Can one person serve simultaneously as Oklahoma Secretary of Transportation, Executive Director of ODOT, and Executive Director of the Turnpike Authority?
Plain-English summary
Tim Gatz held three top transportation roles at once: Secretary of Transportation, Executive Director of ODOT, and Executive Director of the Turnpike Authority. Senator Mary Boren asked AG Drummond whether that triple-hatting was lawful under Oklahoma's dual office holding statute, 51 O.S. § 6.
The AG concluded all three positions are "offices" under the Oklahoma City v. Century Indemnity test (created by law, definite duties, exercise of sovereign power). None of the thirty statutory exceptions to § 6 apply. So holding any two of the three simultaneously violates the dual office statute.
The mechanics: the moment an officer accepts and enters into the duties of a second office, the first office is automatically vacated (ipso facto) under Wimberly v. Deacon and Nesbit v. Apple. No court order is needed to declare the vacancy.
But there is a practical safety valve. Past official actions taken while holding multiple offices remain valid for the public and third parties under the de facto officer doctrine. State contracts, regulatory decisions, and other official acts entered into during the dual-office period are not unwound. The doctrine protects the public from chaos, not the officeholder from accountability.
What this means for you
If you serve in any state office and are offered another
If you accept and begin performing the second office, you automatically lose the first. Resignation is not required; vacancy happens by operation of law. Before accepting any additional role, run the three-part Century Indemnity test:
- Was the position created by law (statute, constitution, or rule with statutory authority)?
- Does the law impose definite duties?
- Do those duties involve sovereign power (binding the rights of others, exercising police power, exercising state authority)?
If yes to all three, it is an office. Check the thirty statutory exceptions in § 6 before assuming you can hold both.
If you advise a public official or oversee state appointments
This opinion is binding on state officers under 74 O.S. § 18b. Apply it to vetting current dual roles, especially those that appeared informal or "designee"-style. The AG specifically rejected the argument that the ODOT-OTA personnel-sharing statute (69 O.S. § 4010) creates an exception, because that statute speaks of "temporary transfer of personnel," not permanent simultaneous service.
If you are a contracting party or public participant
If you transacted with an Oklahoma transportation agency during a period when the same person held multiple offices, your contract is still valid. Past de facto officer actions affecting the public interest and third parties bind the State the same as de jure officer actions. You do not need to redo paperwork.
If you are a journalist or civic advocate
The opinion's significance is structural: it puts a clean limit on consolidating multiple senior roles in transportation under one person. The Attorney General or a district attorney can file a quo warranto action under 12 O.S. §§ 1531–1538 to forcibly remove someone unlawfully holding office, but neither has an affirmative duty to file.
If you are a constitutional or government-law attorney
The opinion is one of the most thorough recent applications of the Century Indemnity test. It concludes that even cabinet secretaries, who were once viewed as merely advisory under 2000 OK AG 54, now exercise sovereign power because of: (a) the 2021 grant of unilateral rulemaking veto authority under 75 O.S. § 303(A)(6); (b) executive-order-conferred control over agency hiring, lobbying contracts, grants, memberships, and major purchases; and (c) statutory powers like creating advisory councils, awarding grants, and approving designated areas.
Common questions
Q: Can one person serve as both ODOT Director and OTA Director?
A: Not simultaneously. Each is its own office under § 6. Accepting the second vacates the first.
Q: What counts as an "office" versus an "employment"?
A: Three things: created by law, definite statutory duties, and exercise of sovereign power. If any of the three is missing, the position is an employment, not an office. Cabinet secretaries used to fall short on the third element when they were purely advisory; recent statutory and executive-order changes pushed them into "office" territory.
Q: Does signing a contract for the State count as exercising sovereign power?
A: Yes, if you are doing it on behalf of the State and binding it (per 1983 OK AG 220). Other indicators include: rulemaking authority, police-power enforcement, hiring and managing public employees, disbursing public funds, and being required to post a bond before taking office.
Q: I am holding two offices. Did I lose one without knowing?
A: Yes, if at least one office is constrained by § 6 and no exception applies. Acceptance of the second office vacated the first the moment you entered upon its duties. You may still be acting as a de facto officer, but legally you have no claim to the first office.
Q: Are decisions I made during the dual-office period invalid?
