Author: Tyler Talley Date: 09/14/2018 State Health Board discuss impending advisory status transition (ecap) The State Board of Health spoke candidly Friday about their role within the Oklahoma State Department of Health (OSDH) after Jan. 14 when the it shifts to an advisory status as mandated by legislation passed this spring. The effective date of the transition, as required by HB3036, coincides with the inauguration of Oklahoma's next governor on the second Monday in January. It was the only successful attempt by the Legislature earlier this year to transfer the responsibilities and duties of several state agencies' governing boards to their respective commissioners and executive directors, as well as making those positions gubernatorial appointees in the interest of improved transparency, according to proponents. HB3036, by Rep. Mark Lepak, R-Claremore, and Sen. Greg Treat, R-Oklahoma City, designates the State Board of Health as an advisory body to the State Commissioner of Health. It transfers all duties and powers of the Board to the Commissioner. It transfers the appointment authority for the position of Commissioner from the Board to the Governor, with the advice and consent of the Senate. It requires the Commissioner serve at the pleasure of the Governor and can be removed or replaced without cause. It provides for the determination of compensation. Kim Bailey, OSDH's chief operating officer and general counsel, noted that while the board will become advisory next year, there are several aspects that will not change, including membership qualifications and its role as a resource to the commissioner and the department. The quantity of meetings may change, with several members expressing interest in holding quarterly meetings as opposed to one each month, as well as potentially setting more of its meetings around the regular legislative session as to allow for more opportunities to meet and speak with lawmakers. Board Member Edward Legako asked how long the board had until they must set their meetings as required by law. "Meetings are filed by Dec. 15 for the regular meetings scheduled for the following year," Bailey noted. Interim Health Commissioner Tom Bates provided input from his perspective, emphasizing his view could potentially be irrelevant should the incoming governor install someone else as permanent commissioner of health. Bates has expressed a willingness in the past to stay on in his role should the new governor ask him to do so. "The department (and) the commissioner should do everything they can, and in fact would be foolish not to, to have the expertise of the people on this board at every turn," Bates said, adding the shift could allow for additional flexibility in how the agency shapes its own various advisory committees. "Each one of you, if there's a specific area that you do want to engage on with the department (and) develop in the weeds expertise about what the department is doing in specific area and help come up with ideas about process improvement, quality improvement or policy advocacy I think we should be open to all of that," he continued. "We have some flexibility there I think we could do it a lot of different ways." By increasing commission involvement and input in the day-to-day duties of the agency, Bates continued, members could potentially increase the group's public image as a whole. "The symbolism of that building (OSDH headquarters) frankly is that there is a tower and that there's a commission that sits in that tower and tries to dictate a lot of things," Bates posited, recalling the work of the Joint Commission on Public Health in bringing all parties to the table. He also requested members be aware of their own voice moving forward, noting their comments reflect back on OSDH staff. "When you start talking about advocating a specific issue that is a hot button topic, you have every right to do that and you should do that but just keep in mind that the manner which that is done and the way in which that's Page 1
handled," Bates said. "It can impact these people out here that do the work every day." OKC-County Health Department Executive Director Gary Cox noted that while the decision-making authority of the board was going away, the weight and influence of its individual members was not. "You represent folks from all over the state so you bring your local perspectives from around the state which I think is important," Cox said, stressing the board's continued role in developing plans and priorities for the state by relating back the needs of their respective communities. Board President Timothy Starkey thanked Cox for his perspective, noting it eased some anxiety he and some of his fellow board members share moving forward. "I think several of us don't really look at ourselves as political. We're here because we have some knowledge, expertise and experience and really feel like we can offer that to the direction of the department," Starkey said. "I think to many of us it feels like a change basically takes some of that necessity away." He continued, "It's good to hear that