Lawyers allege improper handling of ACCESS turnpike project payments, OTA appeals Open Meeting Act violation

• Beth Wallis
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A new suit filed in Cleveland County District Court alleges the Oklahoma Turnpike Authority improperly remedied its Open Meeting Act violation and owes about $42 million. 

In December, the OTA was found in violation of the state’s Open Meeting Act because of vague wording in its January and February meeting agendas, which authorized key engineering and design contracts for its controversial ACCESS Oklahoma project. The agency subsequently paused all operations for the ACCESS project on Dec. 8.

But lawyers Stan Ward, Alexey Tarasov and Richard Lebarthe — the team that won the Open Meeting case — said contract payments that had already been made can’t be ratified because the contracts themselves were voided by the court’s decision.

“How could one ratify payments that were made pursuant to contracts that have been invalidated? If there is a defect in contract formation and a contract is null and void, there could not be any payment under that contract,” said Tarasov. “They should have entered into brand new contracts with companies in compliance with the Open Meeting Act.”

Tarasov said the OTA’s defense that payments to contractors were done “in good faith” — that is, relying on advice from an organization’s legal counsel — may absolve the officers involved with giving away agency funds. But during the Open Meeting Act case’s discovery period, Tarasov said OTA officials testified in depositions there was no reliance on legal counsel’s opinion.

“For the OTA to say that there was reliance [on legal counsel] now would go against what they disclosed to us in the previous lawsuit,” Tarasov said. “We directly asked whether there was any reliance on the opinion of the legal counsel in voting on those agenda items.”

Regardless, the “good faith” defense doesn’t apply to outside entities like engineering firms, so they’re liable for the funds, Tarasov said. 

“No amount of good faith can overcome the fact that the contracts were, for all practical purposes, invalidated,” Tarasov said. “If you invalidate the vote of the board that authorized the entry into those contracts, then this amounts to an invalidation of the contracts themselves.”

A spokesperson for the OTA said it cannot yet comment on the details of that case, but points to a legal move it made last week as well: the OTA filed an appeal with the state’s supreme court to re-decide whether it had indeed violated the Open Meeting Act.

The appeal challenges several of the court’s findings, including that it had “willfully” violated the Act, and that its agenda items lacked sufficient details. 

The email cites an attorney general decision from 1981:

“If a public body concludes that it may have violated the provisions of the Open Meeting Act in a willful manner, the public body must fully reconsider those manners acted upon in violation of the Act. Such reconsideration, of course, must be done in compliance with the Act.”

That decision also reads, “the word ‘willful’ in [state law] does not require a showing of bad faith, malice or wantonness, and includes unintentional violations.”

“OTA’s Board complied with Attorney General opinion 1981 OK AG-214 when it fully reconsidered and voted to approve the contracts pursuant to OMA-compliant agenda items at its Jan. 3 regular meeting,” the email reads. 

The spokesperson said the OTA’s ratification action at its January 2023 board meeting “sufficiently rehabilitated what the Court found to be deficient.” 

“Plaintiffs’ new demand is an abuse of the judicial system in order to improperly threaten and pressure public officials and its consultants to stop a much-needed public transportation improvement and expansion project,” the spokesperson said.