A: No, for actions affecting the public interest or third persons. Those are protected by the de facto officer doctrine. The doctrine protects civil contracts, regulatory orders, and similar acts. The AG opinion does not opine on actions taken after the officer received notice (from a proper authority) that they were unlawfully holding office.
Q: What about tribal-state compacts or other contracts signed during the dual period?
A: Generally protected by the de facto officer doctrine if the public or a third party relied on the official's authority.
Q: Can a court order someone removed from office?
A: Yes, through a quo warranto action filed by the AG, a district attorney, or a person claiming the office. The 30-day filing limit in the statute does not apply to actions filed by the AG or DA (Callendar v. District Court).
Background and statutory framework
Oklahoma's dual office prohibition exists in two places:
- Constitution, Art. II, § 12 (forbidding holding "any office of profit or trust" while holding another).
- Statute, 51 O.S. § 6, which forbids any state officer or deputy from holding any other state office, with thirty enumerated exceptions.
Whether something is an "office" turns on the Century Indemnity three-element test: creation by law + definite duties + sovereign power. The AG analyzed each transportation role:
- ODOT Executive Director, clearly an office (statutory creation under 69 O.S. § 4007, broad supervisory and federal-fund-administration powers).
- Cabinet Secretary of Transportation, historically advisory, but raised to office status by the 2021 rulemaking veto authority and current executive orders giving the secretary control over agency hiring, contracts, and significant expenditures.
- OTA Executive Director, an office because of statutory authorization (69 O.S. § 1705(k)), administrative-rule duties (acting as appeals officer for toll evasion under § 1110-1.2, suspending contractor debarments), contracting authority up to $750,000, and the bond requirement before entering on duties.
Once two of these are accepted, the first is automatically vacated under Wimberly v. Deacon and Gibson v. Crowder. The de facto officer doctrine, which traces back to early Oklahoma cases (Sheldon v. Green, Hatfield v. Jimerson), preserves the validity of past official acts affecting the public and third persons.
Citations and references
Statutes:
- 51 O.S.2021, § 6, Dual office holding prohibition (and 30 exceptions)
- 69 O.S.2021, § 4007, ODOT Executive Director
- 69 O.S.2021, § 1705, OTA powers
- 74 O.S.2021, § 10.3, Cabinet secretaries
- 75 O.S.2021, § 303(A)(6), Cabinet secretary rulemaking veto
- 12 O.S.2021, §§ 1531–1538, Quo warranto procedure
- Okla. Const. art. II, § 12: Constitutional dual office prohibition
Cases:
- Oklahoma City v. Century Indemnity, Co., 1936 OK 589, 62 P.2d 94, three-element test for "office"
- Wimberly v. Deacon, 1943 OK 432, 144 P.2d 447, second office ipso facto vacates the first
- Nesbit v. Apple, 1995 OK 20, 891 P.2d 1235, application to statutory dual office prohibition
- Sheldon v. Green, 1938 OK 165, 77 P.2d 114, de facto officer doctrine
- Callendar v. Dist. Ct., 1981 OK 16, 625 P.2d 627, quo warranto by AG/DA not subject to 30-day limit
Source
- Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2024/ag-opinion-2024-5.html
- Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2024/ag_opinion_2024-5_z-36-2.pdf
Original opinion text
GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-5
Senator Mary B. Boren
Oklahoma State Senate, District 16
2300 N. Lincoln Boulevard, Room 514.1
Oklahoma City, OK 73105
February 28, 2024
Dear Senator Boren,
This office has received your request for an official Attorney General Opinion in which you ask,
in effect, the following questions:
1. Under Oklahoma law, may the same individual serve simultaneously as the
Secretary of Transportation, Executive Director of the Oklahoma
Department of Transportation, and Executive Director of the Oklahoma
Turnpike Authority?
2. What is the proper action if an officer of the state unlawfully holds more
than one office?
3. What are the legal ramifications of executive actions by an official who is
unlawfully holding multiple offices?
I.
SUMMARY
This office finds that under the current powers and duties of the Secretary of Transportation, the
Executive Director of the Oklahoma Department of Transportation, and the Executive Director of
the Oklahoma Turnpike Authority each constitute an “office” for purposes of the dual office
holding prohibition in title 51, section 6 (2021). Further, it is a violation of the dual office holding
prohibition for a single individual to serve simultaneously in any two or more of these roles.
