STATE of Oklahoma ex rel., John L. PORTER, Appellee, v. Major General Donald F. FERRELL, OKANG, The Adjutant General, State of Oklahoma, and Oklahoma Military Department, Appellants.
No. 82011.
Supreme Court of Oklahoma.
May 19, 1998.
Rehearing Denied July 8, 1998.
1998 OK 41
Michael A. Mannes, Oklahoma City, for Appellants.
¶1 The primary question of law presented on certiorari review is one of first impression. Does
¶2 Appellee, John Porter1 (Employee), was employed by Appellant, Oklahoma Military Department, as a permanent employee in a position classified by the Office of Personnel Management. In 1988, he was discharged from employment following an investigation by the Attorney General‘s Office into allegations of self-dealing and misuse of state funds.
¶3 Employee filed an appeal with the Merit Protection Commission. An administrative law judge reduced the discharge to a 30-day suspension. Employee was reinstated in May, 1990.
¶4 In October, 1991, Employee was convicted of 36 felony counts of filing false travel claims. In January, 1992, he pled nolo contendre to 11 felony counts of embezzlement of state funds and destruction of public records. All the criminal acts occurred prior to Employee‘s termination in 1988.
¶5 Employee was again discharged based on his felony convictions pursuant to
¶6 The primary issue is one of law, reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). It calls for statutory construction. The “fundamental rule” of statutory construction is to ascertain the intent of the Legislature and “[i]f possible construe them so as to render them consistent with one another.” Sharp v. Tulsa Co. Election Bd., 890 P.2d 836, 840 (Okla.1994). As this Court has stated:
In construing statutes, harmony, not confusion is to be sought and when two acts or parts thereof are reasonably susceptible of a construction that will give effect to both and the words of each, without violence to either, it should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict.
Forston v. Heisler, 341 P.2d 252, 253 (Okla. 1959) (Syllabus by the Court ¶2). The “apparent discord” the Court of Civil Appeals found between the two provisions is resolved by utilizing this rule of construction.
¶7
A. Any elected or appointed state or county officer or employee who, during the term for which he was elected or appointed, is, or has been, found guilty by a trial court of a felony in a state or federal court of competent jurisdiction shall be automatically suspended from said office or employment.... Any such officer or employee upon final conviction of, or pleading guilty or nolo contendere to, a felony in a state or federal court of competent jurisdiction shall vacate such office or employment and if such felony or other offence violates his oath of office shall forfeit all benefits of said office or employment....
The Oklahoma Personnel Act was enacted in 1983. See
A. It is the purpose of this section to provide a system for the prompt, fair, and equitable disposition of appeals by permanent classified employees who have been demoted, suspended, or discharged. Further, it is the intent of this section that all decisions rendered as a result of this procedure shall be confined to the issues submitted for decision and consistent with the applicable laws and rules.
B. Any employee in the classified service may be discharged, suspended without pay for not to exceed sixty (60) calendar days, or demoted by the agency, department, institution, or officer by whom employed for misconduct, insubordination, inefficiency, habitual drunkenness, inability to perform the duties of the position in which employed, willful violation of the Oklahoma Personnel Act or the rules prescribed by the Office of Personnel Management or by the Oklahoma Merit Protection Commission, conduct unbecoming a public employee, conviction of a crime involving moral turpitude, or any other just cause....
This provision was most recently amended in 1995.
¶8 The Court of Civil Appeals found conflict between these two provisions in that
¶9 By its terms,
¶10 This provision, by which a felony conviction causes a forfeiture, does not conflict with nor does it impair the operation of the Oklahoma Personnel Act. Rather, it operates as an overarching provision applicable to
¶11 The Court of Civil Appeal‘s affirmance of the trial court‘s determination that
CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED WITH DIRECTIONS.
¶12 KAUGER, C.J., and SIMMS, HARGRAVE, OPALA, ALMA WILSON and WATT, JJ., concur.
¶13 SUMMERS, V.C.J., and LAVENDER, J., dissent.
SUMMERS, Vice Chief Justice, dissenting, with whom, LAVENDER, Justice, joins.
¶1 This case is one of first impression, involving the interpretation of
¶2 The Court of Civil Appeals’ opinion resolves the apparent conflict between the statutes by reading into Section 24.1 the word “non-classified” as a term to modify “employee.” Section 24.1, by express terms, makes no mention of “non-classified” employees, but refers only to “any elected or appointed state or county officer or employee.” On the other hand, Section 840-6.5 expressly applies only to “employees in the classified service.” Clearly, Porter falls within Section 840-6.5. The question is whether Section 24.1 also applies, or perhaps “modifies” Section 840-6.5 so as to require a forfeiture of back pay when the employee is convicted of a felony. Section 840-6.5 allows discharge, but not forfeiture, upon conviction of a crime involving moral turpitude.
¶3 A statute authorizing forfeiture must be strictly construed. Willhite v. Willhite, 546 P.2d 612 (Okla.1976). We also must give effect to the intent of the legislature. Sharp v. Tulsa Co. Election Bd., 1994 OK 104, 890 P.2d 836, 840 (Okla.1994). Statutes should be construed so as to render them consistent with one another. Id.
¶4 Section 840-6.5 obviously covers the discharge or suspension of a classified employee such as Porter. It makes no mention of forfeiture, but does state that a classified employee can be suspended for not more sixty than days without pay. A reasonable interpretation of this language is that a classified employee cannot be suspended for more than sixty days without pay. This statute permits imposition of punishment after the conviction of a crime involving moral turpitude, but does not allow forfeiture for criminal conduct.
¶5 Unlike Section 840-6.5, Section 24.1 applies to “any elected or appointed state or county officer[s] or employee[s].” Standing by itself this statute is ambiguous. It can be read to apply to “any” state employee, or it
¶6 Notably, Title 51 deals with the various procedures and regulations of state officers. It sets out the oath of office,
¶7 With all of Title 51 as a guide, it is evident what the Legislature has done. The sections in Title 74 (Personnel) expressly apply only to “classified employees“, those with Merit Protection Commission protection. Porter was such a classified employee. Title 74 does not provide for forfeiture. Title 51 provides for forfeiture for employees of state officers.
¶8 Reading each set of statutes as a whole I conclude that