Despite being told they couldn’t legally ban smokable marijuana sales or require pharmacists in dispensaries, at least two Board of Health members sought outside help on crafting language so they could adopt the changes anyway.
Emails exchanged among board members from mid-June to mid-July show at least some of them apparently left lead attorney Julie Ezell off their communications after it became apparent she would not agree to publicly support the restrictions. The documents, obtained through an open records request filed July 13, revealed extensive input from medical industry groups — who opposed State Question 788 — to the state Health Department and its governing board. The communications began before the June 26 vote.
The actions taken in the July 10 board meeting prompted two lawsuits against the Oklahoma State Health Department, one of which alleges Open Meeting Act violations. Ezell resigned three days later, after reportedly confessing to sending herself fake threats over the rules. She faces felony computer crimes charges.
On July 25, the state pharmacy board voted to terminate its executive director amid a bribery probe.
Board members later rescinded their initial emergency rules and unanimously adopted a pared-down set of rules Aug. 1. Those remain in effect until lawmakers take action, which is expected in the next legislative session.
Reached for comment Friday, Board of Health President Tim Starkey asserted that he wasn’t influenced by any outside entity.
“We look out for public health. It is what it is at this point, but our only motivation was what’s good for public health,” he said of the matter.
How the board approved the smokable sales restriction
At 6 p.m. July 9, Ezell told Starkey and two other board members: “First, I thought if we could lawfully ban smokable marijuana, I would be the first to do it.” However, she determined it wasn’t up to the group to create that rule.
Ezell’s attorney, Ed Blau, said the emails show she was “under intense pressure” to encourage rules she knew were unlawful. The emails show multiple officials, including two people in Gov. Mary Fallin’s cabinet and a senior deputy attorney general, were at least aware of talks on the rules ahead of the meeting.
“As my client stood firm against this pressure, it also became apparent to her that multiple parties were trying to circumvent her and her legal position,” Blau said. “My client felt as though she was on an island, with no support inside or outside of the Health Department.”
Ezell told the board on July 9 that she was aware of a letter from outside counsel to the Oklahoma Hospital Association. The letter indicated board members could legally approve the requested amendments. However, Ezell said she disagreed with the lawyer’s rationale.
Oklahoma Department of Mental Health Commissioner Terri White provided some of the board members with the letter that day.
The Oklahoma State Medical Association, which was a large contributor to the anti-SQ 788 campaign, led a news conference earlier that day to promote the ban and the other two amendments.
Starkey told Ezell in response: “I would anticipate questions about the three OSMA recommendations tomorrow. I also believe the board will respect and value your professional judgment about these issues.”
But by then, White had already emailed board members R. Murali Krishna and Jenny Alexopulos proposed motions she said they requested for possible use the next day. Attachments to the email showed language that would define a dispensary manager as a licensed pharmacist, impose a cap of 50 dispensaries statewide and ban dispensaries from providing smokable products. The emails did not say whether White was the sole author of the proposals.
Alexopulos and Krishna did not respond to calls or emails seeking comment as of Friday evening.
Records show Alexopulos forwarded the documents from White to Starkey just after 6:45 a.m. July 10. But they apparently didn’t arrive in Ezell’s inbox until 10:12 a.m. — less than an hour before the board was set to meet publicly.
Starkey said he had a conversation ahead of the meeting with Alexopulos about the proposals, which he confirmed were in use during the board meeting. The board voted 5-4 in favor of adopting the ban after reading the language to the audience.
Board members opted not to address the dispensary cap.
“I think it was obvious we had some concern ourselves about the rules at that point, because we had that open discussion at the meeting on the 10th,” Starkey said.
Tulsa attorney Ron Durbin II said the email contents “lend credibility to our argument that (the board members) were getting outside influence exerted on them through their careers.” Durbin represents the plaintiffs in the Open Meeting Act lawsuit related to the board’s actions.
