Judge rules that area DA did not vacate position while serving in Afghanistan
BY RHETT MORGAN World Staff Writer
Thursday, February 14, 2013
2/14/13 at 4:45 PM
An area district attorney called to active military duty in Afghanistan has prevailed in a lawsuit against the state, which had claimed the prosecutor had vacated his position when mobilized for service.
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, Oklahoma County Special District Judge Donald Easter ruled in an judgment filed Thursday.
Duncan, 51, said he felt vindicated.
“You expect judges to follow the law,” the prosecutor said in a telephone interview. “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 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, which covers Osage and Pawnee counties. 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 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.
Duncan’s lawsuit, filed in July, claims that Duncan is classified as an employee under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) 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 DA while Duncan was on active duty.
In his judgment, Easter wrote that USERRA preempts Oklahoma statutory and constitutional laws, adding that the state failed to pay Duncan his leave of absence pay while he was in Afghanistan.
“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. That should never be the case.... Now there’s case law in Oklahoma that USERRA means what it says.”
Associated Images:
Rex Duncan
|
