Owasso city manager malfeasance investigation matter of public interest, court rules

From the Oklahoma Taxpayer Alliance, news on the vindication of the late Owasso City Councilor Patrick Ross in his fight to release a report investigating alleged wrongdoing by City Manager Rodney Ray, whose 20-year tenure ended in 2013 under an ethical cloud but with a hefty severance package from the City Council. Posted here with their permission:

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THE OKLAHOMA STATE SUPREME COURT RULED...PATRICK ROSS WAS RIGHT

In August 2013 then city councilor Patrick Ross filled a lawsuit against the City of Owasso for refusing to release the "Fortney Report" which was an investigation into the alleged criminal actions of former city manager Rodney Ray. In 2017 District Court of Tulsa County ruled in the city's favor. Mr. Ross then appealed this decision to the Court of Civil Appeals.

On April 30, 2020, a three-judge panel from the Court of Civil Appeals unanimously ruled that the "Fortney Report" concerning the investigation of former city manager Rodney Ray shall be released and made public.

The judges who sat for this hearing were Judge Thomas Thornbrough (Presiding Judge), Special Judge John Reif and Judge Jane Wiseman. Special Judge Reif served on the Oklahoma State Supreme Court from 2007-2019 and was the Chief Justice for the Supreme Court from 2015-2016.

In their fourteen-page ruling the judges not only explained why the report was not an internal personnel matter protected from being made public by the Open Records Act (ORA) but they also spent time reviewing why Mr. Ray was paid a severance package in violation of his employment contract.

WE FLATLY DISAGREE

In their ruling the judges stated "Apparently, City argues that if the behavior of a public official is not criminal, but, in the words of the grand jury, merely 'unethical/questionable,' this creates a public policy interest in City keeping any investigation of the behavior secret, and indicates the lack of a public 'need to know' under the act. We flatly disagree. The existence of unethical/questionable behavior by the city manager appears to be a central public question if City's decision to pay severance is questioned."

THE LEGITIMACY OF THE MAYOR AND CITY COUNCIL

In closing the judges stated "The balance of this case clearly favors disclosure. The ORA request is evidently not one motivated by mere curiosity into a personnel matter, or some general desire to broadly monitor the workings of government. It involves a high profile employee in an official position, not routine day-to-day personnel employment matters. It involves specific questions of why the City Manager, who was accused of misconduct, was granted a substantial severance package, paid for by the taxpayers of Owasso, instead of being fired. In short it is a 'core' Open Records matter going directly to the questions of the legitimacy of the Mayor and City Council's good governance and use of funds, and the citizens' inherent political power to inquire into these matters. City identifies no valid privacy, state, or public interest in withholding the Report. As such, we find that it should be disclosed pursuant to the ORA."

Following the Appeals Court ruling the city appealed the verdict to the Oklahoma State Supreme Court. On November 17, 2020 after reviewing the Court of Civil Appeals ruling the Oklahoma State Supreme Court choose to allow the Court of Civil Appeals ruling to stand.

So who really cares about this ruling? Really...it happened over seven years ago. Mr. Ross passed away in January of this year. Mr. Ray left the city in 2013 and passed away in July of this year.

Many folks over the years have voiced their opposition to Mr. Ross's actions with his lawsuit and he was dragged through the social media mud for doing so. His character and reputation were attacked and he was labeled with numerous slanderous names.

He and his wife spent thousands of their own dollars in attorney fees in order for this fight to continue. Mr. Ross believed in what he was doing and he knew he was on the right side of the law.

If you care anything at all about your government, at any level you should be very thankful for this ruling. It stands at the very foundation of any government agency being transparent about how they spend YOUR tax dollars. Without this type of ruling any government agency could have a free ride at spending taxpayer dollar without any citizen oversight.

We live in a nation where everyone has the right to their own opinion and to be able to state that opinion. And if you feel your rights have been violated, you have the ability to take your case to court to air your grievances and seek justice. Mr. Ross did just that and the courts agreed with him.

Our founding fathers fought with their lives and fortunes in order to bring about this great nation. They left us with a constitution that allows "We the People" to hold government accountable. At a young age Mr. Ross fought for this nation in the US Navy in Vietnam. He continued fighting for his community as a city councilor. And after he was no longer on the city council he continued to use his own money to fight for honest and transparent government.

Makes you wonder what kind of city, state or nation we would have if more people were like Patrick Ross and felt strong enough about honest and transparent government to make a stand and fight...no matter if no one else was fighting with them.

Patrick Ross was a true American warrior and patriot. We could use more people like him.

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Court docket files:

• Tulsa County CV-2013-898: Ross v. City of Owasso, the initial suit brought by Councilor Ross to make the Fortney Report available to the public under the Open Records Act.
• SD-115210: Three-judge appellate panel determined that the case would not yet be ripe until the City Council, not just a city employee, rejected Ross's Open Records Act request. Here is the decision in that appeal.
• MA-117599: Appeal to the Oklahoma Supreme Court by one of the defendants
• SD-117321: Appeal by Patrick Ross following the Owasso City Council's action to deny Ross's Open Records Act request.

