Capitol Updates

 This week's Capitol Updates newsletter:


July 10, 2017

The House legislative interim studies for this summer and fall have been approved, assigned to committees and published. The issue that attracted the most attention is criminal justice reform. In fact, Speaker Charles McCall combined several study requests and will appoint not one, but two special committees to deal with the various criminal justice studies that were approved. It will be interesting to see if much real progress is made next session.

Governor Fallin issued an Executive Order in July of 2016, establishing the Oklahoma Justice Reform Task Force and charging it with "develop[ing] comprehensive criminal justice and corrections reform policy recommendations designed to alleviate prison overcrowding and reduce Oklahoma's incarceration rate while improving public safety." The membership consisted of representatives of the courts, governor's office, attorney general's office, district attorneys, public defenders, private advocate organizations, chambers of commerce, YWCA, Board of Corrections, Oklahoma Bureau of Narcotics and Dangerous Drugs, Department of Public Safety, Department of Mental Health and Substance Abuse Services and two legislators, Sen. Greg Treat (R-OKC) and Rep. Terry O'Donnell (R-Catoosa).

The Task Force had the assistance of outside consulting sponsored by the Pew Charitable Trusts and the Bureau of Justice Assistance. The Task Force issued its report in February 2017 that resulted in about a dozen bills being introduced in the 2017 session. Almost all the bills failed to pass. Most were held up in the House Judiciary Criminal Justice Committee. Apparently, Speaker McCall's appointment of two House Special Committees is intended to give more legislative input to the proposals, which is a good thing.

If the reform process had a weakness making it difficult to pass the legislation it was the limited involvement of legislators. Several years ago, Governor Fallin decided she would not approve Joint Legislative Resolutions creating legislative task forces, favoring her own executive orders instead. Over the years many of the most significant and complex legislative measures have resulted from legislative task forces. Agreed to by the governor, and including basically the same array of membership as her executive task forces, but led by the interested and relevant legislators and legislative staff, legislative task forces build a base of legislative support for the recommendations when the study is completed. Last year only two legislators were on the Oklahoma Justice Reform Task Force. When the far-reaching bills were sprung on the other legislators last February, among about 2000 other bills at the same time, few members knew what was in the bills or had time to really study them.

Usual interim studies don't allow much time for complex issues either, so one can hope that the two Special Committees can arrive at a place where their work will have broader legislative support. Rep. Scott Biggs (R-Chickasha) who chairs the House Judiciary Criminal Justice Committee usually gets the blame for last year's results, but the reasons likely go deeper. Yes, Rep. Biggs is a former prosecutor who sincerely sees the system through a prosecutor's eyes. All legislators bring their own knowledge, experience and temperament to a task. But the legislative process should give more legislators the incentive and opportunity to be involved and influence the outcome. I've felt for many years that the role of District Attorney (and Asst. District Attorney) is the most important role in the criminal justice system, if not in all of government. Having said that, we'll never have much reform in Oklahoma if the reform effort is limited by whether it negatively affects the District Attorney's success in every case in obtaining a conviction and the sentencing result that individual prosecutor thinks is appropriate, sincere as his motives may be. Reform needs to mean tilting the system toward a broader definition of justice. Otherwise our prisons will stay overcrowded with the wrong people.

