OK AG Opinion 24-16 October 30, 2024

Can a single commissioner of the Oklahoma Corporation Commission start a regulatory case on their own and direct staff and money toward it without the other two commissioners' agreement?

Short answer: No. The Corporation Commission is constitutionally a three-member body that acts only by majority vote (Okla. Const. art. IX, § 18a(B)). A single commissioner has no authority to commence a case in the Commission's name, expend state funds for that case, or compel Commission staff to assist with it. This was already established in 1997 OK AG 76 and reaffirmed by the Oklahoma Supreme Court in Hiett v. Anthony (Sept. 30, 2024).

Disclaimer: This is an official Oklahoma Attorney General opinion. Under Oklahoma law (74 O.S. § 18b), public officials must generally act in accordance with an AG opinion unless or until set aside by a court; opinions concluding a statute is unconstitutional are advisory only. This summary is for informational purposes only and is not legal advice. Consult a licensed Oklahoma attorney for advice on your specific situation.

Subject

Attorney General Opinion concerning the authority and powers of individual commissioners of the Oklahoma Corporation Commission.

Plain-English summary

The Chair of the Oklahoma Corporation Commission asked the AG two pointed questions: can a single commissioner unilaterally start a case in the Commission's name, and can a single commissioner direct money or staff toward such a case without the rest of the commission's agreement? The answer to both is no.

The Oklahoma Constitution treats the Commission as "an aggregate of [s]tate [o]fficers" who act collectively, not individually. Three commissioners; majority of two needed for any official action; "the concurrence of the majority of said Commission shall be necessary to decide any question" (art. IX, § 18a(B)). The 1997 AG opinion already addressed a similar question (whether a single commissioner could unilaterally inspect a public utility under art. IX, § 28) and concluded that even where the Constitution arguably authorized individual action, majority vote was needed to actually enforce it. The Oklahoma Supreme Court reinforced this in 2024 with Hiett v. Anthony, refusing to recognize an individual commissioner's action as Commission action.

The AG's opinion concludes:
1. An individual commissioner cannot start a Commission case unilaterally.
2. An individual commissioner cannot expend Commission funds or direct staff in pursuit of such a unilateral case.

A footnote clarifies that any individual person can file a complaint or application that begins a case before the Commission (per OAC § 165:5-7-1(b) and § 165:5-1-3). What the opinion forecloses is a commissioner using their official capacity to commence a case the rest of the Commission hasn't authorized.

What this means for you

For Corporation Commissioners

You cannot use your office to start a case the Commission hasn't voted to start. If you want the Commission to take up a matter, you need to convince at least one of your colleagues. If you want to file a personal complaint or application as a private citizen, you can (per the footnote on OAC § 165:5-1-3), but you do so without official commission backing, without staff assistance, and without commission funds.

This rule cuts both ways. It prevents an aggressive commissioner from steamrolling colleagues; it also prevents a single commissioner from being held responsible for the Commission's mistakes when they didn't have a vote.

For Commission staff

You should not act on directives from a single commissioner that purport to start a Commission case or commit Commission resources to one. You serve the Commission as a body, and an individual commissioner's order in this context lacks the majority authorization the Constitution requires. If you receive such an instruction, the appropriate response is to ask for a Commission vote authorizing the work or, where the matter is genuinely urgent, ask the chair to call a meeting.

For utility companies and other regulated entities appearing before the Commission

If you receive a notice or order purporting to be from "the Commission" but actually emanating from a single commissioner without majority backing, you can challenge it. Hiett v. Anthony (Sept. 30, 2024) explicitly refused to recognize a single commissioner's action as Commission action. Document the procedural posture and raise the jurisdictional issue early in the proceeding.

For litigants and complainants

If you want the Commission to investigate a matter, your best path is to file an application or complaint as a private party under the OREC's general public-filing rules. That kicks off a real Commission case under § 165:5-7-1(b). Lobbying a single commissioner to "open an investigation" is a nonstarter; the Commission can only act collectively.

For the legislature considering Commission reforms

This opinion confirms what the Constitution already requires: collegial, majority-vote action. Any reform that would let a single commissioner exercise unilateral authority would require constitutional amendment, not just statutory change.

Common questions

Why does this opinion matter now?

Tensions between the three Corporation Commissioners had spilled into actions that arguably tried to use the Commission's apparatus on a single commissioner's authority. The Oklahoma Supreme Court's order in Hiett v. Anthony in September 2024 addressed the issue directly. The Chair asked the AG to formalize the rule in a binding opinion, which is what 24-16 does.

Can a single commissioner inspect a utility's books under Article IX § 28?

The 1997 AG opinion (1997 OK AG 76) addressed this. Article IX § 28 provides that "either" Commissioner "shall have the right" to inspect books and papers. The 1997 opinion concluded that even where individual authorization exists in the Constitution, majority vote is needed to enforce inspection if the utility resists. So in practice, individual action gets you only as far as the utility cooperates.

