Drummond dual office-holding opinion
Oklahoma Gov. Kevin Stitt speaks at a press conference Thursday, Feb. 9, 2024. (Tres Savage)

(Update: On Tuesday, March 12, Gov. Kevin Stitt vetoed SB 1196, which proposes added exemptions regarding Cabinet secretary appointments. In his veto message, Stitt  saying that it is “duplicative and unnecessary” and noting that Title 74, Section 10.3 already specifies that a Cabinet secretary “may be (…)  appointed as a cabinet Secretary from among the agency heads within the cabinet area.” The following article remains in its original form.)

Three secretaries in Gov. Kevin Stitt’s Cabinet are joining him in asking an Oklahoma County judge to review and make a legal finding about statutes governing the ability of agency directors to serve simultaneously as Cabinet secretaries.

Llast week, Attorney General Gentner Drummond issued a formal opinion stating that Oklahoma Department of Transportation director Tim Gatz could not simultaneously serve as ODOT director, Oklahoma Turnpike Authority director and as a secretary in Stitt’s Cabinet. Gatz resigned from the secretary position and the OTA post.

Stitt criticized Drummond’s opinion as a “political attack,” and today Secretary of Agriculture Blayne Arthur, Secretary of Human Services Deb Shropshire, and Secretary of Tourism, Wildlife and Heritage Shelley Zumwalt joined him in filing the lawsuit seeking declaratory judgments that “Oklahoma law allows the governor to appoint Cabinet secretaries from among agency heads” and that “the gubernatorial appointment and Senate confirmation process may not be collaterally challenged by virtue of an [attorney general’s] opinion.”

While AG opinions offer formal interpretation of state statutes or constitutional provisions that are generally held to carry the force of law until ruled upon by a court, they are non-binding and can change from attorney general to attorney general.

“The most recent AG opinion concerning Tim Gatz is flat wrong, and in order to continue working to make Oklahoma a top-10 state, a court will need to fix the mess the opinion created,” Stitt said in a press release announcing the case.

In responding to a formal question about Gatz’s roles requested by Sen. Mary Boren (D-Norman), Drummond’s opinion about Gatz caught many Capitol observers off guard, considering the practice of having a transportation secretary also serve as head of ODOT or OTA — or both — has occurred frequently in the last 30 years.

Drummond and Deputy Attorney General A. Chase Snodgrass wrote that “this office finds that it is a violation of Title 51, Section 6 for a single individual to serve simultaneously in two or more roles as secretary, executive director of ODOT and executive director of OTA.”

“The Oklahoma Supreme Court has long held that ‘entering upon the duties of a second office or acceptance of a prohibited office ipso facto operates as a vacation of the first office, notwithstanding the person’s intention of continuing to hold the first office,’” the opinion stated. “Should a conflict of interest arise on the part of the appointing authority or should the officeholder attempt to maintain his vacated office(s) under color of title, relief may be obtained through civil action.”

Certain Cabinet and director positions have existing exemptions on the dual office-holding prohibition, and legislative leaders are already considering adding additional exemptions for positions like those held by Arthur, who serves as secretary of agriculture and director of Oklahoma Department of Agriculture, Food and Forestry.

“Working with the exceptional staff at the [ODAFF] and having the opportunity to serve as secretary of agriculture provides me valuable insight into the needs of farmers, ranchers and agribusiness in the state. I worked directly with the two previous secretaries of agriculture, who also served as the agency director for ODAFF,” Arthur said in Stitt’s press release. “I saw firsthand the positive impact a person serving in both capacities can have. I look forward to clarity being provided on this issue and doing all that I can to help agriculture thrive in Oklahoma.”

In the petition filed Thursday by the governor and his secretaries, agency attorneys argued that Drummond’s opinion “stems from a relentless, coordinated attack on the [Turnpike Authority].”

The petition (embedded below) states:

Context surrounding the opinion illuminates why impartiality may have been lacking. Decide for yourself: Since OTA announced plans to proceed with a turnpike extension in the Norman area, Pike Off OTA, the requestor, and others have attempted to thwart turnpike extension plans; to disrupt OTA’s operations; and to jeopardize the livelihood and reputation of its leadership. A basic outline of this coordinated attack reads like this: three or more lawsuits have been filed to stymie progress and challenge OTA’s credibility; Pike Off OTA and the requestor have publicly disparaged OTA and its legitimate efforts; the OAG, premised largely on an overturned finding that the OTA violated the Open Meetings Act, called on the Oklahoma State Auditor to conduct an investigative audit of OTA; an unconstitutional bill was passed to alter the makeup of the OTA commission; and, to top it off, the referenced Opinion was issued, disrupting OTA’s leadership and secretarial report. The OTA, left with no alternative, engaged the judicial system, where the Oklahoma Supreme Court has vindicated the OTA in three associated matters, thereby effectively green-lighting the lawful and prudent turnpike expansion and finding that the OTA did not violate the Open Meeting Act.

But the attack on OTA continues. The latest attack — the Opinion — suffers from a flawed analysis regarding cabinet Secretary posts held by agency heads — couplings state law could not more clearly permit. Left unresolved by this Court, the OAG’s analysis and Opinion will operate to significantly alter the decades-long, lawful tradition of governors being able to appoint cabinet Secretaries from amongst agency heads with practical experience and necessary subject matter expertise. The consequences of the Opinion will be felt well beyond public servants like Tim Gatz and this governor’s administration. It must not be so.

Days after Drummond issued his pair of OTA-related opinions last week, Pike Off OTA celebrated with an email announcing, “We are making a difference!” Drummond spoke during a rally for the organization at the State Capitol last year.

Boren, who asked the formal questions to which Drummond responded, also praised his findings last week.

“I’m encouraged that the attorney general took the time to explain so thoroughly how Mr. Gatz is currently breaking the law by holding more than one office,” Boren said. “Hopefully, everyone responsible for creating this problem will work together to correct it by hiring new leaders for ODOT and OTA. Prompt compliance with the AG’s opinion will prevent further litigation and ensure that law and order is respected in our government.”

Phil Bacharach, Drummond’s communications director, issued a brief response to Stitt’s court filing.

“The attorney general stands behind his legally binding opinion and welcomes the opportunity to respond to the lawsuit in a future filing,” Bacharach said.

Read the petition filed by Stitt and his Cabinet secretaries

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