Thompson v. State

• Decision Date: 25 October 2011
• Docket Number: Nos. 107,661,107,662.,s. 107,661
• Citation: 264 P.3d 1251,2011 OK 89,113 Fair Empl.Prac.Cas. (BNA) 1223
• Parties: Donald D. THOMPSON, and Paula R. Thompson, Petitioners/Appellants,v.STATE of Oklahoma, ex rel., BOARD OF TRUSTEES OF the OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM and The Oklahoma Employees Retirement System, Respondents/Appellees.
• Court: Oklahoma Supreme Court

264 P.3d 1251

113 Fair Empl.Prac.Cas. (BNA) 1223

2011 OK 89

Donald D. THOMPSON, and Paula R. Thompson, Petitioners/Appellants,

v.STATE of Oklahoma, ex rel., BOARD OF TRUSTEES OF the OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM and The Oklahoma Employees Retirement System, Respondents/Appellees.

Nos. 107,661

107,662.

Supreme Court of Oklahoma.

Oct. 25, 2011.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY; THE HONORABLE PATRICIA G. PARRISH, DISTRICT JUDGE¶ 0 The petitioners/appellants, Donald D. Thompson and Paula R. Thompson, appeal the decision of the District Court of Oklahoma County, which affirmed an administrative decision from the Board of Trustees of the Oklahoma Public Employees Retirement System, respondents/appellees. After a hearing, the district court determined that Mr. Thompson's state retirement benefits must be forfeited after he was convicted of felonies that violated his oath of office as a district court judge. The district court determined that Mrs. Thompson, Mr. Thompson's wife, did not have standing in the individual administrative proceedings and was not a proper party therein.AFFIRMED.Clark O. Brewster, Robert Nigh, Jr., Marvin G. Lizama, Brewster & De Angelis, P.L.L.C., Tulsa, Oklahoma; Joe E. White, Jr., Charles Weddle, White & Weddle, P.C., Oklahoma City, Oklahoma, for appellants.Marc Edwards, Catherine L. Campbell, Phillips Murrah P.C., Oklahoma City, Oklahoma; Joseph A. Fox, General Counsel Oklahoma Public Employees Retirement System, Oklahoma City, Oklahoma, for appellees.WINCHESTER, J.

¶ 1 Donald D. Thompson, petitioner/appellant, appeals the forfeiture of his judicial retirement benefits ordered by the Oklahoma Public Employees Retirement System Board of Trustees¹ and affirmed by the District Court of Oklahoma County. This Court retained the matter for review.

I. FACTS AND PROCEDURE

¶ 2 On August 18, 2004, Mr. Thompson submitted his Declaration of Intent to Retire, which was approved August 31, 2004. He began receiving his pension benefits. On January 20, 2005, the State of Oklahoma filed charges against him for Indecent Exposure. The trial ended on June 29, 2006, with a guilty verdict returned by the jury on all four counts.² The charges on which he was convicted occurred while Mr. Thompson was on the bench presiding over contested hearings and jury trials. Court personnel present during those trials testified they saw Mr. Thompson expose himself.

¶ 3 The prosecuting attorney in the criminal case that resulted in Mr. Thompson's felony convictions notified the Oklahoma Public Employees Retirement System (OPERS) by letter of the felonies. On September 12, 2006, OPERS notified Mr. Thompson in writing that as a result of his conviction his judicial retirement pension benefits must be forfeited. Mr. Thompson requested an administrative hearing to contest the forfeiture. Ultimately, the OPERS Board of Trustees adopted the recommendation of a hearing examiner and on February 19, 2009, entered a final agency order sustaining the forfeiture of Mr. Thompson's retirement benefits.

¶ 4 In the Board's Findings of Fact, it determined that Mr. Thompson had served as a State Representative from November 20, 1974, through November 19, 1980, with six years of participating service in OPERS. These benefits are not in dispute.³ Mr. Thompson was appointed as District Judge in and for Creek County, Oklahoma, in February of 1982. In 1986, 1990, 1994, 1998 and 2002 he remained in office by election. He had 23 years of participating service in the Uniform Retirement System for Justices and Judges, February 12, 1982, through August 18, 2004. He retired before the expiration of his last term and began to receive his benefits in September of 2004. His gross monthly benefit at the time of his retirement was $7,489.91, and with a cost of living adjustment, his income increased to $7,789.51, effective July 1, 2006. Mr. Thompson's own contributions to URSJJ were not subject to forfeiture.

II. BURDEN OF PROOF

¶ 5 Mr. Thompson asserts that OPERS violated the Oklahoma Administrative Procedures Act when it forced him to forfeit his retirement benefits without proper notice as required by 75 O.S.2001, § 309, nor did he receive an individual proceeding providing him an opportunity to proffer evidence and present witnesses on his behalf as required by 75 O.S.2001, § 310. He further states OPERS' decision on September 12, 2006, to refuse further payment of his retirement benefits was premature, without any supporting evidence, and solely the result of hearsay, conjecture and innuendo.

