Law & Principles
Ethics Commission continues to toe, or cross, legal lines
Ray Carter | November 9, 2023
The Oklahoma Ethics Commission has had to extend its search for a new executive director after Attorney General Gentner Drummond said the agency apparently violated Oklahoma’s open-meetings law and conducted public business in secret.
That marks the latest of several instances in which the Oklahoma Ethics Commission has engaged in potentially illegal activity that was likely to prompt lawsuits.
In a letter sent to the Oklahoma Ethics Commission on Sept. 21, Drummond told the agency that day’s meeting of the Ethics Commission should be rescheduled “due to clear violations of the Open Meeting Act which have come to my attention.”
Citing discussions with Eddie Fields, a member of the Oklahoma Ethics Commission, and a review of the commission’s July meeting minutes, Drummond said the commission had violated the state’s open-meetings law in three ways.
Drummond said discussion of job qualifications for the new executive director and discussion of the search process should not have occurred in an executive session that Oklahoma citizens are barred from attending.
He also said commissioners failed to take a public vote concerning the job posting for the executive director and associated qualifications for the position.
“Thus, it appears that Commissioners approved the qualifications or job posting in executive session rather than during the open meeting or did not approve the posting and qualifications at all,” Drummond wrote. “This essentially allowed the Commission’s staff or the search committee … to set job qualifications rather than the Commissioners themselves.”
Drummond also noted that the commission “did not vote to establish the search committee and set its operating parameters.”
“Again, it appears that decisions concerning the search committee’s composition and directive were made behind closed doors instead of during an open meeting where the public would benefit from the discussion and understanding of the decision-making process,” Drummond wrote.
The attorney general wrote that the Oklahoma Ethics Commission’s apparent actions “represent serious violations of both the letter and spirit of Oklahoma’s Open Meeting Act” and that the process for identifying the commission’s next executive director “has been irreparably flawed and must be started anew.”
At the group’s subsequent October meeting, the Oklahoma Ethics Commission voted to extend the search for its next executive director and junked a proposal that would have allowed a committee headed by current Oklahoma Ethics Commission Director Ashley Kemp to control the vetting process for choosing Kemp’s replacement.
In addition to coming under fire for its executive-director search, the Oklahoma Ethics Commission has drawn criticism in recent years for proposals critics said would impede many Oklahomans’ ability to engage in the political process.
In 2018, the commission considered imposing regulations on “indirect lobbying.” The proposed regulation was strongly criticized as overly broad with critics noting it could have required average citizens to publicly report routine communications with lawmakers, or required Oklahomans to include disclaimers on their social-media posts regarding state policy. The proposed regulation could have even mandated public reporting of the names, home addresses, and employer information of individuals who pooled resources when traveling to meet with lawmakers about issues of concern.
In 2020, the Oklahoma Ethics Commission considered imposing new regulations that would have regulated “informational materials,” including “books, written materials, electronic, audio and/or video materials,” when those materials are provided by Oklahomans to state officials or employees.
The commission ultimately tabled that proposal.
Had the commission adopted the proposed rules in 2018 and 2020, critics predicted courts would strike them down as illegal.
In fact, the commission’s proposed 2020 regulation of informational materials was advanced after a preliminary injunction was issued by Chief U.S. District Judge Timothy D. DeGiusti that barred the Oklahoma Ethics Commission from enforcing a similar, prior version of that rule. That case focused on the Institute for Justice’s plan to distribute a $15 book on a policy issue to officers and employees of the state’s legislative and executive branches.
The Institute for Justice argued the Ethics Commission rule violated the organization’s First and Fourteenth Amendment rights by restricting the ability to distribute informational materials to state officers and employees and petition the government.
In his order, DeGiusti wrote the Institute for Justice had demonstrated “a sufficient likelihood of succeeding on the merits.” DeGiusti wrote that “the relationship between the distribution of informational materials to public officials and what is traditionally understood to be ‘campaign speech’ is simply too attenuated” to justify Oklahoma Ethics Commission regulation.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.