Can a county commissioner's chief deputy talk to another commissioner about county business outside a public meeting?
Plain-English summary
Oklahoma counties have three commissioners. Two of them together count as a quorum, so any time two are gathered to discuss county business, it is a "meeting" under the Open Meeting Act (OMA) and has to follow the public-meeting rules. Each commissioner has a chief deputy who, by statute (19 O.S. § 180.65(B)), can step into the commissioner's role: either at the commissioner's direction, or during the commissioner's absence, death, removal, or resignation.
That dual role, sometimes staff, sometimes substitute commissioner, creates ambiguity. Senator Guthrie asked when the OMA applies to a chief deputy's conversations with other commissioners.
The AG drew a clean line:
- Acting under delegated authority or during the commissioner's absence: the chief deputy is functioning as a commissioner. Discussions with another commissioner (or another commissioner's chief deputy similarly stepped in) must happen in an open meeting.
- Acting purely as staff: the chief deputy is not part of the public body. Conversations with another commissioner are not "meetings" and do not need to satisfy the OMA.
- Unclear or pretextual: if the conduct is intended to evade the OMA, using chief deputies as proxies to avoid public meetings, courts will treat the workaround as an OMA violation. The Oklahoma rule: "when in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State."
What this means for you
If you are a county commissioner
Be deliberate about how you use your chief deputy. Routine staff work (gathering information, drafting documents, scheduling) is fine without OMA concerns. Delegating decision-making authority and then having your chief deputy negotiate with another commissioner is treated as if you yourself were negotiating: it has to happen in a public meeting.
If you need to discuss county business with another commissioner, schedule an OMA-compliant meeting. Do not use chief deputies as your proxies for substantive discussion. Iowa's Supreme Court in Hutchison v. Shull explicitly addressed the proxy-deliberation problem and held that using staff to deliberate counts as an OMA violation.
If you are a chief deputy
Know which role you are in for any given conversation. If you are exercising delegated authority (signing documents in the commissioner's name, voting at a BOCC meeting in the commissioner's stead, negotiating contracts), you are subject to the OMA when interacting with another commissioner.
If you are doing staff work (gathering inputs, briefing your commissioner, coordinating logistics), the OMA does not bind you. Document the difference: meeting notes, calendars, and emails should reflect when you were acting in which role.
If you are a county clerk
Make sure each commissioner has a current chief-deputy designation on file in the clerk's office under § 180.65(B). The designation matters because it determines who can lawfully exercise commissioner authority during absences.
If you are a journalist or civic transparency advocate
The opinion is a useful framework. If you see two chief deputies meeting to negotiate a county matter, ask: are they delegated authority, or just staff? If the latter, no OMA violation; if the former, the meeting should be open. If the answer is "we're not sure," the AG opinion says the open-meeting policy applies.
If you are a county or municipal attorney
When advising on commissioner conduct, focus on the capacity in which the chief deputy is acting. Build a checklist: Has the commissioner expressly delegated authority for this matter? Is the commissioner absent? Is the chief deputy making decisions or collecting information? If decisions are being made, the OMA applies.
Common questions
Q: My commissioner asked her chief deputy to coordinate a contract proposal with another commissioner's chief deputy. Is that an OMA violation?
A: It depends. If both chief deputies are gathering information to bring back to their commissioners, no. If they are negotiating substantive terms with delegated authority to commit, yes: that's a meeting that should be public.
Q: What if a chief deputy votes at a BOCC meeting in the commissioner's stead?
A: That is express exercise of commissioner authority under § 180.65(B). The BOCC meeting itself must be OMA-compliant (which it routinely is). The chief deputy votes in the commissioner's place at the public meeting.
Q: Can two chief deputies meet alone (without their commissioners) to discuss county business?
A: If both are acting as staff, yes. If both are acting under delegated authority, that's effectively a meeting of two commissioners and must be OMA-compliant.
Q: What's the penalty for an OMA violation?
A: Actions taken in willful violation of the OMA are invalid. Willful violations can result in misdemeanor charges. (25 O.S. §§ 313–314.)
