Bylaws at issue again

By D.E. Smoot
Phoenix Staff Writer

April 17, 2008 01:14 am

— Officials say they likely will revisit the bylaws recently approved for the City of Muskogee Foundation because of concerns about whether they comply with the Open Meetings Act.
Critics say the bylaws attempt to skirt state laws that govern the meetings of public bodies. The laws are intended to promote transparency in government and public trust.
The bylaws, approved March 10 by the City Council, state the foundation will operate in accordance with the Open Meetings Act, but several provisions appear to undermine the law.
William Hickman, a media law professor at the University of Central Oklahoma and lawyer familiar with the Open Meetings Act, said an entity that controls the expenditure of public funds generally falls within the legal definition of a public body.
“If there is any influx of public money into the trust and the trust has the authority to decide how that money is used then typically it would be subject to the Open Meetings Act,” said Hickman, a member of FOI Oklahoma’s board of directors. “I think municipal money would fall under the same guidelines as state or federal funding. ”
The City of Muskogee Foundation will be funded entirely from the proceeds from the 40-year lease of Muskogee Regional Medical Center — a facility owned by the city of Muskogee — to Capella Healthcare. Foundation directors will oversee how that money is invested and decide how to spend the interest — estimated to be from $3 million to $5 million annually — earned from those investments.
The foundation’s directing board will be made up of 13 members, four of whom will the city manager, the mayor and two city councilors. The nine remaining members will be selected by the City Council.
Several city councilors questioned the objectionable provisions during the debate that preceded passage of the foundation’s bylaws. Mike Joseph, an Oklahoma City lawyer hired to draft the foundation’s legal documents, assured officials the questionable provisions were authorized by corporate statutes, but said they could be deleted “with the punch of a button.”
Councilors approved the bylaws as proposed, but some now are having second thoughts about their action.
Ward II Councilor Frank Borovetz Jr. said the bylaws definitely should be revisited. With regard to the bylaw’s meetings provisions, he cited three areas of concern:
• Allowing the foundation’s board of directors to meet without public notice.
• Allowing members to vote without meeting by unanimous consent.
• Allowing directors to meet by teleconferences during which votes could be cast.
The Open Meetings Act requires public notice for all meetings of public bodies that must abide by the act and that all votes be cast publicly. Teleconferences are allowed only in certain circumstances and under strict guidelines that provide public access to all teleconference locations.
“I am not trying to throw cold water on anything,” Borovetz said about his concerns and desire to reconsider the bylaws as adopted. “But I think anytime we don’t make it open the people will start getting suspicious and suspect wrongdoing. We’ve got to keep it open and transparent.”
Ward IV Councilor Jim Ritchey said he anticipates the City Council will get a chance to take a second look at the bylaws after the May 13 runoff election. The election will determine who will succeed Mayor Wren Stratton and the outcome of the contests in Wards II and IV.
“I am not going to let this rest until it is corrected,” Ritchey said about the meeting provisions in the foundation’s bylaws. “What I expect we’ll do is put it back on the agenda after the new City Council is in place and then we will amend the bylaws accordingly.”