*1
Gene Oklahoma, OF ex rel. BOARD
STATE PUB the OKLAHOMA OF
TRUSTEES RETIREMENT EMPLOYEES
LIC Public Em
SYSTEM System, Respon
ployees Retirement
dents/Appellants.
No. 102511. of Oklahoma.
Supreme Court
27,May July
Rehearing Denied
121 Abowitz, Abowitz, Murray E. Timberlake Dahnke, P.C., OK, City, & Oklahoma for Appellee. Fox, Counsel,
Joseph A. General Okla- Employees System, homa Public Retirement OK, City, Appellant. HARGRAVE, J. Stipe (Stipe)
T1 Gene served as an elected member of the Repre- Oklahoma House of 18, from sentatives November 1948 to No- vember 1954. He served as an elected of the member Oklahoma State Senate from November until resigned 1956 he office effective March 2008. On March Stipe 2008 Gene filed his retirement no- application tice and with the Oklahoma Pub- Employees (OPERS), System lie Retirement selecting a retirement date of June Stipe years Gene had 54 service credit eligible monthly and was for a bene- $7,042.23 fit of average based on his final $39,123.48. compensationof 24, 2003, Stipe signed March On Gene plea agreement in the United States District Court for pleading the District of Columbia guilty conspira- to three counts: one count of cy Campaign to violate the Federal Election Act, 871, misdemeanor; § U.S.C. one Conspiracy count of to Obstruct a Federal investigation, Election Commission 18 U.S.C. felony; § perjury, and one felony. U.S.C. 17, 2003, By letter dated June a trial attorney Department for the U.S. of Justice OPERS, request, mailed to at OPERS copy agreement. By plea letter dated 28, 20083,general June counsel for OPERS notified that her office had determined pled guilty the crimes for which he violated his oath of office as a state officer 24.1, according and that to 51 O.S. all retirement benefits that were not vested on 8, 1981, September the effective date of the statute, were forfeited.1 was advised 24.1, Stipe years 51 O.S. had accrued 31 8, 1981, 1. As of the effective date of September arbitrary and was agency order the final remedy administrative his exclusive give effect to its it did not hearing capricious because before to an administrative right interpretation pursuant prior own of Trustees the Board of In re Act in the case Procedures statute the forfeiture Administrative the Oklahoma *3 (OAPA), §§ 250-328. 75 0.8. Retirement Matter Benefits Forfeiture of of was a Taliaferro, Taliaferro where Paul reme- of his administrative pursued Stipe 1 4 for his conviction at the time of senator state hearing before hearing held was dy and re district court The five federal felonies. of OP- of Trustees the Board for examiner ageney order and remanded final versed the attorneys rep- 26, March ERS on immediately to with instructions argued the case and OPERS resenting Stipe Savings and Stipe his full retirement award doe- and introduced hearing examiner to the immediately and to Plan Benefits Incentive were called No witnesses umentary evidence. paid have been that should pay the benefits being the advised despite parties the 1, 2003. of June date since his retirement of mak- importance the of hearing examiner grant and we appealed to this Court final order would the from which ing a record argument to retain. Oral ed the motion stated for OPERS Counsel be entered. 26, February held bane was the Court en "I don't believe callingno witnesses: she was believe necessary. I don't it's proof, so I don't their burden they've met introduce wit- necessary us to for its
think OF REVIEW STANDARD nesses." Proce- Administrative T7 The Oklahoma proposed find- parties submitted T5 Both (OAPC), seq., § 318 et 75 0.8.2001 Act dures law to the and conclusions ings of fact reviewing agency In our review. governs examiner, adopted the order who hearing for the orders, is the same the standard final order en- by OPERS. proposed 322(1) Section and this Court. court district of OPERS on of Trustees Board the tered for review of any proceeding provides that, consideration upon found May or the Supreme the Court agency order an order proposed hearing examiner's modify the may aside or set district court and conclusions of findings of fact containing it to the order, it and remand or reverse of re- law, reinstatement Stipe's request for if it deter- proceedings agency for further Eight the was denied. benefits tirement peti- rights of the that the substantial mines present and were thirteen members Board's because prejudiced tioner have been matter. on the voted inferences, or conclusions findings, agency's the district appealed to Stipe T6 constitution, stat- exceed violate decisions filing petition County by court of Oklahoma agency, authority jurisdiction of utory or final or judicial of administrative review for applying procedure, err violate lawful Administrative pursuant to the der re- law, arbitrary capricious. Our or or are 318(B)@Q). Act, 75 0.8.2001 Procedures in the record made limited to the view is present the record limited to review is Such hearing. court hearing. The district at the ed dispute, thus we not in The facts are T8 shall, argument request, hear oral upon we, like 0.