Oklahoma Administrative Code › Title 1 - EXECUTIVE ORDERS › Section 1:2023-13

Current through Vol. 41, No. 20, July 1, 2024
EXECUTIVE ORDER 2023-13
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 and to the fullest extent permitted by Oklahoma law,
			 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." After having reviewed guidance
			 issued by the Federal Trade Commission, I later issued Executive Order 2019-17,
			 which has since expired and is being replaced with this Executive 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
		  fully submitted to the Office of the Attorney General for a substantive review
		  and a written determination of whether the proposed qualifying action accords
		  with state policy.
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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.
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 8 
			 th day of May, 2023.
1
Footnote:
A
			 copy of any written determination provided by the Office of the Attorney
			 General shall be provided to the Office of the Governor.
BY THE GOVERNOR OF THE STATE OF OKLAHOMA
J. Kevin Stitt
ATTEST:
Brian Bingman
Secretary of State