Attorney general won't appeal ruling in DA's National Guard deployment case

By RHETT MORGAN | Tulsa World, Okla. | Published: February 19, 2013

The 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, the district attorney for 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 that he 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, First Assistant Attorney General Tom Bates wrote that the Attorney General's Office stands by its opinion but that "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 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 a 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, his lawsuit states.

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.

Rhett Morgan 918-581-8395 / rhett.morgan@tulsaworld.com


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