Leftwich v. State

• Decision Date: 22 May 2015
• Docket Number: No. F–2013–1156.,F–2013–1156.
• Citation: 350 P.3d 149,2015 OK CR 5
• Parties: Deborah Ann LEFTWICH, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

350 P.3d 149

2015 OK CR 5

Deborah Ann LEFTWICH, Appellant

v.The STATE of Oklahoma, Appellee.

No. F–2013–1156.

Court of Criminal Appeals of Oklahoma.

May 22, 2015.

Robert G. McCampbell, Travis V. Jett, Fellers Snider, Oklahoma City, OK, counsel for defendant/appellant at trial and appeal.

Gayland Gieger, Jimmy Harmon, Assistant District Attorneys, Oklahoma County District Attorney's Office, Oklahoma City, OK, counsel for State at trial.

E. Scott Pruitt, Attorney General of Oklahoma, Jennifer B. Welch, Assistant Attorney General, Oklahoma City, OK, counsel for appellee on appeal.

OPINION

SMITH, Presiding Judge.

¶ 1 Deborah Ann Leftwich was tried by bench trial and convicted of Count II, Soliciting and/or Accepting a Bribe from Another for Withdrawal of Candidacy in violation of 26 O.S.2001, § 16–108, in the District Court of Oklahoma County, Case No. CF–2010–8067.¹ The Honorable Cindy H. Truong sentenced Leftwich to one (1) year imprisonment, suspended, with the provision that she is prohibited from running for office in the State of Oklahoma or seeking employment with the State. Leftwich waived for appeal all issues except the legal issues surrounding the terms “candidate” and “withdraw”. Leftwich appeals from this conviction and sentence, and raises three propositions of error in support of her appeal.

¶ 2 Leftwich, a Democrat, represented Senate District 44 in the Oklahoma State Senate, serving a term which ended in November 2010. After her election in 2006, Leftwich filed a statement of candidacy for the 2010 election cycle with the Ethics Commission and created a candidate committee for her reelection to her Senate seat. From 2007 through 2010, Leftwich solicited contributions for and made expenditures from her campaign fund for her reelection campaign; over the course of that time she raised about $110,000.00. As late as April 2010, she authorized and attended a fundraiser for her campaign. However, on May 28, 2010, the last day of the legislative session, Leftwich issued a press release announcing that she would not run for reelection in 2010. This prosecution is the consequence of the actions which preceded that announcement. Both defendants below argued that their actions were part of the normal, messy legislative process. After a thorough review of the record, we agree with the preliminary hearing magistrate that “when the evidence is looked at as a whole in this matter in its entirety, it is clear this exceeds business as usual.”

¶ 3 Before her election to the Senate, Leftwich worked for several years in an administrative capacity for the state Medical Examiner's office. Under the retirement plan for state workers, one's average annual salary, on which retirement benefits are based, is calculated by using the highest three years' salary of the last ten years the employee worked for the State. Retirement benefits are for a lifetime. Leftwich made approximately $38,000.00 per year as a state Senator. Anyone interested in calculating potential retirement benefits may contact an employee of the Oklahoma Public Employees Retirement System (OPERS), or may use an online calculator available on the OPERS website. For this trial, Rebecca Catlett of OPERS was asked to calculate Leftwich's potential retirement benefits in three different circumstances. Leftwich's actual retirement benefits, based on her decision not to run for reelection in 2010, were $1,920.00 per month. Had she run for reelection in 2010, won, and served another four years in the Senate, her retirement benefits would have been $2,240.00 per month. Had she retired from the Senate in 2010 and taken a position with the State for three years at a salary of $80,000.00 per year, her retirement benefits would have been $3600.00 a month. The last option represents an 87.5% increase over her regular retirement sum, and a 60.7% increase over the benefits from serving another term in Senate.

¶ 4 By 2010, the Medical Examiner's office was in serious disarray. It had lost accreditation, had outgrown its outmoded facility, and had lost several agency heads and employees in a short amount of time. Governor Henry had commissioned a report on the office, known as the Cline Report; the legislature had also studied the agency. Senate Bill 738, which proposed reforms for the office, was introduced in 2009. Fixing the Medical Examiner's office was a priority, and SB 738 was a leadership bill, meaning that it was sponsored by the President Pro Tem of the Senate and the Speaker of the House. The bill did not pass in 2009 and was reintroduced in 2010. Senator Anthony Sykes handled the bill for the Pro Tem in the Senate, and Representative Randall Terrill handled it for the Speaker of the House. As initially introduced in 2010, SB 738 changed the characteristics of the Board governing the Medical Examiner's office, made other administrative changes, and provided that the office should move to a newly constructed building in Edmond, near the University of Central Oklahoma campus and its forensic facilities. The bill did not include a Transition Coordinator position at that time, and that position was not a priority for either Senate President Pro Tem Glenn Coffee or House Speaker Chris Benge.

