OKLAHOMA CITY – Last week, the Oklahoma Supreme Court ended a two-year dispute, ruling 7-2 that the Governor has wide authority when it comes to appointing Cabinet posts.
Vice Chief Justice Dana Kuehn, who wrote the opinion for the majority, said those who serve as the head of an agency could also serve in the Governor's Cabinet, which in some instances is also an advisory post governing a state agency.
“This case is not about the accretion of powers within agencies and the Cabinet,” Kuehn wrote. “The Legislature has clearly articulated the policy that the Governor may appoint agency heads to his Cabinet. It is not about the separation of powers; this complaint concerns only appointments made by, and within, the Executive branch. The only question presented is whether Title 74, Section 10.3 allows an agency head to also service as a Cabinet Secretary. We hold that it does. Any other interpretation would render Section 10.3 superfluous.”
The 11-page opinion was supported by Chief Justice Dustin Rowe, Justices Noma Gurich, M. John Kane IV, and Travis Jett. Justice Douglas L. Combs dissented. Justice James R. Winchester was disqualified and Justice James E. Edmondson recused himself.
Winchester and Edmondson were replaced by Special Justice Thomas E. Prince, who supported the ruling, and Special Justice Jane Wiseman, who dissented. Both Price and Wiseman currently serve on the Court of Civil Appeals.
Stitt requested the ruling after Attorney General Gentner Drummond issue an opinion two years ago which prevented agency heads for also serving on the Governor’s Cabinet. Rulings by the attorney general have the force of law unless they are overturned by the Legislature or a court.
At that time, the Oklahoma Turnpike Authority, which was led by Tim Gatz, the executive director, launched a controversial turnpike extension project near Norman.
State Sen. Mary Boren, D-Norman, who was upset by the plan, sent a letter to Drummond asking whether it was legal for Gatz to also lead the Oklahoma Department of Transportation and serve in Stitt's Cabinet as Transportation Secretary. Boren’s letter requested an opinion from Drummond.
Boren referenced a state law which forbids people from holding two state offices at the same time. For example, someone cannot be a state representative and state agency director at the same time.
In his February 2024 opinion, Drummond wrote that Gatz's appointment to the Governor’s Cabinet as Transportation Secretary effectively caused him to abandon the other two posts.
“This office finds that under the current powers and duties of the Secretary of Transportation, the Executive Director of the Oklahoma Department of Transportation, and the Executive Director of the Oklahoma Turnpike Authority each constitute an “office” for purposes of the dual office-holding prohibition in title 51, section 6 (2021),” the attorney general wrote. “Further, it is a violation of the dual office-holding prohibition for a single individual to serve simultaneously in any two or more of these roles.”
If a state officer enters upon the duties of a second office in violation of the dual office-holding prohibition, it operates as a vacation of the first office, Drummond’s letter said. “The vacation of the first office is self-executing and notwithstanding the person’s intention of continuing to hold the first office.”
The Court countered that an existing state law lets people serve both as an agency head and in the Governor's Cabinet.
Stitt, in a press release issued after the high court’s ruling, said he was pleased by the decision.
'For four decades, Oklahoma governors have been able to pick their Cabinet members, plain and simple,' the governor said. 'I set out to make government more efficient, and two people doing one job makes no sense. The Attorney General wasted precious taxpayer resources to pursue a politically motivated vendetta and grab campaign headlines. I appreciate the Supreme Court’s ruling putting an end to this stunt.'
Drummond issued a mild statement thanking the court for its action.
'We appreciate the Oklahoma Supreme Court providing clarity to this issue,” Drummond said. “With such ambiguity resolved, cabinet secretaries no longer need to fear that their service could be challenged as violating the dual office-holding prohibition.”
State lawmakers and the Governor’s office will ramp up their work in February when the Oklahoma Legislature returns to the Capitol for the Second Session of the 60th Legislature.