Q: How do I know if I'm "willfully" violating the OMA?
A: Oklahoma courts have not adopted a single test for "willful" but have made clear that pretextual use of exceptions to evade the OMA can qualify. The 2010 Oklahoma Supreme Court decision in Lafalier v. Lead-Impacted Communities Tr. criticized actions taken to "gut [a provision] of any real force."
Q: Are these rules different for school boards or other public bodies?
A: The OMA framework is the same for all public bodies. School boards, municipal councils, and other multi-member bodies face the same proxy-deliberation question if they have staff who sometimes step into member roles.
Background and statutory framework
The Oklahoma Open Meeting Act, 25 O.S. §§ 301–314, was enacted to "encourage and facilitate an informed citizenry's understanding of the governmental processes." The OMA requires public bodies to hold meetings at convenient times and places, with advance notice, recorded votes, and minutes.
A "meeting" under the OMA happens when (1) a majority of members of a public body is (2) together in person or by videoconference, (3) conducting the public body's business. Counties have three commissioners, so any two of them together discussing county business is a meeting.
Section 180.65(B) of title 19 creates the chief-deputy designation. The chief deputy is "chargeable with all the duties of [the commissioner], while subject to the direction of the same" and "shall carry on the duties of the office during the absence of the [commissioner]" or in the event of death, removal, or resignation. Per 1996 OK AG 15, a chief deputy "authorized to perform all the duties of a County Commissioner" can attend BOCC meetings and vote on matters as the commissioner would.
The AG borrowed reasoning from out-of-state cases:
- State ex rel. Newspapers v. Showers (Wis. 1987): if proxies are used to make up a majority, the open-meeting law applies.
- Hutchison v. Shull (Iowa 2016): a body cannot use staff as agents to deliberate outside public view.
- Hays County v. Hays County Water Planning Partnership (Tex. 2003): a meeting between a single commissioner and staff (no quorum) does not trigger open-meeting rules.
Citations and references
Statutes:
- 25 O.S. §§ 301–314, Oklahoma Open Meeting Act
- 19 O.S. § 180.65(B): Chief deputy designation and authority
Cases:
- Hutchison v. Shull, 878 N.W.2d 221 (Iowa 2016), proxy deliberation as OMA violation
- State ex rel. Newspapers v. Showers, 398 N.W.2d 154 (Wis. 1987), proxy quorum
- Lafalier v. Lead-Impacted Communities Tr., 2010 OK 48, 237 P.3d 181, anti-evasion principle
- Hirschfeld v. Okla. Turnpike Auth., 2023 OK 59, 541 P.3d 811, broad construction of "business"
Source
- Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2025/ag-opinion-2025-04.html
- Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2025/A.G. Opinion 2025-4 2025 OK AG 4.pdf
Original opinion text
GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2025-4
The Honorable Brian Guthrie
Oklahoma State Senate, District 25
2300 N. Lincoln Blvd., Rm. 446
Oklahoma City, OK 73105
April 23, 2025
Dear Senator Guthrie:
This office has received your request for an Attorney General Opinion in which you ask, in effect,
the following question:
Under what circumstances, if any, may a county commissioner’s chief deputy
discuss county business with another county commissioner or chief deputy
outside the context of a public meeting that complies with the Oklahoma Open
Meeting Act, 25 O.S.2021, §§ 301 – 314 (“OMA” or “Act”)?
I.
SUMMARY
Due to the hybrid nature of the position of county commissioner’s chief deputy, the applicability
of the OMA to discussions between the chief deputy and another commissioner (or another
commissioner’s chief deputy) will depend on the capacity in which the chief deputy is acting
during the interaction. If the chief deputy were exercising the authority of the commissioner
pursuant to title 19, section § 180.65(B) of the Oklahoma Statutes, any discussion between the
chief deputy and another county commissioner (or another chief deputy exercising similar
authority) regarding county business may occur only in the context of an open meeting that
complies with the OMA. 1 Conversely, if the chief deputy were acting solely in his or her capacity
as a commissioner’s staff member, the OMA does not apply to such discussions.