$.2001 question of law which § 321. are left with written briefs. receive court, novo. State ex review de the district Au order filed entered an court The district Ferrell, P.2d Porter v. rel. had that OPERS found gust which the crimes question is whether 577. The in excess of statute misapplied the forfeiture a viola- pled guilty constitute to which the federal authority because statutory its so, If then office. his oath of tion of ser nothing to do with had offenses accruing after benefits retirement will forfeit his oath of not violate in office and did vice date of the the effective September further found court The district office. $15,213.44. monthly benefit of eligible service and was $1,572.06 average compensation a final based on statute, $ begin 24.1. 110 Section 24.1 makes a clear dis 51 O.S. We forfeiture statute, 51 0.8.2001 with the forfeiture tinction between forfeiture first 24.1(A), pertinent part: provides plea forfeiture or Conviction of of benefits. office, guilty felony to a forfeits the but any appointed or "In the event elected who, employee only felony or officer or forfeiture of benefits occurs if the or other offense also violates the oath of during the term for which he or she guilty appointed, pleads or nolo elected or Thus, pleading guilty felony office. to a is in- felony offense enough-the not contendere to a offenses must violate official volvinga violation of his or her oath Keeping oath of office. in mind that forfei competent in a state or federal court of disfavor, tures are looked on with we must shall, immediately jurisdiction, he or she strictly construe 24.1 to limit forfeiture of entry plea, forfeit said upon the of said *4 by benefits of the office to offenses that their Any or employment. office or such officer very a nature constitute violation of the oath of, plead- employeeupon final conviction or of office. felony in guilty or to a ing nolo contendere public T 11 The oath of office officers is juris- competent or of a state federal court XV, 1,§ found at Art. Oklahoma Constitu- employ- office diction shall vacate such or tion: felony ment and such or other if offense violates his oath shall all of office forfeit required "§ 1. Officers to take oath or employment, said or in- of benefits affirmation-Form. to, cluding, limited retirement ben- but not officers, public entering upon All before provided by (emphasis ..." add- law efits ed). offices, the duties of their shall take and following subscribe to the oath or affirma- 24.1 is a forfeiture stat Section tion: strictly ute and as such must be construed. Walters, Hendrick v. 1998 OK 865 P.2d (or , solemnly do swear af n rm) that I w n l 1282. This Court must be mindful of Okla support, obey and de- strong statutory policy, homa's as well as fend the Constitution of the United States law, surviving that of the common which and the of Constitution State Okla- private- public-law both forfei disfavors homa, not, knowingly, and that I will re- Walters, tures. Hendrick v. ceive, directly indirectly, any money or or 865 P.2d 1288-89. Forfeiture will not thing, performance other valuable for the except required by be decreed when clear nonperformance any duty per- or of act or language Pirkey v. contained the statute. office, taining my to other than the com- (Okla.1958). State, 327 P.2d 466-67 law; pensation I allowed further swear Courts abhor forfeitures will not force (or affirm) faithfully discharge that I will upon a forfeiture statute a construction which my my .......... of duties as to the best reading provisions amounts to a into the law ability." legislature. not inserted therein Id. oath, By this the officeholder swears a Courts will neither search for construction support, obey to and defend the constitutions forfeiture, bring adopt that will about a nor a of the United States and the State Okla- effect, meaning produce which would that homa. that he or The officcholder swears language unless the of the statute or consti receive, knowingly directly she will not or provision consideration-giv tutional under any money thing indirectly, or other valuable ing respect purpose and to extant due its performance nonperformance for the cireumstances-clearly leg demonstrates the any duty pertaining to the office. The act or place. islature intended that a forfeiture take discharge Walters, faithfully officcholder swears at Hendrick v. 865 P.2d 1288-39. ability. "duty" Thus, duties to the best of his The where there is doubt whether a or "duties" in the oath refer to the duties applies, the be forfeiture statute doubt must See, immediately against pertaining to the office. It is resolved forfeiture. State v. Gas, apparent Stipe pled Prairie & 167 P. that the crimes to Oil Okla. (Okla.1917). guilty in the district court for the District of and the Constitution of the a violation America facially constitute do not Columbia plea agreement Oklahoma; Stipe's oath of office. State of parties provision a even contains conduct, set as
agree that
the defendant's
Plea and Infor-
Basis for
forth in the Factual
115 The Board erred as matter
mation,
to or arise from his
not relate
did
applicable
finding
had two
law
or state senator
public
official
duties as
office; i.e.,
loyalty oath was
oaths of
that the
erimes to which
from Oklahoma.
