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B47 0e* IN THE DISTRICT COURT OF OKLAHOMA COUNTY
STATE OF OKLAHOMA
MATHEW HAMRICK, Individually and
In his official capacity, FILED IN pr.
STRIC
OKLAHOMA icy, COURT
OMA COUNTY
MAY 10 2024
RICK W,
_—_—
Plaintiff,
v. Case No. CV-2021-835
OKLAHOMA STATEWIDE VIRTUAL
CHARTER SCHOOL BOARD, and
ROBERT FRANKLIN, individually and
In his official capacity,
BARRY BEAUCHAMP, individually and
In his official capacity,
BRANDON TATUM, individually and
In his official capacity,
REBECCA L. WILKINSON, individually
An in her official capacity,
were eer Sree
Defendants.
DEFENDANTS’ MOTION TO DISMISS AND PRELIMNARY RESPONSE TO
PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION WITH BRIEF IN
SUPPORT
For their Motion to Dismiss and Preliminary Response to Plaintiffs Motion for Temporary
Injunction! With Brief in Support, all Defendants state the following:
Standard for Decision on Motion to Dismiss
For purposes of this motion, Defendants accept, as they must at this stage, the factual
allegations of the petition as true. Fox v. Mize, 2018 OK 75, { 15, 428 P.3d 314, 322. Because
Plaintiff's claims fail as a matter of law, however, Defendants are entitled to dismissal. See Gens
1 Because the arguments and authorities submitted herein in support of Defendants’ Motion to Dismiss, if
accepted by the Court, would defeat Plaintiff's Motion for Temporary Injunction, Defendants request that
the Court accept these arguments and authorities for purposes of ruling of Plaintiff's Motion for
Temporary Injunction. Defendants reserve the right to assert additional defenses to Plaintiffs Motion for
Temporary Injunction at a later time, including at the time of the hearing on the Motion for Preliminary
Injunction.v. Casady Sch., 2008 OK 5, § 8, 177 P.3d 565, 569 (“The function of a motion to dismiss is
to test the law of the claims.”).
Argument
I Because the meeting agenda stated that there would be “Presentation,
discussion, and possible action to recuse Board Member Mathew Hamrick
from all discussion, debates, and voting on any matter related to Epic One-on-
One Charter School,” Plaintiff’s claim that that Defendants violated the Open
Meetings Act by recusing Hamrick is completely without merit.
Under the Open Meetings Act, a public body must give advance notice of its
meetings and the subject matter to be considered. 25 O.S. §311 (A). Such notice may be
given by posting an agenda. Jd. The agenda must “identify all items of business to be
transacted by [the] public body at [the] meeting.” 25 O.S. § 311(B)(1). Any action taken in
willful violation of the Open Meeting Act is invalid. 25 O.S. §313.
Here, the meeting agenda for the December 8, 2020 meeting in which the Board
voted to recuse Hamrick clearly stated that the Board may take that action:
7. ADMINISTRATION
c. (Action) Presentation, discussion and possible action to recuse Board
Member Mathew Hamrick from all discussions, debates, and voting on any matter related
to Epic One-on-One Charter School — Dr. Robert Franklin, Acting Chariperson; Mathew
Hamrick, Board Member
SVCSB Agenda for December 8, 2020 meeting, attached hereto as Exhibit 1.
Hamrick argues that the wording of this agenda item constitutes a “willful
violation” of the Open Meetings Act because it gives notice only that Hamrick may
recuse himself, not that the Board may take action to recuse him. Hamrick’s
interpretation of the agenda item is based entirely on its use of the word “recuse.”
Hamrick asserts that this is misleading because the board should have used the word
“disqualify.”
2|PageHamrick’s interpretation of the agenda item is strained at best. If it were
contemplated only that Hamrick would recuse himself, there would be no need for Board
action and no need to provide that the Board take “action to recuse . . .Hamrick.”
Because the agenda provided for “presentation, discussion and possible action,” it
provided ample notice that there may be deliberation (“presentation” and “discussion”)
and voting (“possible action”) on whether the Board would recuse Hamrick. There is no
reason this action item would be limited simply to Hamrick recusing himself.
Hamrick’s argument that the word “disqualify” was required rather than the word
“recuse” in order to avoid a “willful violation” of the Open Meetings Act is without
merit. The two words are completely interchangeable. For example, in Casey v. Casey,
2011 OK 46, 270 P.3d 109, the Supreme Court uses the terms interchangeably. In
paragraph 13, the Court discusses the circumstances under which “‘a judge should
disqualify himself,” and then, discussing the same issue, states that “the trial judge was
obligated to recuse himself.” Jd. (emphasis added); see also, Mayor & Aldermen of City
of Savannah v. Batson-Cook Co., 291 Ga. 114, 115, 728 S.E.2d 189, 191 (2012) (using
the term “disqualify” as something a judge may do himself and the term “recuse” as
something another may do to force the removal of a judge, i.e., a “motion to recuse a
judge.”); Willner v. Univ. of Kansas, 848 F.2d 1023 (10th Cir. 1988) (using the terms
interchangeably).
For the foregoing reasons, it is clear there was no Open Meetings Act violation. In
addition, in order to invalidate actions taken in violation of the Open Meetings Act, not
only must there be a “violation,” but the violation must be “willful.” 25 O.S. §313. A
“willful violation” must be a “conscious, purposeful violation[] of the law or blatant or
3|Pagedeliberate disregard of the law by those who know, or should know the requirements of
the Act.” Fraternal Ord. of Police, Bratcher/Miner Mem'l Lodge, Lodge No. 122 v. City
of Norman, 2021 OK 20, 18 (citation omitted). Here, based on the reasons provided
above, Plaintiff's alleged violation could not possibly rise to the level of “willful.” His
effort to invalidate any proceedings based on this allegation must therefore be dismissed.
