District attorney wins lawsuit against Oklahoma over National Guard service

By RHETT MORGAN | Tulsa World, Okla. | Published: February 15, 2013

TULSA, Okla. — An area prosecutor who was called to active duty in Afghanistan has prevailed in a lawsuit against the state, which had claimed that he vacated his position when he mobilized for military service.

Rex Duncan, the 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, Oklahoma County Special District Judge Donald Easter ruled in a judgment filed Thursday.

Duncan said he felt vindicated.

"You expect judges to follow the law," he said. "I'm not surprised at the outcome, but I'm grateful anyway that Judge Easter ruled the way he did."

A colonel in the Oklahoma Army National Guard, Duncan, 51, 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.

"This pays dividends and benefits not only to current elected officials," Duncan said. "But it removes a deterrent to other Guardsman and reservists who might be interested in seeking public office.

"Had this opinion held, if you answered the call of duty, you would lose your job," he said. "That should never be the case. ... Now there's case law in Oklahoma that (the federal law) means what it says."


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