If a state officer enters upon the duties of a second office in violation of the dual office holding
prohibition, it operates as a vacation of the first office. The vacation of the first office is selfexecuting and notwithstanding the person’s intention of continuing to hold the first office.
However, the Oklahoma Supreme Court has on numerous occasions held the acts of a de facto
officer are as binding as those of a de jure officer and that these acts were valid when the interest
of the public and third persons were involved. Therefore, official actions involving the public
interest and third persons, though made by officials who are not qualified to serve but act as de
facto officers under color of title, are valid, binding, and enforceable.
313 N.E. 21ST STREET • OKLAHOMA CITY, OK 73105 • (405) 521-3921 • Fax: (405) 521-6246
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 2
II.
BACKGROUND
Oklahoma prohibits state officers and deputies from simultaneously holding another state office
or serving as the deputy of any other state office. 1 51 O.S.2021, § 6. As of the time of writing, the
Legislature has enumerated thirty exceptions to this prohibition. However, none of these
exceptions applies to the Secretary of Transportation, Executive Director of the Oklahoma
Department of Transportation (“ODOT”), or Executive Director of the Oklahoma Turnpike
Authority (“OTA”).
Before statehood, the Oklahoma Supreme Court established that “a public office is the right,
authority, and duty created and conferred by law, by which, for a given period, either fixed by law
or enduring at the pleasure of the creating power, an individual is invested with some portion of
the sovereign functions of the government, to be exercised for the benefit of the public.” Guthrie
Daily Leader v. Cameron, 1895 OK 71, ¶ 8, 41 P. 635, 636 (quoting MECHEM, PUBLIC OFFICERS
(1889)).
The Oklahoma Supreme Court distilled this declaration into three elements in Oklahoma City v.
Century Indemnity, Co. Those elements are as follows:
1. the position was created or authorized by law;
2. the law imposes certain definite duties upon the position holder; and
3. the duties imposed involve “the exercise of some portion of sovereign power . . . .”
1936 OK 589, ¶ 21, 62 P.2d 94, 97 (emphasis added). “[A] position [having] these three elements
is presumably an ‘office,’ while one [lacking] any of them is a mere ‘employment.’” Id. (quoting
Winsor v. Hunt, 243 P. 407, 413 (Ariz. 1926). In Guthrie Daily Leader, the Court explained the
third element as follows:
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office involves a
delegation to the individual of some of the sovereign functions of government, to
be exercised by him for the benefit of the public; that some portion of the
sovereignty of the country, either legislative, executive, or judicial, attaches for the
time being, to be exercised for the public benefit.
Guthrie Daily Leader, 1895 OK 71, ¶ 10, 41 P. at 636 (quoting MECHEM, PUBLIC OFFICERS
(1889)).
Thus, barring an exception, an individual violates title 51, section 6 by satisfying the elements
established in Century Indemnity while holding two or more offices simultaneously.
“[N]o person holding an office under the laws of the state and no deputy of any officer so holding any office
shall, during the person's term of office, hold any other office or be the deputy of any officer holding any office, under
the laws of the state.” 51 O.S.2021, § 6(A).
1
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 3
III.
DISCUSSION
A.
Simultaneously serving as the Secretary of Transportation, Executive Director of the
ODOT, and Executive Director of the OTA violates the dual office holding prohibition
in title 51, section 6 (2021).
Your question requires an examination of whether each position meets the elements of an “office”
as provided by the Oklahoma Supreme Court in Century Indemnity. This office will address each
position in turn.
1. Executive Director of the ODOT
The position of Executive Director of ODOT clearly meets each element of the foregoing Century
Indemnity test. First, the position, is expressly established by ODOT’s enabling statutes. Second,
the Executive Director has the “authority and duty to supervise, direct, account for, organize, plan,
administer and execute the functions of the [ODOT] . . . .” 69 O.S.2021, § 4007(A). Finally, in
carrying out the “transportation policies, plans and programs of [the] state,” the Director exercises
sovereign power. 69 O.S.2021, § 4002. For instance, the Director has the power to “coordinate the
development and operation of such transportation facilities in the state including, but not limited
to, highways, public transportation, railroad, marine and waterways and aeronautics” and to “apply
for, accept and receive and be the administrator for and in behalf of the state agencies, boards and
commissions of all federal or other monies now or hereafter available for purposes of
transportation . . . .” 69 O.S.2021, § 4002(2), (7). Accordingly, the Executive Director of ODOT
is an office within Century Indemnity. And, without an exception in title 51, section 6, the
Executive Director is subject to the dual office holding prohibition under Oklahoma law.