I. Plaintiff's APA claim fails.
A. The Board was not required to file an affidavit.
Plaintiff's claim under the APA fares no better than his Open Meetings Act claim.
Plaintiff asserts that the vote to recuse him was invalid because the Board did not file an
affidavit with itself under the APA prior to voting on his recusal. But it is clear from the
APA language Plaintiff relies on that the affidavit provision is permissive and applies only
to the parties to an individual proceeding:
A hearing examiner or agency member shall withdraw from any individual
proceeding in which he cannot accord a fair and impartial hearing or
consideration. Any party may request the disqualification of a hearing examiner
or agency member, on the ground of his inability to give a fair and impartial
hearing, by filing an affidavit, promptly upon discovery of the alleged
disqualification, stating with particularity the grounds upon which it is claimed
that a fair and impartial hearing cannot be accorded.
75 O.S. § 316 (emphasis added).
Here, the recusal was not aimed solely at recusing Hamrick from an individual
proceeding, but at recusing him from “all discussions, debates, and voting on any matter related
to Epic One-on-One Charter School.” Minutes of December 8, 2020 Meeting at §7(C), attached
hereto as Exhibit 2. And finally, the statutory language provides that a party “may” request
disqualification by filing an affidavit. Thus, the language is merely permissive, not mandatory.
“The use of the word ‘may’ instead of ‘shall’ makes such procedures permissive rather than
4|Pagemandatory.” City of Chandler v. State ex rel. Dep't of Hum. Servs., 1992 OK 137, 839 P.2d 1352,
1355.
B. Hamrick lacks standing to bring his APA claim.
Only a “party aggrieved” by a final agency order is entitled to seek judicial review
of the order. 75 O.S. § 318(A)(1). Because Plaintiff was not a party to any individual
proceeding, he lacks standing to bring his APA claim. See Dewey v. State ex rel. Oklahoma
Firefighters Pension & Ret. Sys., 2001 OK 40, § 13, 28 P.3d 539, 545 (“Persons who are
not parties to an administrative adjudication from which the appealed agency order
emanates have no standing to seek review of that order in an appellate proceeding.”). Here,
it is undisputed that Plaintiff is not a party to an individual proceeding.
III. To the extent Plaintiff seeks to invalidate any past proceedings or prohibit any
future proceedings relating to EPIC, this action must be dismissed under 12
O.S. § 2012(B)(7) because Plaintiff has neither joined EPIC in this action nor
stated the reason EPIC has not been joined under 12 O.S. § 2019(C).
In this action, Plaintiff seeks to invalidate “any actions taken by Defendant Board
which relate to Epic One-on-One Charter School since voting to disqualify Plaintiff on
December 8, 2020.” Petition at 56. (Since the Board voted to accept a settlement
agreement with Epic in its termination proceeding, invalidating this vote would place EPIC
back into jeopardy of termination.) Based on this, EPIC is a necessary party defendant to
this lawsuit. Under 12 O.S. § 2012(B)(7), a claim may be dismissed for failure to join a
necessary party. Under 12 O.S. § 2019(C), a plaintiff is required to state the reasons why
an apparently necessary party has not been named. In this case Plaintiff has not done so
and his Petition must therefore be dismissed.
5|PageRespectfully submitted,
,
()
DEVAN A. PEDERSON, OBA#16576
Assistant Attorney General
Oklahoma Office of the Attorney General
Litigation Section
313 NE 21st Street
Oklahoma City, OK 73105
T| (405) 522-2931
Email: devan.pederson@oag.ok.gov
Attorney for All Defendants
CERTIFICATE OF SERVICE
Thereby certify that on the 10th day of May, 2021, I mailed a true and correct copy of the
above and foregoing by U.S. mail, postage prepaid to the following:
John Paul Jordan
THE JORDAN LAW FIRM
PO Box 850342
Yukon, OK 73085
(405) 226-1532
ip@jpjordanlaw.com
Attorney for Plaintiff
C sual? hha —
Devan A. Pederson
6|PageStatewide Virtual Charter School Board Regular Meeting
Agenda
Tuesday, December 8, 2020
REGULAR MEETING OF THE
STATEWIDE VIRTUAL CHARTER SCHOOL BOARD
OKLAHOMA HISTORY CENTER
800 NAZIH ZUHDI DR
OKLAHOMA CITY, OK 73105
OKLAHOMA CITY, OKLAHOMA
AGENDA
Tuesday, December 8, 2020 @ 2:00 PM
Public view and access: A link provided at https://svesb.ok.gov/
Note: Public Comment will only be in person.
1.
2.
CALL TO ORDER AND ROLL CALL
STATEMENT OF COMPLIANCE WITH THE OPEN MEETING ACT
(Regularly scheduled meeting held December 8, 2020)
This regularly scheduled meeting of the Statewide Virtual Charter School Board has been
convened in accordance with the Oklahoma Open Meeting Act.
This meeting was preceded by advance notice of the date, time and place, filed with the
Oklahoma Secretary of State on June 11, 2020.
