Question Submitted by: Chairman Robert H. Gilliland, Workers' Compensation Commission

Question Submitted by: Chairman Robert H. Gilliland, Workers' Compensation Commission

2015 OK AG 8

Decided: 09/23/2015

Oklahoma Attorney General Opinions

Cite as: 2015 OK AG 8 , __ __

¶0 This office has received your request for an official Attorney General

Opinion in which you ask, in effect, the following question:

The Oklahoma

Workers' Compensation Commission is composed of three Commissioners who, under

various provisions of Title 85A of the Oklahoma Statutes, act as an appellate

tribunal in appeals from decisions of Administrative Law Judges, Petitions for

Review in adverse benefits decisions made by appeal committees of employers'

benefit plans, and arbitration awards made under the arbitration provisions of

Title 85A.

When acting as an en banc appellate tribunal considering

such cases, does the deliberative process privilege permit the Commissioners to

hold confidential deliberations?

Background

¶1 Your question was previously asked in conjunction with a prior request

regarding whether the Commission was permitted under the Oklahoma Open Meeting

Act to deliberate privately in such cases. This office, in Attorney General

Opinion 2014-14, opined that 1) because the individual proceedings considered by

the Workers' Compensation Commission, when acting as an en banc appellate

tribunal, were not individual proceedings under the Administrative

Procedures Act, and 2) because the provisions of the Oklahoma Open Meeting Act

allowing deliberation in executive session applied only to individual

proceedings under the Administrative Procedures Act, the Oklahoma Open Meeting

Act did not authorize the Commission to deliberate in executive

session. We also concluded that no other statute authorized the Commission to

hold confidential deliberations.

¶2 In issuing that Opinion, we noted that because the question regarding

deliberative process was presently being considered in a pending appeal before

the Oklahoma Supreme Court, we could not address your question regarding

deliberative process privilege at that time.

¶3 The Oklahoma Supreme Court has now ruled in that case, Vandelay

Entertainment, LLC v. Fallin ,

2014 OK 109 , 343 P.3d 1273 , holding that the deliberative process

component of executive privilege exists in Oklahoma--not based on statutory

law--but based on both common law and the Oklahoma Constitution. Id. ¶

29, 343 P.3d at 1279 . In light of that ruling, you ask us to consider again

whether the deliberative process privilege permits the Workers' Compensation

Commissioners to confidentially deliberate when deciding individual cases heard

by the Commission under the various provisions of Title 85A.

I.

The Oklahoma Supreme Court Ruled That the Deliberative Process Privilege is

Rooted Not Only in Common Law, But Also in the State Constitution's Separation

of Powers Provision.

¶4 In Vandelay , the Oklahoma Supreme Court was asked to determine

whether the deliberative process privilege existed in Oklahoma in the context of

Governor Fallin's assertion of the privilege in response to an Open Records Act

request. While the trial court affirmed that the deliberative process privilege

exists in Oklahoma, it held so only on the basis of common law. Id .,

2014 OK 109 , ¶ 4, 343 P.3d 1273, 1275 . The Supreme Court went further,

holding that the privilege is rooted in both common law and constitutional

inherent powers --powers reflected in the Separation of Powers

Provision of the Oklahoma Constitution. Id . ¶¶ 12, 13, 343 P.3d at

1276 .

¶5 The Vandelay Court heavily relied on the court's prior decision in

Ford v. Board of Tax-Role Corrections ,

431 P.2d 423 (Okla. 1967), a case discussing the

inherent power of the judicial department of government. Vandelay,

2014 OK

109, ¶ 13 , 343 P.3d

1273, 1276 . In Ford , the Court "recognized that inherent powers

are reflected in the separation of powers clause in Article 4, § 1 of

the Oklahoma Constitution." Vandelay , ¶ 13, 343 P.3d at 1276 (emphasis

added). In discussing the Ford case, the Vandelay Court held that

the principles regarding the recognition and protection of inherent powers

are equally applicable to all three co-equal branches of government :

While the Ford case dealt with a question concerning the inherent

power of the judicial branch, the principles and analysis this Court

applied in recognizing the inherent power of the judiciary are the same for

recognizing and protecting the inherent powers of the other coequal

branches .