2. Secretary of Transportation
As detailed below, the Secretary of Transportation (the “Secretary”) is also an “office” under
Century Indemnity. While specific Cabinet posts are not expressly created by law—excluding the
Secretary of Veterans Affairs—the Governor’s statutory authority to create a cabinet system for
Oklahoma’s executive branch authorizes the position of Secretary. 74 O.S.2021, § 10.3. Under the
law, cabinet secretaries perform certain duties as follows:
The cabinet Secretaries shall:
1. Advise the Governor of any policy changes or problems within the area they
represent;
2. Advise the entities represented of any policy changes or problems as directed
by the Governor; and
3. Coordinate information gathering for the Legislature as requested.
Id. § 10.3(B).
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 4
Historically, most cabinet secretaries have served in merely an advisory capacity, which is not the
exercise of sovereign power. 2 However, in 2000, this office concluded that the Secretary of
Commerce exercises sovereign power by virtue of having a seat on a board or commission with
authority to issue revenue bonds. 2000 OK AG 54, ¶ 14. Similarly, the Secretary is authorized to
create the Advanced Mobility Program Advisory Council, which shall provide policy and
regulatory recommendations to the Secretary on issues relating to advanced mobile technologies.
3 O.S.Supp.2023, § 374(A). And, subject to the availability of funds, the Advanced Program is
authorized to annually award matching grants up to $500,000 each. Id. § 374(E). Additionally, the
Secretary is a member of the Land Mobile Radio Public Safety Interoperability Cooperative, which
is established for the purpose of “unifying, stabilizing and enhancing” the public radio safety
system communications in Oklahoma. 62 O.S.2021, § 35.6.2(A). Further, the Secretary is
authorized to approve areas to be designated as “urban areas” for purposes of permitting outdoor
advertising signs in Oklahoma. 69 O.S.2021, § 1273.
Moreover, cabinet secretaries have recently been provided with additional oversight
responsibilities and authority to control agency operations, including rulemaking and expenditures.
Under the Governor’s most recent executive order establishing cabinet posts, the Secretary is
responsible for thirteen executive branch agencies. 3 When Senate Bill 913 was passed in 2021, it
vested all cabinet secretaries with the ability to unilaterally veto the rulemaking efforts of their
respective reporting agencies—a substantial degree of executive authority that is tantamount to
outright rulemaking power. 75 O.S.2021, § 303(A)(6).
Furthermore, agencies must obtain their Secretary’s approval to hire a lobbyist and/or apply for
any grant exceeding $50,000, and not granted by the federal government. 4 See Exec. Order No.
2019-29, OAC 1:2019-29 (July 5, 2019) and Am. Exec. Order No. 2019-40, OAC 1:2019-40A
(March 23, 2021). Notably, a current Executive Order also empowers the Secretary to approve or
deny the following for each of its reporting agencies: (1) membership(s) in any private or public
organization if the costs of the membership(s) collectively exceed $500, (2) non-essential out-ofstate travel for any agency employee that is wholly paid for by an entity other than the State, and
(3) any non-emergency purchase that exceeds $25,000. See Exec. Order No. 2023-4, OAC 1:20234 (Feb. 28, 2023).
With the elevated duties now delegated to all cabinet secretaries, the Secretary’s duties have grown
beyond an advisory role to include exercising sovereign power. In light of the foregoing, this office
2
See 2000 OK AG 54 (states that Cabinet Secretaries functions consist of “giving opinions and performing
clerical work” based on the authorizing statute title 74, section 10.3(1991)); 2005 OK AG 28 (finding that the Secretary
of Finance and Revenue had no specific statutory duties and therefore did not exercise sovereign power).
The Secretary is responsible for the following executive entities or their successors: ODOT, OTA, OTA
Board, Transportation Commission, ODOT County Advisory Board, ODOT Tribal Advisory Board, Committee on
the Pilot Shortage, Highway Construction Materials Technician Certification Board, Interstate Midwest Reginal
Passenger Rail Compact Commission, Oklahoma Aeronautics Commission, Oklahoma Tourism Signage Advisory
Task Force, Tri-State Commission on the McClellan-Kerr Arkansas River Navigation System, and Waterways
Advisory Board. Order No. 2023-8, OAC 1:2023-8 (Sept. 13, 2023).
