ON Attorney General Holli Wells issued an opinion on whether the Osage Minerals Council is subject to the Open Meetings Act and Open Records Act. Her short answer: yes.
In her five-page opinion issued Aug. 19, she details the independent relationship the minerals council has within the Osage Nation Constitutional government. However, as an independent agency but also a government entity of the Nation, it is obligated to follow the Osage Nation Constitution and its laws.
“I can’t comment at this time due to pending litigation,” said OMC Chairman Everett Waller about the opinion. “That’s the best I can do at this time, I have to do what’s best for the shareholders and I just can’t comment at this time.”
On the same day the AG filed her opinion, OMC members Cynthia Boone, Waller, Kathryn Red Corn, Joseph Cheshewalla and Stephanie Erwin appealed their ethics case to the Osage Nation Supreme Court on Aug. 19. In February of this year, former-Attorney General Jeff Jones asked the Trial Court for a declaratory judgment on whether the OMC members had to file a required yearly affidavit of gifts received during the fiscal year.
The question of following the Open Meetings Act and Open Records Act was posed to the AG by Principal Chief Geoffrey Standing Bear who said he asked the question after ON Trial Court Associate Judge Lee Stout said the ethics case of the five OMC members was still pending. He wanted to ask the AG where the minerals council fits within the Osage constitutional government, but he felt the question was too big and better suited for the Osage Nation Supreme Court to answer instead.
His thoughts on the AG’s opinion: “It’s what I expected.”
He said two examples to show how governments operate, whether it’s cities, towns, the federal government or tribes, would be the Open Meetings Act and the Open Records Act.
“In my observation of trying to learn what the Osage Minerals Council was doing; what I was hearing from reports from meetings didn’t seem to match up to the agendas,” Standing Bear said. “And I was just curious on how they were doing things in terms of posting agendas and executive sessions.”
An example he gave of how tribal officials used to conduct business in the Osage was when he was the Assistant Principal Chief for the 28th Osage Tribal Council from 1990-1994. He said they would have meetings and go into executive session and discuss issues to the point where he thought they were conducting official business. The items discussed in executive session would at times be totally unrelated to the agenda.
“I’ve been trying to make sure all our entities follow open records and open meetings law,” Standing Bear said. “I’m not saying they [OMC] violated it, because I really haven’t looked that closely at it – and that issue hasn’t even come up, yet.”
The Open Records Act definition of a government entity specifically includes independent agencies of the Osage Nation.
According to the law, any member of the public who has been denied an open records request can challenge the denial by filing a claim in Trial Court. If successful, the court must award actual court costs, attorney fees and expenses.
According to the AG opinion, the AG “may enforce violations of the Open Records Act by filing a civil suit in Trial Court against a public employee or any other person who has lawful access to any public or protected record asking the Court to impose civil penalties as provided for in the Act.”
“Additionally, both acts include civil penalties for violations, which provide the teeth for enforcement by the Attorney General,” Wells wrote. “The Attorney General Act authorizes the Attorney General to bring civil suits against officers for failure to perform their duties as prescribed by the Nation’s laws.”
Violation of the Open Meetings Act is punishable by a fine of up to $500. Violation of the Open Records Act is punishable by a fine of up to $5,000. In 2013 the Osage News successfully sued then-Principal Chief John Red Eagle for violating the Open Records Act.
To read the AG’s opinion, visit: http://static.osagenews.org.s3.amazonaws.com/cms_page_media/43/2015-8-19_AG_Open%20Meeting%20.pdf
By
Shannon Shaw Duty
Original Publish Date: 2015-08-20 00:00:00
