Can an Oklahoma legislator who sits on a committee with jurisdiction over a state board insist on attending the board's executive session, even when the board wants to keep it closed?

Subject

Attorney General opinion concerning whether a member of the Legislature has a right to attend an executive session of a state agency, board or commission.

Plain-English summary

Several Oklahoma legislators tried to attend executive (closed) sessions of the State Board of Education in 2024 and were denied. The State Board's outside counsel asked the AG whether the denial was lawful. The AG advised it was not, then issued this formal opinion in response to a request from Rep. Mike Osburn.

The AG read 25 O.S. § 310 plainly:

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.

Three things are clear from the text:

1. "Shall be permitted to attend" is mandatory, not discretionary, on the public body (Minie v. Hudson; Indep. Sch. Dist. No. 12 v. State).
2. The only qualifications are (a) being a current legislator and (b) being a member of a legislative committee with jurisdiction over the state body's actions.
3. The Legislature did not carve out exceptions in § 310 itself. Compare 25 O.S. § 307(D), where the Legislature did carve out an exception (real estate sessions limited to body members and counsel).

The AG also overruled an old narrow reading. 1978 OK AG 144 had read § 310 to require the legislator's committee jurisdiction to extend specifically to the subject of the executive session. The new opinion withdraws that reading: it's the committee's general oversight of the state body that matters, not the specific subject of the closed session.

There are two limited exceptions:

• Real estate sessions under § 307(D): by statutory design, only members of the public body, its attorney, and immediate staff may attend. Legislators are not included.
• Litigation between the legislator/Legislature and the state body: under State ex rel. Howard, governmental entities have a right to legal representation in litigation, including confidential consultation. A legislator who is an adverse party in pending litigation cannot attend the portion of an executive session under § 307(B)(4) that discusses that specific litigation.

Attorney-client privilege otherwise does not block legislator attendance. The legislator is a state actor (public officer member of an oversight committee), and the client (the state body) can instruct the legislator to keep the discussion confidential. Other states permit broader attendance (Arizona, Indiana, Oregon for media); Oklahoma's permissive rule is consistent with that pattern.

The AG also addressed a constitutional challenge: § 310 is not a separation-of-powers violation. The Oklahoma framers built a "weak chief executive" structure with deliberate legislative checks on appointed bodies. The Legislature has authority under Article V § 60 to create checks within the Executive Department.

What this means for you

For Oklahoma legislators

If you are appointed to a legislative committee with general jurisdiction over a state agency, board, or commission, you have the right to attend that body's executive sessions, with two narrow exceptions (real estate; pending litigation against you or the Legislature). The state body cannot exclude you on the basis that the executive session involves attorney-client privileged communications, sensitive personnel matters, or any other subject that doesn't fall within the two narrow exceptions.

To exercise this right: identify which committees you serve on and which state bodies they have jurisdiction over (a fact-specific question). Senate and House committee jurisdiction information is published. When you want to attend, notify the body in advance, confirm your committee's jurisdiction, and present yourself for the executive session. If the body refuses, this opinion is your authority. Per Hendrick v. Walters, the body's officials are bound by AG opinions.

For state agencies, boards, and commissions

If a legislator who is a member of a committee with jurisdiction over your agency wants to attend your executive session, you must let them in. Refusing exposes you to civil consequences (actions taken in the executive session may be invalid under § 307(F); minutes may be made public; attorney fees to the legislator) and criminal misdemeanor liability for willful violations of the Open Meeting Act under § 314.

You can ask the legislator to confirm committee jurisdiction. You can require the legislator to keep confidential what's discussed. You can exclude them from real estate purchase/appraisal sessions and from any portion of a litigation session where the legislator is an adverse party. You cannot exclude them otherwise.

For state body attorneys

The opinion says you can give the legislator a confidentiality instruction in the same way you would your own client members. Document this. The attorney-client privilege between the body and its counsel is not waived by the legislator's presence (Humphries v. Chicarelli; Galli v. Pittsburg Unified Sch. Dist.; Brown v. Unified Sch. Dist. No. 501).

