MICHAEL EARL HELM, a.k.a. MIKE HELM, Petitioner/Appellant,
BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, OKLAHOMA, Respondent/Appellee.
Mandate Issued: 11/14/2019
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.
JACK GOREE, CHIEF JUDGE
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.
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).
"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
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.
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.
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).
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.
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 ...