author: EDMONDSON, J. OPALA, V.C.J.,

text:
    2004 OK 16
    CHANDLER (U.S.A.), INC., National American Insurance Company and Lagere & Walkingstick Insurance Agency, Inc., Appellees, v. Terry J. TYREE, State Insurance Fund Commissioner, Appellant.
    No. 96,436.
    Supreme Court of Oklahoma.
    March 9, 2004.

      Linda R. Driskill and Jake Jones, Driskill & Jones, Oklahoma City, OK, and R. Patrick Gilmore, Chandler, OK, for Plaintiffs/Appel-lees.
    Stephen G. Solomon, George W. Velotta II, and Gladys E. Cherry, Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, OK, for Defendant/Appellant.
   EDMONDSON, J.

¶ 1 The substantive issue in this proceeding involves whether the Commissioner of the State Insurance Fund was required to provide workers' compensation insurance to a company who competes with the Fund in providing workers' compensation insurance. Plaintiffs, three insurance entities with common ownership, Chandler (U.S.A.), National American Insurance Company, and Lagere & Walkingstick Insurance Agency, Inc., (collectively, Chandler), are in the business of providing workers' compensation insurance. However, only National American Insurance Company is an insurance carrier.

¶ 2 Chandler sought mandamus in the District Court to compel Terry J. Tyree, Commissioner of the Oklahoma State Insurance Fund (or Fund) to provide Chandler with workers' compensation insurance. The District Court determined that the Fund was required to provide the insurance. We conclude that Chandler did not meet its burden of proof and that it must be afforded an opportunity to engage in discovery to obtain facts to meet its burden, if such facts exist. Before discussing the merits of the controversy before us, we must address appellate jurisdiction and the motion to dismiss filed by the Fund.

I. Appellate Jurisdiction

¶ 3 Chandler's petition in the District Court seeks relief in the form of a writ of mandamus and a judgment for damages. The mandamus relief is a request that the court order the Fund to issue a policy of workers' compensation insurance. The trial court issued an alternative writ of mandamus. The Fund filed an objection. The parties filed Joint Stipulations of fact. The stipulations did not address the request for damages. A Journal Entry of Judgment was filed March 28, 2001. That order states that the issues have been fully briefed by both parties, issues mandamus, and directs the Fund to issue a policy of workers' compensation insurance to Chandler. The journal entry is silent on the issue of damages.

¶ 4 The Fund filed a motion for a new trial and Chandler responded. The Fund also sought a stay pending appeal. Chandler responded with an argument that a judgment for damages had not yet occurred. On June 8, 2001, the District Court denied the Fund's motion for new trial, but granted the application for a stay pending appeal. The order contained no references to the request for damages. Chandler appealed and the Court of Civil Appeals issued an opinion that reversed the writ issued by the District Court.

¶ 5 Chandler sought certiorari in this Court. While the matter was pending on certiorari the Fund filed a motion to dismiss the appeal as moot. The Fund argues that the only issue on appeal is the District Court order compelling the issuance of workers' compensation insurance. The Fund argues that Chandler has workers' compensation insurance from another source, and that the proceeding is moot because of this other insurance.

¶ 6 Chandler claims that the appeal is not moot because it sought damages resulting from the Fund's failure to issue a policy. Chandler argues that the Fund would be liable for damages on remand if this Court concludes on appeal that it should have issued the policy, and that a dismissal of the appeal would leave the rights of the parties undecided. Chandler also argues that the appeal presents an issue of public interest which will likely reoccur, and that such is an exception to the mootness doctrine. We first address appellate jurisdiction.

¶ 7 Chandler's claim for damages is pending in the District Court. The specific statutory procedure for mandamus is consistent with this general procedure and allows an adjudication of damages as part of that proceeding. 12 0.98.2001 § 1460. One issue in Braine v. City of Stroud, 1963 OK 189, 385 P.2d 428, was whether a recovery of damages pursuant to § 1460 applied to a defendant's wrongful conduct that was also an element of, and gave rise to, the mandamus cause of action. Braine said that § 1460 did apply to damages for such wrongful conduct. Braine further concluded that a failure to request such damages in a mandamus proceeding would support a plea of res judicata (claim preclusion) in a subsequent action for damages. Id. 385 P.2d at 481-482.

¶ 8 The parties do not discuss whether the pending claim for damages is part of the same transaction as the mandamus claim. If the request for damages is defined as part of a single cause of action that also includes the requested mandamus relief, then the order in this case granting the writ of mandamus would be an interlocutory order anterior to the judgment. This is so because the writ does not adjudicate the entire cause of action. See 12 0.8.2001 § 681, (a judgment is a final determination of the rights of the parties with respect to a particular cause of action or claim for relief). The writ would thus not be appealable as a judgment.

¶ 9 The procedural posture of the district court writ is not susceptible of being construed as a timely appeal. For example, even if a writ such as this could be appealed prior to an adjudication of all claims pursuant to 12 0.8.2001 § 994, no § 994 certification was made in this case. The absence of the certification shows that the order is not ap-pealable prior to adjudication of the remaining claim for damages. Liberty Bank and Trust Co. of Oklahoma City v. Rogalin, 1996 OK 10, 912 P.2d 836, 838.

¶ 10 This Court has observed potential problems that may occur when a trial court adjudicates part of a cause of action and makes that adjudication immediately effective, although the trial court's order is not one of those that is appealable by right prior to judgment. Liberty Bank and Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836, 837; Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, 820 P.2d 1338, 1841-1342. In Federal Deposit Ins. Corp. v. Tidwell, supra, we dismissed an appeal and recast a portion of the petition in error as an application for prohibition. Id. 820 P.2d at 1842. We must dismiss the appeal herein because of a lack of appellate jurisdiction. However, prohibition was requested herein to prevent the enforcement of the trial court's writ, and we issue that writ with directions for further proceedings in the trial court.

The Commissioner claims that the proceeding is moot. The mootness doctrine applies to both appellate and original jurisdiction proceedings. We do not view the motion to dismiss for mootness as a bar to our assuming jurisdiction and granting prohibition ancillary to dismissing an appeal.