¶ 6 The facts reveal that Tom Spencer, the Executive Director of OPERS made the decision to require forfeiture of Mr. Thompson's retirement benefits, and informed him by letter of that action. Mr. Spencer included that if Mr. Thompson was aggrieved by the decision, he had the right to an administrative hearing before the Board of Trustees pursuant to the Administrative Procedures Act, and that the hearing was his exclusive remedy and must be requested in writing within thirty days of the receipt of the letter. This letter was not a final determination of the forfeiture, but served in a similar manner as a notice to show cause.

¶ 7 A show-cause order is not a binding opinion on the merits in an issue before a court, it is merely the means prescribed by law, in the nature of process, for bringing the party into court to answer certain demands. ⁴ It does not shift the burden of proof, but is merely a method of summary procedure, like a summons.⁵ A party to a lawsuit may shift the burden of going forward by producing some evidence and the opposing party may introduce evidence to explain the contested matters. ⁶

¶ 8 The transcript of Mr. Spencer's testimony reveals he decided to notify Mr. Thompson of the forfeiture after examining the judgment and sentence sent by the district attorney. The district attorney's accompanying letter to Mr. Spencer concluded that the crimes for which Mr. Thompson was convicted occurred while he was presiding as judge over a trial. Mr. Thompson requested a hearing. At that hearing the hearing examiner placed the burden of going forward with the evidence on Mr. Thompson, so he presented his evidence after the hearing examiner already had before him the full record of Mr. Thompson's final felony convictions.

¶ 9 When Mr. Thompson challenged this procedure of providing notice of forfeiture on appeal, OPERS answered that it must act within the parameters of 51 O.S.2001, § 24.1(A),⁷ which provides in pertinent part that the attorney responsible for prosecuting the elected state officer shall notify the retirement system in which such officer is enrolled of the forfeiture of such officer's retirement benefits. The wording of the statute appears to place the responsibility on the prosecuting attorney to determine whether there is cause to believe the felony offense violated the officer's oath of office and to notify the retirement system that the officer must forfeit retirement benefits. Pursuant to this statute, the action of informing the state officer that the benefits must be forfeited is merely a perfunctory act of OPERS following its notification by the prosecuting attorney. The prosecuting attorney has identified the offense and made the preliminary conclusion that the officer violated the oath of office.

¶ 10 After the prosecutor's initial conclusion that forfeiture is indicated and OPERS relays that conclusion to the state officer who is accused of violating the oath of office, that officer is entitled to an individual proceeding, but may still choose not to contest the accusation. If the officer chooses to contest the accusation, an individual proceeding must be held providing an opportunity for the officer to proffer evidence and present witnesses, all pursuant to 75 O.S.2001, § 309. At such hearing the burden is on the accusing party to show the officer has violated his oath of office.

¶ 11 The hearing examiner expressed his view that the hearing Mr. Thompson requested placed the burden of proof on him concerning whether his conviction violated his oath of office. Determining that a state official has violated his oath of office is an evidentiary matter. Stipe v. State ex rel. Bd. of Trustees of Oklahoma Public Employees Retirement System, 2008 OK 52, ¶ 16, 188 P.3d 120, 124. The burden of proof remains with OPERS to establish facts tending to show that the state officer violated his oath of office during the commission of a felony. In this case, the judgment and sentence in the criminal matter established a prima facie case against Mr. Thompson. A prima facie case is made out of such evidence as in the judgment of the law is sufficient to establish a given fact, and if unrebutted, remains sufficient to uphold a judgment in favor of the issue that it supports. Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14, 981 P.2d 301, 306; Glenn Smith Oil v. Sheets, 1985 OK 56, ¶ 9, 704 P.2d 474, 478. A felony conviction for indecent exposure on each of four counts, which acts occurred during four trials in which Mr. Thompson presided as judge, is sufficient to establish OPERS burden of proof that Mr. Thompson's retirement benefits are subject to forfeiture pursuant to the statute.

¶ 12 With a prima facie case established, the hearing examiner properly placed the responsibility on Mr. Thompson to proceed with the evidence to explain or contradict that his felony convictions did not violate his oath of office. The examiner mistakenly called this the “burden of proof,” but it was actually the burden of proceeding with the evidence. Mr. Thompson presented as his defense that the felonies he committed did not disrupt the trials. While that is an attempt to rebut the prima facie case, it is not a successful defense.

¶ 13 Mr. Thompson received his requested hearing before a hearing examiner, and cannot claim that he failed to receive advance notice and an opportunity to fully present his case. The...