Joint Committee on Administrative Rules
The House and Senate members of the Joint Committee on Administrative Rules met for the first time on Thursday, May 12, 2022. (Megan Prather)

The House and Senate sides of the Joint Committee on Administrative Rules met together for the first time Thursday afternoon, and Co-Chairman Rep. Terry O’Donnell (R-Catoosa) withdrew a resolution that sought to reject rules promulgated by the Oklahoma State Department of Education related to HB 1775, a 2021 bill that banned the teaching of certain concepts regarding race and gender in Oklahoma’s public schools.

The resolution, HJR 1066, was submitted by Rep. Tom Gann (R-Inola) and states that the permanent rules submitted by the OSDE regarding the implementation of HB 1775 do not reflect the intent of the Oklahoma Legislature.

“In light of disapproving this rule and creating a gap and there being no rules at all, it would appear that the focus of the legislation of 1775 may need to be adapted in order to change the rules,” O’ Donnell said during Thursday’s meeting. “In other words, we shouldn’t be trying to do by rule what we didn’t do by legislation.”

After a Senate JCAR meeting last week, Sen. David Bullard (R-Durant), who authored HB 1775, told NonDoc he thought the permanent rules from the OSDE had too many holes and gaps in them. During last week’s meeting, JCAR members also got caught up in debate over the definition of the word “course.” Bullard said “academic or non-academic programs and extra-curricular activities” had been included in the bill’s draft and that the OSDE’s definition of “course” could leave the door open for school districts to violate the law.

“While the rule may not meet everybody’s expectation in the entire Legislature, it probably does meet the statute,” O’Donnell said after Thursday’s meeting. “It’s probably better just to have something in place for the education community as opposed to just kicking it back to the State Department (of Education) and their board and them trying to revise something.”

Senate JCAR Vice Chairwoman Sen. Julie Daniels (R-Bartlesville) said she was a little frustrated by Thursday’s inaction.

“We could’ve done this today,” Daniels said. “I wanted to vote on it. I think everybody around the table was ready to vote on it. If it had been me, I would’ve made the motion to disapprove, we could’ve debated. I would’ve voted against disapproving the rules and other people would have voted for.”

O’Donnell said the HB 1775 rules will go into a resolution to be voted on by JCAR, potentially by next week.

Lawmakers passed HB 1775 last year to prohibit Oklahoma public school teachers from teaching that “any individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,” that “any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex” or that “meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.”

O’Donnell said he expects the HB 1775 rules will ultimately be passed, probably bundled together with a number of other rules in an approval bill.

“It’s going to have to be pretty quick,” he added. “It’s going to have to be next week.”

‘I don’t think we have to invoke the wayback machine’

JCAR members approved SJR 50, which included a slew of administrative rules from state agencies, including:

  • Oklahoma Department of Commerce
  • Oklahoma Board of Nursing
  • Banking Department
  • Board of Veterinary Medical Examiners
  • Oklahoma Horse Racing Commission
  • Oklahoma Funeral Board
  • Grand River Dam Authority
  • Aeronautics Commission
  • Oklahoma Employment Security Commission
  • Department of Environmental Quality
  • Department of Mental Health and Substance Abuse Services
  • Board of Tests for Alcohol and Drug Influence
  • Department of Wildlife Conservation
  • District Attorneys Council
  • Secretary of State
  • Department of Mines
  • Insurance Department
  • Workers’ Compensation Commission

Committee members also discussed rules from the Liquified Petroleum Gas Administration and the Oklahoma Securities Commission, which were laid over for future discussion.

Sen. Dave Rader (R-Tulsa) requested to lay over a vote on HJR 1065, also submitted by Gann, which would disapprove of permanent rules from the Construction Industries Board.

“The issue on this particular rule comes where it essentially forbids a property inspector from estimating or speculating the cost of repair on a home,” O’Donnell said during the meeting.

Oklahoma Construction Industries Board legislative liaison Debra Wojtek, testifying before the committee, said the rules were initially approved by the House in 2020 through an omnibus bill. She said the rules are needed because there are no minimum standards qualifying home inspectors to give accurate home repair estimates.

Wojtek said an incorrect repair estimate could adversely affect the sale of a home by potentially tens of thousands of dollars. For example, she said an inspector could give an estimate of $1,000 for electric work to a home buyer who then purchases the home for $1,000 less. However, an actual electrician could determine that the repairs might cost $15,000.

“Who does that homeowner go back to to say, ‘I was not given the full information,'” Wojtek said. “It’s to protect the pubic so they have accurate information, and not just a speculation, to get that actual estimate of cost so they make that purchase with the full knowledge of everything it entails.”

Senate Minority Leader Sen. Kay Floyd (D-OKC) questioned the authority of JCAR to challenge administrative rules already approved by the Legislature.

“Can you tell me what process and procedure there is that this committee can come back 16 months after a rule was approved by the governor and Legislature by omnibus bill and unilaterally change it, at this point, without having a public hearing, public discussion or public notice on this?” Floyd said.

O’Donnell said he couldn’t revisit the history of that particular rule from the Construction Industries Board, but said the committee has the authority to revisit permanent rules or newly submitted rules.

The committee, he said, has “the right to disapprove a proposed permanent, promulgated or emergency rule at any time if the Legislature determines such rule to be an eminent harm to the health, safety or welfare of the public or the state or if the Legislature determines that rule is not consistent with legislative intent.”

Floyd also questioned why the rules weren’t considered to be against legislative intent when they were initially approved 16 months ago.

“I don’t think we have to invoke the wayback machine,” O’Donnell said. “If it’s inconsistent with our legislative intent today, we’re at liberty to revoke or amend the rule.”

Sen. Michael Brooks (D-OKC) questioned why Gann, who originally authored and carried the the omnibus bill in 2020, wasn’t present for Thursday’s meeting to testify about the legislative intent of the bill.

“If that information was important to you, I would’ve assumed that you would’ve done that research before we arrived here today,” O’Donnell said.