An Oklahoma grand jury has indicted a current Rogers County Commissioner and a former commissioner on conspiracy charges related to road striping services the county purchased in 2009. The indictments are the second round of criminal charges to emerge from a long-running controversy that has scandalized Rogers County government.
The work was allegedly ordered without posting the contracts for bids as required by Oklahoma law. According to the July 17, 2015 indictment, Rogers County ready owned road striping equipment when the private striping contracts were awarded.
New Stripes on Old Allegations
The indictments resurface allegations that have swirled around Rogers County for the past five years. The allegations were subject of an Oklahoma State Bureau of Investigations probe and a state audit. The local newspaper editorialized about purchase orders named in the new indictment. For their trouble, the newspaper and staff were targeted in a libel lawsuit by the now unseated Rogers County District Attorney Janice Steidley and two assistant DA’s at that time, David Iski and Sean McConnell.
Steidley, Iski and then assistant DA Bryce Lair also filed libel suits against Rogers County Sheriff Scott Walton, Claremore police detective John Singer and others who circulated a petition seeking a grand jury investigation of those and other allegations. In a separate, similar libel lawsuit Steidley and Iski targeted attorney Bill Higgins, former special judge Erin O’Quin and Singer’s former wife Edith Singer, among others.
The now indicted former Rogers County Commissioner Kirt Thacker also filed a similar libel lawsuit against some of the same individuals over a petition that, in part, sought a grand jury investigation of allegations for which a different grand jury has now returned indictments against him.
The libel lawsuits remain pending, although some defendants – including Sheriff Scott Walton, O’Quin and Higgins – have either been dropped from a case by settlement or dismissed as defendants without prejudice.
Questions raised in the 2013 citizens petition for a grand jury inquiry into possible violation of Oklahoma purchasing laws raised further allegations that kickbacks might have been paid in the form of gratuities.
That special grand jury was never empaneled. The 14th multicounty grand jury that was subsequently asked to review the Rogers County allegations retired before completing its investigation.
The new indictments were handed down by the 15th multicounty grand jury. The grand jury indictment of July, 2015 does not allege kickbacks were paid in exchange for the contracts.
The citizens petition of 2013 sought a grand jury probe of county commissioners role in suspected bid splitting contrary to Okla. Stat. tit. 19 § 1501(A)(3)(a) involving “purchase orders totaling approximately $100,000…then accepting gratuities from some of those same vendors in the form of dinners and gifts several months later.”
2011 Audit Alleged Solicitations
A 2011 state audit of Rogers County finances alleged that the District 2 secretary had on several occasions solicited donations from vendors doing business with the county on Helm’s behalf. The audit reported Thacker denied soliciting contributions from vendors.
Thacker’s response, published in the 2011 state audit, said the Board of County Commissioners as a whole was unaware of the solicitations and that the matter was entirely “Mike Helm’s issue.”
The new indictment alleges Thacker and Helm in the last six months of 2009 conspired to approve 10 payments of nearly $10,000 each to Time Striping, Inc. of Van Buren, Arkansas. A total of $98,183 in payments and purchase orders specified in the indictment approximates the $100,000 amount alleged in the 2013 citizens’ petition.
In a separate indictment also returned on July 17, Helm was further charged with embezzlement. That indictment alleged Helms sold county owned scrap metal to a salvage company then kept more than $1,000 in proceeds.
Thacker was previously charged in April, 2015 for his alleged use of county construction equipment to work on private land and to repair a non-profit group’s driveway, in each case without county authorization. As with the bid-splitting allegations, similar questions about public equipment used for private purposes had been raised in the 2013 citizens grand jury petition.
Truth is a Defense to Libel
The various libel lawsuits and the 2013 grand jury petition involve a complex matrix of allegations that might or might not eventually be sorted out in court. In its totality, the matter reminds us of an important axiom in libel law. For the most part, except where privacy matters are involved, truth is a solid defense against libel.
Publishing untoward but truthful statements about a public figure’s public activity is seldom if ever considered libel in U.S. jurisprudence. The latest indictments may provide Oklahoma courts a new opportunity to decide the truth of the matter in at least some of the Rogers County allegations.
In November, 2012, an outside investigator appointed by the Oklahoma Office of Attorney General advised Rogers County Commissioners he believed they had engaged in bid splitting. “[T]here is even some evidence that would indicate each of you did so with specific and knowing intent,” wrote First Assistant District Attorney Ben Loring of the 13th Judicial District.
The Oklahoma AG’s office appointed Loring to investigate the matter after Steidley recused herself from the investigation. Loring’s investigation referenced four of 10 purchase orders now cited in the July, 2015 indictment. Other purchase orders – at that time – were said to be outside the statute of limitations
At the time, Loring declined to recommend prosecution because the Oklahoma bid splitting statute was poorly written, according to news reports. Loring suggested county commissioners in the future seek advice on public purchasing from their local district attorney.
