A last-minute switch in legal counsel orchestrated by Oklahoma Attorney General Gentner Drummond appeared to cause concerns about lack of proper representation and potential conflicts of interest among State Board of Education members during a short meeting Thursday.
Board members opted to table most of the major items on their meeting agenda in order to give Brad Clark, the general counsel in Drummond’s office, time to familiarize himself with the potential votes. Some board members, including State Superintendent of Public Instruction Ryan Walters, also seemed to want more time to decide who would represent the board moving forward.
“With the timeline of the concerns, if the board doesn’t feel that they were able to address any kind of legal concerns with board counsel, there’s items here that I think we could absolutely take no action on and move on to next month,” Walters said at the beginning of the meeting.
Previously, Cara Nicklas acted as the board of education’s legal counsel as an outside attorney. Nicklas is one of three partners of the Edmond-based law firm McAlister, McAlister & Nicklas and had served as the board’s attorney since October 2023. Although the AG’s office can act as legal counsel for state boards, they also have the option to hire outside representation from a list approved by that office. At the start of Thursday’s meeting, Clark took the seat that was previously occupied by Nicklas.
“The department submitted a request for [Cara Nicklas’ contract to the attorney general’s office] that was approved,” Clark explained to the board. “That contract expired June 30 of 2024. I believe the attorney general’s office reached out (and) generally inquired about where we are right now. At some point that contract was requested to be renewed, and the decision was made to deny that request.”
Coincidentally, Clark had been the State Department of Education’s general counsel during the tenure of Walters’ predecessor, Joy Hofmeister. His return to the board room after nearly two years sparked familiar greetings from some department personnel and one board member, Sarah Lepak. Lepak is the only current board member who also served on the board before Walters took office in January 2023.
Today’s state #oklaed board meeting was interesting. Former @oksde attorney Brad Clark (now with @Okla_OAG) served as the board’s counsel in what was apparently a last minute switch.
The change caused @RyanWaltersSupt & the board to table multiple votes on teacher certificates. pic.twitter.com/81iGVlTdO2
— Bennett Brinkman (@bennettbrink) October 24, 2024
“Earlier today I received an email from [OSDE general counsel Michael] Beason inviting me to attend the meeting today,” Clark said. “I presume it was in response to a letter the attorney general’s office sent yesterday laying out three options, and the last of the options was identified for my attendance this morning. So, I’m here as your counsel for today. Going forward, we’ll see how that works out. It’s obviously the department’s decision for the most part, and so (I’m) happy to partner with you and go from there.”
OSDE director of communications Dan Isett did not respond to a text message seeking a copy of the letter prior to publication of this article.
Board members question AG legal counsel
Widely rumored to both be gubernatorial candidates in 2026, Drummond and Walters have had a fraught relationship since they both took office. In recent months, the board has also placed itself at odds with the AG’s office.
The board has declined to go into executive session each of the past three meetings, perhaps owing to an AG opinion Drummond released Aug. 21 directing the board to allow lawmakers to attend the closed-door potions of the meetings.
Board members have expressed frustration with Drummond’s opinion, which is generally considered binding on state officials unless overturned by a judge. Nicklas had argued that Drummond’s opinion, which also withdrew a 1978 AG opinion giving boards more discretion to deny lawmakers entry, may be incorrect.
Thursday’s meeting agenda gave board members the option to enter executive session for the first time since July, but board members declined to exercise that option and instead tabled each of the items they were set to discuss behind closed doors. Board members said they wanted to give Clark more time to review each agenda item before voting on them.
State Sen. Mary Boren (D-Norman) and Rep. Dick Lowe (R-Amber) both attended Thursday’s meeting.
With Nicklas no longer representing the board and the AG’s legal counsel instead filling the role, board members also seemed worried that Clark’s presence could constitute a conflict of interest as they attempt to resist Drummond’s directive that they allow lawmakers to attend executive sessions.
“We’ve had instances this year where the attorney general’s office was taking a position that at least made some of us concerned that it might be a prosecutorial position, as it relates to us, feeling concerned that we might be violating the Open Meetings Act and of course, we don’t think that we are,” board member Sarah Lepak said. “We were operating on advice of counsel, but if our counsel is also provided by the AG’s office to advise us or maybe defend us in those kinds of situations, how does that work from a conflict perspective?”
During Thursday’s meeting, board members had many questions for Clark regarding how they would be represented as they voted on agenda items.
Lepak was the first to ask a set of questions pertaining to the board’s options to privately hire legal counsel, Clark’s previous positions with OSDE and multiple hypotheticals.
“For the time when you were employed by the department but representing the board — that predates me — were you also representing the department at that time?” Lepak asked Clark during the meeting. “Did you represent the department and the board, or was there always separate counsel?”
Clark said that he did not recall if there was any overlap.
Clark served as general counsel for OSDE and attorney for the board from 2015 to 2021. Clark resigned from the board counsel position in May 2021, but agreed to fulfill the role’s obligation until the department found a replacement.
Lepak also asked if it were possible for OSDE general counsel Michael Beason to dually serve as the department’s and the board’s counsel.
“It depends on the circumstance,” Clark said. “If there is a matter pending in a district court somewhere, and the board and the department are aligned positionally with the strategy, the litigation side of it, then yeah, I think so. In the instance of a revocation matter where this board is serving as the judge, in a sense, I think it would be inappropriate for the prosecutorial side, which is the department, to sit on one side of it wearing the prosecutor’s hat, and then go into executive session advising the jury without the other side present.”
Board members ultimately voted to approve just two agenda items Thursday:
- Approving the minutes from the board’s Sept. 26 meeting;
- Approving everything in the consent docket except for two items, which were tabled.
