The Norman Transcript has learned the Oklahoma State Bureau of Investigation is investigating the City of Norman for allegedly violating the Open Meeting Act.

"We're in the initial stages of the investigation, and I really can't comment on it," said OSBI Inspector Steve Neuman.

Asked if council members and/or staff have been interviewed by OSBI investigators, Neuman replied: "We haven't got that far. We just got the request from the (Cleveland County) district attorney (Greg Mashburn) to look into the matter.

"We can't initiate an investigation. That has to be requested by law enforcement," Neuman said.

The two documents acquired by The Transcript were memoranda composed by Norman City Attorney Jeff Bryant. The first was a three-page "Legal Opinion re: alleged Open Meetings Act violation on June 9, 2009," and was addressed to "Honorable Mayor and Council Members."

In the memo, Bryant stated: "It has come to Staff's attention that an Open Meeting Act violation is being alleged in regards to the Executive Session held on June 9, 2009 to discuss right of way acquisition for the Rock Creek Road Overpass project. First, I understand Councilmember (Tom) Kovach has alleged that a violation occurred when the funding mechanism for acquiring real property needed for the Rock Creek Road Overpass was discussed during an executive session held to "discuss the acquisition of real property associated with the Rock Creek Road Overpass project."

Secondly, Bryan stated, "Councilmember-elect Alan Atkins has reported that he may have been in violation of the Open Meetings Act by being present during the Executive Session because he is not yet a sworn-in and voting member of Council..."

Bryant defends the council's action in the memo, citing a statute that provides that "executive sessions may be held for the purpose of discussing the purchase of real property." The statute "outlines the requirement for executive session as it relates to the agenda for the meeting."

Bryant alleges the agenda "contained sufficient information to inform the public that an executive session would be proposed, identified the business and purpose of the session and stated the statute provision that authorized the executive session."

"The question here is whether the description of the business and purpose of the session (to discuss the acquisition of real property associated with the Rock Creek Road Overpass) was sufficient to include discussion of which property would be acquired, the mechanism by which it was proposed to be acquired (purchase) and how the property would be acquired, i.e. funding source."

Bryant expresses his position the city and council acted properly in composition of the agenda and subsequent discussion in the executive session.

"As discussed herein, it is the opinion of this office that the City of Norman was compliant with the spirit and intent of the Oklahoma Open Meeting Act when conducting its Executive Session on June 9, 2009," he states.

In the memo, Bryant said "another concern has been raised as to whether Councilmember-elect Atkins' presence during the Executive Session constituted a violation of the Open Meeting Act.

Bryant expresses his opinion that Atkins was present at the meeting as an elected official and not as a private citizen, and (Atkins) did not stand to make money from the transaction.

Bryan said it was his opinion that Atkins' "presence during the Executive Session did not constitute a violation of the Open Meetings Act."

Kovach raised his concerns about the Open Meeting Act violations during the June 23 regular session and council's consideration of the University North Park refinancing, when he announced: "We violated the Open Meetings Act last time we met (in executive session)."

"There was only one item on the agenda, but we discussed two separate topics," he said.

Kovach said Councilmember Doug Cubberley recused himself from the meeting and left the room, but then "was brought back for the financing" portion of the discussion. By doing so, Cubberley was required to recuse himself from the evening's UNP TIF vote, Kovach said.

Cubberley said if the Council decided to condemn a certain property, the property owner might hire his law partner as legal representative. As soon as he realized there might be a conflict of interest, Cubberley said he asked the city's legal staff if he needed to recuse, and was told there was no need to do so.

Cubberley said he left the executive session anyway, because he felt uncomfortable about attending the discussion. He returned for discussion on options for purchasing rights of way, and Kovach took issue with the separate topics of conversation, when only one subject -- the acquisition of property -- was to be discussed.

After the meeting, Kovach said he understood the only way finances could be discussed in executive session was if the finances were an integral part of a contract for purchase.

The second memorandum obtained by The Transcript, dated July 24, 2009, was an "Update on pending City legal matters," and distributed to the mayor and council members.

It states in part: "This office has met with an Oklahoma State Bureau of Investigation agent regarding an allegation that the City violated the Open Meeting Act ...The crux of the issue is whether a posting concerning the acquisition of real property is adequate to allow discussion of the funding source for that acquisition. The legal opinion has been provided to the District Attorney and the OSBI Agent...

"Should interviews by the OSBI Agent be requested of those Council members who attended this executive session, then our office would be available to accompany you on those interviews as requested," Bryant said.

Contacted by phone Thursday about the OSBI investigation, Bryant said: "It's interesting you have those memos -- they involve attorney/client privilege, and it's probably something that shouldn't be discussed."

Bryant said he was contacted by the OSBI and met with a woman agent July 17, who requested "documentation concerning the matter."

One week later, Bryant said he provided the OSBI with the requested documentation, "and also provided the same packet of information to the DA's office."

Bryant said the legal opinion provided to the council in the June 23 memo, "we feel is pretty solid and that there is no violation of the Open Meeting Act as alleged by councilman Kovach."

Tom Blakey

366-3540

tblakey@normantranscript.com