3
If an executive order has a specific statutory foundation, is designed to enforce the law and not accomplish
a legislative result, it has the effect of a statute. 1996 OK AG 31; 1995 OK AG 36; City of Albuquerque v. U.S. Dep’t
of Interior, 379 F.3d 901, 913 (10th Cir. 2004).
4
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 5
concludes that the Secretary is an officer of the State of Oklahoma and is therefore subject to the
dual office holding prohibitions in title 51, section 6.
4. Executive Director of the OTA
While a more detailed analysis is required, the Executive Director of the OTA also holds an
“office” under Century Indemnity. The purpose of the OTA is to construct, operate, and maintain
turnpike projects. 69 O.S.2021, § 1701. The OTA is established pursuant to statute which provides:
There is hereby created a body corporate and politic to be known as the “Oklahoma
Turnpike Authority. . . .” The Authority is hereby constituted an instrumentality of
the state, and the exercise by the Authority of the powers conferred by this act in
the construction, operation, and maintenance of turnpike projects shall be deemed
and held to be an essential governmental function of the state with all the attributes
thereof.
69 O.S.Supp.2023, § 1703(A) (emphasis added).
The Oklahoma Supreme Court has held that the OTA is a “governmental agency” acting in a
“governmental capacity.” 5 Henry v. Okla. Tpk. Auth., 1970 OK 232, ¶ 22, 478 P.2d 898, 902. The
property managed by the OTA is property of the State of Oklahoma. See Application of the Okla.
Tpk. Auth., 1950 OK 208, ¶ 19, 221 P.2d 795, 803; 69 O.S.2021, § 1717.
The position of Executive Director is statutorily authorized under title 69, section 1705. 69
O.S.2021, § 1705(k). The Oklahoma Supreme Court has held that an “office or position which is
created . . . pursuant to power conferred by the Legislature upon [a] governing body is just as much
created by law as if the Legislature itself had acted . . . .” Century Indemnity, 1936 OK 589, ¶ 28,
62 P.2d at 98. Additionally, OTA’s administrative rules, which have the effect of law, authorize
the Executive Director position. 6 OAC 731:1-1-3(b).
The law also imposes certain definite duties upon the Executive Director. For instance, the OTA’s
administrative rules allow the Executive Director to extend the term of a contractor’s
prequalification to bid on authority projects. See OAC 731:10-1-2(n). Further, the Executive
Director has the authority to lift or suspend a contractor’s debarment from bidding on OTA
contracts. OAC 731:10-1-5(7).
While not necessary to the analysis here, this office and the Oklahoma Supreme Court have also categorized
the OTA in other ways. See 1977 OK AG 110 (the OTA is “not the ‘State’ nor one of the ‘departments thereof . . . .’”);
In re Appl. of the Okla. Capitol Improvement Auth., 2022 OK 31, ¶ 2 n.2, 507 P.3d 1256, 1257 n.2 (“The Oklahoma
Capitol Improvement Authority is a quasi-governmental entity created by statute. Title 73 O.S.2021, ch. 6, § 152
defines the OCIA as a ‘body corporate and politic’ and an ‘instrumentality of the state.”); Hirschfeld v. Okla. Tpk.
Auth., 2023 OK 59, ¶ 7, 541 P.3d 811, 817 (referencing the OTA as a public trust). And, after all, the OTA has recently
declared itself to be an executive branch agency. See Okla. Tpk. Auth. v. Treat (In re Constitutionality of HB 2263),
No. CV-24-72, Dist. Ct. Okla. Cnty., Okla.); Petition, at 8, ¶ 17 (Jan. 9, 2024).
5
75 O.S.2021, § 308.2(C) (“Rules shall be valid and binding on persons they affect, and shall have the force
of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as otherwise
provided by law, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer.”).
6
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 6
The position of Executive Director of OTA is thus clearly established by law and provides definite
duties. Therefore, the first two elements of the Century Indemnity test are met. For the reasons set
forth below, the duties imposed also involve the exercise of some portion of the State’s sovereign
power.