¶12 The concept of mootness is often linked to cireumstances that result in a court's inability to grant effective relief, and any opinion in that controversy would possess characteristics of a hypothetical or advisory opinion. Westinghouse Elec. Corp. v. Grand River Dam Authority, 1986 OK 20, 720 P.2d 713, 720; Rogers v. Excise Bd. of Greer County, 1984 OK 95, 701 P.2d 754, T61. Mootness will not act as a bar when the challenged event is capable of repetition yet evading review. Federal Land Bank of Wichita v. Story, 1988 OK 52, 756 P.2d 588, 589.

¶ 13 The Fund argues that the controversy is moot because Chandler purchased workers' compensation insurance from a source other than the Fund. Chandler argues that the controversy is not moot because it has a pending claim for damages. The Legislature has expressed a clear public policy that employees covered by the Workers Compensation Act be secured either through insurance or through a self-insurance arrangement establishing the employer's ability to pay. Self Insurers' Management Group v. YWCA of Oklahoma City, 1997 OK 95, 954 P.2d 115, 118. An employer complying with public policy by providing insurance while pressing a judicial complaint against the Fund is an event of public interest that is capable of repetition. We thus hold that Chandler's alternative insurance coverage obtained during this proceeding does not moot the controversy, and the motion to dismiss because of mootness is denied.

¶ 14 In sum, this appeal would be untimely regardless of whether we construe the request for damages as part of the mandamus cause of action or as a separate cause of action. This Court lacks appellate jurisdiction because of the pending claim for damages in the District Court. We accordingly vacate the opinion of the Court of Civil Appeals herein because it is predicated upon the existence of appellate jurisdiction.

II. The District Court Proceeding

¶ 15 The controversy was tried on the briefs and joint stipulations submitted by the parties. The plaintiffs (Chandler) employ approximately five hundred people in Chandler, Oklahoma. Except for the State Insurance Fund, NAICO is the largest writer of workers' compensation insurance in Oklahoma. Chandler requested an application for insurance and a quote for tendering a check for the required premium. Chandler submitted an application, but the Fund declined to provide Chandler with an amount for Chandler to tender as its premium payment.

¶ 16 The Fund also declined to provide insurance, and Chandler asked why it would not receive the insurance. The Fund responded with a letter stating that: "While there are many considerations that enter into a decision of coverage, the unique issues and conflicts faced by both parties in providing overage for a fellow insurance carrier were prevailing factors in our decision to decline coverage."

¶ 17 Chandler sought a writ of mandamus in the trial court. The trial court issued an alternative writ. In response to the alternative writ, the Fund stated that it did not issue the insurance because it possessed the discretion to decline to enter into insurance contracts with an entity who is a business competitor, and whose interests might be adverse to the Fund. The Fund subsequently stipulated:

On November 17, 2000, the State Insurance Fund advised Plaintiffs that "... the unique issues and conflicts faced by both parties in providing coverage for a fellow competing insurance carrier were prevailing factors in our decision to decline coverage." Defendant has not provided Plaintiffs with any reason other than those contained in the November 17, 2000, letter for Defendant's declining to insure Plaintiffs' employees.

Joint Stipulations, O.R. at 40, citation omitted.

Chandler argued in the trial court that: "There is absolutely no provision under any statute which allows the State Insurance Fund to refuse to provide workers' compensation insurance coverage to any entity due to the fact that the entity is an insurance company that is a competitor of the State Insurance Fund." O.R. at 66.

¶ 18 Chandler argues that the Fund did not possess the discretion to deny insurance to a competing insurance carrier. The Fund argues that Chandler was not entitled to a writ of mandamus because:

1. Chandler failed to prove that a competing insurance carrier, recently relocated to Oklzhoma, has met Oklahoma's operational requirements and does not impact the safe carrying of the Fund;
2. Other carriers had declined to provide insurance to Chandler;
3. A contractual relationship with a competitor would impact the Fund's competitive ability, contrary to the Commissioner's fiduciary duty not to enter into contracts contrary to the interests of the Fund;
4. The Commissioner possesses discretion to deny an application for insurance; and
5. Chandler failed to satisfy its burden of proof for mandamus.

Chandler contends that NAICO has been located in Oklahoma since 1987, with redo-mestication to Oklahoma in 2000; that it complied with all Oklahoma examination requirements, and had previously undergone a routine financial examination by the State of Nebraska for a three-year period ending in 1998; and that the burden of proof should be on the Fund to show that NAICO is not an entity for which insurance should issue. Chandler argues that the Fund:

... has never explained how the mere fact that NAICO is a competitor makes it a risk that is unsafe to carry. The Defendant has produced no evidence nor has it attempted to set forth any evidence that insuring Plaintiffs "is beyond the safe carrying of the State Insurance Fund."

Plaintiffs' Surreply to Defendant's Reply, O.R. at 64-65.

Chandler concludes that the Fund is required to issue insurance to NAICO if it satisfies the statutory requirements for obtaining insurance.

¶ 19 The parties discuss the application of 85 0.8.2001 § 184. Part of that statute states:

A. In conducting the business and affairs of the State Insurance Fund, the Commissioner of the said fund, or other officer to whom such power and authority may be delegated by the Commissioner, as provided by Section 183 of this title, shall have full power and authority: ...
2. To decline to insure any risk in which the minimum requirements of the law with regard to construction, equipment and operation are not observed, or which is beyond the safe carrying of State Insurance Fund, but shall not have power or authority, except as otherwise provided in this act to refuse to insure any compensation risk tendered with the premium therefor;

85 0.8.2001 § 134(A)(2), (emphasis added).

We recently commented on this language in Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276.

Today, SIFs general purpose is simply to insure employers against liability for workers' compensation claims and to assure employees entitled to benefits under our workers compensation laws that they receive such benefits through the insurance. 85 0.S8.Supp.1995, $ 131. SIF provides such insurance to both private and public employers. Also, SIFs governing statutes plainly indicate, although it is to be fairly competitive with private insurance carriers providing such insurance, SIF is generally a non-profit endeavor [§ 131(c)], and its ability to decline to insure an employer for purposes of the employer's workers' compensation liability is restricted. 85 0.8. Supp.1996, § 134(A)(2).

Id. 2001 OK 11, at 11, 19 P.3d at 280,.

We agree with Chandler that the Fund's discretion is limited when deciding whether to issue insurance to Chandler.

¶ 20 The Fund argues that a decision whether to insure a particular risk is an exercise of discretion beyond the scope of judicial review. In Bird v. Willis, 1996 OK 116, 927 P.2d 547, we explained that a district court may issue a writ of mandamus against a state board or agency to compel the performance of an act, and to correct an official's abuse of discretion. Id. 927 P.2d at 552. The Fund's characterization of its act as discretionary does not insulate that act from judicial review.