This is big, but justice delayed is justice denied. It's ridiculous that the process took over seven years to reach a conclusion, during which time the voters of the City of Owasso have been denied an opportunity to evaluate the way their elected representatives handled the accusations of wrongdoing on the part of the longtime City Manager.

(In 2013, Freedom of Information Oklahoma head Joey Senat described Ross's original lawsuit and the abuse of the Open Records and Open Meetings Acts by the pro-Ray majority on the Council alleged in the complaint.)

It took seven years through the courts to reach a fairly tentative decision on whether citizens should know about possible malfeasance by the City Manager and to decide whether the the City Council majority's decision to give him a fat severance package was justifiable or a travesty of justice. In the meantime there have been two full cycles of City Council elections. Owasso Taxpayer Alliance points out that two members of the Council that denied Ross's Open Records request still sit on the Owasso City Council: Doug Bonebrake and Chris Kelley. Ray's internal memo ordering the deletion of video of a police traffic stop of Chris Kelley for suspected DUI was one of the actions that led to his departure as City Manager.

The exemptions in the Open Records and Open Meetings Act for personnel matters are there to protect the clerk who processes your water bill and the worker who fills potholes, the same sort of people who are under Civil Service protections. They exercise little discretion in the conduct of their jobs, and they set no policies.

The Oklahoma Supreme Court voted 6-2 to deny certiorari, and although I'm glad for Carole Ross, the widow of Patrick Ross, that the case is over, I wish the Supreme Court had heard the case. The two dissenting justices, John Kane and Dustin Rowe, questioned the balancing test that was applied by the Court of Civil Appeals panel. Without a Supreme Court ruling on when municipalities must disclose personnel records involving executive city officers, there isn't a precedent on which citizens and municipal governments can rely in the future. The opinion of the Civil Appeals Court has not been published, although the ruling is available through the case docket.

There is a clear distinction to be made between public employees who have limited or no discretion and those who serve in an executive capacity, setting policy and direction for a public body. For officials in the latter category -- city managers, school superintendents, library directors, city attorneys, directors of city departments, and others with executive responsibilities -- their administration (or maladministration) of their duties are matters of clear public interest, and the Legislature should amend the Open Records Act and the Open Meetings Act to reflect this fact, by mandating that personnel records for these officials must be made public and discussions concerning their performance must be held in open session of the relevant council or board.

A clue to the level of executive discretion enjoyed by Rodney Ray: This 2008 snapshot of his page on the City of Owasso website included his State of the City address and the City Manager's vision for Owasso government. That's the sort of thing a Head of State puts out, not a menial functionary.

When I was in college, I worked on a research project for MIT's Urban Planning department. We were investigating the impact of a Massachusetts initiative (Proposition 2 1/2) to limit property tax on municipal government, traveling to different cities and towns to interview local officials about how they were coping. On one of our visits, we had a brief meeting with the uncrowned king of Worcester, Mass., Francis J. McGrath, who was nearing the end of his 34 years as City Manager of the second largest municipality in the Commonwealth. When we were allowed to enter, it was like walking into a throne room. McGrath's longevity seems linked to the public works projects he shepherded, the typical post-war redevelopment that scraped historic neighborhoods and replaced them with highways and new brutalist public facilities, and to his carefully cultivated relationship with the monopoly local newspaper. In the minds of some who served with him, McGrath's successors as city manager have been more openly autocratic and dismissive of the elected city councilors, who appear to have become complacent and passive during McGrath's tenure.

The most powerful man in New York City from the 1930s through the 1960s, Robert Moses, never held an elective office. He was City Parks Commissioner and Chairman of the Triborough Bridge and Tunnel Authority, among many other roles, all of them appointed. Surely personnel actions involving someone able to decide the routes of expressways and to clear neighborhoods for public housing are a legitimate matter of public interest and ought to be in the public record.

City managers typically serve at the pleasure of the city council. That can make the role vulnerable to scapegoating by elected officials. If something goes wrong, it's easy for councilors to lay the blame on the city manager and "send him out of the camp." But a canny city manager can find ways to protect his position. It's easy to imagine a corrupt arrangement could occur in which the city manager uses his authority over the city bureaucracy to protect his allies on the council from embarrassment or perhaps to benefit them or their businesses in some other way and at the same time to punish his council detractors. Meanwhile the city manager's council allies continue to keep him employed or, in the event of scandal, provide him with a golden parachute.

The courts have found the City of Owasso liable for court costs and reasonable attorney fees; a hearing to determine that amount has been scheduled for February 11, 2021, in Judge Bill LaFortune's courtroom. Owasso Taxpayer Union estimates the City's liability at $250,000. The City Council is now under a court mandate to release the Fortney Report on the investigation into Rodney Ray's actions.