Again, exercising sovereign power requires that some portion of the state’s sovereignty—whether
legislative, executive, or judicial—attaches for the time being, to be exercised for the public
benefit. Guthrie Daily Leader, 1895 OK 71, ¶ 10, 41 P. at 636. In Guthrie Daily Leader, the Court
went on to describe the exercise of sovereign power as follows:
The term “office” implies a delegation of some portion of the sovereign power to,
and a possession of it by the person filling the office, and the exercise of such power
within legal limits constitutes the correct discharge of the duties of such office. The
power thus delegated and possessed may be a portion belonging sometimes to one
of the three great departments, and sometimes to another; still, it is a legal power,
which may be rightfully exercised, and, in its effects, will bind the rights of others,
and be subject to revisions and corrections only according to the standing laws of
the state.
Id., 1895 OK 71, ¶ 15, 41 P. at 636 (quoting [Bunn] v. People ex rel. Laflin, 45 Ill. 397, 409 (1867)).
This office concludes that the Executive Director exercises some portion of the sovereign power
for six reasons. First, Oklahoma law expressly authorizes the Executive Director to serve as an
administrative review officer on an appeal of a toll evasion violation. 47 O.S.Supp.2022, § 111401.2. The Executive Director’s final decision binds the contestant, subject only to revision and
correction of a district court having jurisdiction in the county where the contestant lives. Id.
Second, as discussed above, the Executive Director can lift or suspend a contractor’s debarment
from bidding on OTA contracts, thereby binding the rights of others. 7 OAC 731:10-1-5(7); Ex
parte Tindall, 1924 OK 669, ¶ 24, 229 P. 125, 130 (“The police power is an attribute of
sovereignty . . . .”).
Third, the Executive Director has the authority to negotiate and execute contracts. At the OTA’s
December 12, 2023, meeting, the Executive Director was authorized to negotiate and execute
contracts on no fewer than ten agenda items, including statements of work in an amount not to
exceed $13,964,776.40 and separately, construction management contracts not to exceed
$14,000,000. See December 12, 2023, Meeting Agenda, OTA, Items 1138 and 1142. Fourth,
Oklahoma law authorizes the OTA to authorize the Executive Director to approve change orders
not exceeding $250,000. 61 O.S.Supp.2022, § 121. Fifth, the OTA recently amended its bylaws to
authorize the Executive Director to take the following action:
Ex parte Tindall, 1924 OK 669, ¶ 25, 229 P. at 130 (“The term ‘police power’ comprehends the power to
make and enforce all wholesome and reasonable laws and regulations necessary to the maintenance, upbuilding, and
advancement of the public weal and protection of the public interests.”).
7
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 7
- call a special meeting of the Authority pursuant to the Oklahoma Open Meeting Act;
- execute in the name of the Authority, checks, drafts and orders drawn on the
commercial trust accounts or checking accounts of the Authority; - execute in the name of the Authority, drafts and orders drawn on the revolving fund
account in any bank or trust company; - negotiate and execute the following contracts and expenditures without the Authority’s
approval:
a. contracts not exceeding the sum of $750,000,
b. payroll, without limits, and
c. change orders and supplemental agreements on contracts when the amount does not
exceed $150,000. 8
OTA Bylaws, attached to the January 9, 2024, OTA Board Meeting Agenda and on file with the
author. Finally, the Executive Director is required to give a bond to the Authority before entering
upon his duties, which is one characteristic of a public officer exercising the sovereign’s power.
2018 OK AG 11; 1979 OK AG 41.
Three prior opinions of this office further support the conclusion that the Executive Director of the
OTA is an “office” under Century Indemnity. First, in 1985, this office determined that a member
of the OTA held an office for purposes of the dual office holding prohibition, in part, because of
the sovereign functions of adopting rules and regulations and the ability to collect and pledge
revenues. 1985 OK AG 58. Second, this office previously concluded that a position with duties of
receiving, giving, and disbursing funds attributable to a governmental entity is an “office.” 2018
OK AG 11. Finally, conducting and managing business affairs of a governmental body, making
and executing contracts, purchasing necessary equipment, and appointing and employing such
officers and employees has been determined to be the exercise of some portion of the sovereign
power. 1983 OK AG 220.
The Executive Director clearly exercises some portion of the sovereign power. Accordingly, the
Executive Director is an officer for purposes of the dual office holding prohibition in title 51,
section 6.
