The Oklahoma Bar Journal September 2022

mandatory for some purposes and directory for others. We disagree with the conclusions made by both parties. In other words, the court rejected the school district’s con tention that “filed with the clerk of the governing body” was a “strict compliance” provision while also rejecting the plaintiff’s contention that §156(D) could be bifurcated, so its latter half only required substantial compliance. The court instead created a third option. It reasoned that the “plain language in 51 O.S. §156(D) makes filing the GTCA notice with ‘the office of the clerk’ of the governing body a mandatory duty,” but “the manner of filing with the clerk’s office is not statutorily specified as mandatory .” 13 The court explained that when a school district is the governing body, a relevant inquiry is: The identity of potential clerks who may receive the notice for filing, and whether a superin tendent is a proper recipient for notice when the superin tendent’s managerial duties require both representing the board and transmitting to a clerk for filing any financial claims against the school dis trict which the superintendent has received. 14 The court implied that a plain tiff may not know which clerk to file the notice with – and therefore may file it with the superintendent – because the law allows for the appointment of a clerk, deputy clerk, encumbrance clerk and/or minute clerk, and it is possible for a clerk and/or deputy clerk to be a member of the board. 15 However, the same statute that provides for the possibility of those various clerk positions also states in the next sentence, “No superintendent …

employed by such board shall be elected or serve as clerk or deputy clerk of the board nor as encum brance clerk or minute clerk.” 16 In explaining its reasoning, the court quoted a portion of the Oklahoma Administrative Code describing the relationship between a superintendent and board of education to support its decision that a superintendent is analogous to a clerk of the gov erning board, although the regu lations do not fully bear out this comparison, and the aforemen tioned statute explicitly prohibits a superintendent from serving as a clerk. 17 The court itself recognized, “A superintendent is not a clerk for the board, and is prohibited from formally acting as the clerk.” 18 The Mounds opinion raises an issue for attorneys interpreting provisions of the GTCA mov ing forward. Does an attorney’s review of the plain language of the statute, as well as the strict com pliance versus substantial compli ance dichotomy found in case law, encompass the full scope of GTCA interpretation employed by the courts, or is there now more that an attorney must consider? In light of the foregoing discus sion, attorneys and lower courts may be wary of relying on the pro visions of the GTCA and uncer tain whether following the plain language of the statute will lead to the correct result on appeal. The current state of the case law is intricate at best, and Mounds is not the last case in which the plain language of the GTCA is interpreted with a more “practical approach” in mind. Proving the point, the Oklahoma Court of Civil Appeals heard a case in 2020, Alburtus v. Independent School District No. 1 of Tulsa County , THE IMPLICATIONS OF MOUNDS MOVING FORWARD

time-barred because proper notice was never given under the lan guage of §156(D). In support of its contention, the school district pointed to the court’s prior deci sion in Minie v. Hudson , in which the court held that oral notice of a tort claim is insufficient to satisfy §156(D). 10 There, the court reasoned the statutory language, “ shall be in writing …,” was a legislative com mand a plaintiff must follow when submitting notice of a claim. 11 Thus, in light of this precedent, the school district’s position in Mounds was that notice to the clerk of the governing body was also a legislative command that must be followed. On the other hand, the plaintiff argued that §156(D) could be divided in two, with the “in writing” requirement being manda tory and the “with the clerk of the governing body” requirement only requiring substantial compliance. Over the years, the court has construed various GTCA provi sions so that they fit within one of two categories. One set of provi sions establishes a “strict compli ance” duty on plaintiffs seeking to file a claim under the GTCA, while another set of provisions merely requires “substantial compliance.” 12 In addressing these two categories, the court in Mounds stated: Generally, a party’s fulfillment of a statutory mandatory (or jurisdictional) requirement is sometimes expressed as a “strict compliance” duty, but fulfill ment of a non-jurisdictional or directory statutory require ment is often expressed as a “substantial compliance” duty. not neatly fit into a universally applicable dichotomy of man datory (jurisdictional) versus directory (non-jurisdictional) nature, and a statute may be We recognize some obliga tions created by statutes do

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THE OKLAHOMA BAR JOURNAL