Id. (emphasis added).

¶6 The Vandelay Court addressed one of the principles recognized in

Ford , stating:

In Ford , this Court concluded the "powers properly belonging" to a

branch of government were those "which [are] essential to the

existence, dignity and functions [of the

branch] " and include inherent powers .

Id. ¶ 14, 343 P.3d at 1276 (emphasis added).

¶7 Thus, under Vandelay , the principle that the "powers properly

belonging to a branch of government" are those "which are essential to the

existence, dignity, and function of the branch" is a principle that applies with

equal force to all three branches of government.

¶8 In light of this understanding of the Separation of Powers Clause's

protection of inherent powers, Vandelay held that the deliberative

process privilege was available to Governor Fallin to protect the

confidentiality of the frank, candid discussion and advice she received from her

staff and advisors regarding governmental operations, procedures, and

decision-making. So ruling, the Supreme Court agreed "with the United States

Supreme Court's view that 'complete candor and objectivity from advisors calls

for great deference from the courts' in determining the scope of executive

privilege." Id . ¶ 19, 343 P.3d at 1277-78 . The Court then concluded that

the Governor, no less than the President, has a need to receive "'candid,

objective, and even blunt or harsh opinions' provided by 'senior and executive

branch officials' as well as a need to refuse to disclose such

advice . . . ." Id. (emphasis added).

¶9 In the Court's words, the Governor's right to receive such advice and

consultation:

[I]s essential to the existence, dignity and function of the Governor

as chief executive and lies within the Governor's inherent power . The

principle of separation of powers expressly declared in Article 4,

§ 1, protects this privilege from encroachment by Legislative acts, such

as the Open Records Act .

Id. ¶ 20, 347 P.3d at 1278 (emphasis added).

¶10 In recognizing the constitutional protection afforded the Governor's

deliberative process by the Separation of Powers Clause, the Vandelay

Court quoted with approval from Freedom Foundation v. Gregoire , 310 P.3d

1252, 1258 (Wash. 2013), in which the Court held that refusal to recognize the

gubernatorial communications privilege "would subvert the integrity of the

governor's decision making process [thereby] damaging the functionality of

the executive branch and transgressing the boundaries set by . . . separation of

powers ." Vandelay , ¶ 18, 343 P.3d at 1277 (emphasis added).

¶11 Applying the constitutional principles identified by the Vandelay

Court, regarding the protection of inherent powers to the deliberations of the

Workers' Compensation Commission, we conclude that the Commissioners'

deliberations are protected by the deliberative process privilege.

II.

Frank, Candid and Confidential Deliberations Among the Workers'

Compensation Commissioners are Essential to the Commissioners' Performance of

Their Quasi-Judicial Function, and Accordingly, Their Deliberations are

Protected by the Deliberative Process Privilege by Virtue of the Oklahoma

Constitution's Separation of Powers Provision, Article IV, Section 1.

A. The Workers' Compensation Commissioners are Constitutionally Vested With

the Authority to Exercise the State's Judicial Power.

¶12 The three Workers' Compensation Commissioners are empowered to hear three

types of appeals under various provisions of Title 85A of the Oklahoma statutes.

First, under the provisions of

85A O.S.Supp.2014, § 78(A), the Commissioners are

authorized to reverse, modify, or affirm decisions or awards made by the

Commission's Administrative Law Judges. Second, under the provisions of

85A O.S.Supp.2014, §

211(B)(5), the Commissioners may review adverse benefit determinations made

under the Oklahoma Employment Injury Benefit Act. Third, under the provisions of

85A O.S.Supp.2014, §§

322 and 323, the Commissioners may confirm, reverse, or modify arbitration

awards entered under Title 85A.

¶13 Under the Oklahoma Constitution, the judicial power of the State is not

exclusively vested in judges or courts. Rather, under Article VII, Section 1 of

the Oklahoma Constitution, both legislative and executive branch bodies are also

vested with the State's judicial power:

The judicial power of this State shall be vested in the Senate ,

sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal

Appeals, . . . District Courts, and such Boards, Agencies and Commissions

created by the Constitution or established by statute as exercise adjudicative

authority or render decisions in individual

proceedings .

