Wednesday, Attorney General Gentner Drummond issued an opinion directing the board to allow lawmakers into executive sessions. This followed a July 31 meeting in which three lawmakers’ entry into executive session was tabled and a June 27 meeting when one lawmaker was denied entry into executive session.
Board counsel Cara Nicklas said because Drummond’s opinion withdrew a previous AG opinion from 1978, “confusion… has been created.” She advised the board to wait on petitioning the courts for a review of the opinion.
“Yesterday, boards and agencies had the ability to go into executive session as a public body and receive privileged communications with their board counsel in the circumstances that statute allows. And that ability has been removed, as of yesterday,” Nicklas said. “And that’s the issue that needs to be explored.”
In the 1978 opinion, then-Attorney General Jan Eric Cartwright wrote, “A legislator, who is also a member of a legislative education committee, does not have a statutory right to attend the executive sessions of a board of education wherein individual employment matters are discussed. However, a local board of education may, in exercising its judgment and discretion, permit such attendance.”
At issue is 25 O.S.2021, § 310, which says, “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.”
Drummond addressed the 1978 opinion in the one he issued Wednesday. He said the previous opinion read the law too narrowly. A lawmaker’s jurisdiction to attend executive sessions is not dependent on subject content of the executive session, he wrote, but rather if the lawmaker’s committee has oversight over the agency or board.
“It is not the substance of the executive session item and the state body’s action relating thereto that determines whether section 310 applies, but whether the committee that the legislator serves on has general oversight of that state body,” Drummond wrote in the opinion.
Member Sarah Lepak said she wants lawmakers to revisit the existing statute.
“I would encourage the legislature to take a look at the opinion and think about when the shoe is on the other foot, and your particular political interests may be aligned or different than whatever it is you perceive as going on, whether this is an opinion that is something you guys want to live with or not,” Lepak said.
Lepak said the board is motivated to protect the privacy of individuals.
“We… take very seriously the reasons to be in executive session, which include things like protecting the identity of minors, protecting their private information, and making sure that things that are personnel matters — all of us have jobs. If your job was on the line, would you want that discussed in an open session or not?” Lepak said. “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 that’s out there.”
Board member Donald Burdick agreed with Lepak’s call to have the legislature evaluate the statute in light of Drummond’s opinion.
“This seems chaotic. It makes it difficult for boards to conduct their business,” Burdick said. “And so I am very comfortable giving it time to be evaluated, to have all the affected parties look and consider this. And frankly, the legislature to kind of weigh in — is this what they wanted with the laws that they passed to govern our activities? Because there are sensitive issues.”
Drummond responded in a statement, saying the board “may not like the law, but its members must still follow it.”
“This provision has been in effect for more than 45 years,” Drummond said. “And I am not aware of a single other state entity that has a problem allowing legislators to executive session.”
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