there is some place for us to make a difference." Starkey also conceded the board's role would also greatly fall back to who sits in the governor's chair come January and the individual he chooses to head the agency. He later reflected on his tenure as a board member. "I often felt like the previous commissioner just told us what he wanted us to know and allowed us to give feedback about what he wanted us to give feedback on," he recalled. "In some ways we were often kind of stifled in some of our opinions in the past because of the close relationship between the previous commissioner and the governor I think we do need to be vocal about our thoughts for the good of the public for the health situation in Oklahoma." To that point, Board Member Charles Skillings posited he was on the board solely to advocate for the health of the public and plans to continue on in the capacity, adding he felt no regret over an amendment he offered to the original draft emergency rules - implementing OSDH's medical marijuana program - in June. Skillings' amendment prohibited the sale of smokeable medical marijuana products. It, along with several other provisions, was removed at the suggestion of Attorney General Mike Hunter in a set of revised emergency rules adopted by the board in August. "It was the right vote for the public's health," he said, noting he did regret the impact his change had on OSDH staff. The board also approved the next steps in the issuance of its bonds, as authorized by HB2389, for the department's new public health lab. "Several steps are needed to be taken before the bonds are actually issued including approval by the Oklahoma Capital Improvement Authority as well as the Council of Bond Oversight," Bailey explained. "They issue the bonds and they're backed by a lease agreement both of them need the board to authorize the next steps in the bonds' approval." The bond resolution approved by the board, Bailey related, authorizes the commissioner or a designee to facilitate and finalize the issuance of the bonds and all necessary documents. HB2389, by Rep. Leslie Osborn, R-Mustang and Sen. Kimberly David, R-Porter, authorizes the Oklahoma Capital Improvement Authority to issue $59.555 million in bonds to fund a State Department of Health laboratory. Friday's meeting was the first opportunity for the Board of Health to consider recommendations from the Oklahoma Medical Marijuana Authority's (OMMA) food safety standards board, but it did not. The board may take up at the recommendations for consideration at their leisure at a future regular or special meeting. Page 2
Author: Sidney Lee Date: 09/14/2018 State Department of Education puts out medical marijuana recommendations (ecap) Almost every government policy, whether local, state or federal, ends up impacting local school districts. Medical marijuana is no exception. Earlier this week, the Oklahoma State Department of Education released guidelines for districts to address medical marijuana issues. The guidelines are not legally binding, but they do help school districts navigate the practicalities of the new law. Both school employees and students could potentially hold medical marijuana licenses, though the process to get minor license is more difficult. For the purpose of educational services, the guidelines suggest minor and adult license-holders should have the same privileges and responsibilities. Even though students can have medical marijuana licenses, there is no Oklahoma law authorizing students to use, possess or self-administer medical marijuana property. There is also no Oklahoma law allowing a school nurse, administrator or other school employee to administer medical marijuana. Colorado and Illinois have enacted statues allowing schools personnel to store, possess and administer medical marijuana to a license holder. "Oklahoma laws authorizing students to self-administer medication are limited to sunscreen, inhaled asthma medication and anaphylaxis medication," SDE stated in the guideline. All smokable forms of marijuana are not allowed on school grounds. So if a student is going to take medical marijuana during the school day, a student's guardian who need to take the student off school grounds, administer the medication, and return the student to campus. If a school does make a policy allowing students to take medical marijuana while on school grounds, the district will no longer be compliant with the Safe and Drug Free Schools Act and the Drug Free Workplace Act. "As such, a district authorizing the possession, use, or administration of medical marijuana is at risk of losing, and having to repay, federal funds," the guideline said. "It should be noted, however, that we are not aware of a state with marijuana authorization law, medical or otherwise, or a school district in such a state, that has lost or been required to repay federal funds as a result." A school district can still conduct a random drug testing program on students in activities, but the SDE guidelines suggest districts create a policy relating to the scope of the drug testing program and