The question of whether, in a particular factual scenario, a chief deputy is exercising the authority
of a commissioner or, alternatively, acting solely as a staff member cannot be answered in the
context of an Attorney General Opinion. However, if the conduct in question was undertaken with
an intent to avoid compliance with the OMA, a court may find that conduct violates the Act.
Since there are only three commissioners, any instance in which two are together conducting county
business is a meeting that must satisfy OMA requirements.
1
313 N.E. 21ST STREET • OKLAHOMA CITY, OK 73105 • (405) 521-3921 • FAX: (405) 521-6246
The Honorable Brian Guthrie
Oklahoma State Senate, District 25
A.G. Opinion
Page 2
II.
BACKGROUND
In Oklahoma, a county’s powers are exercised through its board of county commissioners, and
each commissioner is an elected public official. 19 O.S.2021, §§ 3 & 131.1. Specifically, counties
are divided into three “compact districts” that must be as equal in population as practical, and the
voters of each district elect one commissioner. Id. § 321(A). By statute, the Board must meet at
least monthly for the transaction of county business. Id. § 326(A).
As with other county officers, Oklahoma law authorizes commissioners to hire staff to assist in
carrying out the functions of the office. See 19 O.S.2021, §§ 162, 180.65(A). In addition,
commissioners “shall designate of record in the office of the county clerk a first or chief deputy .
. . who shall be chargeable with all the duties of [the commissioner], while subject to the direction
of the same.” Id. § 180.65(B). By statute, this chief deputy also “shall carry on the duties of the
office” during the commissioner’s absence or, in the event of the commissioner’s death, removal
from office or resignation, until a successor is appointed or elected. Id. This office has described
this exercise of a commissioner’s authority by his or her chief deputy in the following terms:
[U]nder the statutory scheme, a Chief Deputy County Commissioner who has been
properly designated in the Office of the County Clerk being empowered to perform
all the duties of a County Commissioner – when acting under the County
Commissioner’s direction, or when the County Commissioner is absent, may, just
as the County Commissioner could, attend meetings of the Board of County
Commissioners, and vote on matters presented at the meetings, just as the County
Commissioner could.
1996 OK AG 15, ¶ 5.
Considering this dual role of a commissioner’s chief deputy—where he or she may be acting
alternately as staff member or as Commissioner—you have asked about the implications for
applicability of the OMA. While the Act squarely applies to meetings of a board of county
commissioners, it does not, by its terms, apply to discussions held with commissioners’ staff.
III.
DISCUSSION
When it enacted the OMA, the Legislature declared “[i]t is the public policy of the State of
Oklahoma to encourage and facilitate an informed citizenry’s understanding of the governmental
processes and governmental problems.” 25 O.S.2021, § 302. To further this policy, the OMA
requires any “public body” to, among other things, hold its meetings at specified times and places
that are convenient to the public and are preceded by advance public notice, cast public votes and
have such votes recorded, and keep minutes of its proceedings. See id. §§ 303, 305, 312.
To determine the circumstances in which the OMA applies, this office has explained as follows:
The Honorable Brian Guthrie
Oklahoma State Senate, District 25
A.G. Opinion
Page 3
In general, the Act’s requirements apply only to “meetings” held by a “public
body,” as those terms are defined in the Act. "Public body" is defined, in relevant
part, as:
the governing bodies of all municipalities located within this state,
boards of county commissioners of the counties in this state, boards
of public and higher education in this state and all boards, bureaus,
commissions, agencies, trusteeships, authorities, councils,
committees, public trusts ... , task forces or study groups in this state
supported in whole or in part by public funds or entrusted with the
expending of public funds, or administering public property, and
shall include all committees or subcommittees of any public body.
A “meeting” means “the conduct of business of a public body by a majority of its
members being personally together or . . . [by] videoconference” as permitted by
the Act. Based on these definitions, a “meeting” occurs when (i) a majority of
members of a public body is (ii) together in person or by videoconference, (iii)
conducting the public body’s business. 25 O.S.2021, § 304(2). If a gathering of
members lacks one or more of these elements, the gathering is not a meeting and,
therefore, not subject to the Act's requirements. Id.