constitutional oath and
cumulative with the
conspiracy to
one count of
pled guilty were:
determining
whether
would be considered
Act,
Campaign
Federal Election
violate
In
violated his "oaths" of office.
Stipe had
misdemeanor;
Conspiracy to
one count of
(Okla.
Walters,
1) Stipe's law that offenses loyalty ing oath and the constitutional as a matter of cumulatively Stipe's of office. The Board's are considered violated his oath
oath Support 51 in of Law" purposes "Findings of office for 0.8. Conclusions oath 24.1;2 § the Board's conclusion was based reveal that conjecture on and inferences based on 2) Stipe which re- the criminal conduct of upon rather than status as a state senator guilty pleas in constitutes a sulted his evidentiary findings Board's matter. oaths, causing him to violation of his were: major portion of his retirement forfeit 24.1; § benefit under 51 0.8. a) legislator Stipe As a senior state used 3) gained and influence from his action does not constitute dis- conspiracy involv- position it to mastermind a
parate treatment nor does violate $250,000 ing illegal campaign almost protection rights under Stipe's equal donors, of the United States of thirty-nine the Constitution straw contributions "As a state 2. of Law No. 1 was: § 1, Conclusion eff. Nov. 3. Laws c. official, Stipe required to execute elected oaths, which are cumulative- and file at least two ly purposes oath of office for of 51 considered his § 24.1." 0.8. ing real estate in violation of Art. each of whom violated the law on
behalf; not, facto, ipso Constitution did state). b) work an escheat to the Stipe engaged in an elaborate scheme activities, illegal lying cover his re- 118 The Board disregarded likewise deci involvement, peatedly about his all while sions of this Court which hold that the con serving as a lawmaker and officer of the causally duct must be related to the duties of State of Oklahoma-under Ethics Comm. See, the office for apply. forfeiture to Keating, Stipe was a state officer 24 example, Ferrell, State ex rel. Porter v. week; day, days hours P.2d 576 in which the Court assumed without c) Stipe's clearly loyal- actions discussion that Porter's convictions for 36 violated oath; ty felony filing counts of false travel claims and d) Stipe's actions were a violation pleas of his his of nolo felony contendere to 11 counts of embezzlement of state funds and constitutional oath in that he swore to faithfully senator; discharge his duties as a public destruction of records made him sub laws, violating conduct in ject election whether to forfeiture of benefits under 51 O.S8. federal, also, state or demonstrates indifference 24.1. See Callender v. Dist. Ct. For Dist., 20th Judicial to the repeatedly voters of Oklahoma who 625 P.2d returned him to ... In that case it was held that a commissioner violated his oath of office and 17 No testify witnesses were called to the office was forfeited when he entered a hearing. The documenta plea of nolo contendere to a misdemeanor ry evidence photocopies consists of involving official misconduct as defined loyalty constitutional oaths of office 0.8.1971 348. Callender caused a bucket signed by Stipe 2000; photo November loader transported to be and used a cor copies of the Agreement Plea and Facts Un poration in he personal had a interest. derlying Agreement Plea entered in the *6 Again, by very the offense its nature related United States District Court for the District the officeof wrong commissioner: 25, of Columbia dated March 23 and 2003 in ful county property use of personal use United States Stipe; America v. Gene of and benefit. State ex rel. Blankenship v. photocopy agency of the final order in OP- Freeman, 744, (Okla.1968) 440 P2d 754 92-9, ERS case No. In ree The Matter of proposition stands for the that before an Retirement Paul Forfeiture of Benefits of officer can be removed from office or the Taliaferro; computation a of benefits sheet by 15, office § forfeited Article 2 Oklahoma by drafted OPERS entitled "Forfeiture of Constitution, the officer must have been con Details;" Benefit "Government's Memoran in competent jurisdiction victed a court of of dum In Sentencing" 8, Aid of filed October having violated his oath of office. Where no in 2008 the district court for the District of made, such conviction had been this court Columbia.4 The documentary evidence does jurisdiction deemed itself without not establish a Stipe's violation of oath of judicial to make a determination that the pled the offenses to. OPERS failed corporation commissioners had forfeited or prima to make a facie showing Stipe's that respective vacated their by allegations offices benefits should be forfeited because the they companies owned interests in crimes to Stipe pled guilty do not they regulated.5 facially show violation of the oath of office so See, State, as to work a forfeiture. Finally, agree 119 we with the district Wolfe 270, 21 (corporation P.2d 1067 own court that arbitrarily OPERS acted and ca- 24.1(A) 4. The memorandum was § executed October requires government 5. 