For school boards specifically

Local school district boards of education are not within § 310 (the statute applies only to "state" agencies, boards, and commissions). Note also 70 O.S. §§ 5-113.1, 5-113.2 set their own exclusion rules for board members in personnel/litigation contexts. The State Board of Education, by contrast, is a "state board" and § 310 fully applies.

For media and public-meeting transparency advocates

The opinion is permissive in the same direction as the Open Meeting Act's purpose ("to encourage and facilitate an informed citizenry's understanding of the governmental processes"; Andrews v. Indep. Sch. Dist. No. 29). More legislator attendance means more elected oversight of unelected boards, which the AG treats as a feature of Oklahoma's "weak chief executive" constitutional design.

Common questions

What kinds of committees count for jurisdiction?

Any committee of either house, or joint committee, with general oversight of the state body. The opinion gives examples: Senate Education Committee → State Board of Education; Senate Administrative Rules Committee → any state agency executing administrative rules. Look at the published committee jurisdiction descriptions on the Senate and House websites.

Can the body limit the legislator to certain agenda items?

Under the AG's reading, no. The 1978 opinion (now withdrawn) tried to limit attendance to executive session items where the committee had specific jurisdiction. The new opinion rejects that. If your committee has general oversight of the body, you can attend any executive session of that body (subject to the two exceptions).

Can the body get an order of confidentiality from a court before letting the legislator in?

The opinion suggests the body should accede to the legislator's representation of qualifying status, "absent judicial intervention otherwise" (citing the presumption that public officers act in good faith from Freedom From Religion Foundation, Inc. v. Abbott). Going to court to block a legislator pre-emptively would be unusual and probably not successful given this opinion.

What if multiple legislators show up?

§ 310 doesn't limit the number. If three legislators all serve on jurisdictional committees, all three can attend.

Can the body pre-decide what's confidential and exclude topics in advance?

No. The body has to either hold an executive session or not. If it does, qualifying legislators may attend the entire session (except for the carved-out real estate or adverse litigation portions). The body can't slice the session into "legislator-allowed" and "legislator-excluded" topics on its own.

Does this ruling apply retroactively?

The opinion doesn't address retroactivity, but it withdraws 1978 OK AG 144 going forward. State bodies that have been excluding legislators on the narrow-jurisdiction theory should change their practice now. Past denials may have been good-faith reliance on the prior opinion.

Background and statutory framework

The Oklahoma Open Meeting Act (25 O.S. §§ 301 et seq.) generally requires public bodies to meet openly. § 307 lists the limited circumstances in which executive (closed) session is permitted: personnel matters, attorney-client communications about pending litigation, real estate transactions, and a handful of others. § 310 is a separate provision making clear that even when an executive session is permitted, qualifying legislators have a right to attend. § 313-314 provide civil and criminal consequences for willful violations.

The opinion's separation-of-powers analysis is rooted in Ritter v. State (2022), which describes Oklahoma's "weak state chief executive" as a deliberate structural design where "the Governor's authority is limited by the Constitution, because the Chief Executive may exercise only the power specifically granted by the Legislature." Article V § 60 vests the Legislature with the authority to create checks within the Executive Department. § 310 is an exercise of that constitutional authority.

The withdrawn 1978 OK AG 144 had read § 310's "jurisdiction... includes the actions of the public body involved" to mean jurisdiction over the specific subject of the executive session. This new opinion reads it as general oversight of the state body, treating the public body as the unit of analysis rather than the agenda item.

The series-qualifier canon analysis (citing A. Scalia and B. Garner, Reading Law) confirms that § 310 applies to state agencies, state boards, and state commissions (the word "state" modifies all three terms in the series). The Tenth Circuit applied the same canon in Midway Leasing, Inc. v. Wagner Equip. Co.

