State Ex Rel. Porter v. Ferrell

SUMMERS, Vice Chief Justice,

dissenting, with whom, LAVENDER, Justice, joins.

¶ 1 This case is one of first impression, involving the interpretation of 74 O.S.Supp. 1995 § 840-6.5 and 51 O.S.1991 § 24. The conflict between the two statutes is obvious: one requires the forfeiture of all benefits if convicted of a felony, while the other makes no mention of forfeiture as a way of punishment. The Court of Civil Appeals reconciled the two statutes by holding that 51 O.S.1991 § 24.1 (the forfeiture provision) applied only to non-classified employees, and that 74 O.S.Supp.1995 § 840-6.5 applied only to classified employees. The latter statute expressly applies to classified employees, and the Court of Civil Appeals concluded that because Porter was a classified employee, Section 840-6.5 applied, and hence he could not be made to forfeit the fourteen months of back pay.

¶2 The Court of Civil Appeals’ opinion resolves the apparent conflict between the statutes by reading into Section 24.1 the word “non-classified” as a term to modify “employee.” Section 24.1, by express terms, makes no mention of “non-classified” employees, but refers oniy to “any elected or appointed state or county officer or employee.” On the other hand, Section 840-6.5 expressly applies only to “employees in the classified service.” Clearly, Porter falls within Section 840-6.5. The question is whether Section 24.1 also applies, or perhaps “modifies” Section 840-6.5 so as to require a forfeiture of back pay when the employee is convicted of a felony. Section 840-6.5 allows discharge, but not forfeiture, upon conviction of a crime involving moral turpitude.

¶ 3 A statute authorizing forfeiture must be strictly construed. Willhite v. Willhite, 546 P.2d 612 (Okla.1976). We also must give effect to the intent of the legislature. Sharp v. Tulsa Co. Election Bd., 1994 OK 104, 890 P.2d 836, 840 (Okla.1994). Statutes should be construed so as to render them consistent with one another. Id.

¶4 Section 840-6.5 obviously covers the discharge or suspension of a classified employee such as Porter. It makes no mention of forfeiture, but does state that a classified employee can be suspended for not more sixty than days without pay. A reasonable interpretation of this language is that a classified employee cannot be suspended for more than sixty days without pay. This statute permits imposition of punishment after the conviction of a crime involving moral turpitude, but does not allow forfeiture for criminal conduct.

¶ 5 Unlike Section 840-6.5, Section 24.1 applies to “any elected or appointed state or county officer[s] or employee[s].” Standing by itself this statute is ambiguous. It can be read to apply to “any” state employee, or it *580can be read to apply only to the employees of elected or appointed state officers. However, the. remaining language in Section 24.1 supports the interpretation that its terms were meant to apply only to the employees of elected or appointed officers. Under the Oklahoma Personnel Act most employees of elected and appointed officers are not classified. See 74 O.S.Supp.1995 § 840-5.5. While Section 24.1 does not expressly say “non-classified”, that would be a reasonable interpretation, especially in light of the other language in Section 24.1 and in Title 51.

¶ 6 Notably, Title 51 deals with the various procedures and regulations of state officers. It sets out the oath of office, 51 O.S. 1991 § 2, qualification for state officers, 51 O.S.1991 § 6, and vacancy and resignation policies, 51 O.S.1991 § 8-9. In addition to its forfeiture language, Section 24.1 goes on to set out procedures for filling an office that is forfeited. In the latter regard it specifically exempts certain state officers such as members of the State Legislature. It continues by addressing the forfeiture of retirement benefits by “such officer or employee.”

¶ 7 With all of Title 51 as a guide, it is evident what the Legislature has done. The sections in Title 74 (Personnel) expressly apply only to “classified employees”, those with Merit Protection Commission protection. Porter was such a classified employee. Title 74 does not provide for forfeiture. Title 51 provides for forfeiture for employees of state officers.

¶8 Reading each set of statutes as a whole I conclude that 74 O.S. § 840-6.5 covers classified employees, and that 51 O.S. § 24.1 does not. This interpretation not only gives effect to both statutes, and avoids overlapping and inconsistency, but it also supports the legislative intent of the Oklahoma Personnel Act by giving a statutory guideline to classified employees with regard to the severity of punishment imposed. See 74 O.S. 1991 § 840-1.3. Title 51, with the only section providing for forfeiture, cannot have any applicability to a classified employee such as Porter. The Court of Civil Appeals correctly reached this conclusion, as did the District Court and the Merit Protection Commission before it. I respectfully dissent.