Are settlement discussions and materials in Oklahoma utility rate cases confidential, and can a single Corporation Commissioner be shown them?

Plain-English summary

Public utility rate cases in front of the Oklahoma Corporation Commission often settle through structured negotiations between the utility, the Attorney General (as ratepayer advocate), and other parties. Section 282(F) of title 17 makes those settlement discussions and materials "privileged and confidential" and bars their disclosure to the Commission, except for the final settlement submitted for approval.

Commissioner Bob Anthony asked the AG four questions about how that privilege works. AG Drummond's answers:

1. What conferences are covered? Any settlement conference relating to a public utility rate proceeding, regardless of whether the Commission ordered it or the parties initiated it on their own.
2. Does it require a settlement judge? No. The privilege applies whether or not a settlement judge has been appointed.
3. Does the privilege expire? No. The privilege covers closed cases and lasts in perpetuity, even after appeals are exhausted.
4. Can one Commissioner see the materials privately? No. "Disclosed to the Commission" prohibits disclosure to all Commissioners individually as well as to the body collectively.

The reasoning: the legislature explicitly favors settlement (per Whitehead v. Whitehead) and made the privilege broad to encourage candor. If parties feared their offers could be used against them by even one Commissioner, the chilling effect would defeat the statute's purpose.

What this means for you

If you are a Corporation Commissioner

You cannot ask to see settlement materials, even informally and even after a case closes. You also cannot be shown them by Commission staff, an ALJ, or a party. Your access is limited to the final settlement submitted for approval under § 282(E).

If you represent a utility or are the AG's ratepayer-advocate counsel

Settle freely. Your offers, counter-offers, and supporting materials are protected, whether you settle through a formal Commission-ordered conference, a party-initiated meeting, or with or without a settlement judge. The privilege does not expire, so older materials cannot be dragged into a future case as evidence of prior positions.

The privilege, however, is specific to § 282, public utility rate proceedings. It does not reach other types of dockets at the Commission (oil-and-gas dockets, transportation, etc.) unless other privileges apply.

If you are an administrative law judge or settlement judge at the Commission

Honor the privilege absolutely. If a party tries to introduce settlement materials at hearing, exclude them. If a Commissioner asks to see them, decline and cite this opinion.

If you are an intervenor in a rate case

You can participate in settlement conferences with the same privilege protection as the utility and the AG. Your offers are not evidence at the merits hearing, even if settlement fails.

If you are a Commission staff member

Treat settlement-conference notes, drafts, and exchanges as privileged. Do not summarize them in advisory memos to Commissioners. Confine your role to the public docket and the eventual filed settlement.

Common questions

Q: Does the privilege require both sides to agree it applies?
A: No. The privilege is a creature of statute and applies automatically to any settlement conference in a utility rate proceeding.

Q: What if the parties never reach a settlement?
A: The privilege still applies. Failed-settlement materials are still inadmissible and cannot be disclosed to the Commission.

Q: Does the privilege bar disclosure to the public, or just the Commission?
A: Section 282(F) speaks specifically to disclosure to the Commission and inadmissibility in the rate proceeding. Whether other public-disclosure rules (like the Open Records Act) apply to settlement materials is a separate question.

Q: How does this differ from federal Rule 408 or 12 O.S. § 2408?
A: Both make compromise negotiations inadmissible to prove liability. Section 282(F) goes further: it prohibits even disclosure to the decisionmaker (the Commission). It is closer to mediation confidentiality than to ordinary settlement-negotiation privilege.

Q: Does the privilege apply if a Commissioner accidentally sees a settlement document?
A: The opinion does not address inadvertent disclosure. As a practical matter, parties should treat settlement materials as confidential filings and use Commission ALJ procedures for sealing or restricting access.

Q: Are settlement conferences subject to the Open Meeting Act?
A: The opinion does not address this directly. As private negotiations between named parties, settlement conferences are not "meetings of a public body" in the OMA sense, but the participation of any quorum of public-body decisionmakers (which the Commission is) would raise the issue.

Background and statutory framework

The Oklahoma Constitution gives the Corporation Commission supervisory authority over public utilities (art. IX, § 18). The legislature codified more specific powers in 17 O.S. § 152. The AG, by statute (74 O.S. § 18b(A)(21)), is the ratepayer's advocate in rate proceedings.

Rate cases are quasi-legislative: they set future rules rather than adjudicate past disputes (City of Oklahoma City v. Okla. Corp. Comm'n, 2024). They typically involve large utilities (electric, gas, water), substantial dollar exposure, and detailed cost-of-service evidence.