51 O.S. prose- 2003 and filed in the District notify Court for the Dis- system cutors to the retirement in which 3, 2003, trict of Columbia on October employee so could such officer or is enrolled the of forfei- not original have been used OPERS in its employee's ture such retirement of officer's bar, administrative decision on June only 2003 to for- In the case at the evidence is benefits. that benefits, feit and no evidence prosecutor was intro- plea agree- the federal sent the support arguments duced in of request. there- ment to p. OPERS at OPERS' Record in. 64. 126 "irrevocably than by failing own admin- intertwined" Taliaferro's.
priciously to follow its Taliaferro, a federal law In The Board determined that policy istrative violation of of the office of state fact that Taliaferro was a state senator unrelated to the duties the appear germane is not a violation of the senator's oath not to his federal senator did support crimes; of of office and would not forfeiture the present the matter Board In For- retirement benefits. ree Matter opposite. the assumed of Retirement Paul Tal- of Benefits of feiture reaching 122 the consti Without iaferro, hearing 92-9. No. equal argument, protection tutional we deter matter, Tal- 1 In the Senator Taliaferro mine, court, that as did the district (5) of federal iaferro had been convicted five long-standing violated its own administrative (4) making counts of a false felonies: four § An interpretation of 24.1. of a federal- statement to influence the action standing may interpretation long not ly insured financial institution violation cogent a rea reversed the absent making and one count of U.S.C. son-ie., compelling, forceful or conclusive action the false statement to influence the Dawson, ly convincingground. Cox v. in violation of FDIC. 18 U.S.C. also, 911 P.2d OK See Oral officer, Taliaferro was an elected state Com'n, University v. Roberts Okla. Tax senator, and was removed from office 97, 714 It OK P.2d 1018. has been twelve of the conviction. The OPERS as result years agency's interpretation since the Board in that case determined that the felo- § 24.1 in the case of Taliaferro and Senator ny per- convictions arose from Taliaferro's legislature express not acted to its has respect sonal loan transaction with to his disapproval interpretation. with that Where farming and did not violate his oath activities legislature expressed disap has not its Thus, per of office 24.1. the Board 0.8. construction, proval agency's with the concluded as matter of law that Paul Taliaf- may legislature's regarded silence be as ac eligible to erro was retain retirement quiescence agency's construction service credit with OPERS and had not for- Airlines, Inc. v. statute. United State Board. feited his retirement benefits under 51 O.S. Equalization, 1990 OK 789 P.2d § 24.1. compel 1311-12. The record does not show ling, conclusively convincing forceful or failed to The Board held grounds presented distinguish the treat proof meet to show that OP- his burden ment of case from that of Senator *7 action violates state and federal consti ERS Taliaferro. guarantees equal tutional of fair and treat crimes, ment. The Board found that "the reasons, foregoing 123 For the above and the facts and the evidence these two cases conclude, court, we as did the district that substantially are different." The Board the final order of the Board of Trus- found that there was no evidence to conclude application denying Stipe's tees of OPERS to position that Taliaferro had used his senate have his retirement benefits reinstated was gain to or favor on the federal influence erroneous as matter of law. They loans. found that "the fact that [Taliaf- ORDER OF THE DISTRICT COURT IS appear was a senator does not to be erro] AFFIRMED. germane to his criminal convictions." The however, concluded, Stipe's Board then HARGRAVE,OPALA, 244 CONCUR: public gave him "high-ranking pow WATT, COLBERT, REIF, JJ., opportunity er and to commit these crimes" LAVENDER, SUMMERS, S.JJ. "irrevocably intertwined." Stripes "high-ranking and that his office and his crimes were WINCHESTER,