¶ 21 Section 184(A)(2) states that when a premium is tendered the Commissioner may:

1. Decline to insure any risk in which the minimum requirements of the law with regard to construction, equipment and operation are not observed,
2. Decline to insure any risk which is beyond the safe carrying of State Insurance Fund, and
3. Decline to insure as otherwise provided in this act.

The parties also argue whether the Fund possesses discretion to deny coverage pursuant to other statutes. Chandler asserts that "this act" in § 184(A)(2) refers solely to reasons for not issuing insurance that are listed in § 134. On the other hand, the Fund argues that "this act" refers to statutes other than § 134 that also control the discretion of the Fund to issue insurance. For example, the Fund relies upon 85 O.S. Supp.2000 § 131(c).

(c) Said fund shall be fairly competitive with other insurance carriers and it is the intent of the Legislature that said fund shall become neither more nor less than self-supporting.

In the trial court the Fund argued that:

Summarizing from our filed Objection, the Act requires the Fund to be "fairly competitive" with other carriers. 85 0.8. § 131. The Commissioner is a fiduciary, who may not enter contracts adverse to the interests of its policyholders. 85 O.S. § 188.2. It is reasonable and foreseeable that a contractual relationship could impact the Fund's ability to be fairly competitive. It is also reasonable for the Commissioner to be concerned about insuring a competitor with interests adverse to the Fund and its policyholders.

Defendant's Reply, O.R. at 55.

¶ 22 Section 131 of Title 85 was part of the 1983 Act creating the State Insurance Fund, and it too required that the fund be fairly competitive with other insurance carriers. 1933 Okla Sess.Laws Ch. 28 § 1(c). Section 134 of Title 85 was part of that 1988 Act and it also provided that the Fund "shall not have power or authority, except as otherwise provided in this Act to refuse to insure any compensation risk tendered with the premium therefor." 1983 Okla Ch. 28 § 4(2). The Fund does not possess the discretion to make the Fund less than competitive when insuring a risk. We thus agree with the Fund that § 181(c) is a legislative control of the Fund's discretion similar to that expressed in § 184.

¶ 23 The Fund states that issuing the insurance to Chandler will make the Fund less than fairly competitive with other insurance carriers. Chandler states that this is a conclusion, and that the Fund failed to provide facts in support of the conclusion. The Fund responds that Chandler, in seeking mandamus, has the burden of showing that the Fund acted arbitrarily.

¶ 24 A typical case for mandamus has five elements: (1) The party seeking the writ has no plain and adequate remedy in the ordinary course of the law, (2) The party seeking the writ possesses a clear legal right to the relief sought, (8) The respondent (defendant) has a plain legal duty regarding the relief sought, (4) The respondent has refused to perform that duty, and (5) The respondent's duty does not involve the exercise of discretion. However a writ of mandamus may be used to correct an official's arbitrary abuse of discretion. State ex rel. Smith v. Banking Bd., 1980 OK 84, 612 P.2d 257, 261.

¶ 25 A party seeking mandamus "has the burden of proving the clear legal right in himself and a corresponding duty resting upon the defendant in order to authorize the issuance of the peremptory writ." Lee v. Myles, 1964 OK 56, ¶ 8, 390 P.2d 489, 491, quoting, Stubbs v. Excise Bd. of Muskogee County, 1935 OK 778, 49 P.2d 83. We have applied this general rule to mean that a party seeking mandamus has the burden of showing those facts necessary to support issuance of the writ.

¶ 26 In State ex rel. Thomas v. Brenner, 1935 OK 373, 42 P.2d 823, former members of a fire department sought reinstatement. They contended that they could be removed from the fire department only for good and sufficient cause as specified by a state statute. Id. 42 P.2d at 824. We said that they had a burden of showing they had a clear right to reinstatement; ie., the petitioners were required to present facts showing that their removal was not based upon a good and sufficient cause.

¶ 27 In Hall v. Tirey, 1972 OK 118, 501 P.2d 496, we explained that an official seeking reinstatement to office via mandamus had the burden "to prove that his removal did not comply with the legislative standard." Id. at ¶ 20, 501 P.2d at 502. In Hall we explained that a member of the State Board for Property and Casualty Rates could be removed from office pursuant to a statute that listed causes for removal. Id. at ¶ 10, 501 P.2d at 499-500. That statute allowed for removal "in case of incompetency, neglect of duty, or malfeasance in office. ..." Id. at ¶ 8, 501 P.2d at 499, quoting, 74 O.S.1971 § 2. In a mandamus proceeding where the official was seeking reinstatement, the Governor did not have a burden of presenting facts showing that the removal was one of the three statutory causes. Rather, the removed official, as the party seeking mandamus, was required to show facts that the removal was not one of the three statutory grounds. In sum, a petitioner for mandamus is required to show a violation of, or failure to perform, the relevant statute or duty.

¶ 28 In our case today, the Fund possesses the discretion to refuse to be a party to an insurance contract that would result in the Fund being less than fairly competitive. 85 0.8. § 131. The Fund argued in the trial court that issuing insurance to Chandler would make the Fund less than fairly competitive, and that Chandler had the burden to prove otherwise. Chandler argues that once the alternative writ issued, the Fund had the burden of showing cause that the peremptory writ of mandamus should not issue. Chandler argues that the Fund did not do so in the Joint Stipulations, or otherwise, and the peremptory writ properly issued. The Fund argues that Chandler is impermissibly shifting a burden to the Fund.

¶ 29 Issuance of an alternative writ does not change a particular fact needed as an element of petitioner's claim to a fact needed as an element of a defense: "It is well settled that the burden of proof rests upon the party having the affirmative as made up by the pleadings, and such party must prove every essential fact necessary to establish his cause of action or defense." Board of County Commissioners of Marshall County v. Snellgrove, 1967 OK 108, 428 P.2d 272, 276. The Fund stated that issuing insurance would result in the Fund being less than fairly competitive. In these cireumstances, Chandler is required to state facts showing that the issued insurance would not make the Fund less than competitive.

¶ 30 Chandler argues that after an alternative writ issues a defendant has the burden of making an answer and presenting defenses to a peremptory writ. This is correct. 12 00.98.2001 § 1457. Chandler states that it does not know what facts, if any, would support the Fund's argument, and that the Fund should raise those facts in its answer.