Section 282 was enacted to give parties a structured settlement process. Subsection (A) lets any party request a settlement conference. Subsection (B) creates the optional settlement-judge mechanism, requiring agreement of the utility and the AG. Subsection (E) requires Commission approval of any settlement. Subsection (F) attaches privilege and confidentiality.

The Oklahoma Supreme Court treats the Commission as "an aggregate of State officers" forming a "single composite body" (Hair v. Okla. Corp. Comm'n, 1987). The AG used that doctrine to conclude that disclosure to one Commissioner is disclosure to "the Commission", there is no carve-out for private disclosure.

The AG also drew on Swidler & Berlin v. U.S. (1998) (attorney-client privilege survives client's death) for the proposition that settlement privilege survives the conclusion of the case.

Citations and references

Statutes:
- 17 O.S.2021, § 282, Settlement conferences in utility rate proceedings
- 12 O.S.2021, § 2408, Compromise negotiations inadmissible (general)
- 74 O.S.2021, § 18b(A)(21): AG as ratepayer advocate

Cases:
- Whitehead v. Whitehead, 1999 OK 91, 995 P.2d 1098, Oklahoma policy favors settlement
- Garnett v. GEICO, 2008 OK 43, 186 P.3d 935, confidentiality of mediation communications
- Swidler & Berlin v. U.S., 524 U.S. 399 (1998), privilege survives termination of relationship
- Hair v. Okla. Corp. Comm'n, 1987 OK 50, 740 P.2d 134, Commission as composite body
- City of Oklahoma City v. Okla. Corp. Comm'n, 2024 OK 77, 558 P.3d 1231, rate cases as legislative

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2025/ag-opinion-2025-01.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2025/A.G. Opinion 2025-1 2025 OK AG 1.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2025-1
The Honorable Bob Anthony
Oklahoma Corporation Commission
P.O. Box 52000
Oklahoma City, Oklahoma 73152-2000

January 13, 2025

Dear Commissioner Anthony:
This office has received a request for an Attorney General Opinion in which you asked, in effect,
the following questions:
1. Under the Oklahoma Statutes, does title 17, section 282(F)’s prohibition on
disclosure to the Commission apply only to “a settlement conference” held
in any contested “public utility rate proceeding,” as provided in title 17,
section 282, subsections A and F, and does it apply only if a party requests
and the Commission orders a settlement conference, or does it also apply
to cases where the Commission does not order a settlement conference but
settlement discussions occur anyway?
2. Does title 17, section 282(F)’s prohibition on disclosure to the Commission
apply if a settlement judge is not designated or present for the settlement
conference?
3. Does title 17, section 282(F)’s prohibition on disclosure to the Commission
apply to closed cases for which final orders have issued and more than
thirty days have passed without an appeal? If so, does such prohibition on
disclosure continue in perpetuity?
4. Does the phrase “disclosed to the Commission” used in title 17, section
282(F) of the Oklahoma Statutes prohibit disclosure to a single
Commissioner?
I.
SUMMARY
First, the prohibition on disclosure of settlement matters (“prohibition”) under title 17, section
282(F) of the Oklahoma Statutes applies to settlement conferences in contested public utility rate
proceedings. Second, the prohibition extends to both Commission-ordered settlement conferences
and party-initiated settlement conferences. The prohibition applies even when the Commission has
313 N.E. 21ST STREET • OKLAHOMA CITY, OK 73105 • (405) 521-3921 • FAX: (405) 521-6246