a district could create a policy providing for students with medical marijuana licenses. Since SDE does not regulate interscholastic activities or extra-curricular activities, the SDE guideline stated questions relating to licensed students in those activities should be directed to OSSAA. Employers, including school districts are not allowed to terminate employees for holding a license, or consider an employees' medical marijuana license in any employment matter. But if an employee exhibits reasonable suspicion of being under the influence of drugs while working, then employers can require their employees not be under the influence while at work. Bus drivers have Commercial Driver Licenses and have to follow state and federal law to maintain their license. "In fact, CDL holders are prohibited from failing a drug and alcohol test due to the fact they are in a "safety-sensitive" position," SDE said in their guideline. So while regular employees there are a different set of guidelines for bus drivers. Randomly drug testing school Page 3
employees is illegal unless that employee is in a "safety-sensitive" position. Page 4
Author: Shawn Ashley Date: 09/14/2018 McCortney takes issue with Kouplen's special session call (ecap) The Senate's co-chair of the legislative medical marijuana working group disputed House Minority Leader Steve Kouplen's call Thursday for a special session to deal with cannabis testing standards. "The minority leader is wrong. At a meeting just two weeks ago, representatives from the Health Department agreed with my co-chair that the Health Department could right now work alongside our legislative working group to develop and implement testing regulations. And now that we have heard from national experts on testing, we intend to work with the Health Department on a proposal for testing regulations and present it soon," Sen. Greg McCortney, R-Ada and Senate co-chair of the bipartisan working group said Thursday. Kouplen called Thursday for the working group to develop a testing plan that would be put into legislation and considered by lawmakers in a special session. "We have heard from OSDH Commissioner Tom Bates, who said the Department of Health does not have the legal authority to require testing without legislative action. The Oklahoma Attorney General, Mike Hunter confirmed that this authority is not granted to OSDH and has rejected regulations that overstepped their statutory authority. (Wednesday), we heard from an outside testing consultant that his personal opinion is that rapid advancement of testing capabilities is 'extraordinarily important to protecting the interest of public health for the citizens of Oklahoma. I would do it as quickly as possible,'" Kouplen said. McCortney said he and House Majority Floor Leader Jon Echols, R-Oklahoma City and the House co-chair of the panel, discussed the plan to work with the State Department of Health on a testing to be presented soon. "He still felt necessary to try and score political points by issuing a press release," McCortney said."that is not leadership. It's political pandering. Oklahomans deserve and expect better. "This legislative working group is making good progress," McCortney added. "We're doing in a few months what every other state has taken years to do. It's most important to do this right rather than simply do it right now. We're being deliberate and thorough in our work to ensure Oklahoma's medical marijuana system is effective and successful in providing patients access to safe medication." Kouplen's call was applauded by New Health Solutions' Executive Director Bud Scott, who noted Attorney General Mike Hunter wrote in July, "The Board (of Health) has not been given any express or implied statutory authority to impose additional requirements on licensees" "This is consistent with our legal analysis on this issue since before its passage June 26th. This would include mandatory testing and labeling. Simply put, clear statutory authority is essential to the functional implementation of this program." Scott said. Page 5
Author: Shawn Ashley Date: 09/14/2018 Ethics Commission will resubmit cooling-off period to Legislature (ecap) The Ethics Commission will try again to win legislative approval of a rule amendment that would prohibit elected officials and agency, board and commissions' chief administrative officers from taking lobbying jobs for two years after their terms of office end, a proposal identical to one rejected by lawmakers during the 2018 regular session. "There was a lot of misinformation at the time it was rejected," Ethics Commission Executive Director Ashley Kemp said after the commission's Friday meeting, also noting the 57th Legislature will be made up of a lot of new members. The House voted 64-27 and the Senate voted 34-8 to reject that proposed rule change and others during the 2018 regular session when they passed HJR1029. Kemp told commissioners she initially was not convinced of the need for the rule when they began discussing it in 2017. She has since become convinced it is needed, she said Friday. Statewide office