OHCA approves rate increase to nursing facilities

Cynthia Reynolds, eCapitol

The Oklahoma Health Care Authority (OHCA) board approved the annual rebasing of all the nursing home reimbursement rates during Thursday's meeting. All four changes represented a slight increase, as a recommendation from the State Plan Amendment Rate Committee.
The changes were presented to the board by Tywanda Cox, chief of federal and state policy with OHCA. Cox said the increases are a result of the required annual recalculation of the Quality of Care fee (QOC) and an annual reallocation of the pool for the "Direct" and "Other" care components of the rate as per The State Plan.
The first change approved was made to the regular nursing facilities rates to increase the QOC fee, which allows OHCA to collect additional feed from providers and "match them with federal funds," according to information provided in the board packet.
The current base rate component is $107.57 per patient, per day. The new rate will be $107.79, reflecting a $0.22 increase in the QOC fee per patient, per day.
According to Cox, the estimated budget impact for the 2018 fiscal year will be an increase in the amount of $3.3 million, with $1.3 million coming from the increased fee.
Cox noted that all changes will "have a zero dollar impact to OHCA's budget as the state share that is being paid will come from the providers by increasing the Quality of Care Fee."
The second rate increase is for nursing facilities serving residents with AIDS. The rate is being increased from $199.29 to $200.01 per patient, per day.
Cox said the estimated budget impact for FY2018 will be an increase in the total amount of $7,016 with $2,883 in state share coming from the increased fee.
The next rate change approved was for acute intermediate care facilities for individuals with intellectual disabilities. These facilities have 16 beds or less. The increase provider rate is not $157.03 from $156.57.
This will yield an impact of $130,000, with $53,388 in state share coming from the increase QOC fee.
Lastly, the board approved a rate change for regular intermediate care facilities for individuals with intellectual disabilities. These facilities have greater than 16 beds.
The increased rate for this provider type is no $122.77, from $122.39. The increased QOC fee will yield about $32,500.
According to Cox, OHCA does not anticipate any negative impact on access to care.
All changes took effect Saturday.

Bill creating task force to assess fines, fees in criminal justice takes effect

Cynthia Reynolds, eCapitol

A bill creating a task force to oversee an assessment and analysis of existing laws, policies and practices relating to fines, fees and costs assessed on persons interacting with the criminal justice process took effect Saturday.

The bill, SB0342, by Sen. David Holt, R-Oklahoma City, and Rep. Terry O'Donnell, R-Catoosa, requires a report to be submitted to the Legislature by Nov. 30, 2019. It also requires the task force to be comprised of 12 members including: four appointed by the governor, three appointed by the President pro Tempore of the Senate, three appointed by the Speaker of the House, the Administrative Director of the Court and a district judge.

"The question that the task force will address is how do fines and fees contribute to jail population," said Holt.

He noted that there is currently a perception that people are in county jail because they can't pay fines and fees, and the task force will be first tasked with diagnosing that problem.

Specifically, the bill requires the report to include findings on how fines and fees contribute to jail and prison populations, how government is funded by those fines and fees and recommendations for improvement to the existing system.

The origin of the bill began with the recommendation from the Oklahoma City Chamber, which sponsored a task force to come up with recommendations regarding the overcrowding of the Oklahoma County jail.

That task force then recommended the creation of this task force because "they felt that the issue of fines and fees is a complex and statewide concern," said Holt.

The creation of this task force, he said, allows for a statewide solution applied by the passage of possible legislation recommended by the members.

"I suspect that most of the solutions to this problem will probably require legislation," said Holt.

Holt noted that while other criminal justice reform bills didn't make it through the House Judiciary - Criminal Justice and Correction Committee, this measure did not run in to the same problems.

"It didn't have significant problems other than it was held up by (Rep. Scott Biggs, R-Chickasha,) but he eventually ran it through," he said. "Task forces are usually not the heaviest lift in the Legislature.'

