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Question Submitted by: Mr. Jack Boyd, Director, Oklahoma Health Planning Commission
1981 OK AG 142
Oklahoma Attorney General
Cite as: 1981 OK AG 142, __ __
¶0 The Attorney General has received your request for an official opinion wherein you ask, in effect:
May the Health Planning Commission utilize an electronically amplified telephone for the questioning of an applicant for a certificate of need at a meeting of the Commission held for the purpose of determining whether to issue a certificate of need to such applicant?
¶1 Under the provisions of 63 O.S. 2651 et seq. (1980), the Health Planning Commission is charged with the duty of overseeing the offering and development of institutional health services throughout the State of Oklahoma. A certificate of need issued by the Commission is required as a condition precedent to the offering or development of institutional health services. 63 O.S. 2655 (1980). “Institutional health service” is defined at 63 O.S. 2651.2(2) (1980). The statutory definition is quite lengthy and would not aid the analysis in this opinion.
¶2 An applicant for a certificate of need makes application to the Commission upon a form prescribed by the Commission. 63 O.S. 2652 (1980). The application is required to contain such information as the Commission prescribes. Id. Once an application is received and found complete, the Commission initiates an investigation under the provisions of 63 O.S. 2652.1 (1980). Generally, the purpose of the investigation is to determine the need for the proposed institutional health service. An applicant for a certificate of need is not entitled to a hearing upon his application, unless the application is denied or the applicant for some other reason desires reconsideration of the Commission’s decision, and then only upon timely request (within thirty (30) calendar days following issuance of the order). 63 O.S. 2653(E) (1980).
¶3 The Commission must make its decision in an open meeting conducted in accordance with the Open Meeting Act. 25 O.S. 301 et seq. (1977). See Barry v. Board of Registered Dentists, Okl., 611 P.2d 628 (1980). 25 O.S. 306 of the Open Meeting Act prohibits telephonic communications among the members of a public body for the purpose of discussing agency business in connection with decision making on any action or the taking of any vote. However, where, as you have posed in your question, the members of the public body (Commission) are all present in an open, public meeting and simply communicating by amplified telephone with a person not a member of the public body, there is no violation of the Open Meeting Act.
¶4 Care must be taken, however, to distinguish a meeting of the Commission for the purpose of furthering its investigation of an application for a certificate of need and possibly deciding thereon, from a “hearing” conducted by the Commission under 63 O.S. 2653(E) (1980) for reconsideration of a Commission order concerning a certificate of need. Under 75 O.S. 301(3) and 75 O.S. 301(4) (1980) of the Administrative Procedures Act, such a hearing would meet the definitional requirements for a licensing proceeding, which would invoke 75 O.S. 314 of the Act.
¶5 75 O.S. 314 provides that the Administrative Procedures Act’s provisions for “individual proceedings” apply where the “grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing.” Parties are guaranteed the right of cross-examination in individual proceedings under the Administrative Procedures Act. 75 O.S. 310(3) (1971). The right of cross-examination would be substantially impaired if the person being cross-examined were not personally present. See Flo-Bend, Inc. v. Pullam, Okl., 570 P.2d 1165 (1977); Frierson v. Hines, Okl., 426 P.2d 362 (1967). His demeanor could not be observed either by the cross-examiner or by the Commission. Moreover, the person being cross-examined could be “coached” during the examination without the knowledge of the Commission or the cross-examiner.
¶6 It is, therefore, the official opinion of the Attorney General that:
1. The use of an electronically amplified telephone for the questioning of an applicant for certificate of need, during a meeting of the Health Planning Commission conducted for the purpose of investigating the application for such certificate of need pursuant to 63 O.S. 2652.1 (1980), is not lawful.
2. The Commission may not use an electronically amplified telephone for the purpose of allowing a witness to testify during a hearing conducted under 63 O.S. 2653(E) (1980) for reconsideration of an order of the Health Planning Commission concerning a certificate of need.
JAN ERIC CARTWRIGHT
ATTORNEY GENERAL OF OKLAHOMA
FLOYD W. TAYLOR
FIRST ASSISTANT ATTORNEY GENERAL