Oklahoma Attorney General Gentner Drummond issued an official opinion Wednesday confirming state legislators are fully authorized to attend executive sessions of every state agency, board and commission.
The ruling came after legislators were denied entry into such sessions the past two months at meetings of the Oklahoma State Board of Education, led by state schools Superintendent Ryan Walters.
The opinion, which has the force of law absent a court ruling, came the day before the board's August meeting. The agenda for that meeting, posted Wednesday before Drummond's opinion was issued, does not have an executive session scheduled, a departure from previous meetings.
According to the agenda, the board will in open session “(c)onsider, discuss, and take possible action regarding the filing of a Petition for Declaratory relief or injunctive to obtain court order as to the eligibility of Oklahoma legislators to attend executive sessions of the State Board of Education.” Such a lawsuit would be a direct challenge to Drummond's opinion, the Oklahoma Open Meeting Act and the authority of the state Legislature.
State Rep. Mike Osburn, R-Edmond, requested the opinion from Drummond after he and two other legislators were denied entry to the state Board of Education's executive session on July 31.
“It strains credibility and common sense that any legislator would be barred from the executive session of a state agency they oversee,” Drummond said. “The law is clear: legislators have broad oversight authority whether an agency or board likes it or not.”
Drummond also formally withdrew a 1978 attorney general's opinion , issued by then-Attorney General Jan Eric Cartwright, upon which the board of education's contracted attorney, Cara Nicklas, leaned on in denying legislators entry into executive sessions.
The agenda for Thursday's meeting also included votes on multiple topics usually voted upon after an executive session, including some the board addressed last month , when the attorney general’s office indicated it was investigating a possible violation of the Open Meeting Act .
Dan Isett, a spokesman for the Oklahoma State Department of Education, didn’t respond to a question from The Oklahoman regarding the lack of an executive session on the agenda.
Over two meetings, three legislators were denied entry to the board's executive session
In June, state Sen. Mary Boren, D-Norman, was denied entry into an executive session at the board's meeting. On July 18, the attorney general’s office sent a letter to Walters and other members of the board noting that Boren, or any legislator, should be allowed into an executive session because of a clause in the Open Meeting Act.
The law reads, in part: “Any member of the Legislature appointed as a member of a committee of either house of the Legislature or joint committee thereof shall be permitted to attend any executive session authorized by the Oklahoma Open Meeting Act of any state agency, board or commission whenever the jurisdiction of such committee includes the actions of the public body involved.”
On July 31, Boren and two other lawmakers — Rep. Jacob Rosecrants, D-Norman, and Osburn — attempted to attend an executive session at the board's meeting. They also were denied entry . All three lawmakers serve on education committees or subcommittees in their respective legislative chambers. They all said Nicklas was the primary obstacle keeping them out of the meeting. According to public documents, Nicklas is paid $300 per hour to serve as the board’s attorney.
A question was also raised about whether the board followed its posted agenda for the July meeting, as the Open Meeting Act requires. There were two scheduled executive sessions on the agenda, one to discuss Boren’s request to attend the executive session and another to discuss teacher licenses.
The executive session lasted for one hour and 40 minutes. According to the agenda, the board was to discuss and possibly take action on Boren’s request. After that, the agenda said the board would vote to return to executive session to discuss other items, including teacher license suspensions and revocations.
Instead, the board voted to table the agenda item involving Boren. Then, without going back into executive session, they immediately began voting on the teacher licensing items. Boren suggested those votes could be nullified because the board didn’t follow its posted agenda. Several of the names on the teacher-licensing list appear on the board’s agenda again this month. Without an executive session, how much cases involving individual teachers can be discussed before board members vote in open session is a question, given privacy laws.
Despite the earlier letter from the attorney general’s office, Walters said after the July meeting: “I’ve got left-wing Democrats like Mary that want to come in and make it where we can’t remove pedophiles from the classroom. That’s what she’s wanting to do. She’s wanting to disrupt that process. We’re looking legally, and it doesn’t appear that she has jurisdiction. … She claims that she’s on a phone-call basis with the attorney general’s office and they’re telling her she does. We’ve requested specifics from the attorney general and haven’t heard from them.”
A willful violation of the Open Meeting Act carries penalties up to a $500 fine per violation and one year in jail.
Drummond said his formal opinion issued Wednesday leaves no room for argument and removes any excuse for noncompliance.
“I will not tolerate willful violation of the law,” Drummond said. “State Board of Education members have a duty to follow the law and they are on notice that the formal opinion I have issued today is binding upon them.”
At least one or two legislators plan to attend this month's Education Board meeting
Boren is out of the country for Thursday’s meeting. Rosecrants confirmed to The Oklahoman that he’d be attending. Osburn said because there is a possible vote on the licensing of an Edmond Public Schools teacher on the agenda, "I will likely try to go to observe."
Rosecrants said Wednesday he believed Walters and the state board are stalling for time by discussing a potential lawsuit over the Open Meeting Act and not having an executive session.
“I think they’re not (having the executive session) because of what is going on — the pressure that we’ve put on them, I guess, just to keep them accountable,” Rosecrants said. “We’re not asking to report on the executive session. We’re requesting to sit in because it’s our right, even though we shouldn’t have to request. It’s in the law. I don’t know why they’re fighting this unless they want to get things done without prying eyes.”
This article originally appeared on Oklahoman: AG opinion: Legislators must be allowed into Oklahoma education board's executive sessions
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