Ethics Commission approves more than $100,000 settlement agreement with Loveless

Shawn Ashley, eCapitol

The Ethics Commission unanimously approved Friday a settlement agreement with former Sen. Kyle Loveless concerning campaign finance violations that includes more than $100,000 in payments to the state.
According to the settlement agreement, Loveless, R-Oklahoma City:
* Converted more than $100,000 of campaign contributions from his 2012 and 2016 campaigns to personal use, including purchases of flowers, clothing and accessories, toys, household repairs, automobile tires and repairs, sporting event tickets, theater tickets and medical and dental expenses.
* Failed to accurately report campaign contributions and expenditures.
* Filed multiple contribution and expenditure reports excessively late, which as deemed an intentional violation of Ethics Rules.
* Made expenditures in cash.
* Used a depository account that was not registered in the name of the candidate committee.
Under the terms of the agreement, Loveless will pay $10,000 to the Ethics Commission for attorney fees, costs and other expenses and fees incurred. He also will pay $40,000 to the State Election Board to defray costs associated with the special election to fill the Senate District 45 vacancy resulting from his April 27 resignation. Loveless also agreed to pay $112,524, which represents the amount of campaign funds converted to personal use, to the General Revenue Fund.
Additionally, Loveless agreed he will not to seek or to accept any position, elected or otherwise, where federal, state, county, municipal or school district funds are used to pay salary or compensation. He also agreed not to act as a consultant for compensation for any state, local, county, municipal or school district campaign in Oklahoma and not to work as a lobbyist in the state.
The settlement agreement was approved after a brief executive session meeting and without comment by the commissioners. The commission also approved a motion allowing documents from the investigation to be made public once any sensitive information is redacted from the materials.
The commission also unanimously approved a resolution commending Chair Jo Pettigrew for her service. Friday was her last meeting as a member of the commission.
Pettigrew was first appointed to the commission in 2007 by then-Gov. Brad Henry. She was reappointed in 2012 by Gov. Mary Fallin.
"I have never met anyone quite as selfless with all she has done," said Chair John Hawkins.
Commissioner Karen Long also praised Pettigrew. Long said Pettigrew had been "so important to the fabric of the commission." She also called Pettigrew a mentor.
"There is not a better word than selfless to describe your service," she added.
Pettigrew, who was obviously surprised by the item recognizing her on the revised agenda said, "I'm speechless. I know that's rare."
Pettigrew said she had enjoyed her time on the commission, "even in the tough times, particularly because of the people I work with."
She added, "The state should be proud of its Ethics Commission."
Pettigrew is completing her second successive five-year term. State law prohibits anyone from serving more than two times in succession. Fallin announced in June that Pettigrew would be succeeded by former Sen. Charlie Laster. His term is for five years, and will run until July 2022.
The governor appoints one member to the five-member commission. The others are appointed by the chief justice of the state Supreme Court, the Senate president pro tempore, the speaker of the House and the attorney general.
Fallin had to select a Democrat and someone from the Fifth Congressional District. State law requires that no more than three commissioners can be of the same political party and no more than one congressional district may be represented at a time. Three of the other members of the Ethics Commission are Republicans, and Pettigrew lives in the Fifth Congressional District.

