Court ruling on cabinet secretaries provides lesson in unintended consequences (Capitol Update)

The ruling of Oklahoma County District Judge Richard Ogden in a case filed by Gov. Kevin Stitt against Attorney General Gentner Drummond provides an interesting lesson in unintended consequences. Stitt had appointed Tim Gatz, who was already director of the Oklahoma Department of Transportation (ODOT) and the Oklahoma Turnpike Authority (OTA), as Secretary of Transportation in his cabinet.

Responding to an opinion request by Sen. Mary Boren, D-Norman, AG Drummond ruled last February that Gatz was holding multiple offices and was therefore in violation of the statutory prohibition against dual office holding. Gatz, who had been an employee of ODOT for 34 years, chose to resign as director of OTA and Secretary of Transportation and to be reappointed as Director of ODOT.

However, the governor and three current or prospective cabinet secretaries who were agency directors decided to file a lawsuit requesting a declaratory judgment overruling the AG opinion. On May 31, the court ruled in favor of AG Drummond.

The cabinet system was controversial in 1986 when it was created. The legislation provided the secretaries could be paid from funds available to the governor or from agency funds if the secretary was an agency director. Governors have frequently chosen one of the agency directors to serve as cabinet secretary over related agencies, to be paid from the secretary’s agency funds.

To prevent interference with directors’ management of their agencies, the statutory duties of the cabinet were strictly limited to advising the governor about policies and providing information to the legislature when requested. At the time, most directors were hired by boards and commissions.

The system seemed to work for governors from 1987 to 2015 when Gov. Mary Fallin, by executive order, began giving cabinet secretaries additional duties. Then in 2021, in a separate section of law, the legislature granted cabinet secretaries authority to veto agency rules.

Using executive orders on steroids, Gov. Stitt has greatly increased the cabinet’s authority over the agencies, requiring agencies to get approval from their secretary to seek non-federal grants over $50,000, to hire a lobbyist, to have memberships in any private or public organization if the costs of the memberships collectively exceed $500, to make any non-emergency purchase that exceeds $25,000, and for any non-essential out of state travel that is wholly paid for by an entity other than the state.

The AG ruled that these enhanced powers of cabinet secretaries and the legislation giving cabinet secretaries veto power over agency rules changed the cabinet’s status from simply advisory to exercising some to the sovereignty of the state. Judge Ogden upheld the ruling.

This hasn’t happened in a vacuum. The legislature has recently given the governor authority to hire the non-elected directors of larger state agencies. This, along with a cabinet that has been given real authority, may create confusion and the possibility of conflict between agency directors and cabinet secretaries.

The original 1986 cabinet legislation allows new governors to create as many cabinet positions as they desire and arrange the agencies under the cabinet to their liking when they come into office and as often as they like. Gov. Stitt has created, combined, and eliminated several cabinet positions. It didn’t seem to matter in 1986, since cabinet secretaries were serving in an advisory capacity only and were often to be paid only one salary from agency funds. But now they have actual authority and can no longer serve in a dual role as an agency director.

The law of unintended consequences seems to have taken over. There will likely be an unrestricted number of nicely paid cabinet secretaries with real authority looking over the shoulders of agency directors. If the situation becomes untenable the legislature will probably have to take a new look at how state government should be organized.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.