Notice of this meeting was also given at least twenty-four (24) hours in advance of the
meeting by posting notice of the date, time, place and agenda of the meeting by 2:00pm on
December 7, 2020, on the Statewide Virtual Charter School Board website and at the
principal office of the Statewide Virtual Charter School Board, located at 840 Research
Parkway Oklahoma City, Oklahoma.
PLEDGE OF ALLEGIANCE, SALUTE TO THE OKLAHOMA STATE FLAG, and
MOMENT OF SILENCE
(Action) Presentation, discussion and possible action on minutes of the October 13, 2020
Statewide Virtual Charter School Board Regular Board Meeting
OPENING COMMENTS - Acting Chairman Robert Franklin
PUBLIC COMMENT
Public comments will be limited to only those subject matters listed in the current meeting
agenda. A sign-up sheet will be posted at least fifteen (15) minutes prior to the scheduled
start time of the board meeting. Only individuals who have signed up to speak will be
recognized during the Public Comment period and will be recognized in the order in which
they have signed. Each speaker will be allocated three (3) minutes for presentation. The 1
Board Chairperson may interrupt and/or terminate any presentation during public comment, :
which does not conform to the procedures outlined under this Section.
[>.da lei heStatewide Virtual Charter School Board Regular Meeting
Agenda
Tuesday, December 8, 2020
ADMINISTRATION
7.
a.
Presentation and report regarding monthly operations of the Statewide Virtual
Charter School Board (SVCSB) office and possible discussion - Dr. Rebecca
Wilkinson, Executive Director
1. Application for Initial Authorization Update
2. Student Story
Presentation and possible discussion of an update on Intent to Terminate proceedings
with Epic One-on-One Charter School - Ms. Marie Schuble, Counsel for the Board
and Assistant Attorney General
(Action) Presentation, discussion and possible action to recuse Board Member
Mathew Hamrick from all discussions, debates, and voting on any matter related to
Epic One-on-One Charter School - Dr. Robert Franklin, Acting Chairperson; Mathew
Hamrick, Board Member
(Action) Presentation, discussion and possible action to recuse Board Member
Phyllis Shepherd from all discussions, debates, and voting on any matter related to
Epic One-on-One Charter School - Dr. Robert Franklin, Acting Chairperson; Phyllis
Shepherd, Board Member
Presentation and possible discussion regarding Request for Proposal - Virtual Charter
School Funding Research - Mr. Skyler Lusnia, Compliance Auditor
(Action) — Presentation, discussion and possible action regarding the Statewide
Virtual Charter School Board Administrative Rules - Dr. Rebecca Wilkinson,
Executive Director and Ms. Marie Schuble, Counsel for the Board and Assistant
Attorney General
(Action) Presentation, discussion and possible action regarding Oklahoma
Information and Technology School grade level configuration - Dr. Rebecca
Wilkinson, Executive Director
(Action) Presentation, discussion and possible action regarding the election of
SVCSB officers - Dr. Rebecca Wilkinson, Executive Director
1. Board Chairperson
2. Board Vice-Chairperson
3. Board Clerk
NEW BUSINESS
ADJOURNMENT
The Board may take any item on this agenda out of order. The Board may discuss and/or vote to approve,
disapprove, or take other action on any item listed on this agenda.
2-2-Statewide Virtual Charter School Board Regular Meeting
Minutes — December 8, 2020
Minutes of the Regular Meeting of the
STATEWIDE VIRTUAL CHARTER SCHOOL BOARD
OKLAHOMA HISTORY CENTER
800 NAZIH ZUHDI DR.
OKLAHOMA CITY, OKLAHOMA
December 8, 2020
The Statewide Virtual Charter School Board met in regular session at 2:01 p.m. on Tuesday, December 8,
2020 in
the Oklahoma History Center at 800 Nazih Zuhdi Dr., Oklahoma City, Oklahoma. The final agenda
was posted at 4:30 p.m. on Friday, December 4, 2020.
Membe:
Others i
rs of the Statewide Virtual Charter Schoo! Board Present:
Barry Beauchamp
Robert Franklin
Mathew Hamrick
Phyllis Shepherd
Brandon Tatum
in Attendance:
Rebecca Wilkinson, Executive Director
Lynn Stickney, Secretary to the Board
Lisa Daniels, OSOCP Director
Skyler Lusnia, Compliance Auditor
Marie Schuble, Assistant Attorney General
Jenny Dickson, Assistant Attorney General
Bart Banfield, Epic Charter School (EPIC)
Lealon Taylor, Epic Charter School (EPIC)
Bill Hickman, Hickman Law Group
Jennifer Wilkinson, Insight School of Oklahoma (ISOK)
Michelle Scionti, Insight School of Oklahoma (ISOK), and Oklahoma Virtual Charter Academy (OVCA)
Melissa Gregory, Oklahoma Connections Academy
Rebecca James, Oklahoma Connections Academy
Konuni David Yilmaz, Oklahoma Information and Technology School
Jeanene Barnett, CCOSA
Tom Pickens, Public School Finance
J. P. Jordan, Jordan Law Firm
Kelly Hughes, Pliris Strategies
Nuria Martinez-Keel, The Oklahoman
Other general public
[dat 2iheStatewide Virtual Charter School Board Regular Meeting
Minutes — December 8, 2020
1. CALL TO ORDER AND ROLL CALL
Dr. Franklin called the Statewide Virtual Charter School Board regular meeting to order at
12:01 p.m. Roll was called and ascertained there was a quorum.