The Honorable Bob Anthony
Oklahoma Corporation Commissioner

A.G. Opinion
Page 2

not designated a settlement judge or in the absence of a designated settlement judge. Third, the
prohibition covers closed cases and continues into perpetuity. Finally, because the prohibition
precludes the Commission as a whole, this also means that the prohibition also applies to a single
commissioner.
II.
BACKGROUND
You ask about the statutory prohibition on disclosure of confidential and privileged information to
the Oklahoma Corporation Commission (“Commission”). To answer your questions, it is
necessary to begin with the legal authorities that regulate public utility rate proceedings.
“The Corporation Commission is a tribunal of limited jurisdiction and has only such jurisdiction
and authority as is expressly or by necessary implication conferred upon it by the Constitution and
statutes of this state.” Merritt v. Okla. Corp. Comm’n, 1968 OK 19, ¶ 7, 438 P.2d 495. The
Oklahoma Constitution grants general powers to the Commission relating to the regulation and
oversight of public utilities:
The Commission shall have the power and authority and be charged with the duty
of supervising, regulating and controlling all transportation and transmission
companies doing business in this State, in all matters relating to the performance of
their public duties and their charges therefor, and of correcting abuses and
preventing unjust discrimination and extortion by such companies; and to that end
the Commission shall, from time to time, prescribe and enforce against such
companies, in the manner hereinafter authorized, such rates, charges, classifications
of traffic, and rules and regulations, and shall require them to establish and maintain
all such public service, facilities, and conveniences as may be reasonable and just,
which said rates, charges, classifications, rules, regulations, and requirements, the
Commission may, from time to time, alter or amend.
OKLA. CONST. art. IX, § 18. The Legislature has also granted additional powers and duties to the
Commission in furtherance of its duty to regulate public utilities. Specifically, the Commission’s
regulatory powers include:
The Commission shall have general supervision over all public utilities, with power
to fix and establish rates and to prescribe and promulgate rules, requirements and
regulations, affecting their services, operation, and the management and conduct of
their business; shall inquire into the management of the business thereof, and the
method in which same is conducted.
17 O.S.2021, § 152(A). Also, the Legislature has directed the Attorney General to be the
ratepayers’ advocate, “represent[ing] and protect[ing] the collective interests of all utility

The Honorable Bob Anthony
Oklahoma Corporation Commissioner

A.G. Opinion
Page 3

consumers of this state in rate-related proceedings before the Corporation Commission or in any
other state or federal judicial or administrative proceeding.” 1 74 O.S.2021, § 18b(A)(21).
Your questions center on the Commission’s statutory authority to require the parties to engage in
a settlement conference. See 17 O.S.2021, § 282(A). Section 282(A) indicates that the Commission
“shall at the request of any of the parties, order a settlement conference among the parties, to be
held at a time and place to be fixed by the Commission.” Id. Further, the Commission will appoint
a settlement judge with the concurrence of the utility and the Attorney General. Id. § 282(B). And
any settlement reached by the parties requires the Commission’s ultimate approval. Id. § 282(E).
Finally, section 282(F) attaches confidentiality and privilege to settlement materials:
All matters discussed at a settlement conference, and any materials which may be
distributed in connection with a settlement conference, shall be considered
privileged and confidential. Accordingly, all such matters and materials shall not
be admissible in any public utility rate proceeding, and shall not be disclosed to
the Commission, except for any settlement reached by the parties which is
submitted to the Commission for approval under subsection E of this section.
Id. § 282(F) (emphasis added). You ask this office to clarify the bounds of such privilege and
confidentiality in settlement negotiations between parties before the Commission.
III.
DISCUSSION
A.

The grant of privilege, confidentiality, and prohibition on disclosure to the
Commission set forth in title 17, section 282(F) of the Oklahoma Statutes applies to
any settlement conference held in relation to any “public utility rate proceeding,” and
section 282(F)’s prohibition against disclosure applies to the Commission-ordered
settlement conferences and party-initiated settlement conferences.

To maintain the privilege and confidentiality attached to settlement activity, section 282(F) applies
to any settlement conference held in relation to a public utility rate proceeding. Rules of statutory
interpretation compel the conclusion that all settlement conferences in public utility rate
proceedings are privileged and confidential.
The central objective in construing statutes is to capture the Legislature’s intent. Heldermon v.
Wright, 2006 OK 866, ¶ 12, 152 P.3d 855, 859. “[A]scertaining . . . [legislative] intent . . .
[includes] look[ing] ‘to each part of an act, to other statutes upon the same or relative subjects, to
the evils and mischiefs to be remedied, and to the natural and absurd consequences of any
1
The nature of most public utility proceedings, including general base rate cases, is legislative rather than
judicial. See City of Okla. City v. Okla. Corp. Comm’n, 2024 OK 77, ¶ 28, 558 P.3d 1231 (“A ratemaking hearing is
legislative because it establishes a future rule.”); In re Application of Okla. Gas & Elec. Co., 2018 OK 31, ¶ 14, n.26,
417 P.3d 1196 (“A ratemaking hearing, for example, is always a legislative proceeding because it establishes a rule
for the future.”) (citing Wiley v. Okla. Natural Gas Co., 1967 OK 152, ¶ 3, 429 P.2d 957; Turpen v. Okla. Corp.
Comm'n, 1988 OK 126, ¶ 76, 769 P.2d 1309).

