DA suing Oklahoma after seat declared vacated while he was on active duty
TULSA, Okla. — Osage and Pawnee counties District Attorney Rex Duncan filed a lawsuit against the state of Oklahoma alleging the state violated federal law by declaring his seat as district attorney vacated when he was called up for active duty with the Oklahoma Army National Guard last year.
The lawsuit, filed in Oklahoma County District Court on July 27, claims that Duncan is classified as an employee under the federal Uniformed Services Employment and Reemployment Rights Act of 1994. Under that federal law, Duncan was entitled to be paid for at least a portion of his leave of absence and entitled to accrue retirement benefits while on active duty, the suit claims.
"I'm asking to be treated the same as any other" state employee, Duncan said Wednesday.
Duncan, a colonel in the Oklahoma Army National Guard, was mobilized with the 45th Infantry Brigade Combat Team in early 2011 for deployment last year to Afghanistan, shortly after he was sworn in as the district attorney for District 10, which covers Osage and Pawnee counties.
In March, Duncan asked for an opinion from state Attorney General Scott Pruitt regarding his compliance with state and federal law related to being an elected official while on active duty, and who would perform his duties while Duncan was deployed.
Pruitt's opinion, issued Sept. 27, stated that Duncan vacated his elected position when he went into active duty as a commissioned officer. The Oklahoma Constitution prevents an elected official from holding two offices at the same time, and when Duncan was activated in the Oklahoma National Guard, he vacated his position as district attorney, according to Pruitt's opinion.
The opinion also cited Oklahoma case law from 1944 in Wimberly v. Deacon, which involved a University of Oklahoma regent and military reserve officer who was called to active duty in 1942. The state supreme court found that the regent, C.O. Hunt, vacated his position as regent when he went on active duty.
A proposed ballot question that would have amended the Oklahoma Constitution did not make it out of the legislature last session.
Duncan argues that the federal USERRA law trumps state law.
"It was not the opinion that we expected," Duncan said Wednesday. "We expected him to acknowledge the federal law."
First Assistant District Attorney Mike Fisher acted as DA while Duncan was on active duty.
Duncan was reinstated as district attorney in May and he said he credits Gov. Mary Fallin's office for assuring his position would be available for him upon his return.
"I didn't have to worry about whether I would get my job back," Duncan said. "But perhaps some other governor wouldn't have reappointed me? The consequence of attorney general's opinion could have more adverse effects."
Duncan is seeking in a civil judgment for his leave pay, a declaration that he is entitled to accrue retirement benefits while he was on active duty, damages, fees and "an order that State not violate the provisions of USERRA."
Duncan said the main issue for him in filing the suit wasn't the money — he said he is seeking 15 days of back pay — or the 13 months of credit toward retirement he has lost, but the fact that the state violated prominent law designed to guard and reserve members called who are called to active duty.
"The holy grail on the lawsuit is a court rule that USERRA applies to all state employees the same," Duncan said.
The state had not filed a response to the petition as of Wednesday. Diane Clay, spokeswoman for the Attorney General's Office, said the office would represent the state in the civil case. She declined to comment Wednesday, citing the pending litigation.