In determining that all three positions are an “office,” this office considers, in turn, if any
exceptions to the dual office holding prohibition exist in law. The Legislature has provided thirty
exceptions to the dual office holding prohibition, but none of those exceptions include the
Executive Director of the OTA, ODOT, or Secretary. See 51 O.S.2021, § 6. Notably, state statutes
allow ODOT to contract with the OTA for “[r]ecord keeping, reporting, administrative, planning,
engineering, legal and clerical functions of the Authority not in conflict with provisions of existing
trust agreements.” 69 O.S.2021, § 4010. However, the statute contemplates such an agreement
would include the “temporary transfer of personnel” not permanent sharing of the principal
The OTA cited title 69, section 1705 as authority for the amendments. Section 1705(a) provides the
Authority with the power to “adopt bylaws for the regulation of its affairs and conduct of its business.” 69 O.S.2021,
§ 1705(a).
8
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 8
executive officer. Id. (emphasis added). This office does not construe such personnel-sharing
arrangements to constitute an exception to the dual office holding prohibition. 9
In light of the foregoing, this office finds that it is a violation of title 51, section 6 for a single
individual to serve simultaneously in any two or more roles as the Secretary, Executive Director
of ODOT, and Executive Director of OTA.
You further asked this office to opine on whether the OTA’s 1989 Trust Agreement prohibits the
Executive Director from serving in other roles as Secretary and the Executive Director of ODOT. 10
Given the above analysis, finding violations of Oklahoma’s dual office holding prohibitions, it is
not necessary to reach this question regarding the 1989 Trust Agreement.
B.
When an office holder accepts and enters upon the duties of a second office,
acceptance of the second office operates to ipso facto vacate the first office.
The Oklahoma Supreme Court has long held that “entering upon the duties of a second office or
acceptance of a prohibited office ipso facto operates as a vacation of the first office,
notwithstanding the person’s intention of continuing to hold the first office.” Nesbit v. Apple, 1995
OK 20, ¶ 24, 891 P.2d 1235, 1243 (citing Wimberly v. Deacon, 1943 OK 432, 144 P.2d 447).
Though the Wimberly case involved the dual office holding prohibition found in section 12, article
II, of the Oklahoma Constitution, the Oklahoma Supreme Court has further determined that the
self-executing nature of the dual office holding prohibition would apply under a similar statutory
prohibition. 11 See Gibson v. Crowder, 1946 OK 22, ¶ 10, 165 P.2d 628, 629 (“The same rule would
apply in considering similar statutory provisions.”).
Rodgers v. Higgins, 1993 OK 45, ¶ 18, 871 P.2d 398, 409 (“We should not read into the law that which is
not there.” (emphasis omitted)).
9
On February 1, 1989, the OTA entered into a trust agreement with The Liberty National Bank and Trust
Company of Oklahoma City (the “1989 Trust Agreement”). The 1989 Trust Agreement and its supplements essentially
pledge the tolls or other revenues from turnpike projects for service of the bonds and provides for certain obligations
to both parties. Section 706 of the 1989 Trust Agreement requires the OTA to employ a Chief Executive Officer who
“shall devote his entire time to the performance of such duties.” Trust Agreement between OTA and The Liberty
National Bank and Trust Company of Oklahoma § 706 (Feb. 1, 1989) (emphasis added) (on file with author). There
have been at least eighteen supplemental agreements to the 1989 Trust Agreement, which form a part thereof and
ratify the original 1989 Trust Agreement. However, this office has not reviewed the supplemental agreements to
determine if an amendment has been made to this “entire time” duty. Nonetheless, this office has previously addressed
the meaning of the requirement to “devote his or her entire time to the duties” proscribed by a particular position. See
1987 OK AG 120 ¶ 12 (the operative language “mandates that the position . . . is a full-time position, and that the
[individual] is prohibited from engaging in any other occupation or outside interests during regular business hours”).
10
11
In support of this holding, the Gibson court reasoned that the court in Wimberly quoted with approval the
statement of the rule in Mecham, Public Officers:
Where, however, it is the holding of two offices at the same time which is forbidden by the
constitution or the statutes, a statutory incompatibility is created, similar in its effect to that of the
common law, and, as in the case of the latter, it is well settled that the acceptance of a second office
of the kind prohibited, operates ipso facto to absolutely vacate the first.
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 9
Should a conflict of interest arise on the part of the appointing authority or should the office holder
attempt to maintain his vacated office(s) under color of title, relief may be obtained through civil
action. 12
C.
Official actions involving the public interest and third persons, though made by
officials who are not qualified to serve, but act as de facto officers under color of title,
are valid, binding, and enforceable.
