RE: OPEN MEETING ACT
ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER OF NOVEMBER 17, 1988 ASKING FOR ADVICE AS TO THE TERMS OF THE OPEN MEETING ACT. HE HAS AUTHORIZED ME TO PERSONALLY RESPOND TO YOU ON HIS BEHALF THROUGH THIS INFORMATIONAL LETTER.
YOU FIRST ASK ABOUT WHETHER THE TERM "CONSIDERED", AS USED IN SECTION 25 O.S. 303, IS SUCH THAT IT SHOULD BE CONSTRUED TO ONLY REFER TO MATTERS POSTED ON A MEETING AGENDA FOR SOME ACTION. IT HAS BEEN ADVISED ON NUMEROUS OCCASIONS THAT THE OPEN MEETING ACT IS TRIGGERED BY THE MERE DISCUSSION OF PUBLIC BUSINESS, AND THAT SOME CONTEMPLATED ACTION IS NOT NECESSARY. IN THE MATTER OF THE APPEAL OF THE ORDER DECLARING ANNEXATION DATED JUNE 28, 1978, 637 P.2D 1270 (OKLA. APP. 1981); OKLA. A.G. OP. NOS. 82-212, 82-114, 81-184. UNDER THE ACT'S PLAIN TERMS, IT IS TRIGGERED AT ANY TIME THAT A MAJORITY OF THE PUBLIC BODY ARE PERSONALLY TOGETHER AND CONDUCTING BUSINESS. THE UNDERLYING PURPOSE OF THE ACT IS TO PERMIT THE PUBLIC TO BE INFORMED ABOUT THE GOVERNMENTAL PROCESSES LEADING UP TO THE FINAL FORMULATION OF ACTION TO BE TAKEN, AND, THEREFORE, HAS BEEN ROUTINELY CONSIDERED BY THIS OFFICE THROUGH MULTIPLE ADMINISTRATIONS AS COVERING DISCUSSIONS OF PUBLIC BUSINESS.
THEREFORE, IN RESPONSE TO YOUR FIRST THREE QUESTIONS, THE ACT DOES CONTEMPLATE THAT THE WORD "CONSIDERED" MEANS MORE THAN MERELY THOSE MATTERS THAT HAVE BEEN FORMALLY PLACED ON AN AGENDA FOR ACTION. IT IS POSSIBLE FOR A DISCUSSION ON A SUBJECT TO TAKE A MOMENTARY DIVERGENCE IN THE COURSE OF THE CONVERSATION BY A REFERENCE TO A RELATED SUBJECT THAT HAS NOT BEEN POSTED, AND NOT HAVE THE NEW DISCUSSION RESULT IN A VIOLATION OF THE ACT. SUCH A DIVERGENCE, IF NOT CONTROLLED BY THE EXERCISE OF COMMON SENSE, COULD ALSO RESULT IN A VIOLATION OF THE LAW.
THE KEY APPEARS TO BE WHETHER THE "NEW SUBJECT MATTER "IS RELATED TO THE PRIMARY AREA OF DISCUSSION, AND IS OFFERED AS A PASSING AID TO THE PUBLIC BODY IN RESOLVING THE PRIMARY AREA OF CONCERN, OR WHETHER THE "NEW TOPIC" IS REALLY NOT AN ANCILLARY CONCERN TO A PROPERLY POSTED AGENDA TOPIC. EACH INDIVIDUAL FACT PATTERN WILL BE DIFFERENT AS TO SUCH QUESTIONS, AND IT IS IMPOSSIBLE TO ATTEMPT TO ANSWER IN THE ABSTRACT WHETHER A CONVERSATION IS LEGITIMATELY ENGAGED IN OR NOT.
I KNOW FROM PERSONAL EXPERIENCE IN ADVISING MANY STATE AGENCIES THAT A CONVERSATION THAT MIGHT START OUT AS A LEGITIMATE ANCILLARY DISCUSSION OF ISSUES RELATED TO AN AGENDA TOPIC CAN EVOLVE VERY QUICKLY INTO A TOTALLY NEW CONVERSATIONAL TOPIC THAT WOULD NOT BE PERMITTED. ON MORE THAT ONE OCCASION I HAVE FELT IT NECESSARY TO INTERJECT INTO A DISCUSSION THAT A CONVERSATION IS GOING OFF THE LEGITIMATE TRACK, AND MUST BE DISCONTINUED. I KNOW OF NO MAGIC ADVICE IN THIS REGARD EXCEPT THAT IF ONE EXERCISES COMMON SENSE AND JUDGMENT, ONE CAN USUALLY TELL AT WHAT POINT A CONVERSATION SHIFTS FROM ONE FOCUS TO ANOTHER, AND, AT THAT POINT, MEMBERS OF PUBLIC