Fellow Attorneys:
I am reviewing 25 O.S. 307 B4 regarding Executive Session to discuss pending investigation claim or action. Do I need to state on the agenda item who the investigation, litigation, or proceeding concerns? This is an instance where we have not yet received evidence of litigation or a claim, but City Hall has received calls and visits which make me think a claim is to be received shortly. My Council members have called and related such to me. 
If any of you have a format that you use for this Executive Session item, it would be appreciated. 
Thank you, 
Kay Wall

Kay,

The exact language of the statute states you can have executive sessions for the purpose of:

Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.

So my two cents here is based purely from a plain readying of the statute.

Since there is no pending claim or civil action filed, the question becomes: Do the “calls and visits” that city hall is getting constitute a pending investigation?

In short, if there is some type of investigation moving forward with respect to the calls and visits, then that investigation might constitute a basis for going into executive session.  If no investigation has commenced, then there would not be a basis for mere “calls and visits.”

Say for example, four citizens call and complain about the public works department’s work in an easement that has damaged the citizen’s trees.  If there is no investigation into the complaints, then you cannot have an executive session.  But, if the city attorney, city manager, and public works director meet and discuss the complaints, obtain some information about who was involved, the scope of the work, etc. Imagine if you were collecting information to submit to OMAG or insurance carrier, if there were a tort claim filed. Then it could be argued that there has been an investigation, even if meager, and an executive session could be had if the other part of the statute is satisfied.  The executive session can only be had for confidential communications between the attorney and public body about the legal claims/civil actions, defenses or claims, etc. that can arise from the event.

The other language in the section “disclosure will seriously impair the ability of the public body to conduct the investigation” frames the scope of the “confidential communications.” Facts are facts, and if all you are doing is reporting factual information to the public body about a pending investigation, I do not believe you can have an executive session.  Essentially, you have to be able to discuss the legal ramifications, theories, defenses, claims, etc. of the event that stem from the investigation.

Taking the example above, you could lay out the facts learned from the investigation, and then go into the discussion of potential liability for damages for wrongfully cutting down trees under title 23, exceptions and defenses under title 11, etc.

Best,

Ray

From: Kay Robbins Wall via Oama oama@lists.imla.org
Sent: Wednesday, January 22, 2025 4:09 PM
To: Oama List oama@lists.imla.org
Subject: [Oama] Executive Session - Agenda Language

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Fellow Attorneys:

I am reviewing 25 O.S. 307 B4 regarding Executive Session to discuss pending investigation claim or action. Do I need to state on the agenda item who the investigation, litigation, or proceeding concerns? This is an instance where we have not yet received evidence of litigation or a claim, but City Hall has received calls and visits which make me think a claim is to be received shortly. My Council members have called and related such to me.

If any of you have a format that you use for this Executive Session item, it would be appreciated.

Thank you,

Kay Wall