The Honorable Bob Anthony
Oklahoma Corporation Commissioner

A.G. Opinion
Page 4

particular interpretation.’” Sierra Club v. State, 2017 OK 83, ¶ 18, 405 P.3d 691 (quoting Blevins
v. W.A. Graham Co., 1919 OK 147, ¶ 8, 182 P. 247, 248). Section 282(A)’s reference to “at the
request of any of the parties” means that each party in a public utility rate proceeding has the right
to demand a settlement conference. By enacting section 282, the Legislature prioritized judicial
economy by providing a right for a party to request a settlement conference.
The established privilege and confidentiality also promote candor between the parties during
negotiations, and it allows parties to appropriately weigh the value of settlement in lieu of
litigation. This is a well-established principle in Oklahoma, as reflected by the rules of evidence:
Evidence of:
1. Furnishing, offering or promising to furnish; or
2. Accepting, offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed as to
either validity or amount is not admissible to prove liability for the claim,
invalidity of the claim or the amount of the claim.
Evidence of conduct or statements made in compromise negotiations is not
admissible.
12 O.S.2021, § 2408 (emphasis added); see also § 14:101. Confidential and nonbinding
negotiations, 5 Okla. Prac., Appellate Practice § 14:101 (2024 ed.). Parties are likely to be
unwilling to negotiate if whatever they disclosed or proffered could be used to undermine their
litigation position in the event settlement negotiations fail, creating a chilling effect on potential
settlements.
The parties to any proceeding before the Commission possess the inherent power to confer
confidentially to resolve matters and present a settlement to the Commission. The Oklahoma
Supreme Court and Legislature have both encouraged parties to settle their differences and reach
compromises. 2 Therefore, construing section 282(A) to prevent parties from engaging in a
settlement conference without the intervention or express order of the Commission is an absurd
and nonsensical interpretation. Such interpretation erodes the statute’s clear purpose—to promote
compromise and judicial economy and conserve taxpayer resources. Even more, prohibiting or
discouraging parties from settling without Commission intervention strains the Commission’s
finite resources.
While section 282(F) grants privilege and confidentiality in public utility rate proceedings, sound
public policy dictates that parties before the Commission should be able to enjoy the same privilege
and confidentiality as to materials distributed and matters discussed related to any settlement
conference. With this understanding, section 282(F)’s grant of privilege and confidentiality to
settlement conferences should be understood to apply to any settlement conference related to a

2
The Oklahoma Supreme Court has articulated that “the law and public policy favor settlements and
compromises, entered into fairly and in good faith between competent persons, as a discouragement to litigation.”
Whitehead v. Whitehead, 1999 OK 91, ¶ 9, 995 P. 2d 1098, 1101. The Legislature has also favored settlement. See
Hubbard v. Kaiser-Francis Oil Co., 2011 OK 50, ¶ 10, 256 P.3d 69 (discussing the legislative intent of title 12, section
1101.1 of the Oklahoma Statutes as encouraging settlement).

The Honorable Bob Anthony
Oklahoma Corporation Commissioner

A.G. Opinion
Page 5

public utility rate proceeding. 3 As noted above, such privileged and confidential information is
inadmissible in Commission proceedings and shall not be disclosed to the Commission. Id.
Moreover, section 282(F) does not distinguish between settlement conferences ordered by the
Commission or those initiated independently by the parties. Thus, section 282(F)’s grant of
privilege and confidentiality apply to all settlement conferences related to public utility rate
proceedings regardless of whether initiated by the parties or ordered by the Commission.
B.

Section 282(F)’s prohibition against disclosure applies irrespective of the
appointment of a settlement judge by the Commission.

Nothing in section 282 requires the appointment of a settlement judge. Section 282(B) does,
however, prescribe the process for appointing a settlement judge. The appointment requires
approval by the utility and the Attorney General. The involvement of a settlement judge does not
affect the privileged or confidential nature of settlement conferences granted under section 282(F).
This is similar to the intent under title 12 of the Oklahoma Statutes, which in relevant part states,
“evidence of conduct or statements made in compromise negotiations is . . . [in]admissible.” 12
O.S.2021, § 2408.
If a settlement judge is appointed, that judge will preside at the settlement conference and must
abide by the requirements of section 282(F). Moreover, the settlement judge is to take “no part” in
the adjudication of the proceeding subsequent to a conference. Id. § 282(B). In discussing the
merits of the confidentiality attached to mediation, the Oklahoma Supreme Court observed:
[T]he purpose of maintaining the confidentiality of communications made during
mediation is . . . to prevent a chilling effect on settlement negotiations by allowing
parties to freely make settlement offers without fear that these offers would be
revealed to a subsequent finder of fact as some evidence of liability on either the
present or a future substantive claim.
Garnett v. Gov’t Emps. Ins. Co., 2008 OK 43, ¶ 19, 186 P.3d 935, 943, as corrected (May 14,
2008) (citing Few v. Hammack Enterprises, Inc., 132 N.C.App. 291, 511 S.E.2d 665, 669 (1999)).
If parties’ offers of compromise could be disclosed to or considered by the ultimate trier of fact,
whether the administrative law judge or the Commission sitting en banc, parties would be unlikely
to engage in a settlement conference in Commission proceedings. Additionally, such disclosure
could undermine the parties’ litigation position. For example, the administrative law judge or
Commission en banc might question a party’s filed, lower litigation position if its settlement
position was higher or vice versa. Consequently, parties before the Commission should be able to
expect that the privilege and confidentiality attached to settlement discussions and materials
remain intact irrespective of the Commission appointing an administrative law judge for settlement
purposes or not.

