Legislative attempt to exempt Corporation Commission from Open Meetings Act



An effort is underway in the Oklahoma legislature to make the Oklahoma Corporation Commission exempt in some of its work from the state’s Open Meetings Act and allow certain meetings of the commissioners without notifying the public.

The bill, HB2367 by Rep. Tammy Townley of Ardmore, would allow the three corporation commissioners to meet and discuss, but not take formal votes on certain matters. Current law says even if two commissioners meet for coffee and discuss certain issues before the Commission that they would technically be in violation of the Act.

Towney’s bill would allow at least two commissioners to meet to discuss administrative, operational and procedural matters including scheduling of agenda items, prioritizing cases, identifying legislative changes, discussing public and media statements, organization structure, staffing needs and receiving information updates from Corporation Commission staff.

It would also allow the commissioners to meet and conduct regular staff meetings where discussions of the day-to-day management of the commission occur. Under Townley’s bill, they could also gather to assess performance reviews and duties of the Director of Administration and Division Directors.

They would allowed to discuss and attend and take part in meetings of the legislature, provided no official action is taken.

Mark Thomas, the Executive Director of the Oklahoma Press Association did not voice total opposition to the bill in an email exchange with OK Energy Today, explaining that he has offered input on the bill in recent months and Rep. Townley has included some of the OPA suggestions.

“We don’t support or oppose a bill that is still getting hammered out by the affected parties,” said Thomas, adding, “Our position is that we are willing to engage in these discussions to find the best public policy for the state.”

He told OK Energy Today everyone wants government to be transparent yet efficient and finding that balance for a three-person board is difficult.

“This is an attempt to find something where two commissioners can talk about a limited set of administrative matters with an enhanced reporting mechanism where they must report within five days what they talked about and cannot vote on those matters for at least 48 hours.”

Other groups that appear regularly before the commission such as AARP and the Attorney General’s Utility Division are just now getting an opportunity to review the bill. The measure as drawn up by Rep. Townley only applies to the Corporation Commission but Thomas suspects other 3-member state agencies might want  the same exemptions.

” Eventually, other three person boards in Oklahoma will want similar abilities for two officials to talk to each so it is important, if this bill eventually becomes law, for the structure of the bill to be correct.  Currently, some unclear language needs to be clarified,” he said.

Thomas pointed out that in 2017, Governor Mary Fallin authorized a Second Century Commission study that made recommendations to improve the efficiency of the Corporation Commission, including making changes to the Open Meeting Act to allow two commissioners to talk with one another, or perhaps expanding the commission to five members.

But, could such exemptions lead to commissioners “sweeping things under the rug” without the light of day on them, keeping details from the public?

“You are correct,” replied Thomas. “Where is that balance or middle ground?  We trust the legislature will either find the middle ground or suspend the bill until better ideas and processes emerge.”

Thomas explained that under the existing Open Meeting Act, corporation commissioners do their communicating through deputies or legal counsel like the old game of telephone.

” Not efficient, but your point is well stated.  Where do we cross the line in the name of efficiency and enter the world of secrecy?  That’s what this discussion is trying to explore,” he stated.

At least one other state in the region is attempting the same kind of bill this year. Kansas legislators are reviewing HB2591 which would clarify the Kansas Open Meetings Act (KOMA) does not apply to docketed proceedings before the commission. It would allow commissioners to privately deliberate in those court-like proceedings. The Bill also expands and clarifies the prohibitions on ex parte communications in docketed KCC proceedings.
Kansas Corporation Commission Chairman Andrew J. French  recently testified before a legislative committee about HB2591. His testimony had the support of the two other commissioners.
“While I am neutral on the Bill, it is my opinion that HB 2591 would aid the Commission in performing its statutory duties and does not, in any way, undermine the State’s interest in open and transparent government.”
French went on to say some stakeholders don’t believe the current practice of no Commissioner to Commissioner communication serves the public interest.

“Some stakeholders believe the Commission could produce more well-reasoned and independent decisions if Commissioners have the ability to privately deliberate, in a fashion more akin to judicial proceedings.”

He suggested the bill could result in a more efficient and thoughtful decision-making process.

“Further, the KCC is tasked with deciding complex and highly-technical matters. Commissioners may benefit from a private forum to candidly deliberate and explore those matters.”

In Texas, the Railroad Commission strictly adheres to the Texas Open Meetings Act, according to R.J. DeSilva, Director | Communications Division at the Commission.

As the Government Code Chapter 551 defines “Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter.”

Only the Texas Legislature can make changes to state law.

Oklahoma legislators will get a chance this week to vote on the proposed measure. The House Energy and Natural Resources committee will meet Wednesday at 3 p.m. to consider Rep. Townley’s HB2367.