¶ 31 Issues in a mandamus proceeding are tried as in a civil action. State ex rel. State Bd. of Public Affairs v. Principal Funding Corp., 1974 OK 16, 519 P.2d 503, 507, citing, § 1459. The Oklahoma Discovery Code, 12 0.9.2001 §§ 3224-8237, governs "the procedure for discovery in all suits of a civil nature in all courts in this state." 12 0.9.2001 § 3224. Further, use of discovery procedures in mandamus proceedings is not novel. See, eg., Polin v. Retail Credit Co., 1970 OK 83, 469 P.2d 1004, 1006 (directing the trial court to reinstate plaintiff's action in mandamus and to reconsider plaintiff's motion to compel answers to interrogatories).

¶ 32 Generally, a party is given an opportunity to use discovery procedures when circumstances are known exclusively by the opposing party. State ex rel. Remington Arms Co., Inc. v. Powers, 1976 OK 103, 552 P.2d 1150, 1153. For example, an insurer's claim file may be discoverable in a proceeding involving an allegation of the insurer's breach of a duty to its insured. Darzenkiewics v. Jackson, 1994 OK 151, 904 P.2d 66. Such litigation raises the issue whether the insurer had a reasonable basis to withhold payment when the insured requested the carrier to perform its contractual obligation. Heffron v. District Court of Oklahoma County, 2003 OK 75, ¶ 17, 77 P.3d 1069, 1077. The question raised by Chandler is similar: Whether or not the Fund had a reasonable non-arbitrary basis to withhold issuing the insurance when Chandler requested the Fund to perform its statutory obligation. Chandler must be given an opportunity to engage in discovery in the trial court as an opportunity to satisfy its burden of proof.

133 The alternative writ and answer in a mandamus proceeding may be amended as pleadings in a civil action. 12 0.8.2001 § 1459. Discovery is part of ordinary trial preparation procedure, and it promotes the ascertainment of the truth and ultimate disposition of the lawsuit in accordance therewith. State ex rel. Oklahoma Bar Association v. Lloyd, 1990 OK 14, n. 10, 787 P.2d 855, 859; YWCA of Oklahoma City v. Melson, 1997 OK 81, n. 41, 944 P.2d 304, 311. An opportunity for Chandler to amend its alternative writ and for the Fund to amend its answer as a result of discovery will promote the ascertainment of the truth and ultimate disposition of the lawsuit in accordance therewith.

¶ 34 In summary, we vacate the opinion by the Court of Civil Appeals and dismiss the appeal for lack of appellate jurisdiction. Appellant's motion to dismiss is denied. We issue ancillary relief in the nature of prohibition, and direct that the trial court's writ of mandamus shall not be enforced until Plaintiffs have opportunities to engage in discovery and amend their alternative writ to meet their burden of proof, and Defendant an opportunity to respond to any discovery and alternative pleadings that may be filed.

1 85 WATT, C.J., HODGES, HARGRAVE, KAUGER, BOUDREAU and WINCHESTER, JJ., concur.

[ 36 OPALA, V.C.J. and LAVENDER, J., concur in part and dissent in part.

OPALA, V.C.J.,

with whom LAVENDER, J., joins, dissenting in part.

I concur in today's dismissal of this appeal which is prosecuted from a nonap-pealable mid-litigation ruling as well as in the court's refusal to declare the controversy in suit dismissible for mootness; I dissent from the court's pronouncement of its "ancillary" writ's command that conditionally prohibits the trial court's enforcement of the latter's own writ of mandamus whose effectiveness is presently suspended by a pre- or midappeal nisi prius order. In advance of its final disposition of a cause, a district court is utterly free to entertain quests for modification (or vacation) relief as well as to allow amendments to the pleadings on file LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388, 1392; Johnson v. Johnson, 1983 OK 117, 674 P.2d 539, 543. In the absence of a demonstrated jurisdictional infirmity or of some threatened use of unauthorized judicial force, the trial court's freedom to exercise a broad range of plenary control over all interlocutory rulings may not (and should not) be restrained by this court's midstream interference. Heffron v. District Court Oklahoma County, 2003 OK 75, 77 P.3d 1069, 1073. The exceptional factors for triggering this court's writ power are absent here. There is absolutely no showing of a need for anyone's protection from the threat of judicial usurpation of power. Post-termination stages of this original proceeding should hence be charted solely by the adversary parties' chosen course.

      . The State Insurance Fund is now known as CompSource Oklahoma. Nicholas v. Morgan, 2002 OK 88, n. 1, 58 P.3d 775, 777. See 85 O.S.2001 § 131(e): "(e) The official name of the fund which is known as 'The State Insurance Fund' shall be designated in all future references as 'CompSource Oklahoma'. Any references in the Oklahoma Statutes to The State Insurance Fund shall be deemed references to CompSource Oklahoma." The action was commenced in the District Court prior to the change in the name, and we refer to the Fund based upon -the name used in this litigation by the parties.

      . 12 0.8.2001 § 1460:
      If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in a civil action, and costs; and a peremptory mandamus shall also be granted to him without delay.

      . This Court has explained that a cause of action (or claim for relief) is defined using the transaction, occurrence, or wrongful act. Retherford v. Halliburton Company, 1977 OK 178, ¶ 11, 572 P.2d 966, 968-969; Chandler v. Denton, 1987 OK 38, ¶ 13, n. 20, 741 P.2d 855, 863-864; Resolution Trust Corp. v. Greer, 1995 OK 126, ¶ 11, n. 5, 911 P.2d 257, 260; Greenberg v. Wolfberg, 1994 OK 147, n. 42, 890 P.2d 895.

      . We need not discuss whether the writ could be appealable as an interlocutory order appealable by right. This is so because (1) The time to commence an appeal from an interlocutory order appealable by right is not altered by a motion for new trial (12 0.$.2001 Ch. 15, App., Okla.Sup. Ct.R. 1.22(b) & (F), 1.40(e), 1.61.), and (2) The trial court writ is dated March 28, 2001; the petition in error was filed on June 19, 2001, more than thirty days after the trial court's order, and the motion for new trial could not have extended the time to appeal. See 12 0.$.2001 § 990A. Further, an adjudication of a motion for new trial addressed to an interlocutory order is not appealable. LCR, Inc. v. Linwood Properties, 1996 OK 73, n. 19, 918 P.2d 1388, 1393.