2020 OK AG 4, ¶ 2 (internal citations omitted).
As noted above, the OMA explicitly includes a board of county commissioners in its definition of
“public body.” 25 O.S.2021, § 304(1). And because there are only three commissioners, any
instance in which two are together conducting county business is a meeting that must satisfy OMA
requirements. Whether a particular matter, and the manner in which it is addressed, qualifies as
county “business” will turn on questions of fact. But in making that determination, the term must
be given a “liberal interpretation” and “assumed to include the entire decision-making process
including deliberation, decision or formal action.” 1982 OK AG 212, ¶ 3 (citing 1981 OK AG
69, 1979 OK AG 331, and Times Publ’g Co. v. Williams, 222 So.2d 470 (Fla. 1969)). See also
Hirschfeld v. Okla. Turnpike Auth., 2023 OK 59, ¶ 18 (acknowledging this broad construction of
the word “business” under the OMA).
Turning now to your question, due to the hybrid nature of the chief deputy position, the
applicability of the OMA to discussions between the chief deputy and another commissioner (or
that commissioner’s chief deputy) will depend on the capacity in which the chief deputy is acting
during the interaction.
A.
Where a county commissioner’s chief deputy is acting under delegated authority
from, or in the absence of, the commissioner, the OMA will apply to discussions of
county business.
As noted above, title 19, section 180.65(B) of the Oklahoma Statutes requires county
commissioners to designate a chief deputy who (1) “shall be chargeable with all the duties of such
[county commissioner], while subject to the direction of the same,” and (2) “shall carry on the
The Honorable Brian Guthrie
Oklahoma State Senate, District 25
A.G. Opinion
Page 4
duties of the office during the absence of the [county commissioner] or, in the event of the death,
removal or resignation of said [county commissioner], until a successor shall have qualified.” 19
O.S.2021 § 180.65(B). This office has interpreted this statute to mean that commissioners’ chief
deputies “are empowered to exercise the functions of the office of County Commissioner, under
two sets of circumstances:
1. When performing such duties under the direction of the County Commissioner,
or
2. During the absence of the County Commissioner from the county or in the event
of the County Commissioner's death, removal or resignation.”
1996 OK AG 15, ¶ 13. 2
Thus, there will be situations where a chief deputy steps into the shoes of the county
commissioner—either at the county commissioner’s direction or due to the commissioner’s
absence from office—to conduct county business on the commissioner’s behalf. In such cases, the
OMA will apply to the chief deputy’s activities just as it would the commissioner’s. Cf. State ex
rel. Newspapers, Inc. v. Showers, 398 N.W.2d 154, 164-65 (Wisc. 1987) (“Common sense also
tells us . . . that if proxies are present so as to realistically make up a majority, the Open Meeting
Law applies.”).
B.
Where a chief deputy of a county commissioner is acting purely as a staff member
and not performing the duties of the commissioner, the OMA does not apply.
Conversely, because a county commissioner’s chief deputy is not a member of the “public body”
absent the statutory circumstances outlined above, his or her activities when acting purely as the
commissioner’s staff do not implicate the OMA. Cf. Armstrong v. Ottawa County Board of
Commissioners, --- N.W.3d ----, 2024 WL 292957, *3 (Mich. Ct. App. January 26, 2024) (holding
that a meeting of newly-elected—but not yet sworn-in—county commissioners was not subject to
open meeting laws because they were not yet a public body members). So, for instance, when it is
clear that a chief deputy is not exercising the duties of a commissioner, conversations between the
chief deputy and another commissioner—even conversations that touch on county business—
would not constitute a meeting that must comply with the OMA. See, e.g., Hays County v. Hays
County Water Planning Partnership, 106 S.W.3d 349, 356-57 (Tx. Ct. App. 2003) (holding that a
meeting between a county commissioner and commission staff was not a public meeting where
quorum was not otherwise present).
C.
If it is unclear whether a chief deputy is acting purely as a staff member or,
alternatively, exercising the authority of the commissioner, intent will likely
determine whether the OMA has been violated.