2. STATEMENT OF COMPLIANCE WITH THE OKLAHOMA OPEN MEETING ACT
Ms. Stickney read the Statement of Compliance with the Oklahoma Open Meeting Act.
3. PLEDGE OF ALLEGIANCE, SALUTE TO THE OKLAHOMA STATE FLAG, AND MOMENT OF SILENCE
Dr. Franklin led board members and all present in the Pledge of Allegiance to the
American flag, a salute to the Oklahoma flag, and a moment of silence.
4. Discussion and possible action on minutes of the October 13, 2020 Statewide Virtual Charter
School Board Special Board Meeting
Mr. Beauchamp moved to accept the October 13, 2020 minutes. Ms. Shepherd
seconded the motion. The motion carried with the following votes:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Abstain
Phyllis Shepherd Yes
Brandon Tatum Yes
5. OPENING COMMENTS
Or. Franklin shared his thoughts regarding the opportunity for every student to have an
Individualized Education Plan and the ability of digital learning to support this concept.
Dr. Franklin introduced and welcomed new board member Dr. Brandon Tatum to the
Statewide Virtual Charter School Board.
6. PUBLIC COMMENT
The Board heard comments from J, P. Jordan regarding Statewide Virtual Charter School
Board Members Mathew Hamrick and Phyllis Shepherd.
7. ADMINISTRATION
a. Presentation and report regarding monthly operations of the Statewide Virtual
Charter School Board (SVCSB) office and possible discussion
1. Dr. Wilkinson provided the Board with an update regarding Application for Initial
Authorization timeline and answered Board questions.
2. Dr. Wilkinson shared the story of a twenty-two (22) year-old young woman, a
single mom raising her daughter without the benefit of family support. The young
woman recognizes the importance education and is now attending Insight Schoo!
of Oklahoma in order to complete her education and receive her high-school
diploma.Statewide Virtual Charter School Board Regular Meeting
Minutes — December 8, 2020
b. Presentation possible discussion of an update on Intent to Terminate proceedings with
Epic One-on-One Charter Schoo!
Ms. Marie Schuble provided the board with an update on the Intent to Terminate
proceedings with Epic One-on-One Charter School and answered board questions.
She noted the hearing date has been changed to March 8-11, 2021.
C Presentation, discussion and possible action to recuse Board Member Mathew Hamrick
from all discussions, debates, and voting on any matter related to Epic One-on-One
Charter School
Dr. Franklin addressed concerns regarding Board Member Mathew Hamrick. Mr.
Hamrick responded to those concerns. Dr. Franklin moved recuse Board Member
Mathew Hamrick from all discussions, debates, and voting on any matter related to Epic
One-on-One Charter School. Dr. Tatum seconded the motion. The motion carried with
the following votes:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick No
Phyllis Shepherd No
Brandon Tatum Yes
d. Presentation, discussion and possible action to recuse Board Member Phyllis Shepherd
from all discussions, debates, and voting on any matter related to Epic One-on-One
Charter School
Or. Franklin addressed concerns regarding Board Member Phyllis Shepherd. Ms.
Shepherd responded to those concerns. Mr. Beauchamp moved recuse Board Member
Phyllis Shepherd from all discussions, debates, and voting on any matter related to Epic
One-on-One Charter School. Dr. Tatum seconded the motion. The motion carried with
the following votes:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick No
Phyllis Shepherd No
Brandon Tatum Yes
e. Presentation and possible discussion regarding Request for Proposal Virtual Charter
Schoo! Funding Research
Mr. Lusnia provided the board with an update on the Request for Proposal process and
award for the Virtual Charter School Funding Research.
f. Presentation, discussion and possible action regarding the Statewide Virtual Charter
School Board Administrative Rules
Dr. Wilkinson, Ms. Schuble and Dr. Daniels reviewed the proposed Administrative Rule
changes with the board and answered board questions. Mr. Beauchamp moved for the
Board to enter the Permanent Rulemaking Process to consider these rule changes. Mr.
Hamrick seconded the motion. The motion carried with the following votes:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Yes
Phyllis Shepherd Yes
Brandon Tatum YesStatewide Virtual Charter School Board Regular Meeting
Minutes ~ December 8, 2020
8.
h.
Presentation, discussion and possible action regarding Oklahoma Information and
Technology School grade level configuration
Dr. Wilkinson provided the board with information regarding the request of Oklahoma
Information and Technology School to approve 6" — 9" grade level configuration for the
2021-2022 school year and answered board questions. Mr. Hamrick moved to allow
Oklahoma Information and Technology School to add grades 8 and 9 for the 2021-2022
school year. Mr. Beauchamp seconded the motion. The motion carried with the
following votes:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Yes
Phyllis Shepherd Yes
Brandon Tatum Yes
Presentation, discussion and possible action regarding the election of SVCSB officers
1. Board Chairperson
Mr. Beauchamp nominated Dr. Franklin. Dr. Franklin accepted the nomination.
Mr. Hamrick nominated Dr. Tatum. Dr. Tatum declined the nomination.
Board Chairperson votes to approve Dr. Franklin as Board Chairman as follows:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Yes
Phyllis Shepherd Yes
Brandon Tatum Yes
2. Board Vice-Chairperson
Mr. Beauchamp nominated Dr. Tatum. Dr. Tatum accepted the nomination.
Board Vice-Chairperson votes to approve Dr. Tatum as Board Vice-Chairperson as
follows:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Yes
Phyllis Shepherd Yes
Brandon Tatum Yes
3. Board Clerk
Or. Franklin nominated Mr. Beauchamp. Mr. Beauchamp accepted the nomination.