      . See, eg., Lawrence v. Cleveland County Home Loan Authority, 1981 OK 28, 626 P.2d 314, (appeal); State ex rel. Dept. of Human Services v. Colclazier, 1997 OK 134, n. 4, 950 P.2d 824, 826, (exception to the mootness doctrine applied in an original jurisdiction proceeding).

      . Morrow Development Corporation v. American Bank and Trust Co., 1991 OK 31, 816 P.2d 537 {assuming jurisdiction not required for issuance of writ ancillary to appeal when appellate jurisdiction exists).

      . The Fund challenges the trial court's writ based upon the fact that no premium was tendered by Chandler. The Fund provides quotes on premiums to those seeking insurance, and the Fund declined to do this for Chandler. Chandler requested a quote for the purpose of paying the premium. The trial court writ is not enforceable at this time due to our opinion herein, and we need not address whether the Fund's conduct prevents it from challenging the writ on the basis of the unpaid premium.

      . The District Court order was filed March 28, 2001. The 2001 amendment to § 131 was not effective until the following July.2001 Okla. Sess. Laws, Ch. 378, §§ 1, 4. No party discusses the effect of the amendment, and we apply the version of § 131 in effect at the time of the District Court's order.

      . The Fund also relied upon 85 O.$.2001 § 138.2(B)(2):
      "B. A fiduciary with respect to the State Insurance Fund shall not: ...
      2. in the fiduciary's individual or any other capacity act in any transaction involving the State Insurance Fund on behalf of a party whose interests are adverse to the interests of the State Insurance Fund or the interests of its participants or beneficiaries; or ...."

      . Some of the Court's opinions describe three elements to the writ by combining into one element a respondent's refusal to act, the existence of a plain legal duty, and a statement that the duty does not involve an exercise of discretion. See, e.g., Oklahoma Gas & Electric Co. v. District Court, 1989 OK 158, n. 7, 784 P.2d 61, 63, (stating three requisites to the writ).

      . 12 0.9.2001 § 1457:
      Answer On the return day of the alternative writ, or such further day as the court may allow, the party on whom the writ shall have been served may show cause, by answer made in the same manner as an answer to a petition in a civil action.

      . 12 0.$.2001 § 3224:
      Sections 3224 through 3237 of this title shall be known and may be cited as the Oklahoma Discovery Code. The Oklahoma Discovery Code shall govern the procedure for discovery in all suits of a civil nature in all courts in this state.

      . The Fund did not assert that any of the information underlying its decision was privileged and exempt from discovery. Our decision today should not be read as deciding whether the information used by the Fund in this controversy is, or is not, privileged. See, eg., Heffron v. District Court of Oklahoma County, 2003 OK 75, ¶ 21, 77 P.3d 1069, 1079 (distinguishing between documents prepared in the ordinary course of business and those prepared in anticipation of litigation).

      . 12 0.$.2001 § 1459;
      No further pleading allowed-Similarity to civil action
      No other pleading or written allegation is allowed than the writ and answer; these are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner, as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had, in the same manner as in a civil action.


source: Caselaw Access Project

author: KAUGER, J.; OPALA, V.C.J.,

license: Public Domain

text:
    2004 OK 17
    Bruce R. COX, Petitioner/Appellee, v. STATE of Oklahoma, ex rel., OKLAHOMA DEPARTMENT OF HUMAN SERVICES, Respondent/Appellant, and Oklahoma Merit Protection Commission, Respondent.
    No. 96,899.
    Supreme Court of Oklahoma.
    March 9, 2004.

      Charles L. Waters, General Counsel, Richard A. Resetaritz, Assistant General Counsel, Oklahoma Department of Human Services, Oklahoma City, OK, for Respondent/Appellant.
    Robert W. Cole, Oklahoma City, OK, for Petitioner/Appellee.
   KAUGER, J.;

{1 We granted certiorari to determine whether: 1) in all instances, 74 0.8.2001 § 840-6.3 or Merit Protection Commission Rule OAC 455:10-11-4 require an employer to progressively discipline an employee before discharge or to demonstrate that some lesser disciplinary act would be ineffective before imposing a more stringent penalty; and 2) the factual determination to uphold the employee's discharge was clearly erroneous in view of the reliable, material, probative and substantially competent evidence or arbitrary or capricious. We determine that 74 0.8.2001 $ 840-6.8 and Merit Protection Commission Rule OAC 455:10-11-4 do not mandate the institution of progressive discipline before discharge in all causes nor do they require employers to prove that some less severe disciplinary act would be ineffective before imposing a more stringent penalty. Furthermore, although the record contains conflicting evidence on the issues of sexual harassment and retaliation, the factual determination to uphold the employee's discharge was neither clearly erroneous in view of the reliable, material, probative and substantially competent evidence nor was it arbitrary or capricious. Therefore, this Court will not substitute its judgment for that of the agency on its factual determinations.

CONTESTED FACTS

¶ 2 On December 3, 1974, the petitioner/appellee, Bruce R. Cox (Cox), went to work as a permanent classified employee for the respondent/appellant, Oklahoma Department of Human Services (DHS/employer). In May of 1999, while Cox occupied the position of County Director, the Office for Civil Rights received a complaint indicating that he had engaged in sexual harassment and created a hostile work environment. Cox's supervisor filed the complaint based upon the allegations of Glenda Trekell (Tre-kell/ecomplainant). Trekell asserted that Cox made unwelcome sexual remarks, repeatedly told dirty jokes, traded "favors for favors", and engaged in physical contact with other female employees. Representatives of the Office of Civil Rights: interviewed staff from Cimarron, Beaver, Texas, Woodward and Alfalfa Counties; reviewed electronic mail sent to and received from Cox; and perused personnel files to determine whether Cox had promoted an employee from Secretary I to Social Worker Assistant without her having met the requirements for the position.