Citations

• 25 O.S. § 302 (Open Meeting Act policy)
• 25 O.S. § 303 (open meetings requirement)
• 25 O.S. § 307 (executive session authorizations)
• 25 O.S. § 307(B)(4) (executive session for confidential attorney communications)
• 25 O.S. § 307(D) (real estate executive session attendance limits)
• 25 O.S. § 307(F) (consequences of unauthorized executive session)
• 25 O.S. § 310 (legislator's right to attend executive sessions)
• 25 O.S. §§ 313-314 (civil and criminal penalties)
• 12 O.S. § 2502 (attorney-client privilege)
• 70 O.S. § 3-101 (State Board of Education membership)
• 70 O.S. § 3-104 (State Board of Education powers)
• 70 O.S. §§ 5-113.1, 5-113.2 (local school board executive session limits)
• Okla. Const. art. IV, § 1 (separation of powers)
• Okla. Const. art. V, §§ 1, 35, 55, 60 (legislative powers and check-and-balance authority)
• Andrews v. Indep. Sch. Dis. No. 29, 1987 OK 40, 737 P.2d 929 (Open Meeting Act purpose)
• Ritter v. State, 2022 OK 73, 520 P.3d 370 (weak chief executive)
• Minie v. Hudson, 1997 OK 26, 934 P.2d 1082 ("shall" is mandatory)
• Lafalier v. Lead-Impacted Communities Relocation Assistance Tr., 2010 OK 48, 237 P.3d 181
• Indep. Sch. Dist. No. 12 v. State, 2024 OK 39 (mandatory "shall")
• Crawford v. Corp. Comm'n, 1940 OK 432, 106 P.2d 806 (commission acts as composite body)
• Oklahoma Ass'n of Mun. Attys. v. State, 1978 OK 59, 577 P.2d 1310 (no abrogation of attorney-client privilege)
• State ex rel. Howard v. Okla. Corp. Comm'n, 1980 OK 96, 614 P.2d 45 (right to legal representation in litigation)
• 1978 OK AG 144 (withdrawn)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2024/ag-opinion-24-12.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2024/AGO24-23%202024%20OK%20AG%2012.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-12

The Honorable Mike Osburn
Oklahoma House of Representatives, District 81
2300 N. Lincoln Blvd., Rm. 246
Oklahoma City, OK 73105

August 21, 2024

Dear Representative Osburn:

This office has received your request for an Attorney General Opinion in which you ask the following question:

Does a member of the Legislature have a right to attend an executive session of a state agency, board, or commission?

I. SUMMARY

Yes. Under the Oklahoma Open Meeting Act ("Act"), a legislator who is a member of a legislative committee with jurisdiction over actions of the state agency, board, or commission, is authorized to attend an executive session of the state body. The only limitations are for executive sessions concerning the purchase or appraisal of real property under the provisions of 25 O.S.2021, § 307(D) and when the Legislature or legislator is involved in litigation with a state agency, board, or commission.

II. BACKGROUND

The question presented to this office stems from your recent attempt to attend the executive session of the State Board of Education ("SBE" or "State Board"). Additional members of the Legislature have also attempted to attend recent executive sessions of the SBE but have been denied. After the State Board denied Senator Mary Boren access to an executive session in June 2024, legal counsel retained by the SBE requested this office's opinion on the lawfulness of the denial. In response, this office advised the SBE that the provisions of 25 O.S.2021, § 310 authorize any legislator assigned to a committee that has jurisdiction over the actions of a state agency, board, or commission, to attend an executive session of that body.

III. DISCUSSION

A. Section 310 is constitutional and does not violate the separation of powers provision in article IV, section 1 of the Oklahoma Constitution.

The framers of the Oklahoma Constitution gave the Legislature the power to legislate policy and create checks and balances on the Governor, intentionally creating a weak state chief executive. Ritter v. State, 2022 OK 73, 520 P.3d 370. Article V, section 60 of the Oklahoma Constitution vests the Legislature with the authority to create checks and balances within the Executive Department. Viewed in context of the state agencies, boards, and commissions, section 310 is a check and balance on these bodies, which are predominantly appointed by the Governor.

B. The provisions of 25 O.S.2021, § 310 require a state agency, state board, or state commission to permit a legislator to attend any executive session of that public body if the legislator is a member of a committee with jurisdiction extending to the actions of that public body.