Board Clerk votes to approve Mr. Beauchamp as Board Clerk as follows:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Yes
Phyllis Shepherd Yes
Brandon Tatum YesStatewide Virtual Charter School Board Regular Meeting
Minutes ~ December 8, 2020
8. NEW BUSINESS
No new business.
9. ADJOURNMENT
There being no further business, Mr. Hamrick moved to adjourn the meeting at
3:32 p.m. Mr. Beauchamp seconded the motion. The motion carried with the following
votes:
Barry Beauchamp Yes
Robert Franklin Yes
Mathew Hamrick Yes
Yes
Yes
Robert Franklin, Chairman of the Board
Lynn Stigkney, Secretary of the Board
Preview
B47 0e* IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA MATHEW HAMRICK, Individually and In his official capacity, FILED IN pr. STRIC OKLAHOMA icy, COURT OMA COUNTY MAY 10 2024 RICK W, _—_— Plaintiff, v. Case No. CV-2021-835 OKLAHOMA STATEWIDE VIRTUAL CHARTER SCHOOL BOARD, and ROBERT FRANKLIN, individually and In his official capacity, BARRY BEAUCHAMP, individually and In his official capacity, BRANDON TATUM, individually and In his official capacity, REBECCA L. WILKINSON, individually An in her official capacity, were eer Sree Defendants. DEFENDANTS’ MOTION TO DISMISS AND PRELIMNARY RESPONSE TO PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION WITH BRIEF IN SUPPORT For their Motion to Dismiss and Preliminary Response to Plaintiffs Motion for Temporary Injunction! With Brief in Support, all Defendants state the following: Standard for Decision on Motion to Dismiss For purposes of this motion, Defendants accept, as they must at this stage, the factual allegations of the petition as true. Fox v. Mize, 2018 OK 75, { 15, 428 P.3d 314, 322. Because Plaintiff's claims fail as a matter of law, however, Defendants are entitled to dismissal. See Gens 1 Because the arguments and authorities submitted herein in support of Defendants’ Motion to Dismiss, if accepted by the Court, would defeat Plaintiff's Motion for Temporary Injunction, Defendants request that the Court accept these arguments and authorities for purposes of ruling of Plaintiff's Motion for Temporary Injunction. Defendants reserve the right to assert additional defenses to Plaintiffs Motion for Temporary Injunction at a later time, including at the time of the hearing on the Motion for Preliminary Injunction.v. Casady Sch., 2008 OK 5, § 8, 177 P.3d 565, 569 (“The function of a motion to dismiss is to test the law of the claims.”). Argument I Because the meeting agenda stated that there would be “Presentation, discussion, and possible action to recuse Board Member Mathew Hamrick from all discussion, debates, and voting on any matter related to Epic One-on- One Charter School,” Plaintiff’s claim that that Defendants violated the Open Meetings Act by recusing Hamrick is completely without merit. Under the Open Meetings Act, a public body must give advance notice of its meetings and the subject matter to be considered. 25 O.S. §311 (A). Such notice may be given by posting an agenda. Jd. The agenda must “identify all items of business to be transacted by [the] public body at [the] meeting.” 25 O.S. § 311(B)(1). Any action taken in willful violation of the Open Meeting Act is invalid. 25 O.S. §313. Here, the meeting agenda for the December 8, 2020 meeting in which the Board voted to recuse Hamrick clearly stated that the Board may take that action: 7. ADMINISTRATION c. (Action) Presentation, discussion and possible action to recuse Board Member Mathew Hamrick from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School — Dr. Robert Franklin, Acting Chariperson; Mathew Hamrick, Board Member SVCSB Agenda for December 8, 2020 meeting, attached hereto as Exhibit 1. Hamrick argues that the wording of this agenda item constitutes a “willful violation” of the Open Meetings Act because it gives notice only that Hamrick may recuse himself, not that the Board may take action to recuse him. Hamrick’s interpretation of the agenda item is based entirely on its use of the word “recuse.” Hamrick asserts that this is misleading because the board should have used the word “disqualify.” 2|PageHamrick’s interpretation of the agenda item is strained at best. If it were contemplated only that Hamrick would recuse himself, there would be no need for Board action and no need to provide that the Board take “action to recuse . . .Hamrick.” Because the agenda provided for “presentation, discussion and possible action,” it provided ample notice that there may be deliberation (“presentation” and “discussion”) and voting (“possible action”) on whether the Board would recuse Hamrick. There is no reason this action item would be limited simply to Hamrick recusing himself. Hamrick’s argument that the word “disqualify” was required rather than the word “recuse” in order to avoid a “willful violation” of the Open Meetings Act is without merit. The two words are completely interchangeable. For example, in Casey v. Casey, 2011 OK 46, 270 P.3d 109, the Supreme Court uses the terms interchangeably. In paragraph 13, the Court discusses the circumstances under which “‘a judge should disqualify himself,” and then, discussing the same issue, states that “the trial judge was obligated to recuse himself.” Jd. (emphasis added); see also, Mayor & Aldermen of City of Savannah v. Batson-Cook Co., 291 Ga. 114, 115, 728 S.E.2d 189, 191 (2012) (using the term “disqualify” as something a judge may do himself and the term “recuse” as something another may do to force the removal of a judge, i.e., a “motion to recuse a judge.”); Willner v. Univ. of Kansas, 848 F.2d 1023 (10th Cir. 1988) (using the terms interchangeably). For the foregoing reasons, it is clear there was no Open Meetings Act violation. In addition, in order to invalidate actions taken in violation of the Open Meetings Act, not only must there be a “violation,” but the violation must be “willful.” 