Opinion:Bailey v. STATE ex rel. Board of Tests for Alcohol and Drug Influence, 2022 OK 50
Subject matter:Open Meetings Act
Date Decided:May 24, 2022
Trial Court:District Court of Oklahoma County; Judge Prince
Route to this Court:Appeal from Order of District Court; Court of Civil Appeals, Division I reversed; Petition for Certiorari granted.  
Facts:Plaintiffs challenged rules governing alcohol testing equipment and procedures that were previously adopted by the Oklahoma Board of Tests for Alcohol and Drug Influence. The challenged rules were adopted in response to a decision by the Court of Civil Appeals. In Sample v. State ex rel. Department of Public Safety, 2016 OK CIV APP 62, the Court of Civil Appeals affirmed a trial court’s judgment which determined the Department of Public Safety improperly revoked a driver’s license. The DPS revocation was based upon alcohol breath test procedure and equipment which was approved by the Board, but the form of the Board’s approval was not by promulgated administrative rules. The Board held a special meeting on October 7, 2016, to promulgate Emergency Rules in response to the court’s opinion in Sample. Plaintiffs challenged these rules.

Plaintiffs argued the Board violated provisions in Oklahoma’s Open Meeting Act (OMA), Oklahoma Administrative Procedures Act, and the Oklahoma Administrative Code (OAC). Defendants argued three issues were before the trial court: (1) Whether the Board violated the OAPA and 40:1-1-3 of the Administrative Code, and that defendants had the burden of proof; (2) Whether the Board’s special meeting on October 7, 2016 violated the OMA due to improper and willful conduct of an official, and plaintiffs had this burden of proof; and (3) Whether the Board properly promulgated emergency rules, and defendants had this burden.

The trial court determined that the special meeting was properly called. The trial court also found that the Director willfully failed to notify the Secretary of State of the special meeting, thus the Emergency Rules adopted by the Board at the special meeting were invalid. The Director sent notification emails to a list of about 30 people, and forgot to include the Secretary of State. 
Standard of Review:Appellate review is de novo because the OMA statutory phrase “willful violation” must be defined and applied, but also because the assignment of error is whether the evidence showed a prima facie case of willful conduct as an issue of law.
Analysis:Legislative intent controls statutory interpretation. The Legislature’s intent for the OMA is to effectuate “the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” 25 O.S.2011 § 302. The Legislature created both a criminal penalty and an invalidating provision as part of the OMA: (1) Any person or persons willfully violating any of the provisions of the OMA shall be guilty of a misdemeanor; and (2) Any action taken in willful violation of the OMA shall be invalid.

Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.  Fraternal Order of Police v. City of Norman, 2021 OK 20, 489 P.3d 20. The words “blatant”, “purposeful”, and “deliberate” pertain to action, not knowledge. Negligence is normally associated with inadvertence and not willful conduct. 

To determine the issue the Court asked: “whether the Director’s failure to send the notice to the Secretary of State frustrated the purposes of the OMA.” If it does not, then the evidence is insufficient to show the Director’s willful violation of the OMA notice provision requiring notice sent to the Secretary of State. The Court determined that the omission did not frustrate the purposes of OMA because:  (1) individuals and entities desiring to be notified of such were notified, (2) the reason for the failure to send the notice is supported by testimony indicating a single honest mistake while trying to send the notice, and (3) the failure to provide actual notice to the Secretary of State occurred during unusual circumstances involving a perceived need for timely regulations concerning public safety.
Vote:7-2; Concur: Darby, C.J.; Kane, V.C.J.; Kauger, Winchester, Edmondson (author), Combs, and Rowe, JJ. Dissent: Gurich and Kuehn, (by separate writing), JJ.
Other: J. Kuehn disagrees with the Court’s redefining of “willful” and writes that the test for a willful violation of the OMA is already established. A violation is willful if it is “conscious, purposeful” or is a “blatant or deliberate disregard of the law by those who know, or should know, the requirements of the Open Meeting Act.”