The meeting room is like so many others in Oklahoma, with a standard conference table, overhead projector and wall map. Attendees exchange small talk and grab coffee from the back of the room.
There’s a call to order, roll call and introductions. And then the District Attorneys Council, a state agency, gets down to the day’s business, with discussion, votes and adjournment.
Five minutes later, the same people file back into the room. Only this time they are meeting as the Oklahoma District Attorneys Association, a private organization, and it’s behind a locked door. No press or visitors, unless they’ve been invited.
The DA Council and the DA Association enjoy an unusual relationship that breaks with the pattern of other locally elected political or law enforcement groups in Oklahoma. Unlike with sheriffs, judges or county commissioners, district attorneys administer both their local offices and a state agency of their own, as well as operate a nonprofit that can lobby the Legislature.
The close ties between the groups have sown distrust, particularly among those pushing criminal justice reforms. Many district attorneys have opposed the lighter sentences for nonviolent crimes supported by reform advocates. The district attorneys maintain their agency and nonprofit are legally permitted and the two work in tandem to protect the public’s interest.
Much in Common
The DA Council and the DAs’ Association share a business address and meet one after the other in the same conference room in an Oklahoma City office building.
The executive coordinator of the council is the executive director of the association. The chairman of the council is the president of the association. The vice chairman of the council is the president-elect of the association.
The twin groups share similar missions and co-sponsor training programs and events. The council’s top two executives are registered as agency liaisons to lobby the Legislature. The association hires two contract lobbyists to do the same. As elected officials, the 27 district attorneys are free to lobby the Legislature as part of their job duties with no restrictions. An agenda item from the association’s June meeting shows “development of a strategy to contact legislators by each individual district attorney.”
Advocates of reforms that would reduce prison sentences and overcrowding say district attorneys wield enormous power over the pace and outcome of these efforts. They say DAs, who opposed reforms in State Questions 780 and 781 in 2016, which passed, have hunkered down and are hashing out policy differences behind closed doors in the association meeting instead of the council’s public meeting.
“One of the most interesting things during session was that oftentimes, when questions were raised in the public meeting by DAs, the answer they got was, ‘We’ll discuss that in the ODAA meeting,’” said Nicole McAfee, director of policy and advocacy for the American Civil Liberties Union of Oklahoma. “The fact that they can save that for later without other eyes goes against the purpose of the DAC meeting being open.”
Reporters for Oklahoma Watch tried to attend the association’s meetings in May and June but were politely asked to leave.
Trent Baggett, the council’s executive coordinator and the association’s executive director, said the private association is under no obligation to open its meetings to the public. Oklahoma Watch requested the association’s tax returns, a dues schedule, bylaws, lobbyist contracts and information about district attorneys’ travel reimbursements for association meetings
Baggett provided three years of the association’s tax returns, a budget for the upcoming fiscal year and a memorandum of understanding between the council and the association. He also cited a 1995 attorney general opinion that recognized a school board association’s ability to spend members’ dues on lobbying the Legislature.
“If you believe that you’re a private entity, then providing a bunch of information you’re asking for is private information,” Baggett said. “I want to provide this to you in an effort to be as ‘opaquely transparent’ as we can be with the standpoint that we do believe our ODAA is a private association.”
Lobbying is by far the association’s biggest expense, with $48,000 budgeted for fiscal year 2020. Its contracted lobbyists are Julia Jernigan and Pat McFerron. The association approved a total budget of $94,500 and expects to take in $84,000 from membership dues, budget documents show. It is organized as a nonprofit under Section 501(c)(6) of the tax code, which means it can spend unlimited amounts on lobbying.
One of Gov. Kevin Stitt’s first acts as governor this year was an executive orderprohibiting state agencies, boards and commissions from hiring outside contract lobbyists unless they receive a waiver from a cabinet secretary. But the order doesn’t apply to a private association.
“We do not believe this circumvents the executive order and there is certainly no intent to do so,” Baggett said in an email.
Baggett said the association helps find DAs or assistant DAs for various task forces and commissions. By statute, two of the five members of the DA council are appointed by the association and one each is appointed by the attorney general’s office, the Oklahoma Bar Association and the Court of Criminal Appeals. Baggett said he doesn’t receive any compensation as executive director of the association.
A 2001 letter from then-State Auditor and Inspector Jeff McMahan said the auditor’s office didn’t have a problem with district attorneys or the DA Council paying dues to the association from state or DA office funds. The letter notes that it’s not a legal opinion of the office. The council didn’t seek an attorney general opinion on the issue, as the school board association had done.
Baggett provided a copy of the 2013 agreement between the council and the association. It said the association would reimburse the council $11,643 each year to cover meeting costs, equipment and personnel to support association meetings and training events. The agreement has no expiration date.
Other nonprofit associations affiliated with government entities include the Oklahoma Sheriffs Association, the Association of County Commissioners of Oklahoma and the Oklahoma Judges Association. But none are tied to state agencies with similar missions.
Records and Meetings
Legislation and an attorney general’s opinion have spurred some private associations related to government to open their meetings and organization records.
A 2017 attorney general’s opinion said the Oklahoma Sheriffs Association came under the Open Meeting Act because it was “supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property.” Meanwhile, a 2014 law opened up the meetings and records of the Oklahoma Secondary Schools Activities Association, which coordinates athletic and academic events and is partly funded from dues paid by school districts.
But Stitt, who campaigned on transparency, has allowed a recently created task force on criminal justice to meet behind closed doors. Stitt created the task force via executive order in May. The 15-member task force had its first meeting June 13 and is supposed to issue a report by December.
Damion Shade, criminal justice policy analyst at Oklahoma Policy Institute, said he understood the need for the task force to discuss sensitive issues behind the scenes. But those issues could be dealt with in subcommittees. There was no reason to close the entire process, he said.
“It allows them to create a very closed process where the people who are pushing for the most reform probably won’t have a seat at the table,” Shade said. “I’m curious what the Oklahoma voters think about that.”
Cory Williams, a former Democratic lawmaker from Stillwater who ran unsuccessfully for district attorney last year in Payne and Logan counties, said for years he watched DAC legislative liaisons pitch higher fines and fees to supplement the council’s state appropriations.
Reform advocates and even some DAs view the dependence on fines and fees as a perverse incentive. The Legislature approved changes to two DA fee programs this year, routing the fees to the general fund while also increasing appropriations for the council.
“I think their association has meetings with regards to political races,” Williams said. “I think they have a coordinated effort between the DAC and the association whenever it comes to get people elected and messaging,” Williams said. “They knew if I got elected, my main goal was to break apart the DAC from the inside out, because I don’t think it functions at all in the best interest of the state of Oklahoma.”
Baggett defended the groups’ related missions.
“While they may basically be the same people, they are all attorneys and district attorneys who are sworn to uphold the law, and they take that oath very seriously,” he said.