25 O.S. §313. A “willful violation” must be a “conscious, purposeful violation[] of the law or blatant or 3|Pagedeliberate disregard of the law by those who know, or should know the requirements of the Act.” Fraternal Ord. of Police, Bratcher/Miner Mem'l Lodge, Lodge No. 122 v. City of Norman, 2021 OK 20, 18 (citation omitted). Here, based on the reasons provided above, Plaintiff's alleged violation could not possibly rise to the level of “willful.” His effort to invalidate any proceedings based on this allegation must therefore be dismissed. I. Plaintiff's APA claim fails. A. The Board was not required to file an affidavit. Plaintiff's claim under the APA fares no better than his Open Meetings Act claim. Plaintiff asserts that the vote to recuse him was invalid because the Board did not file an affidavit with itself under the APA prior to voting on his recusal. But it is clear from the APA language Plaintiff relies on that the affidavit provision is permissive and applies only to the parties to an individual proceeding: A hearing examiner or agency member shall withdraw from any individual proceeding in which he cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of a hearing examiner or agency member, on the ground of his inability to give a fair and impartial hearing, by filing an affidavit, promptly upon discovery of the alleged disqualification, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. 75 O.S. § 316 (emphasis added). Here, the recusal was not aimed solely at recusing Hamrick from an individual proceeding, but at recusing him from “all discussions, debates, and voting on any matter related to Epic One-on-One Charter School.” Minutes of December 8, 2020 Meeting at §7(C), attached hereto as Exhibit 2. And finally, the statutory language provides that a party “may” request disqualification by filing an affidavit. Thus, the language is merely permissive, not mandatory. “The use of the word ‘may’ instead of ‘shall’ makes such procedures permissive rather than 4|Pagemandatory.” City of Chandler v. State ex rel. Dep't of Hum. Servs., 1992 OK 137, 839 P.2d 1352, 1355. B. Hamrick lacks standing to bring his APA claim. Only a “party aggrieved” by a final agency order is entitled to seek judicial review of the order. 75 O.S. § 318(A)(1). Because Plaintiff was not a party to any individual proceeding, he lacks standing to bring his APA claim. See Dewey v. State ex rel. Oklahoma Firefighters Pension & Ret. Sys., 2001 OK 40, § 13, 28 P.3d 539, 545 (“Persons who are not parties to an administrative adjudication from which the appealed agency order emanates have no standing to seek review of that order in an appellate proceeding.”). Here, it is undisputed that Plaintiff is not a party to an individual proceeding. III. To the extent Plaintiff seeks to invalidate any past proceedings or prohibit any future proceedings relating to EPIC, this action must be dismissed under 12 O.S. § 2012(B)(7) because Plaintiff has neither joined EPIC in this action nor stated the reason EPIC has not been joined under 12 O.S. § 2019(C). In this action, Plaintiff seeks to invalidate “any actions taken by Defendant Board which relate to Epic One-on-One Charter School since voting to disqualify Plaintiff on December 8, 2020.” Petition at 56. (Since the Board voted to accept a settlement agreement with Epic in its termination proceeding, invalidating this vote would place EPIC back into jeopardy of termination.) Based on this, EPIC is a necessary party defendant to this lawsuit. Under 12 O.S. § 2012(B)(7), a claim may be dismissed for failure to join a necessary party. Under 12 O.S. § 2019(C), a plaintiff is required to state the reasons why an apparently necessary party has not been named. In this case Plaintiff has not done so and his Petition must therefore be dismissed. 5|PageRespectfully submitted, , () DEVAN A. PEDERSON, OBA#16576 Assistant Attorney General Oklahoma Office of the Attorney General Litigation Section 313 NE 21st Street Oklahoma City, OK 73105 T| (405) 522-2931 Email: devan.pederson@oag.ok.gov Attorney for All Defendants CERTIFICATE OF SERVICE Thereby certify that on the 10th day of May, 2021, I mailed a true and correct copy of the above and foregoing by U.S. mail, postage prepaid to the following: John Paul Jordan THE JORDAN LAW FIRM PO Box 850342 Yukon, OK 73085 (405) 226-1532 ip@jpjordanlaw.com Attorney for Plaintiff C sual? hha — Devan A. Pederson 6|PageStatewide Virtual Charter School Board Regular Meeting Agenda Tuesday, December 8, 2020 REGULAR MEETING OF THE STATEWIDE VIRTUAL CHARTER SCHOOL BOARD OKLAHOMA HISTORY CENTER 800 NAZIH ZUHDI DR OKLAHOMA CITY, OK 73105 OKLAHOMA CITY, OKLAHOMA AGENDA Tuesday, December 8, 2020 @ 2:00 PM Public view and access: A link provided at https://svesb.ok.gov/ Note: Public Comment will only be in person. 1. 