Oklahoma legislators grapple with rule changes Education Department may not have right to make

A pair of Democratic senators grilled the Oklahoma State Department of Education’s legislative lobbyist with questions about the state Board of Education’s rule-making authority during a meeting of the state Senate’s Administrative Rules Committee on Monday morning.

But except for the chairman, Sen. Michael Bergstrom, R-Adair, Republicans on the committee mostly remained silent concerning the 21 proposed rules with which Sen. Michael Brooks, D-Oklahoma City, and Sen. Mary Boren, D-Norman, expressed concerns. Only two others — Sen. Darrell Weaver, R-Moore, and Sen. Julie Daniels, R-Bartlesville — asked any questions about the proposed education rules, and both seemed supportive of the education board’s stance.

No votes were conducted in the meeting, which Bergstrom said was held to discuss concerns committee members had with rules proposed by several agencies. However, all other agencies of state government combined to have only six rules on the meeting agenda, leading Bergstrom to quip, “Obviously, this has been the State Department of Education show.”

Before agency rules become law, they must be approved by the Legislature — which means committee and floor votes in both the Senate and House of Representatives — and signed by the governor.

“The Board of Education doesn’t have carte blanche to be able to make law,” Brooks said after the meeting. “That’s the responsibility, the constitutional responsibility, of the Legislature.

“We have an obligation to the citizens of Oklahoma to be transparent and accountable, and neither was accomplished today. I hope future discussions will be more informative and better serve our constituents.”

The Ryan Walters factor

For most agency boards, rulemaking can be a tedious, yet often routine, process, but under state schools Superintendent Ryan Walters’ leadership, the state Board of Education’s rulemaking process has been anything but, with passage of rules often drawing criticism across party lines and even resulting in a lawsuit in one case.

In February, the education board passed a slew of rules regarding school accreditation, prayer in schools, teacher behavior, training of local school board members and diversity, equity and inclusion (DEI) procedures in Oklahoma schools, among other topics. Those rules, and others adopted by the board since the most recent legislative session, are up for review. Democrats claim the rules are null and void.

Brooks and Boren emphasized, as they questioned lobbyist Lindsey McSparrin about the rules, that they believe the Legislature must specifically direct the education board (or any executive agency) to create rules about a subject. They often cited an opinion from state Attorney General Gentner Drummond — sought last year by Rep. Mark McBride, R-Moore — in making that claim. In the opinion — which has the force of law in absence of a court ruling — Drummond wrote that no state agency has the authority to create administrative rules without the Legislature first enacting a related law.

The education board, however, is using a portion of Oklahoma's Administrative Procedures Act that says the board can “adopt policies and make rules for the operation of the public school system in the state” to claim it has broad authority to create rules, even without the Legislature directing it to do so.

Agency spokesman Dan Isett issued a statement soon after the hearing that reaffirmed that stance.

“There could not be a more clear discussion right now regarding the future of our state. Democrats want to promote DEI, p*rn, and indoctrination of our kids vs. individual parents who want basic common sense values in our schools,” Isett said in the statement. “Democrats took aim at the Oklahoma Constitution, well-established precedent, and the clear will of Oklahomans today. Democrats will stop at nothing to try to regain control of our kids’ education, and on behalf of Oklahoma students, our families in Oklahoma will never give in to their demands.”

McSparrin often cited the agency’s belief it has broad powers when answering questions, once telling Brooks, “If you have authority to make the rule, then we have the authority to amend the rule.” At times, she declined to answer questions in the moment, instead telling Brooks, Boren or Bergstrom that she’d need to check with people at the Education Department for answers. Bergstrom said McSparrin would need to provide written response to unanswered questions to all committee members, to which she agreed.

No state board or department participation

At one point, Boren called McSparrin unqualified to answer a question concerning a legal issue with a rule, saying it would be best for an attorney to speak on the topic. Bergstrom chided Boren and allowed McSparrin to answer the question.

Currently, the Education Department has no in-house attorneys employed, as four lawyers formerly on its legal staff have left since the beginning of March, part of a string of departures from the agency that totals 65 employees since July and more than 130 since Walters took office.

McSparrin said Jason Reese — once an attorney for the state House and Gov. Kevin Stitt, and now in private practice — is serving as the agency’s interim general counsel. Reese is not listed on the agency’s website as holding that role, nor was he in the committee meeting room Monday.

Reese is separately representing the agency, the board and Walters as they defend a lawsuit brought by Edmond Public Schools in the Oklahoma Supreme Court. The Board of Education has its own contracted attorney, Cara Nicklas, who also works for a private firm. Nicklas also was not present in the meeting room.

Brooks said the Education Department has overstepped its authority in creating rules.

“This is definitely a Board of Education that are activists and that are trying to be able to push the limits and really step over the line as far as what constitutional responsibilities (are) for each branch of government. The fact (is) that policy is made by the Legislature, and the Board of Education is an executive agency under the governor. They’re not there to be able to make policy.”

This article originally appeared on Oklahoman: Ryan Walters' proposed rule changes raise scrutiny from lawmakers