes of the executive session in which her employment was discussed and that this failure invalidates the Board’s publicly cast vote to terminate her employment. For this argument Cooper relies on Section 307(F) of the OMA, which provides:

A willful violation of the provisions of this section shall: 1. Subject each member of the public body to criminal

sanctions as provided in Section 314 of this title; and
2. Cause the minutes and all other records of the executive session, including tape recordings, to be immediately made

public.

(Emphasis added.)[3] As noted in the first line of §307(F), access to minutes of executive sessions are limited to cases of willful violations of the executive session statute. Cooper urges that the failure to take minutes of the executive session is a willful violation of the OMA and that she is entitled to the minutes due to that willful violation. We disagree. The trial court found no willful violation of the executive session statute, because the Board did not vote on Cooper’s employment in executive session and it returned to regular session and cast its vote publicly.[4] Accordingly, there was no requirement to make such minutes public and therefore whether minutes of the executive session were kept is not relevant. Competent evidence supports the trial court’s Order on Cooper’s OMA claim and therefore we will not disturb the judgment.

AFFIRMED.

BELL, P.J., and GOREE, J., concur.

 

 

 

 

 

 

 

 

[1]           Cooper’s Petition also asserted claims for breach of contract against District; denial of procedural due process against District, Dainty, and Shockley; gender discrimination against District, Dainty, and Shockley; denial of liberty interest against Dainty and Shockley. District removed the case to federal court, which dismissed some of Cooper’s claims, entered summary judgment against Cooper on some claims, and remanded the remaining claims, for malicious interference with contract and for violation of the OMA, to state court. The federal court directed that Appellees; motions for summary judgment on those claims remained pending for determination by the state court and the parties did not file additional motions after remand.

[2]                In her brief, Cooper cites the federal court’s order denying District’s motion to dismiss as authority that District violated the OMA. That order determined only that Cooper had made sufficient allegations to avoid dismissal for failure to state a claim. That order did not make any findings about District’s actions related to the OMA.

[3]                Cooper has also sought to supplement the record on appeal with a statement published by Oklahoma Attorney General Mike Hunter titled “FAQ Statement #1 for SB 661 Amending Certain Sections of the (OMA).” The document addresses temporary modifications to the OMA during the current Covid-19 crisis, to allow for videoconference meetings in certain circumstances. The document includes the statement “(a)dditionally, minutes are still required to be taken during open meetings and executive sessions.” Cooper urges that this statement proves taking minutes of executive sessions is mandatory under the OMA. This document does not alter state law existing at the time of this case and is not relevant.

[4]                Section 307(E) provides:

No public body may go into an executive session unless the following procedures are strictly complied with:

  1. The proposed executive session is noted on the agenda as provided in Section 311 of this title;
  2. The executive session is authorized by a majority vote of a quorum of the members present and the vote is a recorded vote; and
  3. …any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded.

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