Question Submitted By Sharp, 022720 OKAG, 2020 OK AG 22

Docket Nº:2020 OK AG 22
Party Name:Question Submitted by: The Honorable Ron Sharp, Oklahoma State Senator, District 17
Attorney:MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA ABBY DILLSAVER GENERAL COUNSEL TO THE ATTORNEY GENERAL
Case Date:February 27, 2020
Court:Oklahoma Attorney General Opinions
 
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2020 OK AG 22

Question Submitted by: The Honorable Ron Sharp, Oklahoma State Senator, District 17

No. 2020 OK AG 22

Oklahoma Attorney General Opinions

February 27, 2020

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA

ABBY DILLSAVER GENERAL COUNSEL TO THE ATTORNEY GENERAL

¶0 This office has received your letter requesting an official Attorney General Opinion in which you ask, in effect, the following questions: 1. Is the Oklahoma Secondary School Activities Association a non-appropriated state agency?

2. Is the Oklahoma Secondary School Activities Association a "public body" that is subject to the Oklahoma Open Meeting Act, 25 O.S.2011 & Supp.2019, §§ 301 --314?

3. Is the Oklahoma Secondary School Activities Association a "public body" that is subject to the Oklahoma Open Records Act, 51 O.S.2011 & Supp.2019, §§ 24A.1 --24A.31?

I.

BACKGROUND

¶1 The Oklahoma Secondary School Activities Association ("OSSAA") is a voluntary membership association of Oklahoma secondary schools that was "formed to conduct and supervise numerous competitive extracurricular student activities." Wright City Pub. Sch. v. Okla. Secondary Sch. Activities Ass'n, 2013 OK 35, ¶ 18, 303 P.3d 884, 888; see also Scott v. Okla. Secondary Sch. Activities Ass'n, 2013 OK 84, ¶ 2, 313 P.3d 891, 893 ("[The OSSAA] identifies itself as a voluntary association of Oklahoma secondary schools that regulates the interscholastic activities of member schools which serves to ensure that desired educational goals are not shortchanged by an overemphasis on athletics."). 1 Nearly 500 of the State's public and private schools are OSSAA members. Wright City, 2013 OK 35, ¶ 18, 303 P.3d at 888. 2 The OSSAA's affairs are managed by a 15-member board of directors made up of representatives elected or appointed from its member schools. See OSSAA CONSTITUTION, art. IV, §§ 1, 2 (2019-2020). 3 The board's powers and duties are set forth in the OSSAA constitution and include, for instance, the adoption of policies and procedures necessary to "plan, organize, supervise, finance, and administer the interschool activities of the member schools[.]" Id., art. IV, § 5. Per the OSSAA constitution, member schools are required to pay annual fees. Id., art. III; but see OSSAA HISTORY (stating that "[f]unding [of the OSSAA] for the most part is provided by gate admissions charged to the public at the playoff tournaments").

II.

DISCUSSION

A. The OSSAA is not a non-appropriated state agency.

¶2 You first ask whether the OSSAA is a non-appropriated state agency. Title 74, Sections 3301 through 3305 of the Oklahoma Statutes "provide[] the manner in which state agencies are created." 2011 OK AG 2, ¶ 5. Under these provisions, "[a] state agency which has not been created by Oklahoma's Constitution can only be established by an act of the Legislature, when it is in session, or if the Legislature is not in session, a Governor's Executive Order." 2008 OK AG 2, ¶ 3 (citing 74 O.S.2001, §§ 3302 --3304). Thus, by statute the Legislature has the sole authority to create a state agency when it is in session, 74 O.S.2011, § 3302, while the Governor may, by Executive Order, create state agencies in the interim between legislative sessions, id. § 3303. 4

¶3 The OSSAA was not established by the Oklahoma Constitution, nor was it created by the Legislature or the Governor. Instead, the OSSAA was founded in 1911 as a private association of both private and public Oklahoma member schools. See OSSAA HISTORY. To be sure, the OSSAA is briefly mentioned in Title 70 of the Oklahoma Statutes as (i) being a sanctioning body for certain interscholastic athletic contests, see 70 O.S.2011, § 24-131.1(4), and (ii) having authority to determine, in limited situations, the eligibility of non-resident transfer students to participate in such events, see id. § 8-103.2. But those mentions alone do not convert an otherwise private entity into a state agency.

¶4 Notwithstanding this conclusion, it is important to note that the Oklahoma Supreme Court concluded in Scott, 2013 OK 84, 313 P.3d 891, that while the OSSAA is not a state agency, it should nevertheless be treated like one for certain purposes. In that case, the Court considered whether the OSSAA's decisions regarding student eligibility, when challenged in court, should be subject to the standard of review applied to state agency decisions under the Administrative Procedures Act ("APA"). Historically, the OSSAA had been treated as a voluntary association, "free to adopt rules that govern their interaction and... to enforce those rules without undue interference by the courts." Id. ¶ 18, 313 P.2d at 896 (quoting Morgan v. Okla. Secondary Sch. Activities Ass'n, 2009 OK 21, ¶ 17, 207 P.3d 362, 365). In Scott, however, the Court held that for the State's public schools, membership in the OSSAA was not truly voluntary. Id. ¶¶ 22, 27, 313 P.2d at 897-99. Indeed, the OSSAA constitution prevented member schools from competing against non-member schools, with limited exception, 5 leading the Court to find the OSSAA to be "effectively in almost complete control of secondary school athletic competition between public school students in the state of Oklahoma." Id. ¶ 27, 313 P.3d at 899. 6 This finding--coupled with the fact that the OSSAA "[i]n many respects... already...

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