Tulsa counciors sued for Open Meeting Violations

[Hawkins]

City Councilors sued?

When will the crazy stop? This can't be good for Tulsa.

http://www.tulsaworld.com/news/article.aspx?subjectid=11&articleid=20100714_11_0_Tulsas946191

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[custosnox]

interesting that this is filed by individuals, and not by bartlett.  Smokescreen or dimwits?

[nathanm]

The lawsuit challenges the council's authority to conduct a criminal investigation. DeMuro said that Tulsa's City Charter does not provide that authority, only the ability to review the conduct of city government.

Uh, how are these two things different? I guess if it gets referred to a prosecutor, that makes it a criminal investigation?

[custosnox]

Uh, how are these two things different? I guess if it gets referred to a prosecutor, that makes it a criminal investigation?

Beyond this, the State Constitution gives the council power to investigate.

[sgrizzle]

I'm just wondering if this will get thrown out on the first court date or the second.

[shadows]

If the city is charted by the state, the charter is approved by the governor, the open records is a statue, the open meetings is written in the statutes, the open meetings is written in the charter, it is noted as a reason for removing violators, it is all covered by municipal  league statutes, the final codes are written in the federal codes and has existed for many years.  But it is all new as we never took anything from the old city except another scam to relieve those on SS from their promised COL increases.

[tulsa_fan]

CONAN??  Do you see a conflict by Wohlegmuth (sp?) representing Bartlett personally against the council (he and Bartlett have already said they will pursue all legal means to fight the council  . . . ) when he is an attorney used by the city (and in turn represents the council) in several matters?  Then one article states tht the individuals who filed the lawsuit consulted him prior to filing the case.  Just seems like big conflict to me. 

[inteller]

one of those suing is the co-founder of QuikTrip and sits on the board.  Just one more reason to boycott that nefarious cult.

[waterboy]

My gawd, the leadership in this city is inbred. Lets just lease management of the city to a corporation and call it done. I'm sure QT or Flintco could/would do the job.

[CoffeeBean]

Back in 2006, a federal judge ruled there is no private right of action under the Oklahoma Open Meetings Act.  See Shero v. City of Grove, Oklahoma, 2006 WL 3196270*8-10

Defendants seek summary judgment on plaintiff's GTCA claim. They argue that plaintiff may not rely on the OORA or OOMA as a basis for this claim. Plaintiff responds that he can incorporate the OORA and OOMA into a claim for negligence using a theory of negligence per se, and that both statutes imply a private right of action for monetary damages.FN10

    FN10. Plaintiff asserts the same constitutional claims under the GTCA that were discussed by the Court above. The Court has already determined that plaintiff has not proven a constitutional violation and will not revisit those issues under the GTCA.


Plaintiff claims that he can pursue violations of the OORA and OOMA though the GTCA. Section 153 of the GTCA provides:

The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state.

*9 Money damages are not available against a governmental body under either the OOMA or OORA. See Okla. Stat. tit. 25, §§ 313, 314 (creating criminal penalties for willful violations of the OOMA, but not expressly creating a private right of action); Okla. Stat. tit. 51, § 24A.17 (creating right to bring a civil suit for declaratory or injunctive relief, but specifically excluding money damages). Since no private citizen could bring a claim for damages under the OORA or OOMA, plaintiff may not use the GTCA to avoid the exemptions from monetary liability created by those acts. Kluver v. City of Hinton, 924 P.2d 306, 307 (Okla.Civ.App.1996) (explaining that section 153 does not waive immunity from tort liability provided by any other statute). This statute prevents plaintiff from using the OORA or the OOMA as a basis for liability, even under a negligence per se theory, because a private person would not be liable for money damages for a violation of either statute.

Plaintiff claims that both the OORA and OOMA create an implied private right of action and he is authorized to receive money damages for violations of both statutes. The Oklahoma Supreme Court has recognized that a statute may create a private right of action under some circumstances. In order to imply a private right of action, the Court must find that three-factors are present:

(1) the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) some indication of legislative intent, explicit or implicit, suggests that [the legislature] wanted to create a private remedy and not to deny one; [and] (3) implying a remedy for the plaintiff would be consistent with the underlying purposes of the legislative scheme.

Holbert v. Echeverria, 744 P.2d 960, 963 (Okla.1987). If a statute benefits the general public as a whole, no special class is created and courts may not imply a private right of action. Walker v. Chouteau Lime Co., Inc., 849 P.2d 1085 (Okla.1993); Nichols Hills Physical Therapy v. Guthrie, 900 P.2d 1024, 1026 (Okla.Civ.App.1995). The central inquiry when determining if a statute implies a private right of action is legislative intent.FN11 Holbert, 744 P.2d at 964. The three-part test laid out in Holbert is not applicable if the legislature explicitly created a private right of action. Ohio Casualty Ins. Co. v. Todd, 813 P.2d 508, 520 (Okla.1991).

    FN11. Recent precedent of the United States Supreme Court unequivocally states that the key inquiry when determining whether a federal statute implies a private right of action is legislative intent. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) ("The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy."); Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979) ( "The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action."). In Holbert, the Oklahoma Supreme Court cited this reasoning as persuasive when considering whether a state statute contains an implied private right of action.


The OORA expressly creates a private right of action for declaratory and injunctive relief, so it is unclear why plaintiff believes the Court should imply a right of action for money damages. See Hartman v. Kickapoo Tribe Gaming Comm'n, 319 F.3d 1230, 1232 (10th Cir.2003) (when legislation expressly provides a remedy, courts should be hesitant to imply additional remedies not expressly provided by statutory scheme). The Oklahoma legislature created a limited private right of action, but specifically excluded money damages as an element of relief. See Okla. Stat. tit. 51, § 24A.17. Holbert is not applicable, because the legislature has created a statutory right of action under the OORA. The Court will not imply a right of action including money damages when it would be inconsistent with the express language of the statute. Plaintiff may not rely on the OORA as a basis for his GTCA claim.

*10 Plaintiff is not entitled to pursue a private right of action under the OOMA. The Court is reluctant to create a private right of action for members of the general public when such a right is not clearly implied by the OOMA. Cannon v. University of Chicago, 441 U.S. 677, 693 n. 13 (1979) (noting general rule that courts have been reluctant to imply a right of action when statute benefits public at large); Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1494 (10th Cir.1997) (refusing to imply right of action under 1986 Defense Authorization Act because creating a right of action for the general public would interfere with administrative enforcement); Holbert, 744 P.2d at 963 ("The mere state of being 'especially harmed' as the result of an act's violation does not make one a member of a special class the act might seek to protect."). The OOMA protects the right of the general public to attend governmental meetings, but there is no express indication that the legislature intended to create a right for a specific class of citizens. Shero claims that "the class of persons to be protected are the average everyday citizens who seek to exercise their constitutional right to participate in the political process." Dkt. # 109, at 18. This merely describes the general public's interest in attending governmental meetings, and there are other causes of action to address alleged violations of constitutional rights. The Court finds that the OOMA does not benefit a specific class of people, and there is no basis to imply a private right of action under the OOMA.

Outside of the constitutional claims previously discussed, plaintiff has no other legal basis for his claims under the GTCA. Since plaintiff may not rely on the OOMA or OORA to support his GTCA claim, summary judgment is appropriate in favor of defendants on this claim.

[Gaspar]

I would follow the money.  At the heart of the matter is City Atty. Drew Rees who is running for County Comish.  I am willing to bet that the "individuals" suing are in cahoots with his opponent.

Just a hunch.