Monday’s national headline-making vote to give state sanctioning and Oklahoma taxpayer dollars to a Catholic school may have been invalid.

It turns out the state Attorney General’s Office believes that Oklahoma City businessman Brian Bobek is ineligible to serve on the Statewide Virtual Charter School Board until November.

But an email to that effect was not received by the board’s chairman and executive director until after Bobek cast the deciding vote Monday to approve state sponsorship for St. Isidore of Seville Catholic Virtual School.

If opened, the school will be the nation’s first religious charter school.

Long-serving member Barry Beauchamp, a retired school superintendent from Lawton who had been allowed to continue serving after his term expired some months ago, was replaced abruptly on Friday by Oklahoma House Speaker Charles McCall.

Less than half an hour before Monday’s special board meeting began at noon, Deputy Attorney General Niki Batt sent an email to board Chairman Robert Franklin and Executive Director Rebecca Wilkinson saying that because Beauchamp had not vacated his seat, the law that created the Statewide Virtual Charter School Board doesn’t allow Bobek to take over the seat until November.

Franklin said that if Bobek was ineligible, his vote was invalid.

He is also concerned that a lengthy, written statement that Bobek read during Monday’s meeting, which included numerous legal citations, could have influenced the votes of other board members, including Scott Strawn, who was recently appointed to the board by Gov. Kevin Stitt.

The email from Batt “basically says he shouldn’t even be seated,” Franklin said. “My response is I think his vote should be vacated. Therefore, it (the vote) was 2-2 and was voted down. Strawn said, ‘I’m with Brian on his constitutional alignment concerns.’ He (Bobek) shouldn’t have been seated in the seat; he shouldn’t have been able to say what he said, based on what the Attorney General’s Office opinion is.”

The Tulsa World obtained the correspondence from the Attorney General’s Office through a public records request. The email was timestamped 11:34 a.m. Monday, less than half an hour before the meeting started.

In the email, Batt first quoted directly from the state statute that created the current Statewide Virtual Charter School Board: “‘Members shall serve until their successors are duly appointed for a term of three (3) years. Appointments shall be made by and take effect on November 1 of the year in which the appointment is made.’”

Later in the letter she wrote: “Indeed, it is my understanding that Mr. Beauchamp requested to be reappointed and was only made aware of his replacement on the afternoon of (Friday) June 2, 2023. Mr. Beauchamp’s continued service demonstrates that there was not a vacancy to warrant the immediate placement of Mr. Bobek on the Board. Accordingly, it is my opinion that pursuant to 51 O.S. § 15, Mr. Beauchamp should continue serving until his successor, Mr. Bobek, is duly qualified on November 1 pursuant to the provisions of 70 O.S. § 3-145.1(B).”

But Franklin and Wilkinson have told their fellow board members they did not see the email — which was forwarded to all on Tuesday morning — until after the public meeting ended about 4:20 p.m. Monday.

“My first thought was ‘Boy, that’s gonna open a can of worms!’” board member Bill Pearson of Oologah said Tuesday after receiving the email. “It appears to me on the surface that he was an invalid voter yesterday. If I was a betting man, I would bet this vote will be challenged.”

Contacted Tuesday morning, Chairman Franklin, a Tulsan, said he is mystified about why Batt didn’t vocalize her new concerns during the public meeting.

He noted that Batt spoke at length and in great detail about her office’s contention that a government-sponsored private Catholic school would be unconstitutional and strictly prohibited under Oklahoma statute, as well as her concerns that the school’s proposed governing board would not be independent from church elders.

Oklahoma Catholic Church leaders and lawyers from the Notre Dame Law School Religious Liberty Initiative Clinic who helped them view St. Isidore as a test case to challenge separation of church and state laws across the nation.

They argue that charter schools are private and that therefore the Catholic Church should not be barred from obtaining charter school sponsorship and funding on the grounds of religion.

Batt also sounded the alarm that the board’s standard take-it-or-leave-it sponsorship contract, which is in place with six existing online charter schools, could become unenforceable because it would have to have its requirements related to nonsectarian school operations carved out for St. Isidore.

“It was an error in why that wasn’t brought to the light of the day at the forefront of the meeting, rather than in an email not seen until after the meeting,” Franklin said on Tuesday. “I don’t think there was anything underhanded. I just think it was an oversight that, in the rearview mirror, has major consequential questions.”

What will be done about it?

Phil Bacharach, spokesman for Attorney General Gentner Drummond, responded: “The Attorney General has consistently maintained that a vote of approval is unconstitutional and not supported by current Oklahoma law. He will carefully weigh all available options before taking any action.”

Asked why Batt did not email the entire board, Bacharach said a memo sent only to the executive director and chairman is how the Attorney General’s Office “typically responds” to queries.

Whether or not Bobek was personally advised that he was ineligible to serve or vote drew this response from the office: “No. The Attorney General’s Office provides legal counsel to the Statewide Virtual Charter School Board, not to potential members before they are sworn in.”

However, House Speaker Charles McCall was notified Monday by the state’s top law enforcement office that his new appointee is ineligible to serve until November.

Daniel Seitz, spokesman for the Oklahoma House Republican Caucus, defended Bobek’s last-minute appointment to the board.

“The speaker was simply filling an expired term,” he said Tuesday. “At no point was there any conversation about how Bobek would vote on something or any litmus test. The speaker gets recommendations from members of the (GOP) caucus and makes appointments.

“As far as the attorney general goes, they haven’t come out and given any official opinion. I think that was a courtesy letter. I don’t think that carried the weight of law. Those two things are very different when it comes to the weight they carry.”

Franklin, who voted “no” on the St. Isidore application, said he resents that the Statewide Virtual Charter School Board finds itself in the position of having the eligibility of a member and validity of its votes called into question after seven months of review work on the St. Isidore application.

“Why on earth would they do this?” he said of McCall’s last-minute appointment. “It looks like a very clumsy, elementary political move. But I don’t think it was clumsy — I think it was very intentional. They had to know what it would look like. That’s why I asked Mr. Bobek yesterday, ‘Don’t put us in the position of looking like we’re a political conduit.’ Here we find ourselves today in that position.”

At the conclusion of Monday’s meeting, Franklin announced that he intends to resign from the board.

Asked about the timeline for that on Tuesday, Franklin clarified that he meant only that he does not intend to continue his board service when the Statewide Virtual Charter School Board is abolished because of a new state law. 

Senate Bill 516, which was just signed into law by Gov. Stitt on Monday, will do away with the board in 2024 and create a new governing board with expanded authority over all charter schools. 

Pointedly, SB 516 states: “A charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”

Pearson, who was appointed by Speaker McCall a few months ago, differed from Bobek by voting “no” on the St. Isidore application.

Asked whether he had made anyone aware of his position before Monday’s meeting, Pearson said no.

“When I was appointed, I had no clue what was going on with St. Isidore. All I was ever asked was do I believe in school choice? It took a lot of time to read up on the subject and review the application. I’m a strong conservative, and if you are a true conservative, you believe in the rule of law.

Then he added: “I’m all for school choice, but if you want secular schools, you have to change the laws.”

Bobek has not responded to a Tuesday morning email from the Tulsa World seeking comment.