Id. (emphasis added).

¶14 As under Title 85A the Workers' Compensation Commissioners exercise

adjudicative authority and render decisions in individual proceedings, the

Commissioners are vested with authority to exercise the State's judicial

power.

B. In Exercising the State's Judicial Power, the Workers' Compensation

Commissioners Act in a Quasi-Judicial Capacity.

¶15 When the State's judicial power is being exercised by other than members

of the Judicial Branch, the power being exercised is referred to as

quasi-judicial power.

1 Thus, in all three instances in which the Workers'

Compensation Commissioners act as an appellate tribunal, they are performing a

quasi-judicial function--the exercise of a judicial power by other than a member

of the Judicial Branch of government, such as a judge or justice.

¶16 The Commissioners' performance of a quasi-judicial function is not

unusual as under the Oklahoma Constitution and statutes, quasi-judicial

functions are performed by a variety of Executive Branch entities. Licencing

agencies, such as the Oklahoma Board of Dentistry and the Oklahoma Pharmacy

Board, act in a quasi-judicial capacity in disciplining their licensees, as does

a regulatory commission, such as the Oklahoma Horse Racing Commission, when it

conducts individual proceedings to discipline horse owners and trainers. Indeed,

even the Attorney General, in issuing Attorney General Opinions, acts in a

quasi-judicial capacity. York v. Turpen ,

1984 OK 26 , ¶ 9, 681 P.2d 763, 767 .

C. Confidential Deliberations are an Essential Component of the

Decision-Making Process of the Workers' Compensation Commissioners When Acting

in Their Quasi-Judicial Capacity.

¶17 In Vandelay , discussing the Governor's need to seek

and receive advice in aid of deliberations and decision-making, the court held

that confidentiality was necessary:

[T]he public interest is best served by the Governor seeking and receiving

advice to aid in deliberations and decision-making. The United States Supreme

Court has observed "[T]hose who assist [executive decision-makers] must be

free to explore alternatives in the process of shaping

policies and making decisions and to do so in a way many would be

unwilling to express except privately ."

Vandelay, ¶ 17, 343 P.3d at 1277 (emphasis added) (quoting, with

approval, United States v. Nixon ,

418 U.S. 683, 708 (1974) (superseded

by statute on other grounds)).

¶18 Just as the deliberative process privilege is necessary to the Executive

function, such confidentiality is equally necessary to the

Judicial function. The United States Court of Appeals for the Eleventh Circuit

discussed the need for deliberative process privilege in the Judicial Branch in

In the Matter of Certain Complaints Under Investigation by an Investigating

Committee v. Mercer , 783 F.2d 1488 (11th Cir. 1986).

Comparing judges' need for confidential communications with that of the

President as explored in United States v. Nixon , the Eleventh Circuit

Court stated:

Judges, like Presidents, depend upon open and candid discourse

with their colleagues and staff to promote the effective

discharge of their duties. The judiciary, no less than the executive, is

supreme within its own area of constitutionally assigned duties.

Confidentiality helps protect judges' independent reasoning from improper

outside influences. It also safeguards legitimate privacy interests of both

judges and litigants .

Id. at 1519-20 (emphasis added).

¶19 In a more recent case, an Illinois appellate court described judges' need

for confidential deliberations as follows:

Confidential communications between judges and between judges

and the court's staff certainly "originate in a confidence that they will not be

disclosed ." Judges frequently rely upon the advice of their

colleagues and staffs in resolving cases before them and have a

need to confer freely and frankly without fear of disclosure .

If the rule were otherwise , the advice that judges receive and

their exchange of views may not be as open and honest as the

public good requires .

Thomas v. Page, 837 N.E.2d 483, 489-90 (Ill. App. Ct. 2005) (emphasis

added).

¶20 Continuing the discussion, the Illinois appellate court found that

confidentiality was a necessary component of the

judicial decision-making process:

In order to protect the effectiveness of the judicial

decision-making process, judges cannot be burdened with a suspicion that their

deliberations and communications might be made public .

. . . .