25 DISSENT: C.J. public office" was the same as Taliaferro's EDMONDSON, DISQUALIFIED: and there is no evidence that used his V.C.J. favor, position gain to influence or senate KAUGER, TAYLOR, RECUSED: showing at all. There was no made JJ. Stipe's any office and his crimes were more abiding by campaign
WINCHESTER, C.J., Although federal dissenting. explicitly stated in might laws not have been to the ma- respectfully dissent 1 I must office, I would assert the Senator's oath of regarding Senator jority's conclusion election strikes at the tampering with an nature of particular federal crimes. "support, obey and defend the very heart of his coupled with calculated crimes these Constitution." to disen- served prestige as a State Senator These acts violat- his constituents. franchise democracy operates prem- on the T6 Our a breach of officeand constituted ed his oath The amount of person, of one one vote. ise as State Senator. of service injected cam- money into the Senator paign to drown out the voice of indi- served guilty to three counts: one Stipe pled T2 in favor of his own selection for vidual voters a Federal Conspiracy to Obstruct count of Campaign finance laws set contribu- office. felony; investigation, a Election Commission playing to level field tion standards felony; one perjury, also a and count of one among candidates and to ensure that the Federal conspiracy to violate count of single does not have undue influence donor Act, Ac- Campaign a misdemeanor. Election official. admission, over an elected these Stipe's own cording to conspiracy to involved an elaborate crimes poor keep- record 1 7 This is not a case of $245,189 illegal campaign contribu- funnel exceeding ing supporter or an overzealous 1998 election a candidate tions to This limit a few dollars. the contribution Congression- Third campaign Oklahoma's and effort was a calculated elaborate subversion, accomplish this To al District. years in office to de- Senator with 54 State donors, straw each of Stipe used at least 89 many of their prive of his own constituents Stipe's behalf. the law on whom violated voting rights. fundamental attempted to cover The Senator then a num- This calculated effort involved T8 by repeatedly lying to inves- illegal activities namely the 89 straw people, of other ber eventually and tigators about his involvement candidate and congressional and the donors events oc- committing perjury. All these admission, was, by his own orchestrated during Stipe's as a State Sena- tenure curred stated, Attorney "Stipe Stipe. As the U.S. tor. reputation" and his enormous influence used on the as- majority opinion relies T3 The authority power and position "his and did not violate sumption that actions people who looked manipulate the conduct of Senator, Stipe swore office. As a his oath of posi- leadership." prestigious to him for obey, and the Constitu- "support, defend years for 54 imbued tion of State Senator States, and the Constitu- tion of the United influence powerful and forceful Stipe with a He swore the State of Oklahoma." tion of individuals to commit compelled 39 other repre- twice as a state signed this oath influence conspiracy. This a state senator. and seven times as sentative holding the office of directly from stemmed are the founda- T4 Free and fair elections overlooked. and cannot be State Senator *8 democracy. The Declaration of tion of our accepted Stipe had Clearly, if Senator T9 Independence established contributions, financed rather than illegal comes from the consent government them, question that he would be no there expanded are governed. These foundations I assert that the his oath of office. violated Ar- upon in the United States Constitution. fundamental to our process is so election congres- I, directly relates ticle Section illegal actions system government Representa- House of elections: "The sional in themselves violations it are to subvert chosen composed of members tives shall be office. the oath of year by people of the sever- every second 4 elaborates on al Section states...." times, places and process: "The
election holding elections for Senators
manner of prescribed each
Representatives, shall be ..." legislature thereof.