Education board laments 'confusion' over Open Meeting Act, takes no action on filing lawsuit

With five legislators watching, members of the Oklahoma State Board of Education lamented “confusion that has been created by the communication from the attorney general’s office” during their meeting Thursday, but chose to take no action on filing a lawsuit over a clause in the Open Meeting Act that allows legislators to attend executive sessions of state boards.

The board, led by state schools Superintendent Ryan Walters, for the first time in recent memory conducted a meeting without an executive session after having turned away legislators from their executive sessions during each of the past two meetings despite being advised by the attorney general’s office not to do so . Thursday’s meeting drew Sen. Adam Pugh, R-Edmond, the chair of the Senate Education Committee; Rep. Mike Osburn, R-Edmond; Rep. Dick Lowe, R-Amber; Rep. John Talley, R-Stillwater; and Rep. Jacob Rosecrants, D-Norman.

Attorney General Gentner Drummond issued an official opinion — which has the force of law, unless overturned by a court — on Wednesday that stated unequivocally that legislators had the right to attend the executive session of any state board. For good measure, Drummond withdrew a 1978 attorney general’s opinion upon which the education board’s attorney, Cara Nicklas, had relied in denying legislators access to executive sessions the last two months. That opinion referenced local board meetings, not state board meetings, Drummond said.

The Open Meeting Act 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.”

Board member Sarah Lepak hinted at a chilling effect that Drummond’s opinion could have on other state boards, although Drummond said no other state board has had an issue with allowing legislators into executive session.

“I would encourage anybody who is a member of a board or a commission in this state to take a look at their opinion and think about the implications for your board, and about whether or not you think that that is the direction that you need to go, or if it will have an impact on your meeting,” Lepak said.

She said the board “takes very seriously” the reasons to be in executive session, such as “protecting the identity of minors, protecting their private information and making sure things that are personnel matters — all of us have jobs and if your job was on the line, would you want that discussed in an open session or not? Would you want it discussed in an executive session that is not actually a confidential session, which is unfortunately, probably, the situation with the current opinion out there?”

Legislators say they would be bound by law not to discuss confidential matters

Legislators who attend executive sessions are bound by the same privacy laws that bind board members, something noted by both Osburn and Pugh.

“It begs the questions — what are you talking about in executive session that you don’t want people to hear?” Osburn said. “It’s also flawed to say that you’re concerned about confidentiality in that situation. Whomever is in the executive session would be bound by the exact same rules everybody else is. That’s a stretch to say that you can’t have a legislator in there because you’re afraid of confidentiality. If that was the case, nobody could be in there.”

Rosecrants said the Oklahoma State Department of Education needs legislators watching how the agency is run.

“If there was just some transparency, real transparency, where we could actually see what’s going on, how many employees are working there, what they’re doing, all that kind of stuff ... then we can have some conversation about what needs to be done better,” he said. "Nobody wants to lord over an agency. We want to be able to trust the people we put in charge of these things, right?”

At one point, Lepak suggested that lawmakers read their laws and make sure a statute says what they want it to say.

“I think the actual statue is quite clear and that provision in the Open Meetings Act hasn’t changed since it was enacted in 1977,” Osburn said. “It’s the exact same thing. … The whole (meeting) did seem a bit unusual and some of the arguments that I heard were really interesting and didn’t seem congruent to what happened yesterday (with the attorney general’s opinion).”

Pugh praised Walters for how he ran the meeting and how he sought input from his board members and had no issue with the lack of an executive session.

“If he felt it was fine, it was fine, if they were still seeking clarity (about the law), but the clarity has been provided,” Pugh said. “I was concerned with where the discussion went. He was looking for guidance from the board with how they wanted to proceed. What concerned me wasn’t the superintendent, but the board’s discussion that seemed very flippant toward what now is law, and what is the AG’s opinion that stands in absence of law. I walked away very concerned that the board did not show deference to open-meeting requirements.”

Walters said board didn't have enough time before meeting to digest Drummond's opinion

On multiple occasions during the meeting, and again when speaking with reporters afterward, Walters said Drummond’s opinion was issued late in the afternoon Wednesday, not allowing board members enough time to absorb what was in it.

“I spent a lot of my night and the morning on the phone with them, just to see kind of where they were,” Walters said. “You heard them discuss it there out in the open. I think the board wants more time. They want to look at it. They want to be able to talk to their board counsel. They want to be able to talk to others to try to get their head around it. It’s a lot for a board to take in, so we’re just going to continue those conversations. … Our legal counsel will continue to provide the board with any legal counsel support they need.”

Asked why the board is opposed to having legislators in executive sessions, Walters said he wasn’t opposed to it.

“What I want is legal clarity,” Walters said. “You guys are hearing a board that’s expressing this very clearly on, when you act on advice of legal counsel, what you are doing there is you’ve got a legal opinion from a person who legally represents you that says, ‘I do not think that these lawmakers legally should be in this room.’ At that point, look at the position you’re put in. … I think we are moving much closer to clarity but, look, it’s not a policy position as it is a, legally, ‘Are these representatives and senators supposed to be in this executive session or not?’ But I don’t have a problem with the policy of it. I’m just trying to ensure that we’re above-board legally.”

Legislators, and Drummond, both say that should no longer be a concern, given the formal opinion.

“The State Board of Education may not like the law, but its members still must follow it,” Drummond said. “This provision has been in effect for more than 45 years, and I’m not aware of a single other state entity that has a problem allowing legislators into executive session.”

This article originally appeared on Oklahoman: Education board laments 'confusion' over Open Meeting Act, takes no action on filing lawsuit