Your last question involves the enforceability or validity of official actions taken by an official
who is not properly serving in office. The validity or enforceability of the official’s prior official
actions depends on whether the individual is a de facto officer.
An “officer de facto” is one whose acts, though not those of a lawful officer, the
law, upon principles of policy and justice, will hold valid so far as they involve the
interest of the public and third persons, where the . . . functions of the office are
exercised by one who was in the actual possession of it under color of title.
Hatfield v. Jimerson, 1961 OK 250, ¶ 9, 365 P.2d 980, 982 (quoting State ex rel. Tayrien v.
Doggett, 1956 OK CR 45, ¶ 6, 296 P.2d 185, 186).
When determining whether a judge—who was not qualified to serve in the office—was a de facto
judge, the Oklahoma Supreme Court stated:
While mere possession of the office is not sufficient to make the incumbent a de
facto judge, possession plus color of title to the office, if the office actually exists,
is considered sufficient. Clearly, in the instant case, the appointment was not void
on its face, for it was signed by the Governor of the state, the appointee took the
oath of office, filed the statement thereof with the proper official, and actively
assumed the duties of the office. He thus performed the duties with a color of right,
or color of title to the office.
No judicial determination is therefore necessary to declare the vacancy of the first, but the moment
he accepts the new office the old one becomes vacant.
Gibson, 1946 OK 22, ¶ 10, 165 P.2d at 629–30 (quoting Wimberly, 1943 OK 432, ¶ 27, 144 P.2d at 453); see also
MECHEM, PUBLIC OFFICERS (1889).
Forcible removal may be effectuated by an action in the nature of quo warranto. 12 O.S.2021, §§ 1531–
1538; see also State ex rel. Stuart v. Rapp, 1981 OK 87, 632 P.2d 388. Any person serving as a state official who does
not meet the qualifications of office or is holding office in violation of the dual office holding prohibition is unlawfully
holding or exercising public office. Id. An action in the nature of quo warranto may be filed by the Attorney General
or a district attorney on behalf of the State or by a person claiming an interest in the office. 12 O.S.2021, § 1533; see
also Callendar v. Dist. Ct. for the Twentieth Jud. Dist., 1981 OK 16, ¶ 9, 625 P.2d 627, 630 (holding that the thirtyday limitation period for filing a quo warranto action in the statute did not apply to actions initiated by the district
attorney or Attorney General). While the Attorney General or a district attorney may bring a quo warranto action,
there is no explicit affirmative duty to do so.
12
Senator Mary B. Boren
Oklahoma State Senate, District 16
A.G. Opinion
Page 10
Sheldon v. Green, 1938 OK 165, ¶ 8, 77 P.2d 114, 115. The Court further stated that “the acts of
a de facto officer are as binding as those of a de jure officer. This principle is well recognized and
applies as thoroughly to the office of judge as it does to other public offices.” Id., 1938 OK 165,
¶ 8, 77 P.2d at 116 (emphasis added).
The Oklahoma Supreme Court has on numerous occasions held that public officials were de facto
officers when lacking some qualification(s) to hold their office but that their acts were valid when
the interest of the public and third persons is involved. See, e.g., Ajax Contractors, Inc. v. H.L.
Myatt, 1967 OK 19, ¶ 17, 424 P.2d 30, 33–34. Therefore, official actions involving the public
interest and third persons, though made by officials who are not qualified to serve but, without
having prior notice otherwise, act as de facto officers under color of title, are valid, binding, and
enforceable. 13
It is, therefore, the official Opinion of the Attorney General that:
1.
A single individual holding one or more offices simultaneously as the Secretary of
Transportation, Executive Director of the Oklahoma Department of Transportation,
and the Executive Director of the Oklahoma Turnpike Authority violates the dual
office holding prohibition in title 51, section 6 (2021).
2.
When an office holder accepts and enters upon the duties of a second office,
acceptance of the second office operates to ipso facto vacate the first office.
3.
Official actions involving the public interest and third persons, though made by
officials who are not qualified to serve but act as de facto officers under color of title,
are valid, binding, and enforceable.
GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA
A. CHASE SNODGRASS
DEPUTY ATTORNEY GENERAL
This opinion does not address the validity of executive actions taken by a state officer after the officer has
received notice, from proper authority, that they are purporting to exercise a second office in violation of title 51,
section 6 (2021).
13