The Claremore Daily Progress in a Nov. 12, 2012 editorial noted that the Rogers County DA’s office had already provided advice to the county commission. The Daily Progress alleged in an editorial that an assistant Rogers County District Attorney “has been allowing (county commissioners) to break the law time and again.”
That editorial, along with other Daily Progress items, were cited in the libel lawsuit Steidley and the assistant DAs filed against the Claremore daily newspaper. In 2014, Rogers County voters ousted Steidley in a landslide defeat that netted her less than 14 percent of the vote.
While allegations of bid splitting six years ago gained new life in the July 2015 indictment, Steidley and her former staff have not backed down in their lawsuit against the newspaper. Now represented by her husband, Larry Steidley, the former DA is taking on the Oklahoma Office of Attorney General, which intervened in the lawsuit to defend the Oklahoma Citizens Participation Act.
Defending the Right to Petition
The Citizens Participation Act was adopted in 2014 as part of Oklahoma civil procedure related to slander and libel actions. At Okla. Stat. tit. 12 § 1432, the act allows that, “If a legal action is based on, relates to or is in response to a party’s exercise of the right of free speech, right to petition or right of association, that party may file a motion to dismiss the legal action.”
The AG also intervened on the side of defendants in Steidley’s lawsuit against grand jury petitioners, and in Thacker’s similar libel action against grand jury petitioners. State attorneys general often intervene in cases where state statutes are called into question.
For their part, Steidley and her co-plaintiffs allege the Oklahoma Citizens Participation Act is an unconstitutional special law because it applies only to a narrow class of individuals. The AG argued to the contrary.
Whether constitutional merits of the Oklahoma Citizens Participation Act will be decided in the Steidley lawsuit remains an open question. Steidley and the co-plaintiffs have also argued the law does not apply in their case because it was passed after their lawsuit was filed. A successful ex-post-facto challenge could scuttle examination the special-law question.
At present, the libel cases are mired in somewhat technical arguments. Those arguments involve language that allows a defendant to appeal as if a motion was denied when a court does not otherwise rule on motions to dismiss filed pursuant to the Act. With various exceptions, the Act requires a hearing within 60 days of the time a motion to dismiss was filed, and a ruling within 30 days of such hearing. (Okla. Stat. tit. 12 § 1433-1437)
Oklahoma Grand Jury Petition Rules Revisited
In a related development, the Oklahoma Supreme Court on July 16, 2015 declined to intervene in a citizens grand jury petition to investigate Tulsa County Sheriff Stanley Glanz. That petition, involving allegations of falsified training records related to a Tulsa County Sheriff’s Office Reserve Deputy Program, followed a fatal shooting by then reserve deputy Robert Bates.
The Supreme Court did not explain why it declined to intervene in the Tulsa County petition. The Tulsa World reported Glanz had offered arguments similar to those Steidley raised when a Tulsa court overturned Rogers County residents’ grand jury petition.
A question in both cases was whether signature pages on a citizens’ grand jury petition must include court-approved summaries of the petition. Oklahoma law requires prior court approval if a petition to empanel a grand jury is to be validated. Oklahoma courts have accepted petitions both with and without approval of summary language on signature pages.
In their libel lawsuits, Steidley and co-plaintiffs refer to the petition circulated in Rogers County as an “unauthorized petition,” in reference to their arguments that the court had not approved summary language included on signature pages. (“The Unauthorized Petition was never submitted for Court approval pursuant to 12 Okla. Stat. § 101,” Steidley v Singer, Rogers County CJ-2013-485)
Two other Tulsa County grand jury petitions, in 2010 and 2013, had been accepted without court approval of summaries on signature pages. One was accepted by a Tulsa court two days after a different Tulsa court rejected the Rogers County petition for the same reasons.
The Oklahoma Supreme Court’s decision not to review the Tulsa County petition regarding Glanz would seem to tilt current jurisprudence away from a requirement that signature page summaries must be court approved.
Erring on the side of caution at this juncture, my Tulsa law firm might include signature page summaries if we prepared a grand jury petition for court approval. It remains for a court to decide whether a grand jury petition similar in form to those accepted by courts in other cases comprises an “unauthorized petition.”
Free Consultation: Criminal Defense Law Firm
Rogers County’s five year long public scandal has involved most of the major law enforcement and prosecution agencies in the county. From our perspective, the matter first became salient when the Rogers County District Attorney released information that might have undermined a police detective’s credibility.
We agree that would be Giglio material a defense attorney is entitled to review. In the myriad allegations that followed, including the DA’s failure to release likely Giglio material until several months later, we reserve judgment. We urge anyone facing criminal charges in Rogers County to contact an Oklahoma criminal defense attorney for help in determining if the public scandal might have an impact in your individual case.