The very integrity of the process often

rests on judges' candid communications with their colleagues and

staffs and, as a consequence, the confidentiality of such matters

is a necessary component of the process .

Id. at 490 (emphasis added).

D. Because Confidential Deliberations Are Essential to the Workers'

Compensation Commissioners' Quasi-Judicial Decision-Making Process, the

Commissioners' Deliberations Are Protected by the Deliberative Process

Privilege.

¶21 As noted above, in deciding the appellate cases before them, the Workers'

Compensation Commissioners are exercising the judicial power of the State,

vested in them by Article VII, § 1 of the Oklahoma Constitution. In exercising

that power, the Commissioners act in their quasi-judicial capacity and have the

same need as judges to engage in confidential communications among themselves

and with their staff--a necessary component of their quasi-judicial deliberative

process. Those performing judicial functions of the State--regardless of whether

they are judges and justices in the Judicial Branch; or Executive Officials; or

State Agencies, Boards, or Commissions--have the same inherent need as the

Governor for confidential deliberations . The confidentiality of

the pre-decisional deliberative process for those acting in a quasi-judicial

capacity is essential to their function and inherent power .

Accordingly, under the teachings of Vandelay , it is beyond the

power of the Legislature to deprive those performing quasi-judicial functions,

such as the Workers' Compensation Commissioners, of the

confidentiality of their deliberations. And, as Vandelay

makes clear, the privilege not only attaches to verbal communications, it also

attaches to written communications.

¶22 Thus, as a matter of constitutional law, under the State Separation of

Powers Provision, the deliberations of the Workers' Compensation Commissioners

are protected by the deliberative process privilege .

2

¶23 Furthermore, under the teachings of Vandelay , communications

must be pre-decisional and deliberative to fall within the deliberative process

privilege.

2014 OK

109 , ¶ 24, 343 P.3d

1273, 1278 .

¶24 Of course, all hearings on the appeals that come before the Commission,

as well as the appellate record and the briefs and memorandums filed by the

parties, do not fall within the privilege. Rather, the privilege attaches to

written or oral deliberative, pre-decisional communications engaged in as part

of the Commissioners' decision-making process in cases decided under their

judicial power.

¶25 The privilege would thus protect all verbal communications among all

three Commissioners sitting down to discuss a case, or deliberative

communications between two of the Commissioners, as well as such discussions

with Commission staff members tasked with aiding the Commissioners in deciding

the case. The privilege would further attach to proposed draft orders, staff

memorandum prepared in aid of the decision-making process, and any other

pre-decisional, deliberative communication related to the cases decided by the

Commissioners in the exercise of their judicial power.

¶26 Because, as a matter of constitutional law, the Workers' Compensation

Commissioners' deliberations are protected by the deliberative process

privilege, we conclude that the provisions of Oklahoma's Open Meeting Act,

25 O.S.2011 & Supp.2014, §§

301 - 314, are not applicable to the Commissions' oral deliberations.

¶27 In concluding that confidential deliberations are essential to the

Workers' Compensation Commissioners' quasi-judicial decision-making process and

that, therefore, such deliberations are protected by the deliberative process

privilege, we need not and do not determine the full contours of the

deliberative process privilege available to other members of the Executive

Branch. Rather, we deal today only with the Workers' Compensation Commission--a

Commission created to take over the function of the Workers' Compensation

Court.

¶28 It is, therefore, the official Opinion of the Attorney General that:

1. The Workers' Compensation Commissioners are empowered to act as an

appellate tribunal in three types of appeals: review of decisions or awards made

by the Commission's Administrative Law Judges,

85A O.S.Supp.2014, § 78 (A); review of adverse

benefit determinations under the Oklahoma Employment Injury Benefit Act,

85A O.S.Supp.2014, §

211 (B)(5); and review of arbitration awards, 85A O.S.Supp.2014, §§ 322 and 323.

2. In acting as an appellate tribunal, the Workers' Compensation

Commissioners, by virtue of Article VII, Section 1 of the Oklahoma Constitution,

are exercising the judicial power of the State and act in a quasi-judicial

capacity.

3. Confidential, pre-decisional deliberations are an essential component of

the decision-making process when the Workers' Compensation Commissioners act in

their quasi-judicial capacity.