Can a single commissioner make public statements about Commission policy?

This opinion doesn't address speech. Commissioners remain free to express their views publicly, including dissents, criticism, or proposals for new policy. The bar is on official Commission action: cases, funds, staff direction.

What if the Commission deadlocks?

A 1-1 vote with one absence or recusal cannot achieve the required two-vote concurrence and so cannot take action. The Commission has to wait until a quorum can produce a majority. There is no fallback to individual commissioner authority.

Does this affect cases where one commissioner is recused?

Yes, indirectly. With three seats and one recusal, the Commission can still act with two-vote concurrence between the remaining two. If both remaining commissioners agree, action goes forward. If they split 1-1, the Commission cannot act on that matter.

Are there exceptions for emergencies?

The opinion does not carve out emergencies. The constitutional requirement of majority concurrence is structural; it does not bend for urgency. In genuinely urgent matters, the chair can call a special meeting to obtain a majority vote.

Background and statutory framework

The Oklahoma Corporation Commission is a constitutional body created by Article IX § 15 of the Oklahoma Constitution. Its mission, per the Oklahoma Supreme Court in Sw. Bell Tel. Co. v. Okla. Corp. Comm'n, is to "supervise, regulate and control public service corporations." It is "clothed with legislative, executive and judicial powers" but, per State ex rel. Edmondson, only exercises powers expressly conferred or implied by the Constitution.

The Commission's structural rules are in Article IX:

§ 15(A): three commissioners.
§ 18a(B): the Commission "transact[s] official business in public meetings" and "the concurrence of the majority of said Commission shall be necessary to decide any question."
§ 19: the Commission has "the powers and authority of a court of record" in matters of "public visitation, regulation, or control of corporations."
§ 28: "either" Commissioner has the right to inspect a public service corporation's books and papers (the question addressed in 1997 OK AG 76).

Crawford v. Corp. Comm'n (1940) confirmed the Commission acts as "an aggregate of [s]tate [o]fficers." 1997 OK AG 76 added that even where individual authorization exists, majority concurrence is required to enforce. Hiett v. Anthony (Sept. 30, 2024) reinforced this by refusing to treat an individual commissioner's action as Commission action.

The Commission's own rules support the same conclusion. OAC § 165:5-7-1(b) provides that the Commission commences a case by order or notice (which requires Commission action) or by application or complaint from any person (footnote in opinion). § 165:5-1-3 defines "person" broadly enough to include individual commissioners acting in their personal capacity, but that is different from official Commission action.

Citations

Oklahoma Constitution, Article IX, § 15 (Commission established)
Oklahoma Constitution, Article IX, § 15(A) (three commissioners)
Oklahoma Constitution, Article IX, § 18a(B) (majority concurrence required)
Oklahoma Constitution, Article IX, § 19 (Commission as court of record)
Oklahoma Constitution, Article IX, § 28 (inspection rights)
OAC § 165:5-1-3 (definition of person who may file)
OAC § 165:5-7-1(b) (commencement of cases)
Sw. Bell Tel. Co. v. Okla. Corp. Comm'n, 1994 OK 38, 873 P.2d 1001 (Commission's mission)
State ex rel. Edmondson v. Okla. Corp. Comm'n, 1998 OK 118, 971 P.2d 868 (Commission powers limited to those granted by Constitution)
Pub. Serv. Co. of Okla. v. State ex rel. Corp. Comm'n ex rel. Loving, 1996 OK 43, 918 P.2d 733
Crawford v. Corp. Comm'n, 1940 OK 432, 106 P.2d 806 (Commission as aggregate of officers)
Hiett v. Anthony, No. PR-122441 (Okla. Sup. Ct., Sept. 30, 2024) (refusing to recognize individual action as Commission action)
1997 OK AG 76 (majority concurrence required even for individually-authorized actions)

Source

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-16

The Honorable Kim David, Chair
Oklahoma Corporation Commission
Will Rogers Building
2401 N. Lincoln Blvd.
Oklahoma City, OK 73105

October 30, 2024

Dear Commissioner David:

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

Under Oklahoma law, does an individual Commissioner of the Oklahoma Corporation Commission (Commission) possess the authority to unilaterally commence a case before the Commission?
May an individual Commissioner allocate state funds in support of or related to the unilaterally-commenced case, or compel cooperation of Commission employees in the case, without the concurrence of a majority of the Commission?

I. SUMMARY

The Commission is made up of three Commissioners. An affirmative vote of at least two Commissioners is necessary for the Commission to take action. A single Commissioner, acting in his or her official capacity, may not unilaterally commence a case before the Commission. Likewise, an individual Commissioner may not unilaterally expend state funds or compel cooperation with his or her unilaterally-initiated case before the Commission.

[Footnote: Any individual person may commence a case before the Commission, but has no authority to expend state funds or compel cooperation. See infra n. 2.]

