OKLAHOMA CITY (Feb. 28, 2024) – Attorney General Gentner Drummond issued two separate opinions today relating to the Oklahoma Turnpike Authority (OTA) and the Oklahoma Department of Transportation (ODOT).
In response to a formal opinion request from Sen. Mary Boren, Drummond’s opinion holds that an individual may not simultaneously serve as the Secretary of Transportation, Executive Director of the Oklahoma Department of Transportation (ODOT) and Executive Director of the Oklahoma Turnpike Authority (OTA).
In response to a separate request from Sen. John Haste, Drummond affirmed the constitutionality of a recent law changing appointment authority to the OTA.
The first opinion notes that the state Constitution’s prohibition on dual office-holding means a single individual cannot serve all three positions at the same time. Moreover, the opinion explains that an office holder who takes a second office effectively has vacated that first office.
In this instance, all three positions are currently held by Tim Gatz. As a result of the opinion, Gatz is deemed to be serving as Secretary of Transportation, but has in effect vacated the ODOT and OTA positions, both of which preceded his appointment to Cabinet secretary. Gatz remains eligible to serve in any one of the three public offices, but not more than one at a time.
The opinion states that the Oklahoma Supreme Court has identified three elements to define a “public office”:
The position was created or authorized by law,
The law imposes certain definite duties upon the position holder; and
The duties imposed involve “the exercise of some portion of sovereign power.”
“As of the time of writing, the Legislature has enumerated thirty exceptions to this prohibition,” Drummond writes in the opinion. “However, none of these exceptions apply to the Secretary of Transportation, Executive Director of the Oklahoma Department of Transportation, or Executive Director of the Oklahoma Turnpike Authority.”
In the second opinion issued today, the Attorney General upheld the constitutionality of a recently enacted law changing the appointment authority of OTA members. Prior to House Bill 2263, the Governor made all six appointments to the authority. The legislation reduced that to two appointments, with the Speaker of the House and Senate President Pro Tempore appointing two members apiece.
The opinion explains that HB 2263 does not violate the state Constitution’s separation of powers provision for three key reasons:
Legislative acts are strongly presumed to be constitutional “unless it is clearly, palpably and plainly inconsistent with fundamental law”;
The Legislature can provide for the appointment of executive offices by a person or entity other than the Governor; and
The bill in question is consistent with the balancing factor test used to determine the constitutionality of legislative appointments to state boards and commissions.
The opinions can be read at https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/opinions/2024/ag... and https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/opinions/2024/ag...