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Helm v. Board of County Commissioners of Rogers County

Court of Appeals of Oklahoma, Division I

October 21, 2019

MICHAEL EARL HELM, a.k.a. MIKE HELM, Petitioner/Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, OKLAHOMA, Respondent/Appellee.

          Mandate Issued: 11/14/2019

          APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA HONORABLE M. JOHN KANE, JUDGE

          Stanley D. Monroe, Ann E. Keele, MONROE & KEELE, PC, Tulsa, Oklahoma, for Petitioner/Appellant,

          Benjamin Lepak, Assistant District Attorney, Claremore, Oklahoma, for Respondent/Appellee.

          BRIAN JACK GOREE, CHIEF JUDGE

         ¶1 Michael Earl Helm (Petitioner/Appellant) was suspended from his office as County Commissioner of Rogers County, Oklahoma. Afterward, he wrote a letter to the Board of County Commissioners of Rogers County (Respondent/Appellee) demanding back pay and benefits from the date of the suspension. The Board denied his request. Helm commenced an action in Rogers County asking the district court to issue an alternative writ of mandamus requiring Board to pay his salary, benefits, and interest in the performance of its duty pursuant to 19 O.S. §153.

         ¶2 The Board argued Helm's claim is barred by the Oklahoma Governmental Tort Claims Act because he did not comply with its notice provisions. The trial court agreed and granted the Board's motion to dismiss for failure to state a claim. 12 O.S. §2012 (B)(6). Helm appealed. He argues the dismissal was erroneous because his action requests an extraordinary writ of mandamus and the GTCA does not apply. We review the order de novo because a motion to dismiss tests the law governing a claim. Dani v. Miller, 2016 OK 35, ¶10, 374 P.3d 779, 785-86. The legal question is whether Petitioner's claim is a tort within the meaning of 51 O.S.Supp. 2014 §152 (14).

         ¶3 "Tort" is defined by the GTCA as:

A legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.

         §152(14). Accordingly, we must examine the petition and analyze whether Helm is requesting relief, independent of contract, involving violation of a duty imposed by statute and within the meaning of the Governmental Tort Claims Act.

         ¶4 Helm filed a Petition for Alternative Writ of Mandamus. He alleges petition states, (1) he was suspended as County Commissioner of Rogers County, (2) The Board is charged with the duty of paying the salary and benefits of all county offices pursuant to 19 O.S. §153, and (3) the Board failed to perform its duty to pay his salary and benefits. Helm petitioned the Court to issue an alternative writ of mandamus requiring Board to perform its duty. If the relief sought is a statutory tort within the meaning of §152(14) then the action could be governed by the GTCA.

         ¶5 The County correctly points out that the Legislature broadened the scope of the GTCA by adding torts that derive from statutes. A statutory tort is a legislatively-crafted, non-contractual duty, unknown to the common law, for the breach of which an action ex delicto, will lie. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, ¶8, 977 P.2d 357, 361. A liability created by statute, however, is not necessarily a tort. Sweeten v. Lawson, 2017 OK CIV APP 51, ¶24, 404 P.3d 885, 892-93 (a claim for statutory replevin is not a tort pursuant to the GTCA); Barton v. City of Midwest City, 2011 OK CIV APP 71, ¶¶23-24, 257 P.3d 422, 426 (a statutory proceeding for inverse condemnation is not a tort as defined by 51 O.S. §152 (14).

         ¶6 In Price v. Board of County Commissioners of Pawnee County, 2016 OK 16, 371 P.3d 1089, the Supreme Court directed the trial court to grant relief to a county officer who had requested an alternative writ of mandamus requiring the Board of County Commissioners to perform its statutory duty to pay his salary and retirement benefits for the period of his suspension. Mandamus may be issued by a district court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. 12 O.S. §1451.

         ¶7 On the authority of Price we hold a writ of mandamus is the appropriate remedy for a county officer who claims that a board of county commissioners has failed to ...


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