II. BACKGROUND

Article IX, section 15 of the Oklahoma Constitution creates the Commission, which, among its powers and duties, exists to "supervise, regulate and control public service corporations." Sw. Bell Tel. Co. v. Okla. Corp. Comm'n, 1994 OK 38, ¶ 5, 873 P.2d 1001, 1004. The Oklahoma Supreme Court has observed that the Commission is "clothed with legislative, executive and judicial powers," and, as a tribunal of limited jurisdiction, only exercises the powers expressly conferred or by implication through the Oklahoma Constitution. Id.; State ex rel. Edmondson v. Okla. Corp. Comm'n, 1998 OK 118, ¶ 21, 971 P.2d 868, 873, as corrected (Dec. 10, 1998) (citing Pub. Serv. Co. of Okla. v. State ex rel. Corp. Comm'n ex rel. Loving, 1996 OK 43, ¶ 21, 918 P.2d 733, 738). Accordingly, the relevant constitutional and statutory grants of authority to the Commission determine whether an individual Commissioner may unilaterally commence a case before the Commission. Id. These sources make it clear that the Commission may act only as a body, and that the rights of a single Commissioner are extremely limited.

III. DISCUSSION

The Commission "is an aggregate of [s]tate [o]fficers" comprising three elected commissioners who transact official business in public meetings, and a majority of these commissioners, that is, two, constitutes a quorum. OKLA. CONST. art. IX, §§ 15(A), 18a(B); Crawford v. Corp. Comm'n, 1940 OK 432, ¶¶ 21, 25, 106 P.2d 806, 809. Enumerated powers the Commission may exercise as a body include the powers of a court of record "[i]n all matters pertaining to the public visitation, regulation, or control of corporations" and the power to administer oaths and compel the attendance of witnesses. OKLA. CONST. art. IX, § 19. The Commission acts only as "an aggregate of [s]tate [o]fficers;" individual members "cannot act otherwise" and "the concurrence of the majority of said Commission shall be necessary to decide any question." Id. § 18a(B); Crawford, 1940 OK 432, ¶¶ 24-25, 106 P.2d at 809. Accordingly, an individual Commissioner may not exercise the powers of the Commission without the concurrence of at least one other Commissioner.

This conclusion is reinforced by a previous Attorney General opinion. See 1997 OK AG 76 (the "1997 Opinion"). There, a former Corporation Commissioner asked if the Oklahoma Constitution authorizes an individual Commissioner to "unilaterally inspect and examine a public utility without first obtaining the concurrence of a majority of the Commission," id. at ¶ 0, as article IX, section 28 provides that "either" Commissioner "shall have the right" to inspect a public service corporation's "books and papers." Id. at ¶ 3 (quoting OKLA. CONST. art IX, § 28). The 1997 Opinion concluded that the Commission must first vote to initiate an action, even when an individual Commissioner is authorized to act, because a concurrence of a majority of the Commission is necessary to enforce compliance. Id. at ¶ 13.

A recent Oklahoma Supreme Court review further affirms that individual Commissioners are not permitted to exercise the powers of the Commission as a body. See Order at 1, Hiett v. Anthony, No. PR-122441 (Okla. Sup. Ct., Sept. 30, 2024). In that case, the Court refused to recognize the challenged action of an individual Commissioner as action undertaken by the Commission as a body. Id.

Finally, the Commission's rules support a conclusion that an individual Commissioner may not unilaterally commence a case on behalf of the Commission. OKLA. ADMIN. CODE § 165:5-7-1(b) (the Commission commences a case by order or notice). Given that the Commission acts only as a composite body and through the vote of a majority of Commissioners, and that a vote by the Commission is necessary to effectuate rights explicitly granted to an individual Commissioner, see 1997 OK AG 76, it is clear that a single Commissioner is not permitted to commence a case before the Commission. It therefore follows that it is inappropriate and unlawful for state funds to be expended, or for individuals to be compelled to participate, by an individual Commissioner in a unilaterally-initiated case.

[Footnote: Because your questions relate only to a Commissioner acting in his or her official capacity and unilaterally on behalf of the Commission, administrative rule provisions setting forth procedures authorizing the general public to commence cases are inapplicable here. See OKLA. ADMIN. CODE § 165:5-7-1(b) (a case is commenced upon any person filing an application or complaint); and OKLA. ADMIN. CODE § 165:5-1-3 (defining persons as those who can file applications and complaints to mean an "individual, partnership, corporation, association, trust, and every other type of legal entity, including an officer or employee of the Commission.").]

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

Oklahoma law does not allow an individual Commissioner, in his or her official capacity, to unilaterally commence a case before the Commission.
Likewise, an individual Commissioner's unilateral expenditure of state funds and any attempt to compel cooperation with his or her unilaterally-initiated case before the Commission are not actions of the majority of the Commission and are, therefore, not allowed under Oklahoma law.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

KYLE PEPPLER
ASSISTANT SOLICITOR GENERAL