The Ada Jobs Foundation — a nonprofit economic-development organization that received approximately $497,500 in public sales tax dollars last year — is refusing to release information concerning any compensation given to former president/CEO Mike Southard upon his departure.
The Ada News recently sent Ada Jobs a letter seeking additional information about Southard’s departure under the Oklahoma Open Records Act. The letter sought details of compensation given to Southard, if any, when he left the foundation.
Attorney Elizabeth Scott is the Oklahoma City-based law firm Crowe and Dunlevy, which is representing Ada Jobs. She said the organization will not release the records because it contends it is exempt from the Oklahoma Open Records Act. Scott said even if the Open Records Act did cover Ada Jobs, the information that the newspaper sought is not subject to disclosure.
Scott claimed the Open Records Act allows public bodies to keep confidential personnel records related to internal staff investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline or resignation.
“Now, we are not agreeing that AJF is subject to the Open Records Act and we are not implying that there are or are not any records like those you have requested,” Scott said in a letter to The Ada News, dated Thursday. “But, if AJF was subject to the Open Records Act and there were any such documents like those you have requested, none of them would be subject to disclosure based on the very clear provisions of Section 24A.7(A)(1) of the Open Records Act.”
Southard did not respond to a Facebook message seeking comment on his departure, and city officials declined to comment on the issue.
Ada Jobs funding
A private nonprofit organization, Ada Jobs contracts with the Ada Public Works Authority — the arm of City Hall that deals with infrastructure — to identify and recommend activities that would help Ada’s economy grow. As part of its mission, Ada Jobs works with state and local government agencies, local businesses and other stakeholders.
The organization receives part of its funding from Proposition 2, a city-imposed sales tax earmarked for economic development projects. The sales tax generated approximately $931,211 for city coffers in fiscal year 2016-17, and Ada Jobs received about $497,500 of that amount.
Ada Jobs also receives funding from local businesses to supplement its operating budget.
The city’s contract with Ada Jobs requires AJF to prepare and submit an annual budget, which lists anticipated costs related to activities that the organization will tackle in the coming year, Scott said. AJF must also supply audited financials listing the services it provided in the previous year.
“Finally, on an annual basis, AJF prepares, publishes and makes available online an annual report of AJF to highlight all the economic development activities it promoted and coordinated in the prior year, thus confirming to the supporters of AJF that it provided substantial and meaningful services for the funding it received,” Scott wrote.
The Ada News reported in early June that Ada Jobs’ former president and CEO, Mike Southard, had recently left the organization. The executive committee of Ada Jobs’ board of directors said that Southard had resigned to pursue other opportunities but did not elaborate.
The newspaper later sent Ada Jobs a FOIA request seeking the following items:
• Southard’s employment contract.
• Details of any compensation Southard received as a result of his departure, as well as copies of any related records or checks.
• Correspondence with city officials concerning his departure.
In denying the FOIA request, attorney Elizabeth Scott cited a 2002 opinion from former Attorney General Drew Edmondson that focused on whether private agencies that contract with a government agency to provide goods or service are subject to the state’s sunshine laws.
Scott claimed the AG’s opinion dealt with the Open Meetings Act, but the definition of a “public body” in that statute was substantially similar to the definition contained in the Open Records Act. As a result, she said, that opinion applied to her firm’s analysis of the FOIA request.
The AG’s opinion said the test of whether sunshine laws apply to a private organization such as Ada Jobs is whether that organization is supported by public funds, is entrusted with spending taxpayer dollars or administers public property. The opinion focused on the type of contract through which the organization receives public dollars.
The AG’s opinion said unless the contract indicates otherwise, a private organization that has a government contract to provide goods or services to the public and receives payment from public funds merely as reimbursement is not supported by public funds, Scott claimed. Consequently, she claimed, that organization is not subject to the Open Meetings Act.
However, the AG also concluded that a private organization would be subject to the Open Meetings Act if it met the following requirements:
• The organization does not submit itemized invoices or claims for goods or services provide to receive public funds, but instead receive a direct allocation of public funds from tax or other revenues.
• There is no quid pro quo or direct relationship between the amount of goods or services provided by the organization and the funds they receive. In other words, the organization receives funds regardless of whether it provides goods or services.
Under Ada Jobs’ contract with the city, the organization is obligated to provide economic development services for the city’s benefit in order to receive compensation, Scott said. She added that Ada Jobs must account for the services it provides in order to receive reimbursement.
“Also, it should be noted that there is no provision in the AJF contract indicating that AJF agrees to be subject to either the Open Meetings Act or the Open Records Act,” Scott wrote. “As such, the opinion in 2002 OK AG 37 holds that because AJF contracts to provide services to benefit the city of Ada on behalf of a governmental agency and receives payment and receive payment from public funds merely as reimbursement for goods provided or services rendered, AJF is not ‘supported’ by public funds and therefore is not subject to the requirements of the Open Meeting Act, and by analogy, not the Open Records Act.”
City attorney Frank Stout also denied the FOIA request, saying the city did not have the records that the newspaper sought.