AG agrees to advise Health Department; lawyer petitions DA to prosecute board
by Meg Wingerter, NewsOK.com, July 17, 2018https://newsok.com/
Oklahoma City — Attorney General Mike Hunter agreed Monday to provide a team to advise the Oklahoma State Department of Health, but stopped short of promising to represent it in a lawsuit over medical marijuana rules.
On the same day, a lawyer for a medical marijuana group suing the Health Department petitioned Oklahoma County District Attorney David Prater to investigate five Board of Health members for alleged violations of the Oklahoma Open Meeting Act.
The flurry of legal letters kicked off what's likely to be another week of frenzied legal activity relating to medical marijuana regulation.
On July 9, a coalition of medical groups asked the Board of Health to amend its proposed rules to ban smokable marijuana products, to require dispensaries to hire pharmacists and to limit the number of dispensary licenses available.
One day later, the board met to approve 75 pages of rules that had been available for public comment, before adding two last-minute amendments. The amendments banned sales of smokable products and added the pharmacist requirement. The board members approved the amendments despite concerns from general counsel Julie Ezell that they could be exceeding their authority.
Two lawsuits filed Friday challenged the rules. One of the suits, filed by Green the Vote in Oklahoma County, focuses on alleged secret meetings by board members that could violate the Oklahoma Open Meeting Act, if they're proven to have happened. Gov. Mary Fallin, who signed the rules Wednesday, was listed as a defendant, as were five board members who voted for the ban on selling smokable products.
Ronald Durbin, a Tulsa lawyer representing Green the Vote, said that quick action was necessary to preserve evidence, because board members may have communicated through personal email addresses and electronic devices. He alleged more than half the board met in small groups to discuss the amendments before the meeting, in violation of open government laws.
The law “prevents shuttle diplomacy to get around the open meeting act, meeting in smaller groups, which we believe they did,” he said.
None of the board members named in the lawsuit could be reached Monday for comment.
Prater didn't immediately return a message Monday seeking comment on the petition. Oklahoma law allows courts to punish open meeting act violations with a fine of up to $500 and up to a year in jail.
The other lawsuit, by a group of individuals in Cleveland County, argues the language of State Question 788 seriously limited the department's rule-making authority over Oklahoma's medical marijuana market.
Tom Bates, the interim health commissioner, wrote Monday to the Attorney General's Office requesting advice related to the Cleveland County case. In a one-paragraph letter, he noted that the lawsuit argued the board had exceeded its authority by tacking on the two amendments — a warning that the department's general counsel also had given board members before they voted.
“In light of this conflict, I would appreciate the advice and counsel of your office on how best to proceed with the defense of this action,” Bates' letter said.
Hunter released a response letter the same day, in which he said he was assigning a team to the case, and hoped to have some advice for the Health Department in “a few days.”
An AG spokesman declined to comment on the review, or legal options once staff completes it.
Any legal proceedings will need to move quickly, because State Question 788 set an ambitious timeline for the rollout of medical marijuana in Oklahoma. The Health Department is required to make applications for licenses available starting July 26, and to start accepting and processing them Aug. 25.
Durbin, the Tulsa lawyer, said his clients hope the board will reverse its actions before the issue gets to court.
“We have no desire to see this through to the end if we can get them to do what they should have done in the first place,” he said.