While the two scenarios described above have clear answers to the question of whether the OMA
applies, there are likely many examples of day-to-day activities of a chief deputy that do not fit
The Legislature repealed title 19, section 180.81 of the Oklahoma Statutes in 2021, but it is now found at
title 19, section 180.65.
2
The Honorable Brian Guthrie
Oklahoma State Senate, District 25
A.G. Opinion
Page 5
neatly into either bucket. How an Oklahoma court would evaluate the conduct of the parties
involved would depend on facts specific to each situation. Nevertheless, this office has
summarized Oklahoma law when there may be doubt as to whether the OMA applies:
This office has long cautioned public bodies and their members not to use the Act’s
exceptions “as a subterfuge or as an excuse to violate the Act.” 1982 OK AG 114,
¶ 14; see also 1982 OK AG 212, ¶ 13. (“[T]he Act should be interpreted in such a
way as to avoid establishing potential evasion loopholes.” (citing Town of Palm
Beach v. Gradison, 295 So.2d 437 (Fla. 1974)). Oklahoma courts have made similar
statements. See Lafalier v. The Lead-Impacted Communities Tr., 2010 OK 48, ¶
42, 237 P.3d 181, 197 (criticizing action taken to avoid provision of the Open
Meeting Act, and thereby “gut [the provision] of any real force”); Matter of Order
Declaring Annexation, 1981 OK CIV APP 57, ¶ 18, 637 P.2d at 1273 (“The
principle to be followed is very simple: when in doubt, the members of any board,
agency, authority or commission should follow the open-meeting policy of the
State.” (quoting Town of Palm Beach, 296 So.2d at 477)).
2020 OK AG 4, ¶ 5 (modifications in original).
This guidance applies equally here. If a commissioner’s or chief deputy’s actions were taken to
evade compliance with the OMA, an Oklahoma court may find that conduct to violate the OMA.
In fact, the Iowa Supreme Court considered a similar circumstance when county board members
used the county administrator as their agent to facilitate “discussion and evaluative processes” to
arrive at a decision on a matter of public policy outside of a public meeting. Hutchison v. Shull,
878 N.W.2d 221 (Iowa 2016). In remanding the case back to the district court, the court held:
[T]he open meetings law does not prohibit discussions between members of a
governmental body and its staff to exchange ideas and gather information in order
for the body to act upon an issue during an open meeting. However, the open
meetings law does prohibit the majority of a governmental body gathering in person
through the use of agents or proxies to deliberate any matter within the scope of its
policy-making duties outside the public view.
Id. at 237 (emphasis added). If a chief deputy was used to have conversations that the
commissioners themselves cannot have outside of a properly noticed public meeting, there is a risk
that an Oklahoma court would deem the conduct intentionally evasive and, therefore, a violation
of the OMA. 1982 OK AG 212; 2020 OK AG 4. Any action taken in willful violation of the OMA
is invalid, and willful violations can result in misdemeanor charges. 25 O.S.2021, §§ 313–314.
It is, therefore, the official Opinion of the Attorney General that:
1. If a county commissioner’s chief deputy is exercising the authority of the
commissioner pursuant to title 19, section 180.65(B) of the Oklahoma
Statutes, any discussion between the chief deputy and another county
commissioner regarding county business may occur only in the context of
an open meeting that complies with the OMA. Conversely, if the chief
The Honorable Brian Guthrie
Oklahoma State Senate, District 25
A.G. Opinion
Page 6
deputy is acting solely in his or her capacity as a commissioner’s staff
member, the chief deputy may discuss county business with another
commissioner outside the context of an open meeting.
2. The question of whether, in a particular factual scenario, a chief deputy is
exercising the authority of a commissioner or, alternatively, acting solely
as a commissioner’s staff member, cannot be answered in the context of an
Attorney General Opinion. However, if the conduct in question is
undertaken with an intent to avoid compliance with the OMA, a court may
find that conduct violates the Act. 2020 OK AG 4.
GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA
CHERYL DIXON
DEPUTY GENERAL COUNSEL