¶ 3 When interviewed, Cox did not deny making sexual remarks. Rather, he indicated that he had made such remarks "to half the state". Documentation did not indicate that the secretary met the requirements for a promotion to a social worker position. Although not directly supervised by Cox, the Office of Civil Rights determined that one female employee had taken a voluntary demotion to avoid the hostile work environment Cox created. Furthermore, it uncovered evidence demonstrating Cox's use of DHS's electronic mail system to conduct personal romances and to send sexually oriented jokes demeaning to women. It determined that Cox violated DHS policy relating to: the courteous treatment of clients and employees; conduct unbecoming a public employee; and willful violation of the Oklahoma Personnel Act, 74 0.98.2001 § 840-1.1 et seq. His actions were also found to violate Title VII of the Civil Rights Act of 1964 and administrative prohibitions against the misuse of position and policy. The Office of Civil Rights recommended that Cox be disciplined and that the voluntarily demoted worker be reinstated to her prior position with pay.

¶ 4 On January 4, 2000, Cox's supervisor wrote Cox indicating that he was being given notice of a proposed adverse action-discharge. A revised letter was forwarded on January 11, 2000. On the same dates, under separate cover, Cox was provided documents relating to the termination decision. Although Cox contends that he was never advised that the investigative materials were confidential, both these transmittals provide that the investigative summary was a confidential document maintained separately from the employee's local personnel file. Furthermore, the investigators with the Office of Civil Rights and Cox's supervisor assert that they discussed with Cox, in-depth, his responsibility in regard to confidentiality and retaliation.

¶ 5 Following receipt of the termination notice, Cox called a meeting of all staff on January 12, 2000, having employees sign a sheet indicating the meeting was called for sexual harassment training. Following this meeting, an employee called Cox's supervisor. Because Cox stated that he would make the confidential investigative materials available to anyone who cared to read them, she was upset and feared reprisal. According to the employee, Cox even went so far as to say he would publish the report on the internet. The employee alleged that Cox called those who made statements against him liars and pressured other employees to write letters in his support. He also allegedly encouraged male employees to file complaints against female staff members who were not "Hly white". On January 20, 2000, the Office of Civil Rights received a telephone call from an employee in Texas County who had read the confidential investigative report and was upset because she believed that the relationship between herself and Cox had been mischar-acterized and she had been slandered.

¶ 6 As a result of these contacts, the Office of Civil Rights launched a second investigation. On January 21, 2000, it requested that Cox be removed from duty pending completion of the investigation concerning alleged retaliation. The Office of Civil Rights determined that the allegations relating to the coercive nature of the January 12%" meeting were well founded, that a hostile work environment was created, and recommended that disciplinary action be imposed. On January 31, 2000, Cox was forwarded an amended notice of proposed adverse action calling for his discharge and setting a pre-termination hearing for February 15%. The administrative hearing officer's report of the pre-termination hearing provides that testimony elicited at the hearing was contradictory. Nevertheless, she deemed the evidence sufficient to support the sexual harassment and hostile work environment charges warranting discharge.

¶ 7 Cox was issued a final notice of formal disciplinary action-discharge-on March 6, 2000. He filed a petition for reconsideration with the respondent, Oklahoma Merit Protection Commission (Merit Protection Commission). The testimony at the hearing on August 22, 2000, like that at the pre-termination hearing, was sharply divided between that detrimental to his cause and that in his favor. The original complainant testified that on two different occasions, Cox had asked her if she knew what "kinky sex was". Both times, he told her that it was "sex with a fat woman, 'cause there's so many kinks to put it in." The complainant also stated that Cox asked her at a training conference mixer if she'd ever needed "to go pee real bad". When she responded affirmatively, he asked her to "feel of me and see if I need to go". The same evening, Cox allegedly invited his see-retary to spend the night with him in front of a group of people because she had seen a mouse in her room earlier in the day.

¶ 8 Another social worker testified that when a young, attractive female came into Cox's office to apply for food stamps, he would make comments indicating that, based on her looks, she could qualify for assistance. The social worker also described an incident following the hiring of a new secretary in which Cox referred to a stripper who painted her breasts to look like puppies to some other employees. When the new secretary came into the room where the discussion was ongoing, Cox allegedly asked her if she would "show him her puppies". She responded that she would, if she had any. Only after Cox had returned to his office and the secretary was told of the basis of the discussion did she recognize she had been made the brunt of a joke involving her anatomy. The social worker indicated that Cox's sexual comments and innuendos were so prevalent that she kept her son and her mother-in-law out of Cox's office because she didn't want either of them exposed to his remarks. She also confirmed that Cox called a meeting in which he threatened to release the investigative report on the internet or to anyone in the office that wanted to read it. He also stated that the report contained false information. Because of these comments and the release of the report, the social worker was berated by others in the office and ostracized.

T9 Another thirty-year DHS employee testified that Cox would often comment on attractive women coming into the office saying that he would like to take them home with him or "have" them. She also stated that Cox referred to potential hirelings as needing to pass the "elbow test"-an exercise in which the female might be asked to walk up to a wall with her elbows extended to determine whether her elbows or her breasts would contact the wall-before being hired. This long-term employee transferred to a different job, taking a pay cut, to avoid the sexually charged atmosphere in Cox's office and the favoritism he evidenced.

¶ 10 The investigator for the Office of Civil Rights testified that Cox admitted to telling many of the sexual jokes described. An examination of Cox's computer uncovered a stored sexually explicit image of an exposed penis urinating into a beer stein. There were also electronic mail messages to a subordinate female employee asking her to take a ride with him, drink beer and talk nasty. To his secretary, he wrote that he had injured himself and asked that if she was going to "kiss it and make it better", could he change the location of the injury to his mouth. He also wrote her inquiring whether she would want a church wedding or to just elope. Another electronic mail message to the secretary asked her if she knew how to impress a man. Cox informed her that to do so one should "show up naked and bring beer". There were other communications between Cox and a former DHS employee in which he called her "darling", told her he loved her and that the only reason he didn't call was because he was afraid her husband would answer the telephone.

¶ 11 Following the meeting called by Cox concerning the investigation, the investigator received approximately five calls from employees who said, because of the information that Cox revealed, they had been accosted by other employees, humiliated, embarrassed and intimidated. The investigator testified that in another situation, very similar to the one presented by the allegations against Cox, the DHS employee was terminated for creating a hostile work environment and sexual harassment. Additionally, the investigator stated that, in his opinion, termination was the appropriate result and that he did not believe that Cox would change his behavior even if a lesser form of discipline were imposed.

¶ 12 Cox's supervisor stated that once she reviewed the evidence from the investigation she became convinced that termination was justified rather than some lesser discipline. She based the decision not only on the original complaints involving sexual harassment but also on his decision to call a meeting and to intimidate employees onee he was notified that he might lose his job. The supervisor simply felt there was no justification for not terminating him. She also testified that she told Cox three times, with emphasis, that the investigative report was confidential.