3

Nothing in this opinion should be understood to undermine any other legal principle or authority as to
privilege or confidentiality of any other docket or type of proceeding at the Commission. This opinion intends to only
address whether title 17, section 282(F), specifically, applies to all cases or only public utility rate related cases.

The Honorable Bob Anthony
Oklahoma Corporation Commissioner

C.

A.G. Opinion
Page 6

Section 282(F) prohibition against disclosure applies to closed cases and continues in
perpetuity.

Section 282(F) makes clear that the only “public” memorialization of the settlement conference is
the agreement reduced to writing and submitted to the Commission for approval under section
282(E). In fact, section 282(F) sets no expiration date for the privileged or confidential nature of
the discussions and materials distributed in settlement conferences. Cf. Swidler & Berlin v. U.S.,
524 U.S. 399 (1998) (holding that the attorney-client privilege survives the death of a client, thus
the privilege here should survive after the Commission proceeding ends and appeals exhausted).
“In the absence of ambiguity or conflict with another enactment, our task is limited to applying a
statute according to the plain meaning of the words chosen by the Legislature, which
presumptively express that body's intent.” Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29,
¶ 15, 139 P.3d 873.
Disclosure of such privileged and confidential discussions, even after the conclusion of a particular
case, could undermine the settling parties’ arguments or litigation positions in future cases where
similar issues or arguments may be raised. Finding that such privilege continues in perpetuity
furthers the legislative intent and the evils or harms to be avoided by the statute. See Sierra Club,
2017 OK 83 at ¶ 18, 405 P.3d at 698.
D.

The phrase “disclosed to the Commission” in section 282(F) prohibits disclosure to all
commissioners individually and to the Commission as a whole.

The prohibition against disclosure to the Commission encompasses both the Commission when
sitting together as a multi-member decision-making body and the Commissioners individually. 4
For the Legislature’s intent to have any meaning and effect here, section 282(F)’s prohibition on
disclosure to the Commission must apply in both scenarios. Any other reading ignores section
282(F)’s objective: to prevent the Commission from considering the parties’ settlement positions
when the Commission ultimately makes its decision. Giving even one commissioner access to such
discussions and materials undermines this objective. Simply put, if it applies as a whole, it must
also apply individually.
*
*
*

4

Hair v. Oklahoma Corp. Comm’n, 1987 OK 50, ¶ 13, 740 P.2d 134, 138 (construing sections 15 and 18a(B)
of Article IX, the Court found that the Commission “is an aggregate of State officers… is a single composite body[.]”;
see also 1997 OK AG 76; 2024 OK AG 16.

The Honorable Bob Anthony
Oklahoma Corporation Commissioner

A.G. Opinion
Page 7

It is, therefore, the official Opinion of the Attorney General that:
1. The grant of privilege and confidentiality, and prohibition on disclosure to
the Commission under title 17, section 282(F) of the Oklahoma Statutes
applies to any settlement conference held in relation to any “public utility
rate proceeding.” Regardless of whether the Commission orders a
settlement conference or the parties initiate settlement discussions, the
prohibition on disclosure under title 17, section 282(F) applies.
2. The prohibition against disclosure of settlement matters under title 17,
section 282(F) applies irrespective of the appointment of a settlement judge
by the Commission.
3. The prohibition against disclosure of settlement matters under title 17,
section 282(F) applies to closed cases and continues into perpetuity.
4. The phrase “disclosed to the Commission” in title 17, section 282(F)
prohibits disclosure to all commissioners individually and to the
Commission as a whole.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

THOMAS L. GROSSNICKLAUS
SENIOR ASSISTANT ATTORNEY GENERAL

A. CHASE SNODGRASS
DEPUTY ATTORNEY GENERAL