State ex rel. Trimble v. City of Moore
| Decision Date | 01 October 1991 |
| Docket Number | 71422,Nos. 71423,s. 71423 |
| Parties | , 1991 OK 98 STATE of Oklahoma, ex rel. William J. TRIMBLE, Plaintiff-Appellant, v. The CITY OF MOORE, Oklahoma, a municipal corporation, Defendant, and Louis Kindrick, Dudley Freeman, Don Black, Willie Edwards, Robert W. Swanagon, Odell Morgan and Charles Thompson, Defendants-Appellees. STATE of Oklahoma, ex rel. William J. TRIMBLE, Plaintiff-Appellant, v. The CITY OF MOORE, Oklahoma, a municipal corporation, and Louis Kindrick, Defendants-Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court, Cleveland County; Preston Trimble, Judge.
In two taxpayer qui tam actions against city officials to recover treble damages for allegedly unlawful expenditures of public funds, judgment went to the defendants. In case No. 71,423 the trial court gave summary judgment to the city manager and city council members, dismissed the claim against two city personnel board members and gave a so-called "consent judgment" for the city. In case No. 71,422 the trial court rendered judgment for the city and mayor. The taxpayer brings an appeal in both cases, which are consolidated for disposition by a single opinion.
THE TRIAL COURT'S DISMISSAL AND ITS SUMMARY JUDGMENT IN NO. 71,423 AS WELL AS ITS JUDGMENT IN NO. 71,422 ARE AFFIRMED.
William A. "Bill" Pipkin, Moore, for appellant Trimble in Nos. 71,422 & 71,423.
Margaret McMorrow-Love, Greg A. Castro, Fellers, Snider, Blankenship, Bailey & Tippens, Lee Slater, Oklahoma City, and David A. Poarch, Norman, for appellees Morgan and Thompson in No. 71,423.
Margaret McMorrow-Love, Greg A. Castro, Fellers, Snider, Blankenship, Bailey & Tippens, Charles J. Watts, Looney, Nichols, Johnson & Hayes, John W. Coyle III, William B. Federman, Day, Hewitt & Timmons, Oklahoma City, Rebecca J. Patten, Patten & Patten, Norman, and Thaddeus Freeman, Arlington, for appellees Kindrick, Freeman, Black, Edwards and Swanagon in No. 71,423.
Margaret McMorrow-Love, Eric S. Eissenstat, Greg A. Castro, Fellers, Snider Blankenship, Bailey & Tippens, and John W. Coyle III, Oklahoma City, for appellee Kindrick in No. 71,422.
Jim T. Priest, Edward D. Hasbrook, McKinney, Stringer & Webster, P.C., Oklahoma City, for appellee City of Moore in No. 71,422.
The dispositive issue in these two taxpayer qui tam 1 actions is whether city officials violated the law in disbursing the funds in question. In No. 71,423 the questions tendered are: Did the plaintiff timely bring an appeal from the dismissal of the qui tam action as to two defendants (city personnel board members)? Should this appeal be dismissed because a so-called "consent judgment" was rendered for the City? and Was summary judgment correctly given to the remaining defendants? We answer the first and second questions in the negative and the third in the affirmative.
In No. 71,422 the question tendered is whether a municipality was authorized to pay the mayor's and his dependents' health insurance premiums absent a charter provision authorizing such payment? We answer this question in the affirmative.
The Taxpayer's appeals in both cases stand consolidated for disposition by a single opinion.
THE ANATOMY OF LITIGATION
Cause No. 71,423--Taxpayer's Qui Tam Action Against Certain Members of the Moore City Council, Two City Personnel Board Members and City Manager for the Recovery of Allegedly Unlawful Expenditure of Public Funds for the City Manager's Back Salary and Attorney's Fees.
The Moore City Council [Council] terminated the employment of Robert W. Swanagon [Swanagon or City Manager] who had contracted to serve as manager of both the City of Moore [City] and the Moore Public Works Authority [MPWA]. 2
Following his dismissal, the City Manager filed a wrongful termination action against individual Council members, the City and the MPWA. 3 He also appealed to the Moore Personnel Board [Personnel Board], alleging that his termination was wrongful. The Council challenged the Personnel Board's jurisdiction to hear the appeal, filed objections and requested board members Odell Morgan [Morgan] and Charles Thompson [Thompson] to disqualify for bias. The district court denied the City's request for injunctive relief to prevent the Personnel Board from hearing Swanagon's appeal. 4 The Personnel Board overruled the City's objections, denied the disqualification request and made its "findings and orders," which directed that Swanagon be (a) reinstated to the office of City Manager and Manager of the MPWA with back salary and benefits and (b) reimbursed for all costs associated with his defense and appeal of wrongful termination from those offices. The City appealed to the district court, 5 but before that court reached a decision, the Council reinstated Swanagon and approved the payment of his back salary and legal fees. 6 All these expenses were paid from MPWA funds. The appeal was then dismissed at the City's direction.
