AG doesn't plan to appeal ruling in Oklahoma DA's case for military-leave pay

By RHETT MORGAN | Tulsa World, Okla. | Published: February 18, 2013

TULSA, Okla. — The state Attorney General’s Office doesn't plan to appeal a judge’s ruling that an area prosecutor is entitled to about $7,000 in military-leave pay while he was on active duty, documents show.

In a judgment filed Thursday, Oklahoma County Special Judge Donald Easter ruled that Rex Duncan, district attorney of Osage and Pawnee counties, is entitled to $7,072.77 in leave-of-absence pay and allowed to accrue retirement benefits during that leave.

Duncan, 51, had filed a lawsuit against the state, which had claimed he had vacated his position when he mobilized for military service with the Oklahoma Army National Guard.

In a letter dated Friday to Suzanne McClain Atwood of the Oklahoma District Attorneys Council, Tom Bates, First Assistant Attorney General, wrote that AG’s office stands by its opinion, though “given the amount involved and in the interest of justice,” it recommends no appeal.

A colonel in the Oklahoma Army National Guard, Duncan was mobilized with the 45th Infantry Brigade Combat Team in early 2011 for deployment to Afghanistan, shortly after he was sworn in as the district attorney for District 10. He served in Afghanistan through April 2012.

In March 2011, Duncan asked for an opinion from state Attorney General Scott Pruitt regarding Duncan’s 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, 2011, stated that Duncan vacated his elected position when he went on active duty as a commissioned officer. The Oklahoma Constitution prevents an elected official from holding two offices at the same time, 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.

Duncan’s lawsuit, filed in July, 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.

First Assistant District Attorney Mike Fisher acted as the district attorney while Duncan was on active duty.

In his judgment, Easter wrote that the federal law pre-empts Oklahoma statutory and constitutional laws.

“It is an unpleasant prospect to deny any one of our honorable men or women in the armed forces any benefit,” Bates wrote in his letter to the District Attorneys Council. “...At some point, either our Supreme Court or the Legislature will need to address the issues presented in this situation.

“General Pruitt absolutely supports our troops and would be more than happy to work with the Legislature to modify the laws (or constitution) if it is the will of the people that the current law in Oklahoma should be changed.”


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