If a state board chooses to use a private attorney, it must get approval from the Oklahoma Attorney General. It had been using attorney Cara Nicklas of the firm McAlister, McAlister and Nicklas.
According to the Attorney General’s Office, Nicklas’ contract expired in June, but the department did not submit a contract extension for attorney general approval until mid-October.
The State Department of Education did not immediately return questions on why the extension approval request was sent four months after the contract expired and if Nicklas had been receiving state funds for her legal counsel without an approved contract.
Because the AG’s office is now serving as legal counsel for the board, a spokesperson for the office told StateImpact it could not comment on whether there would be consequences for the board to have used state funds on an unapproved attorney for four months.
Records obtained through the AG’s office reveal friction between Nicklas and Attorney General Gentner Drummond spanning the last several months over lawmaker access to executive sessions.
In June, Sen. Mary Boren (D-Norman) was denied entry to the board’s executive session. The issue escalated with two additional lawmakers at the board’s July meeting, prompting the attorney general’s office to look into a potential Open Meeting Act violation. On Aug. 21, Drummond issued a formal opinion saying the board must allow lawmakers into executive sessions.
Aug. 16, Drummond sent a letter to Nicklas admonishing her continued counsel to the board that lawmakers did not have a right to attend the executive sessions. In it, he said the board contacted Deputy General Counsel Thomas Schneider in June to seek guidance on whether lawmakers had a right to attend.
“Since you did not agree with the answer or preferred a different answer, you essentially ignored it and now dismiss it as ‘non-binding.’ Based on your brazen disregard of sound counsel, you confuse ‘non-binding’ with ‘worthless,’” Drummond said. “Just because you are legally permitted to disregard the informal opinion of this office does not mean it is wise to do so. I frankly expect to see better judgment demonstrated by the attorneys I approve to represent state actors.”
He added Nicklas’ original approved application to be the board’s legal counsel was made at a time the Legal Counsel Unit was “short staffed and did not have the bandwidth to provide adequate time and attention to [the board].” That process is outlined in Oklahoma statute, shorthanded “20i.”
“That is no longer the case,” Drummond wrote. “Accordingly, you are on notice that your firm’s 20i approval may be rejected at my discretion.”
Wednesday, Attorney General Gentner Drummond sent a letter officially denying Nicklas’ approval and told the board it had three options: employ in-house counsel, present a contract for a different private counsel, or use an attorney from the AG’s office. For Thursday’s meeting, the board opted for the AG’s attorney, Brad Clark, who previously served as counsel for OSDE.
It is unclear how the board will choose to move forward with counsel selection in the future.
Board member Sarah Lepak raised questions at the meeting about how Clark would represent the board in circumstances when it conflicts with the attorney general, such as the recent issue of disallowing lawmakers access to executive sessions.
“We were operating on advice of counsel, but if our counsel is also provided by the AG’s office to advise us or maybe defend us in those kind of situations, how does that work from a conflict perspective?” Lepak asked. “Because, I mean, you and I know, we’re both lawyers. In a regular setting, you can’t — as a lawyer — can’t be the prosecutor and the defense counsel.”
Clark said he was “not aware” of the instance Lepak referenced. He said attorney general opinions are binding and would expect state officers to follow them.
The board ultimately tabled much of the meeting’s agenda, saying it had legal questions and didn’t feel comfortable voting without prior conversations with the new board attorney. Those items included the proposed 2025 School Capital Improvements Budget, approval requests for a Christian school’s accreditation and a district to use textbook funds on non-approved books, and all teaching certificate revocations.
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