For four reasons, section 310 is clear and can only be read one way: any legislator who sits on a committee with jurisdiction over the actions of a state agency, board or commission must be permitted to attend any executive session of that state body.

First, the use of the word "shall" before the phrase "be permitted to attend" removes any discretion from the state body to bar a legislator from the executive session. Minie v. Hudson, 1997 OK 26, ¶ 8, 934 P.2d 1082.

Second, section 310 does not limit the executive sessions that a qualifying legislator may attend. If the Legislature intended to carve out exceptions to this right, it would have done so. See, e.g., 70 O.S.2021, § 5-113.2 (school board members involved in litigation may be excluded by majority vote); 70 O.S.2021, § 5-113.1 (board members shall not attend executive sessions involving personnel or litigation matters regarding a person to whom they are related); 25 O.S.2021, § 307(D) (limiting attendance in real estate executive sessions to body members, attorney, and immediate staff).

A plain reading reveals that the only qualifications for attending an executive session under section 310 are being (1) a current legislator and (2) a member of a legislative committee with jurisdiction over the actions of the state body at issue. 25 O.S.2021, § 310.

Third, determining whether a legislator is entitled to attend an executive session depends on whether the legislator sits on a committee with jurisdiction over the actions of the agency involved. In 1978, this office was asked whether a legislator, who is a member of the Education Committee, has the right to attend an executive session of a local school district board of education convened to discuss employment matters. 1978 OK AG 144. In doing so, the Attorney General interpreted section 310 too narrowly. 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.

Suppose the State Board identifies an executive session regarding a licensure revocation matter. In that situation, a legislator on either of the committees addressed above is entitled to attend the executive session because those committees have general oversight and jurisdiction of the SBE relating to the law and policy of issuing and revoking licenses. Accordingly, then, under section 310, a legislator is entitled to attend an executive session in which his or her committee has general oversight. Accordingly, 1978 OK AG 144 is withdrawn.

Fourth and finally, the Legislature only applied this section to state agencies, boards, and commissions. The word "state" modifies every noun that follows. See A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (Series-Qualifier Canon).

C. Except for the limited exception when the Legislature is involved in litigation with a state agency, board, or commission, the attorney-client privilege does not alter the conclusion that a qualifying legislator shall be permitted to attend an executive session of a state agency, board, or commission.

The Act authorizes executive sessions for engaging in confidential communications with the state body's legal counsel to discuss pending litigation, claim, or action. 25 O.S.2021, § 307(B)(4). To the extent the attorney-client privilege exists, a state body may prevent any legislator in attendance in an executive session from disclosing the confidential communications in the executive session. Furthermore, nothing prohibits any member of the public body or its attorney from instructing a legislator that the information and discussions in the executive session must remain confidential.

The Oklahoma Supreme Court has also conclusively found "no Legislative intention to abrogate the principle of attorney-client confidentiality where public bodies are involved." Oklahoma Ass'n of Mun. Attys. v. State, 1978 OK 59, ¶ 19, 577 P.2d 1310, 1315.

There is an exception to this general rule if an otherwise qualifying legislator were directly involved in litigation with a state agency, board, or commission, and the public body convenes in executive session to discuss that litigation under section 307(B)(4). Under this limited fact pattern, the legislator's right to attend under section 310 likely cedes to the attorney-client privilege.

It is, therefore, the official Opinion of the Attorney General that:

1. The provisions of 25 O.S.2021, § 310 are constitutional and do not violate the separation of powers requirement in the Oklahoma Constitution.

2. Under 25 O.S.2021, § 310, excepting only executive sessions to discuss the purchase or appraisal of real property under 25 O.S.2021, § 307(D) and if the Legislature or legislator were involved in litigation with the public body, a legislator may attend an executive session of a state agency, board, or commission if the legislator is a member of a committee with jurisdiction extending to the actions of that agency, board, or commission.

3. 1978 OK AG 144 is withdrawn.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

ROB JOHNSON
GENERAL COUNSEL