BOA Executive Session?
Rick and I were wondering if anyone has ever looked into whether a BOA can adjourn into executive session for any reason (or has ever done so with a client's BOA, particularly concerning pending litigation)?
Thanks in advance for any input-
Beth
Elisabeth Muckala | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370, Norman, OK 73070
(405) 217-7700 | Fax (405) 366-5425
This email is the property of the City Attorney's office, City of Norman, Oklahoma, and the information contained in this email is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by email. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this email in error, please immediately notify us and return the original message.
I did. A BOA needed to decide whether to appeal the decision of a District Court in a trial de novo in which the District Court had reversed the BOA’s decision. (The Court of Appeals reversed the District Court, by the way.) We may have even had an executive session to discuss the District Court litigation when it was initiated; I don’t recall.
I’m open to the argument that I handled that incorrectly.
On Oct 9, 2023 at 3:22 PM, <Beth Muckala via Oamamailto:oama@lists.imla.org> wrote:
Rick and I were wondering if anyone has ever looked into whether a BOA can adjourn into executive session for any reason (or has ever done so with a client’s BOA, particularly concerning pending litigation)?
Thanks in advance for any input-
Beth
Elisabeth Muckala | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370, Norman, OK 73070
(405) 217-7700 | Fax (405) 366-5425
This email is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this email is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by email. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this email in error, please immediately notify us and return the original message.
So at a high level, I would say "yes" that a BOA could hold an executive
session under 307b so long as the subject matter was something that both 1)
fell within the BOA's authority and 2) was a proper subject of an executive
session. Is the BOA a 'public body' under the OMA? I believe they are
(after all, if they are not, then this question is moot since the OMA
wouldn't even apply to them). And by its express terms, 307 authorizes
public bodies to hold executive sessions.
Can a BOA hold a 307b4 executive session? I think there are certain
circumstances where the answer would be a clear 'yes.' For example, if 11
O.S. 44-110(F) authorizes a cost judgment "against the board of adjustment"
in a District Court appeal (under extremely limited circumstances), why
wouldn't they be able to hold such an executive session so that legal
counsel can give them advice about their exposure? A more intriguing
question is whether a BOA could hold a 307b4 executive session for the
purpose of, say, deliberating on an application they are considering.
Would, say, a pending variance application be considered a 'pending
investigation, claim, or action'? Are there circumstances in which the
ability of the BOA to process the same would be seriously impaired if they
had to discuss the matter in open session? Well, circling back to
44-110(F), could one make the argument that the answer is 'yes' if the
applicant has already made (let's say public) threats that, if they don't
grant the application, then he's going to appeal and seek a cost judgment?
The harder question, in my mind, is whether there's a justification for a
307b4 when there's no such threat. For example, what if the BOA wants to
get legal counsel from their attorney regarding the evaluation of the
applicable legal standards for granting or denying a variance (and, just
for fun, let's throw in that they want advice on how their prior decisions
granting or denying similar variances might impact their decision on this
application)? I think that still circles back in the first instance to the
'pending investigation, claim, or action' question. It has to fit one of
those categories before you can get to the remaining restrictions on
holding a b4 executive session.
Matt
On Tue, Oct 10, 2023 at 6:43 AM Tammy Ewing via Oama oama@lists.imla.org
wrote:
I did. A BOA needed to decide whether to appeal the decision of a District
Court in a trial de novo in which the District Court had reversed the
BOA’s decision. (The Court of Appeals reversed the District Court, by the
way.) We may have even had an executive session to discuss the District
Court litigation when it was initiated; I don’t recall.
I’m open to the argument that I handled that incorrectly.
On Oct 9, 2023 at 3:22 PM, <Beth Muckala via Oama oama@lists.imla.org>
wrote:
Rick and I were wondering if anyone has ever looked into whether a BOA can
adjourn into executive session for any reason (or has ever done so with a
client’s BOA, particularly concerning pending litigation)?
Thanks in advance for any input-
Beth
Elisabeth Muckala | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370, Norman, OK 73070
(405) 217-7700 | Fax (405) 366-5425
This email is the property of the City Attorney’s office, City of Norman,
Oklahoma, and the information contained in this email is protected by the
attorney-client and/or the attorney work product privilege. It is intended
only for the use of the individual named above and the privileges are not
waived by virtue of this having been sent by email. If the person actually
receiving this message or any other reader of the message is not the named
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Thank you Matt and Tammy, very helpful!
From: Matt Love matt.love@gmail.com
Sent: Tuesday, October 10, 2023 2:19 PM
To: Tammy Ewing tammy@ewing.legal
Cc: Beth Muckala Beth.Muckala@NormanOK.gov; OAMA oama@lists.imla.org
Subject: EXTERNAL EMAIL : Re: [Oama] Re: BOA Executive Session?
So at a high level, I would say "yes" that a BOA could hold an executive session under 307b so long as the subject matter was something that both 1) fell within the BOA's authority and 2) was a proper subject of an executive session. Is the BOA a 'public body' under the OMA? I believe they are (after all, if they are not, then this question is moot since the OMA wouldn't even apply to them). And by its express terms, 307 authorizes public bodies to hold executive sessions.
Can a BOA hold a 307b4 executive session? I think there are certain circumstances where the answer would be a clear 'yes.' For example, if 11 O.S. 44-110(F) authorizes a cost judgment "against the board of adjustment" in a District Court appeal (under extremely limited circumstances), why wouldn't they be able to hold such an executive session so that legal counsel can give them advice about their exposure? A more intriguing question is whether a BOA could hold a 307b4 executive session for the purpose of, say, deliberating on an application they are considering. Would, say, a pending variance application be considered a 'pending investigation, claim, or action'? Are there circumstances in which the ability of the BOA to process the same would be seriously impaired if they had to discuss the matter in open session? Well, circling back to 44-110(F), could one make the argument that the answer is 'yes' if the applicant has already made (let's say public) threats that, if they don't grant the application, then he's going to appeal and seek a cost judgment?
