Oklahoma Administrative Code › Title 1 - EXECUTIVE ORDERS › Section 1:2019-17

Current through Vol. 41, No. 20, July 1, 2024
I, J. Kevin Stitt, Governor of the State of Oklahoma, pursuant to
			 the power and authority vested in me by Sections 1 and 2 of Article VI of the
			 Oklahoma Constitution, hereby order all state licensing boards or commissions
			 on which a controlling number of members are market participants in the
			 occupation the board or commission regulates ("Qualifying Boards") to
			 immediately adopt and implement the procedures described herein.
Background
On July 6, 2015, former Attorney General Scott Pruitt issued a
			 letter to then-Governor Mary Fallin recommending reform of certain practices of
			 Qualifying Boards in light of the opinion of the United States Supreme Court in
North Carolina State Board of Dental Examiners v. Federal Trade
			 Commission
, 135 S.Ct. 1101 (2015) ("
N.C. Dental
").
			 The letter stated that under
N.C. Dental
, Qualifying Boards
			 are unable to claim state-action immunity in defense of federal anti-trust
			 claims unless the challenged action by the board is (i) enforcing a clearly
			 articulated and affirmatively expressed state policy, and (ii) actively
			 supervised by the state. Accordingly, the letter advised Governor Fallin to
			 implement procedures to ensure that substantive non-rulemaking decisions of
			 Qualifying Boards are subject to active supervision by a politically
			 accountable state actor with the power to review, veto, and modify such
			 decisions. On July 17, 2015, Governor Fallin issued Executive Order 2015-33,
			 which required Qualifying Boards to submit all proposed licensure or
			 prohibition actions to the Office of the Attorney General "for review and
			 written analysis of possible violation of law."
Since the issuance of Executive Order 2015-33, the Federal Trade
			 Commission has issued guidance for complying with the directive set forth in
			 the
N.C. Dental
decision and courts have further interpreted
			 the
N.C. Dental
ruling itself. Based on this new information
			 and the experience drawn from the Attorney General's review of Qualifying Board
			 action under the previous administration, Executive Order 2015-33 is hereby
			 withdrawn and replaced by this Order.
Attorney General Review of Qualifying Board
			 Actions
All Qualifying Boards - as defined herein - proposing to take
			 non-rulemaking action that has anticompetitive effects shall submit such
			 proposed action to the Office of the Attorney General for review and
			 confirmation that the action is enforcing a clearly articulated and
			 affirmatively expressed state policy. Proposed actions that must be submitted
			 for review include, but are not limited to, (i) actions affecting a class or
			 category of individuals, (ii) actions contested by the respondent, (iii)
			 actions based on alleged conduct not admitted by the respondent, (iv)
			 revocation or suspension of a license, (v) actions stemming from a complaint
			 filed by a competitor of the respondent, and (vi) actions that are purely
			 discretionary by the Board, collectively referred to as "proposed qualifying
			 actions." Qualifying Boards shall comply with the following procedures for all
			 such proposed qualifying actions:
1.
		  All proposed qualifying actions with potential anticompetitive effects shall be
		  submitted to the Office of the Attorney General for a written determination of
		  whether the proposed qualifying action accords with state policy; 
		  1
2. Upon receipt of the written determination
		  from the Office of the Attorney General, the Qualifying Board shall abide by
		  the Attorney General's recommendation, if any; and
3. Failure to follow the recommendation, if
		  any, of the Office of the Attorney General shall constitute misconduct and
		  shall subject such board member(s) to removal for cause by the appointing
		  authority.
Notwithstanding the aforementioned procedures, Qualifying Boards
			 need not submit for review proposed actions that do not carry anti-trust
			 implications. Such actions include, but are not limited to, (i) actions to
			 which the respondent consents or agrees, (ii) actions resulting from a criminal
			 conviction in a court of competent jurisdiction, (iii) actions in which the
			 Board has performed the ministerial, non-discretionary task of implementing a
			 mandatory statute, (iv) actions that impose only a fine or a requirement for
			 additional education, and (v) actions that do not affect the status of the
			 license or otherwise prevent the licensee from continuing to participate in the
			 occupation. Qualifying Boards may contact the Attorney General to seek a
			 determination whether a specific action is subject to the requirements of this
			 Order.
Copies of this Executive Order shall be distributed to all
			 Cabinet Secretaries and to the Chief Administrative Officers of all Qualifying
			 Boards for immediate implementation.
IN WITNESS WHEREOF, I have set my hand and caused the Great Seal
			 of the State of Oklahoma to be affixed at Oklahoma City, Oklahoma, this
			 30th day of April, 2019.
BY THE GOVERNOR OF THE
STATE OF OKLAHOMA
J. Kevin Stitt
ATTEST:
Michael Rogers
Secretary of State
1 A copy of any written determination
			 provided by the Office of the Attorney General shall be provided to the Office
			 of the Governor.