holders and legislators are now subject to term limits, Kemp noted, which means they will hold office only for a specific period of time. They know that, she said, and so do people who want to influence them and their votes and decisions. Rep. Tom Gann, R-Inola, was one of the 27 House members who voted against the resolution's passage. He spoke Friday during the public hearing portion of the Ethics Commission's meeting and encouraged them "to stay the course. This is something that is desperately needed." "I believe a promise for future employment to a legislator during their service in the Legislature and upon their immediate departure from the Legislature by an organization that lobbies them creates a situation of self-serving interest and possible undue influence over the legislator," Gann said. Gann compared the requirement to those he saw in the accounting and auditing fields in which he works. "Maintaining independence is paramount in accounting and auditing and is a well-documented requirement," Gann said. "It was clearly defined in my training, and I have practiced it in my approach to my career. You must be independent from outside influence in order to be credible in accounting, auditing and in the oversight of public money." A.J. Ferate, who represented the Oklahoma Republican Party in the discussion of another amendment but said he was speaking for himself in the consideration of this proposal, said he believed the rule would run afoul of the courts, despite the commission's attempt to avoid that. An Ohio court, he noted, had found a similar rule in that state unconstitutional and the judges asked what was different one day before that state's one year cooling-off period expired and one day after. They concluded there was no discernible difference, he said. "I think you are trying to find a solution to a problem that doesn't exist," Ferate said and later asked, "Where is the evidence of the need for this, a problem that would be solved?" Attorney Glen Coffee suggested the cooling-off period might not just be two years for some but would be much longer if they left office before their term of office expires. A member of the Corporation Commission, he explained, who leaves after two years in office would face a six year ban from lobbying because their term of office is six years. The commission adopted the proposed amendment, 2019-03, unanimously and without debate. The commission also discussed two other rules amendments that have yet to be drafted: Page 6
2019-01 would address coordination between independent expenditures and candidate campaigns, sponsored by Commissioner Charlie Laster; and 2019-02 would require the disclosure of expenditures related to efforts to influence the Legislature's vote on legislation, sponsored by Commissioner Karen Long. Coffee said the current language concerning the prohibition of coordination between independent expenditure committees and campaign committees was vague. He said he and his clients hopes the commission would be able to provide some clarification with the rule amendment. "Having some clarity would be helpful to candidates, donors and committees alike," Coffee said. Kemp said other states' laws and rules concerning coordination "focus on actions to create a presumption of coordination." Kemp said Rep. Melodye Blancett, D-Tulsa, had raised the issue of disclosure of expenditures related to efforts to influence legislators' votes in the March meeting. Since that time, Kemp said, she has worked the Brennan Center, which is located at New York University's School of Law, to research the issue. Kemp noted the current rules concerning lobbying are based on professionals who receive payment for their services. This would require the rules to include what she called "grassroots lobbying." "This would only involve activity where there was a call to action" for individuals to encourage lawmakers to vote for or against a specific piece of legislation, Kemp explained. "This is delving into an area we've never been engaged in," Kemp said. "I know of no more important rule we will be working on," said Long. Long said it would reveal "those who desire to infuse a lot of money to influence people to cast their votes in a particular way as if they are the wizard behind the curtain." Rep. Bobby Cleveland, R-Slaughterville, spoke in favor of the proposal "It's wrong. It's as wrong as it can be," he said. Ferate, however, disagreed. Speaking on behalf of the Oklahoma Republican Party, he said, "I don't think it is a very wise road to go down." Commission staff will now begin drafting language for the two amendment proposals that will be discussed at future public hearings before commissioners decide whether to adopt them or note. Proposed rules changed adopted by the commission are submitted to the Legislature during the first week in February. Lawmakers can take no action, in which case the rules are adopted and take effect up the Legislature's sine die adjournment if not specific effective date is included in the rule proposal, they can amend them or they can disapprove them. Page 7