2. CALL TO ORDER AND ROLL CALL STATEMENT OF COMPLIANCE WITH THE OPEN MEETING ACT (Regularly scheduled meeting held December 8, 2020) This regularly scheduled meeting of the Statewide Virtual Charter School Board has been convened in accordance with the Oklahoma Open Meeting Act. This meeting was preceded by advance notice of the date, time and place, filed with the Oklahoma Secretary of State on June 11, 2020. Notice of this meeting was also given at least twenty-four (24) hours in advance of the meeting by posting notice of the date, time, place and agenda of the meeting by 2:00pm on December 7, 2020, on the Statewide Virtual Charter School Board website and at the principal office of the Statewide Virtual Charter School Board, located at 840 Research Parkway Oklahoma City, Oklahoma. PLEDGE OF ALLEGIANCE, SALUTE TO THE OKLAHOMA STATE FLAG, and MOMENT OF SILENCE (Action) Presentation, discussion and possible action on minutes of the October 13, 2020 Statewide Virtual Charter School Board Regular Board Meeting OPENING COMMENTS - Acting Chairman Robert Franklin PUBLIC COMMENT Public comments will be limited to only those subject matters listed in the current meeting agenda. A sign-up sheet will be posted at least fifteen (15) minutes prior to the scheduled start time of the board meeting. Only individuals who have signed up to speak will be recognized during the Public Comment period and will be recognized in the order in which they have signed. Each speaker will be allocated three (3) minutes for presentation. The 1 Board Chairperson may interrupt and/or terminate any presentation during public comment, : which does not conform to the procedures outlined under this Section. [>.da lei heStatewide Virtual Charter School Board Regular Meeting Agenda Tuesday, December 8, 2020 ADMINISTRATION 7. a. Presentation and report regarding monthly operations of the Statewide Virtual Charter School Board (SVCSB) office and possible discussion - Dr. Rebecca Wilkinson, Executive Director 1. Application for Initial Authorization Update 2. Student Story Presentation and possible discussion of an update on Intent to Terminate proceedings with Epic One-on-One Charter School - Ms. Marie Schuble, Counsel for the Board and Assistant Attorney General (Action) Presentation, discussion and possible action to recuse Board Member Mathew Hamrick from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School - Dr. Robert Franklin, Acting Chairperson; Mathew Hamrick, Board Member (Action) Presentation, discussion and possible action to recuse Board Member Phyllis Shepherd from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School - Dr. Robert Franklin, Acting Chairperson; Phyllis Shepherd, Board Member Presentation and possible discussion regarding Request for Proposal - Virtual Charter School Funding Research - Mr. Skyler Lusnia, Compliance Auditor (Action) — Presentation, discussion and possible action regarding the Statewide Virtual Charter School Board Administrative Rules - Dr. Rebecca Wilkinson, Executive Director and Ms. Marie Schuble, Counsel for the Board and Assistant Attorney General (Action) Presentation, discussion and possible action regarding Oklahoma Information and Technology School grade level configuration - Dr. Rebecca Wilkinson, Executive Director (Action) Presentation, discussion and possible action regarding the election of SVCSB officers - Dr. Rebecca Wilkinson, Executive Director 1. Board Chairperson 2. Board Vice-Chairperson 3. Board Clerk NEW BUSINESS ADJOURNMENT The Board may take any item on this agenda out of order. The Board may discuss and/or vote to approve, disapprove, or take other action on any item listed on this agenda. 2-2-Statewide Virtual Charter School Board Regular Meeting Minutes — December 8, 2020 Minutes of the Regular Meeting of the STATEWIDE VIRTUAL CHARTER SCHOOL BOARD OKLAHOMA HISTORY CENTER 800 NAZIH ZUHDI DR. OKLAHOMA CITY, OKLAHOMA December 8, 2020 The Statewide Virtual Charter School Board met in regular session at 2:01 p.m. on Tuesday, December 8, 2020 in the Oklahoma History Center at 800 Nazih Zuhdi Dr., Oklahoma City, Oklahoma. The final agenda was posted at 4:30 p.m. on Friday, December 4, 2020. Membe: Others i rs of the Statewide Virtual Charter Schoo! Board Present: Barry Beauchamp Robert Franklin Mathew Hamrick Phyllis Shepherd Brandon Tatum in Attendance: Rebecca Wilkinson, Executive Director Lynn Stickney, Secretary to the Board Lisa Daniels, OSOCP Director Skyler Lusnia, Compliance Auditor Marie Schuble, Assistant Attorney General Jenny Dickson, Assistant Attorney General Bart Banfield, Epic Charter School (EPIC) Lealon Taylor, Epic Charter School (EPIC) Bill Hickman, Hickman Law Group Jennifer Wilkinson, Insight School of Oklahoma (ISOK) Michelle Scionti, Insight School of Oklahoma (ISOK), and Oklahoma Virtual Charter Academy (OVCA) Melissa Gregory, Oklahoma Connections Academy Rebecca James, Oklahoma Connections Academy Konuni David Yilmaz, Oklahoma Information and Technology School Jeanene Barnett, CCOSA Tom Pickens, Public School Finance J. P. Jordan, Jordan Law Firm Kelly Hughes, Pliris Strategies Nuria Martinez-Keel, The Oklahoman Other general public [dat 2iheStatewide Virtual Charter School Board Regular Meeting Minutes — December 8, 2020 1. CALL TO ORDER AND ROLL CALL Dr. Franklin called the Statewide Virtual Charter School Board regular meeting to order at 12:01 p.m. Roll was called and ascertained there was a quorum. 2. STATEMENT OF COMPLIANCE WITH THE OKLAHOMA OPEN MEETING ACT Ms. Stickney read the Statement of Compliance with the Oklahoma Open Meeting Act. 3. PLEDGE OF ALLEGIANCE, SALUTE TO THE OKLAHOMA STATE FLAG, AND MOMENT OF SILENCE Dr. Franklin led board members and all present in the Pledge of Allegiance to the American flag, a salute to the Oklahoma flag, and a moment of silence. 