¶ 13 In rebuttal, Cox testified that the meeting which was held on January 12¢" had been previously scheduled as family support training and that, after he received the investigative report, he asked his secretary to gather everyone who was there. He denied having a sexually inappropriate relationship with an employee and stated that the only time he referred to the "elbow test" was when he was talking about a former supervisor who had used the test as a hiring procedure. He did admit to telling the jokes related to "kinky sex" and employing the "pee test" at parties or around the table at dinner as an ice breaker. He denied asking an employee to touch him to see if he needed to urinate. Cox testified that he had not asked his secretary to stay with him because she had seen a mouse in her room and that the incident concerning the new secretary and the "puppy conversation" occurred because other female employees shared a picture of a stripper with him. According to Cox, the new secretary walked in on the conversation, heard the term "puppies" and said she had some puppies and asked if anyone wanted to see them. When questioned about his electronic mail, Cox stated that he didn't believe any communications to be inappropriate.

¶ 14 Cox testified that during the meeting called on January 12%", he explained the complaint against him. He stated that he was never told the report was confidential and that he did not harass or intimidate anyone, nor did he encourage his male associates to file frivolous claims. He also indicated, that given the chance, he would change his behavior.

¶ 15 Four DHS employees testified that Cox did not tell sexually explicit jokes in the office and that they had never heard him refer to the "elbow test" or tell a joke about "kinky sex". Other witnesses said that Cox might tell a joke of a sexual nature on occasion and he had mentioned the "elbow test". None of these employees felt that there was any sexual harassment going on in the office or that the meeting held concerning the investigative report created a hostile work environment. Nevertheless, three of these employees indicated that the investigative report had been made available to them and another individual testified that she was aware that several employees saw the report.

¶ 16 The administrative hearing officer issued a final order on September 183, 2000, finding that: 1) progressive discipline need not always be imposed; 2) a preponderance of the evidence supported Cox's discharge; and 3) there had been no abuse of discretion under the facts and circumstances of the cause. The Commissioners en bane reviewed the hearing officer's ruling on October 80, 2000, denying Cox's request for rehearing or reconsideration of the order. On November 27%, Cox filed a petition for review with the district court. . After hearing argument, the trial judge, Honorable Ryan D. Reddick, issued an order on July 30, 2001, leaving undisturbed the administrative hearing officer's findings of fact and determining that the employer failed to follow statutory mandates for progressive discipline, reversing the administrative decision and ordering the employee be reinstated. The employer appealed and the Court of Civil Appeals affirmed, subsequently denying DHS's petition for rehearing on August 8, 2008. On November 8, 2008, certiorari was granted.

I.

¶ 17 TITLE 74 0.8.2001 § 840-6.3 AND MERIT PROTECTION COMMISSION RULE OAC 455:10-11-4 DO NOT MANDATE THE IMPOSITION OF PROGRESSIVE DISCIPLINE IN ALL INSTANCES NOR DO THEY

REQUIRE EMPLOYERS TO AFFIRMATIVELY DEMONSTRATE THAT soME LESSER DISCIPLINARY ACT WOULD BE INEFFECTIVE BEFORE IMPOSING A MORE STRINGENT PENALTY.

¶18 DHS contends that neither 74 0.9$.2001 § $40-6.3 nor Merit Protection Commission Rule OAC 455:10-11-4 mandate the imposition of progressive discipline in all causes. Cox does not dispute seriously this premise. Rather, he argues that public policy mandates that only when an agency demonstrates that no lesser alternative punishment would properly address the problem may an employee be discharged without being given the opportunity to correct behavior through the progressive disciplinary process. DHS asserts that neither the statute nor the rule impose such a burden on the employer. We agree.

¶19 In determining whether a statute applies to a given set of facts, we focus on legislative intent which controls statutory interpretation. Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. The Court presumes that the Legislature expressed its intent and that it intended what it expressed. Statutes are interpreted to attain that purpose and end championing the broad public policy purposes underlying them. Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.

¶ 20 Title 74 0.98.2001 § 840-6.3 provides in pertinent part:

"A. Each appointing authority shall establish written policies and procedures for progressive discipline of employees according to the rules established by the Oklahoma Merit Protection Commission....
B. Progressive discipline is a system designed to ensure not only the consistency, impartiality and predictability of discipline, but also the flexibility to vary penalties if justified by aggravating or mitigating conditions. Typically, penalties range from verbal warning to discharge, with intermediate levels of a written warning, suspension or demotion. ...
C. Each supervisor shall be responsible for applying discipline when necessary that is progressive in nature, appropriate for the offense, and equitable. Each supervisor shall consider aggravating or mitigating circumstances when determining the proper disciplinary action. Each supervisor shall use prompt, positive action to avoid more serious disciplinary actions. The Oklahoma Merit Protection Commission shall promulgate rules to establish the requirements and guidelines for discipline." [Emphasis provided.]

¶ 21 Cox finds support for his premise in the apparently mandatory language of the statute providing that: a progressive disciplinary process "shall" be established; supervisors "shall" be responsible for applying discipline progressively; and the requirement that supervisors "shall" move promptly to avoid more serious disciplinary actions. Although the use of "shall" generally signifies a legislative command, the term can be permissive. Furthermore, despite the Legislature's clear intent that progressive discipline should be the norm when employers deal with underperforming employees, the statute also provides that, within the system itself, flexibility exists to vary penalties when justified by aggravating or mitigating cireum-stances. Nevertheless, the statute does not impose a duty on the employer or agency to demonstrate that a lesser disciplinary action would be ineffective before any higher penalty is instituted.

122 The Legislature may delegate rule making authority to agencies, boards and commissions to facilitate the administration of legislative policy pursuant to the Administrative Procedures Act, 75 O0.8.1991 § 250 et seq. Administrative rules dre valid expressions of lawmaking powers having the force and effect of law. Administrative rules, like statutes, are given a sensible construction bearing in mind the evils intended to be avoided. Statutory construction by agencies charged with the law's enforcement is given persuasive effect especially when made shortly after the statute's enactment. The Legislature has directed the Merit Protection Commission to promulgate rules to establish the requirements and guidelines for progressive discipline. In connection with its responsibility to provide such guidelines, the Merit Protection Commission promulgated OAC 455:10-11-4 providing in pertinent part:

"... Based on relevant cireumstances, a single incident may justify a higher step of discipline without proceeding through lower steps of discipline." {[Emphasis supplied.]

