Ray Carter, OCPA Center for Independent Journalism
During the 2018-2019 school year, four public school districts in Oklahoma hired contract lobbyists. In addition to raising concerns about government accountability and indirect funneling of taxpayer dollars to political campaigns, schools’ use of contract lobbyists may also reduce government transparency and sidestep open-records laws.
Under Oklahoma law, most written communications sent to lawmakers by public school officials are open records that can be viewed by the public. However, because the Legislature exempts itself from open-records requirements, critics worry that written communication sent to lawmakers by a lobbyist who is not a direct employee of a school, but a contract worker, may effectively evade open-records requirements.
But a leading authority on open-records laws says those communications should be made available and are likely considered public documents, although a lawsuit may be required to force the production of communications between school lobbyists and legislators.
“I’m not advocating for opening up every record of the lobbyist, but if those records are produced, if they are created on behalf of the public school district, I think they should be open,” said Joey Senat, associate professor at the OSU School of Media & Strategic Communications. “Maybe it would take another AG (attorney general) opinion to get that settled, or a court case. Or the Legislature could solve it, one, by removing their own exemption from the Open Records Act. But regardless, it creates a problem.”
Senat notes that a legal opinion issued by the state attorney general in 1981 addressed a similar situation, and the logic of that opinion suggests written communications produced by a contract lobbyist on behalf of any taxpayer-funded entity would be considered open records under Oklahoma law.
In the 1981 case, the attorney general declared that records related to the maintenance of public property were subject to open-records requests even if maintenance was conducted by a private contractor.
The attorney general determined that Oklahoma’s open-records law applied to private nonprofit corporations that “have entered into contractual arrangements with municipalities to operate or maintain public property for and on behalf of such municipalities.”
The opinion stressed, “To find otherwise would permit public officials to abdicate to private parties their duties with respect to keeping records concerning such matters and would place such records beyond the reach of interested members of the public desiring to become informed upon matters pertaining to the operation and maintenance of public property.”
“Granted, the current situation doesn’t involve public property,” Senat stated. “But it raises the same concern. The lobbyists are advocating to state legislators on behalf of those public school districts. In other districts, that duty falls to a government employee who is subject to the Open Records Act.”
Senat said one solution to the transparency issue is for school boards that approve a lobbying contract to include provisions that require the lobbyist to preserve and make all associated records publicly available. Senat said a school-lobbyist contract could require that “all correspondence—memos, letters, whatever—all those records produced by the lobbyists to the Legislature should be forwarded to the school district and made available to the public.”
The four districts that hired contract lobbyists during the 2018-2019 school year were Oklahoma City, Tulsa, Bixby, and Jenks. Officials with the Oklahoma City and Bixby school districts declined comment, other than to say that district contracts with outside lobbyists were not renewed this year.
Paula Shannon, deputy superintendent for Tulsa Public Schools, said school officials operate “understanding that our communications with our lobbyists are subject to Open Record Act requests, just the same as other public records are.”
While the schools’ contracts with private entities do not typically address open records issues, Shannon said there is a “working understanding” that communications are public records.
“We hold contracts with various local and national partners, and they support us with really complex work,” Shannon said. “We don’t write in anything pertaining to expectations about Open Records Act requests with them, because we assume that all of the work that we do on behalf of the families we serve and the taxpayers is subject to a request.”
Stacey Butterfield, superintendent of Jenks Public Schools, said that school’s lobbyist contract does not include any open-records language.
“We don’t address that in his contract and that has really not been something we’ve discussed,” Butterfield said. “We know that as a school district, we are subject to the open-records requests. I’m not aware of anyone requesting anything from him.”
Senat said the possibility that schools may be able to hide some records from public view via contracting “should raise a concern with Oklahomans.”
“You can’t make an informed decision about what your government is doing,” Senat said, “if it’s able to hide the records in the hands of a lobbyist by contracting that job out.”
Note: Ray Carter has two decades of experience in journalism and communications. He is director of OCPA’s Center for Independent Journalism, Previously he served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. This report previously appeared at the OCPA website:
It is reposted here with permission.