4. Discussion and possible action on minutes of the October 13, 2020 Statewide Virtual Charter School Board Special Board Meeting Mr. Beauchamp moved to accept the October 13, 2020 minutes. Ms. Shepherd seconded the motion. The motion carried with the following votes: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Abstain Phyllis Shepherd Yes Brandon Tatum Yes 5. OPENING COMMENTS Or. Franklin shared his thoughts regarding the opportunity for every student to have an Individualized Education Plan and the ability of digital learning to support this concept. Dr. Franklin introduced and welcomed new board member Dr. Brandon Tatum to the Statewide Virtual Charter School Board. 6. PUBLIC COMMENT The Board heard comments from J, P. Jordan regarding Statewide Virtual Charter School Board Members Mathew Hamrick and Phyllis Shepherd. 7. ADMINISTRATION a. Presentation and report regarding monthly operations of the Statewide Virtual Charter School Board (SVCSB) office and possible discussion 1. Dr. Wilkinson provided the Board with an update regarding Application for Initial Authorization timeline and answered Board questions. 2. Dr. Wilkinson shared the story of a twenty-two (22) year-old young woman, a single mom raising her daughter without the benefit of family support. The young woman recognizes the importance education and is now attending Insight Schoo! of Oklahoma in order to complete her education and receive her high-school diploma.Statewide Virtual Charter School Board Regular Meeting Minutes — December 8, 2020 b. Presentation possible discussion of an update on Intent to Terminate proceedings with Epic One-on-One Charter Schoo! Ms. Marie Schuble provided the board with an update on the Intent to Terminate proceedings with Epic One-on-One Charter School and answered board questions. She noted the hearing date has been changed to March 8-11, 2021. C Presentation, discussion and possible action to recuse Board Member Mathew Hamrick from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School Dr. Franklin addressed concerns regarding Board Member Mathew Hamrick. Mr. Hamrick responded to those concerns. Dr. Franklin moved recuse Board Member Mathew Hamrick from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School. Dr. Tatum seconded the motion. The motion carried with the following votes: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick No Phyllis Shepherd No Brandon Tatum Yes d. Presentation, discussion and possible action to recuse Board Member Phyllis Shepherd from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School Or. Franklin addressed concerns regarding Board Member Phyllis Shepherd. Ms. Shepherd responded to those concerns. Mr. Beauchamp moved recuse Board Member Phyllis Shepherd from all discussions, debates, and voting on any matter related to Epic One-on-One Charter School. Dr. Tatum seconded the motion. The motion carried with the following votes: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick No Phyllis Shepherd No Brandon Tatum Yes e. Presentation and possible discussion regarding Request for Proposal Virtual Charter Schoo! Funding Research Mr. Lusnia provided the board with an update on the Request for Proposal process and award for the Virtual Charter School Funding Research. f. Presentation, discussion and possible action regarding the Statewide Virtual Charter School Board Administrative Rules Dr. Wilkinson, Ms. Schuble and Dr. Daniels reviewed the proposed Administrative Rule changes with the board and answered board questions. Mr. Beauchamp moved for the Board to enter the Permanent Rulemaking Process to consider these rule changes. Mr. Hamrick seconded the motion. The motion carried with the following votes: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Yes Phyllis Shepherd Yes Brandon Tatum YesStatewide Virtual Charter School Board Regular Meeting Minutes ~ December 8, 2020 8. h. Presentation, discussion and possible action regarding Oklahoma Information and Technology School grade level configuration Dr. Wilkinson provided the board with information regarding the request of Oklahoma Information and Technology School to approve 6" — 9" grade level configuration for the 2021-2022 school year and answered board questions. Mr. Hamrick moved to allow Oklahoma Information and Technology School to add grades 8 and 9 for the 2021-2022 school year. Mr. Beauchamp seconded the motion. The motion carried with the following votes: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Yes Phyllis Shepherd Yes Brandon Tatum Yes Presentation, discussion and possible action regarding the election of SVCSB officers 1. Board Chairperson Mr. Beauchamp nominated Dr. Franklin. Dr. Franklin accepted the nomination. Mr. Hamrick nominated Dr. Tatum. Dr. Tatum declined the nomination. Board Chairperson votes to approve Dr. Franklin as Board Chairman as follows: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Yes Phyllis Shepherd Yes Brandon Tatum Yes 2. Board Vice-Chairperson Mr. Beauchamp nominated Dr. Tatum. Dr. Tatum accepted the nomination. Board Vice-Chairperson votes to approve Dr. Tatum as Board Vice-Chairperson as follows: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Yes Phyllis Shepherd Yes Brandon Tatum Yes 3. Board Clerk Or. Franklin nominated Mr. Beauchamp. Mr. Beauchamp accepted the nomination. Board Clerk votes to approve Mr. Beauchamp as Board Clerk as follows: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Yes Phyllis Shepherd Yes Brandon Tatum YesStatewide Virtual Charter School Board Regular Meeting Minutes ~ December 8, 2020 8. NEW BUSINESS No new business. 9. ADJOURNMENT There being no further business, Mr. Hamrick moved to adjourn the meeting at 3:32 p.m. Mr. Beauchamp seconded the motion. The motion carried with the following votes: Barry Beauchamp Yes Robert Franklin Yes Mathew Hamrick Yes Yes Yes Robert Franklin, Chairman of the Board Lynn Stigkney, Secretary of the Board