What Does “Supported in Whole or in Part" Mean in the Open Meeting Act?

This issue has not been definitively answered by our Oklahoma Supreme Court.  Oklahoma Attorney General Opinion 2002 OK AG 37 is the latest we have in the way of legal authority regarding the meaning of “supported in whole or in part by public funds” in the Open Meeting Act.  This question is important because if an organization falls within this classification then it is a public body and is subject to all the requirements of the Act.

The Open Meeting Act defines “public body” as “all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts or any entity created by a public trust, task forces or study groups in this state supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body.”  25 O.S. Section 304(1).

As the AG opinion states, this ultimately is a factual determination and therefore one that he cannot answer.  However, he notes that the Act “contains no expression of legislative intent, express or implied, that private organizations which contract to provide goods or services to the public on behalf of a governmental agency becomes public bodies subject to the Act, merely because they receive payment from public funds for goods provided or services rendered.”  Paragraph 19.

If the mere payment of public funds is not the controlling factor then an examination must be conducted into the ins and outs of the relationship between the parties.  A legal determination will ultimately depend on the terms of the agreement and all relevant factual circumstances.

Summary of AG Opinion

2002 OK AG 37

To assist us, the AG has opined that there are at least two situations in which a private organization will be subject to the Act:

If the private organization is a “subordinate entity” which exercises actual or de facto decision-making authority on behalf of a governmental body; or
If the private organization is “supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property.”

Subordinate Entity

The Oklahoma Supreme Court has determined in two cases that the Act applies to subordinate entities if: (1) it is established by an entity which is itself subject to the Act; and (2) which exercises “actual or de facto decision-making authority on behalf of a governmental body.”  See Sanders v. Benton, 579 P.2d 815, 820 (Okl. 1978) and International Association of Firefighters Local 2479 v. Thorpe, 632 P.2d 408, 411 (Okl. 1981).

The Court has held that in this “subordinate entity” classification, whether the subordinate entity is supported in whole or in part by public funds is not controlling.  Paragraph 5.

Private Entity

Private entities which do not meet the definition of “subordinate entity” may fall under the Act if it is “supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property.”  However, the Act does not define “supported”.

In the attached AG Opinion, the Webster’s dictionary definition is used.  Support is defined as “to pay the costs of:  maintain.”  Since there is no Oklahoma Supreme Court case, the AG cites a North Dakota case that “ordinarily, support by public funds is evidenced by a legislative enactment, either a direct appropriation or an authorization to a governmental unit to directly transfer public funds or tax revenues to another entity for a public purpose.”  Paragraph 10.

The AG then makes a distinction between this and the situation where there is an agreement between the public body and private organization “to provide goods or services.”  While acknowledging that he cannot give a “definitive answer which applies to all situations”, he proceeds to “attempt to provide general guidance.”  Paragraph 12.

General Guidance

Reimbursement-for-services.  In Paragraphs 13 and 14 he sits out criteria to measure whether the contract between the parties establishes a relationship of “merely contractors or vendors of goods or services.”  Included in this is reimbursement for actual expenses and submitting claims detailing the services provided.  In such contracts, “private organizations provide services in the same way an architect, engineer, or other professional would.”

To assist this analysis, the Attorney General in Paragraphs 15 and 16 examines case law from other states whose Open Meeting Act is substantially the same as in Oklahoma.  These cases describe “bargained-for exchanges of services or goods for money and public funding” and the “supplying of specific goods or services on an arms length basis” with the public body receiving a “quid pro quo in sufficiently identifiable and measurable quantities of services for any public expenditure.”  Paragraph 18 cites an Indiana case where no quid pro quo relationship existed since the private entity received funds “regardless of whether it preformed services.”

Given the lack of a ruling from the Oklahoma Supreme Court, it is best to obtain an opinion from your city attorney on the status of any local organization.  This provides a measure of protection for the governing body.  One day the Oklahoma Supreme Court will rule on the issue.  Until then we can only make the best determination possible.

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