Attorney General Pruitt says two Barresi aides at Education Department did not have “de jure” or “de facto” authority
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Published: 27-May-2011

Attorney General Scott Pruitt today (Friday, May 27) ruled key aides to Superintendent of Public Instruction Janet Barresi did not have authority to act as employees of the state Department of Education after she took office. 

In a formal opinion issued this afternoon, Pruitt cited a wide range of precedents and statutes to support his conclusions.  

The opinion appears most directly to affect Jennifer Carter, recently named formally as the agency’s chief of staff, and Damon Gardenhire, recently deemed communications director. Both have carried out those roles since the stormy start of Superintendent Barresi’s tenure, and her initial contentious clash with the Board of Education appointed entirely by former Governor Brad Henry. 

The status of the pair became clarified over the past two weeks, after the state Board (in the wake of legislative changes in board power) allowed Barresi to hire her own staff.
 
Before becoming formal employees of the agency, they were compensated by a private foundation. That arrangement was criticized by legislative Democrats, but defended by the State Chamber and the superintendent. 

Pruitt’s formal opinion could trigger questions about the effect of any decisions Carter and Gardenhire might have made under color of Barresi’s authority after her swearing-in and before May 9, when the Board formally granted her powers to make hiring decisions about staff. 

In response to questions from CapitolBeatOK, Sen. Rice commented: 

"My concerns have been confirmed and vindicated by the AG's opinion. The apparent disrespect for procedure and precedent by the Superintendent upon her swearing [in] is troubling to those of us who believe in the importance of checks and balances that the board of Education represents. 

“As far as the repercussions because of these illegitimate roles in [the] Department of Education, that will be up to other divisions of Oklahoma government."

Gardenhire responded to reporters’ questions this afternoon in this manner:

"We appreciate the Attorney General's clarification on this issue. The situation was an unfortunate and unusual one created by uncertainty. During the timeframe in question, no actions were taken that would be invalidated. On May 9, the State Board of Education took further action to remedy the situation. 

“We're now moving forward to work on the serious issues of rethinking, restructuring and reforming Oklahoma's education system. Superintendent Barresi's focus is on making the Department of Education more effective and efficient and searching for more ways to get more dollars into our classrooms."

At the end of eight pages of single-spaced narrative (including small print footnotes), Pruitt concluded his opinion with the following words (citations omitted):

1.     Only employees and officers of the State who are authorized by law to do so may perform the official duties of the State, and those who are so authorized may only be compensated as authorized by law.

2.     A person hired by someone who does not have appointing or hiring authority, who is hired over the objection of the governing body that does have appointing or hiring authority, is neither an employee nor a de jure or de facto officer. Such a hiring is an ultra vires act. As a result of the ultra vires hiring, such a person is a usurper who lacks the authority to carry out the official duties of the State. The acts of such a person are void.

3.     Employees and officers may only be compensated by law. At present, Oklahoma law does not authorize an employee or officer to be directly compensated by a private entity or person.”

In other news about governance of the agency, Peter J. Rudy of Oklahoma Watchdog.org reported yesterday (May 26) that another member of the state Board was leaving before Governor Mary Fallin can replace her. Sue Arnn, who represents the Fourth Congressional District on the Board, announced her resignation effective at the end of yesterday’s meeting.

This week, Governor Fallin signed Senate Bill 435, which gives her new powers to name all members, except for the superintendent. 

The new provisions will take effect 90 days after legislative “sine die” (today), but Fallin will be able to name Arnn’s appointment sooner. Previously, Fallin designated Phil Lakin to join the Board, replacing Tim Gilpin, who was Barresi’s most vociferous critic on the Board, at the appointed end of his term. 

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