The harder question, in my mind, is whether there's a justification for a 307b4 when there's no such threat. For example, what if the BOA wants to get legal counsel from their attorney regarding the evaluation of the applicable legal standards for granting or denying a variance (and, just for fun, let's throw in that they want advice on how their prior decisions granting or denying similar variances might impact their decision on this application)? I think that still circles back in the first instance to the 'pending investigation, claim, or action' question. It has to fit one of those categories before you can get to the remaining restrictions on holding a b4 executive session.
Matt
On Tue, Oct 10, 2023 at 6:43 AM Tammy Ewing via Oama <oama@lists.imla.orgmailto:oama@lists.imla.org> wrote:
I did. A BOA needed to decide whether to appeal the decision of a District Court in a trial de novo in which the District Court had reversed the BOA’s decision. (The Court of Appeals reversed the District Court, by the way.) We may have even had an executive session to discuss the District Court litigation when it was initiated; I don’t recall.
I’m open to the argument that I handled that incorrectly.
On Oct 9, 2023 at 3:22 PM, <Beth Muckala via Oamamailto:oama@lists.imla.org> wrote:
Rick and I were wondering if anyone has ever looked into whether a BOA can adjourn into executive session for any reason (or has ever done so with a client’s BOA, particularly concerning pending litigation)?
Thanks in advance for any input-
Beth
Elisabeth Muckala | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370, Norman, OK 73070
(405) 217-7700 | Fax (405) 366-5425
This email is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this email is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by email. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this email in error, please immediately notify us and return the original message.
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From: Matt Love via Oama oama@lists.imla.org
Sent: Tuesday, October 10, 2023 2:19 PM
To: Tammy Ewing tammy@ewing.legal
Cc: OAMA oama@lists.imla.org
Subject: [Oama] Re: BOA Executive Session?
So at a high level, I would say "yes" that a BOA could hold an executive session under 307b so long as the subject matter was something that both 1) fell within the BOA's authority and 2) was a proper subject of an executive session. Is the BOA a 'public body' under the OMA? I believe they are (after all, if they are not, then this question is moot since the OMA wouldn't even apply to them). And by its express terms, 307 authorizes public bodies to hold executive sessions. (Agree with all this.)
Can a BOA hold a 307b4 executive session? Yes – we have always allowed the BOA do an executive session when a BOA appeal is pending in court and a settlement proposal needs to be discussed.)
I think there are certain circumstances where the answer would be a clear 'yes.' For example, if 11 O.S. 44-110(F) authorizes a cost judgment "against the board of adjustment" in a District Court appeal (under extremely limited circumstances), why wouldn't they be able to hold such an executive session so that legal counsel can give them advice about their exposure? (Yes, if Appellant is asking for such relief, I agree!)
A more intriguing question is whether a BOA could hold a 307b4 executive session for the purpose of, say, deliberating on an application they are considering. (I’d hesitate on this unless the applicant or protestants threaten litigation depending upon the BOA ruling – your scenario below.)
Would, say, a pending variance application be considered a 'pending investigation, claim, or action'? (Likely not – I wouldn’t do it without an AG’s Opinion or a decided case saying it’s proper.)
Are there circumstances in which the ability of the BOA to process the same would be seriously impaired if they had to discuss the matter in open session?Well, circling back to 44-110(F), could one make the argument that the answer is 'yes' if the applicant has already made (let's say public) threats that, if they don't grant the application, then he's going to appeal and seek a cost judgment? (Yes, per my prior answer.)
The harder question, in my mind, is whether there's a justification for a 307b4 when there's no such threat. (I agree; I would not risk it without AG or case law to rely on.) For example, what if the BOA wants to get legal counsel from their attorney regarding the evaluation of the applicable legal standards for granting or denying a variance (and, just for fun, let's throw in that they want advice on how their prior decisions granting or denying similar variances might impact their decision on this application)? I think that still circles back in the first instance to the 'pending investigation, claim, or action' question. It has to fit one of those categories before you can get to the remaining restrictions on holding a b4 executive session. (I doubt it does; I’d want clarification from the AG or a case saying it is a pending claim or action; it’s not an investigation. If asked right now, my answer is “no,” just a pending BOA application cannot justify an executive session.)
Matt
On Tue, Oct 10, 2023 at 6:43 AM Tammy Ewing via Oama <oama@lists.imla.orgmailto:oama@lists.imla.org> wrote:
I did. A BOA needed to decide whether to appeal the decision of a District Court in a trial de novo in which the District Court had reversed the BOA’s decision. (The Court of Appeals reversed the District Court, by the way.) We may have even had an executive session to discuss the District Court litigation when it was initiated; I don’t recall.
I’m open to the argument that I handled that incorrectly.
On Oct 9, 2023 at 3:22 PM, <Beth Muckala via Oamamailto:oama@lists.imla.org> wrote:
Rick and I were wondering if anyone has ever looked into whether a BOA can adjourn into executive session for any reason (or has ever done so with a client’s BOA, particularly concerning pending litigation)?
Thanks in advance for any input-
Beth
Elisabeth Muckala | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370, Norman, OK 73070
(405) 217-7700 | Fax (405) 366-5425
This email is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this email is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by email. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this email in error, please immediately notify us and return the original message.
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