Schulz removes Marlatt from leadership positions

Shawn Ashley, eCapitol

Senate President Pro Tempore Mike Schulz removed Sen. Bryce Marlatt from his leadership duties Thursday following accusations of lewd conduct with a ride-sharing service driver.
In a letter to members, Schulz, R-Altus, wrote: "As leader of the Oklahoma Senate, it is my expectation that every member conduct himself or herself in a manner that is above reproach. Allegations like those contained in the police report concerning Sen. Marlatt are very serious in nature and are not tolerated.
"Effective immediately, Sen. Marlatt is relieved of his Senate chairmanship and vice chairmanships, pending the outcome of this active matter that is still being sorted out. Further action may be taken as deemed necessary."
Marlatt, R-Woodward, chairs the Senate Energy Committee. He also is vice chair of the Senate Rules Committee and the Senate Transportation Committee.
Marlatt also serves as assistant majority floor leader. Several times during the 2017 legislative session, Marlatt ran the floor in the absence of Majority Floor Leader Greg Treat, R-Oklahoma. He also frequently serves as presiding officer of the Senate.
During the 2017 legislative session, Marlatt shepherded legislation to allow the use of long-lateral drilling methods in non-shale formations on Schulz's behalf. The final version of that bill, SB0867, was passed by both chambers and signed by Gov. Mary Fallin.
Broadcast and published reports indicate an Uber driver reported to Oklahoma City police she was grabbed and forcefully kissed on the neck by Marlatt when she was driving him June 26 to a Northwest Expressway hotel. The driver reported the incident June 28.
Marlatt has not yet been charged with a crime.
In a statement, Oklahoma City attorney Robert Don Gifford, Marlatt's attorney, said his client was shocked by the allegations and would work with the ride-sharing service and law enforcement to get the bottom of the matter.
Marlatt pleaded no contest to a misdemeanor charge in 2015 after he was found in late 2014 sleeping in a truck parked along the side of the road in Woodward County and smelling of alcohol.
Marlatt was first elected to the Senate in 2008 and has been reelected twice, first in 2012 and then in 2016. Due to term limits, this is his final term and he cannot seek reelection in 2020.
In March, the full Senate stripped then-Sen. Ralph Shortey, R-Oklahoma City, of his legislative privileges when it passed SR0007. That action came less than 24 hours after a report in The Oklahoman revealed the Moore Police Department was investigating why Shortey was found in a hotel room March 9 with a teenage boy.
Shortey was charged with three child prostitution-related counts the day after the Senate took its action. He resigned March 22. A special election to fill that seat - Senate District 44 - will be held Tuesday.

McCall approves 63 interim study requests, plans two special criminal justice reform panels

Shawn Ashley, eCapitol

House Speaker Charles McCall approved 63 of the 136 interim studies requested by members and will create two special committees to hear seven studies related to criminal justice issues.
Six requests were withdrawn and 26 others were disapproved. A number of other requests were combined into single studies. The approved studies will cover a range of topics from criminal justice reform and education to economic development and budget reform.
McCall will create two special committees to hear studies related to criminal justice reform issues. One committee will take up IS-H2017-38, requested by House Judiciary Committee on Criminal Justice and Corrections Chair Scott Biggs, R-Chickasha, which focuses on criminal justice reform; IS-H2017-079, requested by Rep. Forrest Bennett, D-Oklahoma City, and addressing press release programs and their relationship to reduced recidivism; and IS-H2017-100, requested by Reps. Emily Virgin, D-Norman; Cyndi Munson, D-Oklahoma City; and Melodye Blancett, D-Tulsa, which addresses factors that contribute to domestic violence fatalities.
A second special committee will take up IS-H2017- 023, requested by Rep. Justin Humphrey, R-Lane, and dealing with criminal justice reform; IS-H2017-106, also requested by Biggs and focusing on criminal justice reform in other states; IS-H2017-119, requested by Rep. Regina Goodwin, D-Tulsa, and focusing on restoring voting rights to those who have served felony sentences; and IS-H2017-130, requested by Rep. Mickey Dollens, D-Oklahoma City, and also focusing on criminal justice reform.
According to a press release, McCall limited each member to no more than three approved studies.
"We want to ensure that we are providing citizens a proper balance of substantive work and cost savings during the interim, and one way to do that is to reduce the number of studies and maximize time so we can save taxpayers money," McCall, R-Atoka, said in a press release. "But these are complex issues, and it is important that we devote time during the interim to these topics. Interim studies give lawmakers an opportunity to dive into issues more deeply than they can during the busy legislative session, and they allow more time for legislators to hear varying viewpoints and ask more questions so we have a better understanding of the benefits and consequences of enacting particular policies."
House committee chairs will determine the dates and times for holding interim studies, which may be held on Tuesdays and Wednesdays only to maximize time and reduce travel costs. The studies can begin Aug.1 and must be completed by Nov. 8.
Lawmakers will be permitted to attend any interim study, but only those lawmakers who are assigned to the committee in which the interim study is being held will receive the lower non-session per diem rate of $25 and mileage reimbursement.

Have a good week. Give me a call at 918.671.6860 if I can be of help in any way.