Oklahoma City attorney Jerry Fent also alleged that the board comprised of Gov. Mary Fallin, House Speaker Kris Steele and Senate Pro Tem Brian Bingman violated the state’s Open Meetings Law when it met behind closed doors to discuss the proposed settlement.
“We have two major violations,” Fent told referee Gregory Albert. “Bottom line — major errors, unconstitutionality.”
Assistant Attorney General Nancy Zerr rebuffed Fent’s claims, arguing that the board met legally in executive session to discuss the legal settlement and that its makeup of members of the executive and legislative branches of state government does not violate the Constitution’s separation of powers provisions, as Fent claims.
Fent told Albert he was not asking the state’s highest court to disallow the settlement agreement, just the procedure used by the board to approve it.
“My attack only goes to that meeting,” he said. But the court’s decision could affect whether the settlement, also approved by the New York-based advocacy group that filed the lawsuit and the state’s Human Services Commission, is accepted by a federal judge.
“It was out of a tainted procedure,” Fent said following oral arguments in the case. “They’ve again ignored the law. That shows a flagrant disregard for our Constitution.”
U.S. District Judge Gregory Frizzell signed an order Monday providing preliminary approval of the settlement.
Albert said he will deliver a report to the Supreme Court on Monday recommending whether it should take up Fent’s allegations. Justices will discuss how to proceed at a status conference on Feb. 6, he said.
Fent filed a lawsuit early this month that challenged the Contingency Review Board and a meeting it conducted on Dec. 28 and Dec. 29. The meeting involved the proposed settlement of a federal lawsuit filed in Tulsa in 2008 by Children’s Rights that accused DHS of victimizing foster children and inadequately monitoring their safety.
The board is required to approve legal settlements in excess of $250,000 when the Legislature is not in session.
On Dec. 28, the board met behind closed doors with other lawmakers and state officials for almost three hours before recessing. The board returned to closed session the next day and suggested revisions to the proposed settlement, changes that were eventually accepted by Children’s Rights and the commission.
Fent said the high court has ruled in previous cases he has filed that it is a violation of the Constitution’s separation of powers clause for members of the executive and legislative branches to act as a single unit.
But Zerr said a decision by the Kansas Supreme Court on a similar separation of powers issue found it is not always improper for individual members of the Legislature to sit on administrative boards and commissions.
In a separate lawsuit filed by Fent, the Supreme Court ruled in September that part of a law establishing a fund to attract businesses to Oklahoma is unconstitutional although the rest of the law could remain intact.
The high court decided that a section of law that created the Oklahoma Quick Action Closing Fund was an unconstitutional violation of the Constitution’s separation of powers provisions. The court struck down part of the law that authorized the governor to consult with the House speaker and Senate president pro tem before she made the final decision on a project.