The Oklahoma Supreme Court should declare void an action taken by the Contingency Review Board to approve the settlement of a lawsuit over treatment of children in the Department of Human Services foster care system, attorney Jerry Fent told a referee Wednesday.

Fent has successfully challenged the CRB’s participation in funding decisions for the Opportunity Fund and approving certain bonds, as well as parts of a statute requiring the governor to consult with legislative leaders on use of the Quick Action Closing fund.

“We have two major violations,” he said. “It’s definitely an open-and-shut case of separation of powers.”

Fent contends that having the House speaker and Senate president pro tempore on the CRB with the governor constitutes a violation of the constitutional separation of powers by involving legislators in executive-branch decisions.

Fent said he would have no problem with the governor acting as a one-member board to make such decisions

In his latest lawsuit, Fent is also challenging a section of the Open Meeting Act that allows legislators to attend executive sessions of state entities. He said a lawmaker told him that lawmakers in addition to the speaker and pro tem were allowed to sit in on the CRB’s December executive session, but that was not reflected in minutes of the meeting.

The provision Fent is challenging allows legislators on committees whose jurisdiction includes certain state entities to attend executive sessions of those bodies.

Legislators can coerce agencies or make threats to their appropriations during executive sessions, Fent said.

“They are present in a secret meeting,” he said. “That’s really scary for them to have a statute like that, that they can go to executive sessions of executive branches and appear there.”

Fent said his legal attack goes only to the board’s meeting, not to the status of the settlement of the lawsuit, which was filed by the Children’s Rights advocacy group, in federal court.

“I cannot tell a federal court what to do,” he said. “I’m not asking this court to disallow the settlement per se.”

Fent said the issue is whether the state’s procedure for approving the agreement is constitutional.

He said later that, should the court agree with him, the board’s action would be tainted, but it would be up to the federal court to decide whether to approve the agreement.

The settlement was given preliminary approval in federal district court earlier this week.

Assistant Attorney General Nancy Zerr said the Contingency Review Board is required to meet to fulfill certain functions when the legislature is not in session, including settlement of litigation involving amounts of more than $250,000.

The DHS lawsuit settlement was proper subject matter for the board to take up in executive session, she said.

Zerr also said that, unlike the DHS settlement, at least one of Fent’s prior cases involved the CRB approving the use of transportation funds, making it distinguishable from the case currently before the court.

“There’s no dollar amount that’s to be paid to the plaintiffs,” she said.

Zerr acknowledged that funding may need to be approved later by the legislature for attorney fees and costs, and perhaps to pay three co-neutrals, individuals who will monitor the progress of the agreement’s implementation.

The state attorney argued that, because the CRB’s action did not involve approval of the use of state funds, Fent does not have standing to bring the current lawsuit and has lodged no claim on which relief could be granted. In the board’s response to the lawsuit, Zerr told the court that Fent is a stranger to the agreement, which has been approved by DHS and the plaintiffs.

Zerr said the CRB was exercising its legislative oversight function during the December meeting, and the participation of the two legislative leaders did not violate the separation of powers.

Zerr also asked that, if the court should find the board’s action invalid, it make its decision prospective, as it has done in previous cases.

The court should also turn down Fent’s Open Meeting Act violation claim, she argued. Zerr said the law allows executive sessions for the very thing the board was to discuss—pending litigation.

Closing his argument, Fent said there was no funding in the Closing Fund, but the justices ruled the board’s action improper in that case.

He also argued that he does have standing, because his taxes help pay the salaries of the three members of the CRB

“This is the third time they violated the constitutional provisions,” Fent said. “That shows a flagrant disregard for our constitution.”

Referee Greg Albert said that he will submit his report to the justices on Monday, Jan. 30, and the court should consider it in conference the following Monday.