Starkey said he wouldn’t take any action that violated the law and asserted one-on-one discussions he had with members about the topic were legal.
“Before then, there was a press conference. And outside of what I saw on the news, I didn’t talk to anyone else,” he said. He also defended his vote in favor of the ban, telling the World, “As a medical professional, I have concern about anything that introduces smoke into the lungs.”
The Mental Health Department’s spokesman, Jeff Dismukes, said Friday that the recommendations “were based on language existing in other states’ statutes and rules.”
Dismukes also noted that Ezell told board members before the meeting that they could adopt changes as they saw fit, as the draft “was not an all-or-nothing approach.”
“The health coalition also announced at (the July 9) press conference that coalition members would be contacting each member of the OSDH board to share these critical public health care concerns,” he said.
House Majority Floor Leader Jon Echols, R-Oklahoma City, said Friday that the situation illustrates “a flaw” in the structure of state government. Echols is a co-chairman of the legislative working group that has reviewed the issue for the past 10 weeks.
“Our board and commission system sets up the ability for an unelected few to, on their own, thwart the will of the people without anyone that’s answerable to the people,” he said.
Pharmacists in dispensaries
On June 26, Ezell sent four officials an email with notes on requests from multiple agency leaders about an early draft of emergency medical marijuana rules. Included was her belief that requiring pharmacists in dispensaries wasn’t within the board’s authority.
However, Chelsea Church, the state pharmacy board executive director, sent Ezell and another Health Department worker an email June 29 with language she and the Mental Health Department “would like to see happen if pharmacists are able to be in charge of the dispensaries.”
Two days later, Church emailed Ezell proposed wording that would allow pharmacists to be consultants rather than on-site. It would also have required at least 52 visits to dispensaries per year.
On July 7, Ezell told the board she thought it was permissible to create the post of “dispensary manager” — an unlicensed job but one that had stringent criteria. She thanked Fallin’s Chief of Staff Chris Benge and James Williamson, Fallin’s general counsel and secretary of state, for their help on the draft.
Benge told the World the governor’s office did not know ahead of time about any plans to adopt the controversial changes. He said officials had to act quickly because of the short implementation window and noted the governor needed information, because she would have to decide whether to sign off on the rules.
“We got reports on what the staff was looking at and what they were researching,” he said. “They were trying to look at best practices in other states and trying to understand what a legitimate medical framework is supposed to look like.”
The same weekend, Church began text messaging Ezell about the issue. Messages obtained by online journalism outlet NonDoc show Church texted Ezell, “all joking aside, give me something” supporting her request.
“You get me a pharmacist in dispensary and then come to our office. I guarantee I can do more than u have now,” Church wrote, accompanied by a winking emoji flashing its tongue. Ezell later told Church her answer would be what she “could do legally, job offer or not.”
Church’s and Ezell’s texts are the subject of a pending inquiry by the Oklahoma State Bureau of Investigation into whether a bribery attempt occurred. Blau said Ezell, who will appear in court for her own case in November, will continue to cooperate with that investigation.
Church’s attorney, Tracy Schumacher, did not return requests for comment by Fridayevening.
It remains unclear when White received a request from board members to help with the pharmacist amendment, but she told The Oklahoman previously that the pharmacy board was behind the language. The amendment passed 8-1, with Alexopulos and Krishna speaking out in support of it during the meeting.
“Obviously, there has been a concerted effort to delay or even halt an effective implementation of SQ 788,” New Health Solutions Oklahoma political director Jed Green said Friday when asked about the revelations.
New Health Solutions is among several groups who signed on to a proposed regulatory framework sent to lawmakers about two months ago. Its leader also sits on a food safety panel that makes recommendations to the health board regarding medical marijuana.
“Now, there are more questions,” Green said, adding that he thought it was obvious board members “conspired with Mental Health Commissioner Terri White to run roughshod over the law, transparency and the will of 507,000 Oklahomans.”
“As we have said for months, legislative action is needed to correctly implement SQ788,” he said.