¶ 5 In late March or mid-April 2010, Leftwich told her friend Tom Jordan, Chief Administrative Officer for the Medical Examiner, that she would not run for reelection and wanted to come back to the Medical Examiner's office. She said that this was not public knowledge, and told Jordan that State Representative Mike Christian might run for her Senate seat. In March of 2010, Leftwich went to see Senate Pro Tem Coffee and told him she was considering not running for reelection; she did not mention returning to the Medical Examiner's office. On April 19, Leftwich told Senator Patrick Anderson, a Republican, that she was working on a deal with his leadership to go back to work for the Medical Examiner, but that she could not talk about it. Around May 1st Leftwich told Senator Charlie Laster, minority leader of the Senate Democrats, that she was not going to run; he was shocked because she was at that time raising money and, in his opinion, running for reelection. Laster asked Leftwich not to make a public announcement until he had time to recruit a candidate to run in her place. Leftwich did not tell him she had already talked to the Republican leadership. Polling showed that, while Leftwich was popular in her district, if she did not run the seat would probably go to a Republican candidate. At the time, the political balance of the Senate was very close and the Republican majority hoped to add Leftwich's Senate district.

¶ 6 Representative Terrill was subcommittee chair of the Appropriations and Budget Committee for Public Safety and the Judiciary. In this position he had authority over the budget of several state agencies, including the Oklahoma Bureau of Narcotics (OBN) and the Medical Examiner. Terrill was involved from the outset in the plan for Leftwich to leave the Senate and return to the Medical Examiner's office. Terrill originated the Transition Coordinator position; Tom Jordan did not ask for the position, but did not oppose it in principle. In late March or early April 2010, Terrill told Chad Alexander, a political consultant and lobbyist, that Leftwich might be returning to the Medical Examiner's office. On May 17, 2010, Terrill met with Jordan and Cherokee Ballard, an executive administrator and legislative liaison with the Medical Examiner's office. Before their conversation began, Terrill closed the door to his office suite and said, “This is dead man's talk.” Terrill told Jordan and Ballard (a) that Jordan, as Chief Administrative Officer, would need to offer the Transition Coordinator position by July of that year, (b) the position needed to be filled the following January, and (c) that it would be a three-year position. Terrill told the two that Leftwich was ideally suited for the job. Leftwich was the only person Terrill mentioned in connection with the position. Terrill asked what Ballard's salary was, asked what Jordan's salary was, said they would “put Debbe in between”, and settled on a salary of $80,000.00 per year. After that meeting, Ballard and Jordan agreed that the conversation didn't pass the smell test; they felt Jordan was being told to hire Leftwich for the Transition Coordinator position at $80,000.00 a year for three years, beginning the following January, without considering any other person for the job. While Jordan did not intend to offer the position to Leftwich, he allowed Terrill and Leftwich to think otherwise. After May 17, in discussions with Jordan, Leftwich routinely talked as if she would be returning to the Medical Examiner's office.

¶ 7 On May 19, Terrill met with Senator Anthony Sykes and Jennifer Lepard, a Senate staffer responsible for drafting the language of the conference committee version of SB 738. Terrill, reading from his own notes, gave Lepard the specific language for the amendment to SB 738 creating the Transition Coordinator position. This was the first time Lepard had heard of the position. The provisions Terrill dictated included a three-year fixed term with an $80,000.00 yearly salary, terminated only for cause, hired by the Chief Administrator but reporting to the Medical Examiner Board as well as the legislative and executive branches, an offer to be made by July 1, 2010, with the position to begin January 1, 2011. Several witnesses, including Lepard, testified it was highly unusual for a statute to include such specific employment details describing a lower-level agency position. Lepard and other witnesses also testified it was unusual for a Representative to dictate language to a Senate staffer to be inserted in a Senate bill. After this conversation, Leftwich joined the meeting and they discussed the general provisions of SB 738, but not the Transition Coordinator position.

¶ 8 State law prohibits legislators from taking a...