4. Under the teachings of the Oklahoma Supreme Court's decision in

Vandelay Entertainment, LLC v. Fallin ,

2014 OK 109 , 343 P.3d 1273 , because confidential deliberations are

essential to the Workers' Compensation Commissioners' quasi-judicial

decision-making process, the Commissioners' pre-decisional deliberations in

cases considered in the exercise of their judicial power are protected by the

deliberative process privilege by virtue of the Separation of Powers Provision

of Article IV, Section 1 of the Oklahoma Constitution.

E. SCOTT PRUITT

Oklahoma Attorney General

NEAL LEADER

Senior Assistant Attorney General

FOOTNOTES

1 A judicial act is one

performed by the Judicial Branch of government. See Umholtz v. City of

Tulsa , 1977 OK

98, ¶ 8 , 565 P.2d

15, 18 , ("A quasi-judicial duty is one lying in the judgment or discretion

of an officer other than a judicial officer .") (emphasis added)

(quoting with approval from Gray v. Bd. of County Comm'rs ,

1957 OK 152, ¶ 5 , 312 P.2d 959 ).

A quasi-judicial power, on the other hand, "is one imposed upon an officer or

a board involving the exercise of discretion, judicial in its

nature , in connection with and as incidental to the administration of

matters assigned or entrusted to such officer or board." State ex rel.,

Tharel v. Bd. of County Comm'rs , 1940 OK 468, ¶ 18 , 107 P.2d 542, 549 (emphasis added) (quoting Bd. of

County Comm'rs v. Cypert , 1917 OK 248, ¶ 6 , 166 P. 195, 198 ).

2 As Governor Fallin's Exhibits at Tab 7 of the certified

appellate Record in Vandelay Enterprises v. Fallin , (Supreme Court Case

No. 113,187) demonstrates, the deliberative process is not new to Oklahoma.

Rather, it has been invoked on numerous occasions: Justice Marion Opala relied

on the privilege while testifying in litigation challenging Oklahoma's Anti-Cock

Fighting laws (Governor's Exhibit 1, pgs. 52, 53); State Treasurer Ken Miller

invoked the privilege to quash a subpoena for his appearance (Governor's Exhibit

2); for decades the Oklahoma Horse Racing Commission invoked the deliberative

process privilege in refusing to release deliberative information (Governor's

Exhibit 3); and the Department of Securities relied upon the privilege in

support of its motion to quash a notice to take the deposition of a department

attorney (Governor's Exhibit 4).

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Supreme Court Cases

Cite

Name

Level

1940 OK 468 , 107 P.2d 542 , 188 Okla. 184 ,

STATE ex rel. THAREL v. BOARD OF COM'RS OF CREEK COUNTY

Discussed

1917 OK 248 , 166 P. 195 , 65 Okla. 168 ,

BOARD OF COUNTY COM'RS OF ATOKA COUNTY v. CYPERT.

Discussed

1957 OK 152 , 312 P.2d 959 ,

GRAY v. BOARD OF COUNTY COMMISSIONERS

Discussed

1967 OK 90 , 431 P.2d 423 ,

FORD v. BOARD OF TAX-ROLL CORRECTIONS

Cited

1977 OK 98 , 565 P.2d 15 ,

UMHOLTZ v. CITY OF TULSA

Discussed

2014 OK 109 , 343 P.3d 1273 ,

VANDELAY ENTERTAINMENT, LLC v. FALLIN

Discussed at Length

1984 OK 26 , 681 P.2d 763 , 55 OBJ 1013,

State ex rel. York v. Turpen

Discussed

Title 25. Definitions and General Provisions

Cite

Name

Level

25 O.S. 301 ,

Short Title

Cited

Title 85A. Workers' Compensation

Cite

Name

Level

85A O.S. 78,

Workers' Compensation Commission - Appeal to Commission - Appeal to Supreme Court

Discussed

85A O.S. 211,

Employer's Denial of Claim - Notice - Appeal - Invalidity Clause

Discussed

85A O.S. 322,

Application and Motion for Judgment Confirming Award

Discussed