After the public funds were expended, William J. Trimble, appellant herein [Taxpayer], and nine other resident taxpayers of the City filed with the Council and trustees of the MPWA a written demand for repayment of these allegedly illegal expenditures and, if these funds are not repaid, that an action be brought for their recovery. Council members, who also serve as MPWA trustees, acknowledged receipt of the demand but refused to comply with it.
The Taxpayer filed this qui tam action pursuant to the provisions of 62 O.S.Supp.1982 § 372 and 62 O.S.1981 § 373, 7 haling into court as defendants four Council members (Dudley Freeman, Don Black, Willie Edwards and Louis Kindrick) and two Personnel Board members (Morgan and Thompson) for allegedly authorizing the illegal and unlawful payment of public funds, and also the City Manager who received and benefited from the payments. As required by statute, the City was made a defendant. 8
The two Personnel Board members sought dismissal of the qui tam action on the ground that their authority extends only to officers and employees of the City and not to MPWA officers. They asserted the Personnel Board acts in an advisory capacity vis-a-vis the Council and only makes recommendations. 9 They argued that the Personnel Board lacks authority either to (a) approve the payment of any City or MPWA claim 10 or (b) order payment of Swanagon's back pay or his counsel fees. The Taxpayer responded that although the Charter allows only a "classified" officer to have a board hearing, the Personnel Board conducted a hearing for the City Manager, an "unclassified" city official. He asserted that the Board's "findings and orders" directing reinstatement of Swanagon and payment of these claims was sufficient to bring the two Board members within the purview of § 372 and subject them to qui tam liability.
The trial court dismissed the claim against Morgan and Thompson, gave summary judgment to the City Manager and four Council members and approved a so-called "consent judgment" for the City. The Taxpayer brings this appeal from the first two dispositions.
This controversy centers on the City of Moore's [City] payment of health insurance benefits for the City Mayor, Louis Kindrick [Kindrick or Mayor], and his dependents. The Council had approved the payment of the Mayor's health insurance benefits. The Mayor reimbursed the City for one-half of the premiums paid for his dependents.
The appellant [Taxpayer] 11 and nine other resident taxpayers of the City filed with the Council a written demand that it recover from the Mayor the allegedly unlawful expenditure of City funds for his health insurance premiums. 12 They also demanded that, if the money is not repaid, the City bring an action for its recovery.
After the Council and the Mayor failed to meet these demands, the Taxpayer brought a qui tam action under §§ 372 and 373 13 against the Mayor and the City. He sought treble damages for the allegedly unlawful use of city funds to pay the health insurance benefits.
The parties filed a stipulation of facts 14 and waived a trial by jury. 15 Based upon the parties' stipulations, briefs, arguments of counsel and one witness' testimony, the court rendered judgment for the Mayor and the City.
A qui tam action is one brought under a statute that establishes a penalty for the commission or omission of a certain act and provides that the penalty shall be recoverable in a civil action, with part of it going to the one bringing the action and the rest to the state or a public body. 16
Resident taxpayers of a city may, in the name of the State of Oklahoma as plaintiff, bring a qui tam action under §§ 372 and 373 17 to recover city money that was paid out illegally or without authority. These statutes transform a private citizen and taxpayer into a representative of the state for the purpose of protecting the city's property rights. Taxpayers may assume this role only after certain preliminary requirements have been met. They must first demand in writing that the city officers institute proceedings to recover the money. The right of action accrues to the taxpayers when the city officers either neglect or fail to act upon the demand. The city must be made a party defendant in order to have its rights considered and be bound by the judgment entered. A qui tam remedy allows the plaintiff to recover public funds with treble damages. One-half of all the money collected is to be paid to the taxpayer as a reward.
THE TAXPAYER'S CLAIM IN APPEAL NO. 71,423
The Personnel Board members contend that this appeal should be dismissed for untimeliness. The claim against the Personnel Board members was dismissed on June 13, 1988. Summary judgment was...
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