¶ 23 Taken together, the language of 74 0.9$.2001 § 840-6.3, giving agencies the flexibility to vary penalties if justified by aggravating or mitigating conditions, and the text of the Merit Protection Commission's rule, providing that one incident may justify a higher step of discipline without proceeding through lower steps, make it clear that progressive steps need not always be imposed when disciplining an errant employee.

¶ 24 The Legislature has acquiesced in the Merit Commission Board's interpretation. Under the Administrative Procedures Act, the Legislature may: 1) approve, delay, suspend, veto or amend any rule or proposed rule under review by joint resolution; « 2) disapprove a permanent or emergency rule at any time if it determines the rule to be inconsistent with legislative intent; or 3) make an emergency rule ineffective through its disapproval. Onee administrative rules are promulgated and successive legislative sessions are convened with no action to reject a rule, the Legislature's silence is regarded as proof of the lawmakers' consent. The Legislature is deemed to have adopted an administrative construction when it amends or re-enacts a relevant statute without overriding the administratively-imposed construction.

¶ 25 Through the promulgation of OAC 455:10-11-4, the Merit Commission made it clear that there may be instances in which progressive disciplinary steps are not warranted. The Legislature amended 74 O.S8. 2001 § 840-6.8 effective March 81, 2008. In doing so, it did not alter the construction placed on the statute by the agency rule. Therefore, it has adopted the Merit Commission's interpretation.

¶ 126 Neither 74 0.S8.2001 § 840-6.3 nor Merit Protection Commission Rule OAC 455:10-11-4 impose a duty on the employer or ageney to demonstrate that a lesser disciplinary action would be ineffective before any higher penalty is instituted. This Court does not read exceptions into a statute nor may we impose requirements not mandated by the Legislature. Therefore, we hold that 74 0.$.2001 § 840-6.3 and Oklahoma Merit Protection Rule 455:10-11-4 do not mandate the imposition of progressive discipline in all instances. Furthermore, they do not require employers to affirmatively demonstrate that some lesser disciplinary act would be ineffective before imposing a more stringent penalty.

IL.

¶ 27 ALTHOUGH CONFLICTING EVIDENCE WAS PRESENTED ON THE ISSUES OF SEXUAL HARASSMENT AND RETALIATION, THE FACTUAL DETERMINATION TO UPHOLD THE EMPLOYEE'S DISCHARGE WAS NEITHER CLEARLY ERRONEOUS IN VIEW OF THE RELIABLE, MATERIAL, PROBATIVE AND SUBSTANTIALLY COMPETENT EVIDENCE NOR WAS IT ARBITRARY OR CAPRICIOUS; THEREFORE, WE MAY NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY'S FACTUAL DETERMINATIONS.

¶ 28 DHS argues that the record evidence is sufficient to support the Merit Protection Commission's final order upholding Cox's discharge. Cox contends that the evidence does not support a finding of sexual harassment or the creation of a hostile work environment and that discharge was too severe a penalty to impose.

¶ 29 In reviewing an administrative order our province is not to determine whether, in the first instance, this Court would reach the same result as the administrative agency. We do not substitute our judgment for that of the ageney on its factual determinations. Rather, we review the ree-ord to determine whether the petitioner's substantial rights have been prejudiced by a clearly erroneous decision considering the reliable, material, probative and substantially competent evidence resulting in an arbitrary or capricious result.

¶ 30 Although there was evidence presented at the administrative hearing which would support a finding both that Cox engaged in sexually harassing behavior and created a hostile work environment through his retaliatory actions during the staff meeting held on January 12, 2000, there was also evidence from several of Cox's subordinates indicating that he did not engage in sexually explicit behavior or create a stressful environment in the work place. Nevertheless, the record contains multiple electronic mail messages from Cox to female employees which are rife with sexual innuendo. Cox testified at the hearing that he did not find these messages to be inappropriate. Furthermore, following the January staff meeting, the Office of Civil Rights received a number of calls from individuals who were concerned that they would face retaliation because of the manner in which Cox handled the confidential investigatory report. One of the calls came from an employee who felt she had been slandered because of information contained in the report indicating she and Cox engaged in an inappropriate relationship. Finally, the record indicates that at least one other DHS employee, engaging in similar behavior, was terminated and that the investigators specifically believed that no lesser form of penalty would result in reformation of Cox's behavior.

¶ 31 Under the record presented, we hold that although conflicting evidence was presented on the issues of sexual harassment and retaliation, the factual determination to uphold the employee's discharge was neither clearly erroneous in view of the reliable, material, probative and substantially competent evidence nor was it arbitrary or capricious. Therefore, we may not substitute our judgment for that of the agency's factual determinations.

CONCLUSIONS

¶ 32 We recognize that Cox's discharge seems a high price to pay for a supervisor nearing retirement. Nevertheless, a balance must be struck between the rights of the employee and the need to have governmental operations run smoothly. The Legislature has established a clear policy against sexual harassment in state agencies. Furthermore, it recently added a new subsection to the progressive discipline regime indicating that evidence over four years old shall not be considered in imposing an increased penalty to a formerly disciplined employee [much of the evidence introduced in relation to Cox was contemporaneous with the charges and, at the oldest, two years preceding the disciplinary action]. However, one of the specific exemptions from the stale evidence rule is any incident involving sexual misconduct and/or harassment. Here, in performing his duties, the employee violated standards, restraints and restrictions on conduct, clearly and explicitly prohibited by the Legislature. Certainly, as a general rule, employers should utilize progressive disciplinary standards to correct inadequate job performance whenever appropriate. Nevertheless, under these circumstances, requiring an employer to retain such an employee would contravene the legislatively created policy against sexual harassment-especially where 74 0.$.2001 § 840-6.3 and Merit Protection Commission Rule OAC 455:10-11-4 do not mandate the imposition of progressive discipline in all instances or require employers to prove that some less severe disciplinary act would be ineffective before imposing a more stringent penalty.

¶ 33 The record contains conflicting evidence on the issues of sexual harassment and retaliation. Nevertheless, the factual determination to uphold the employee's discharge was neither clearly erroneous in view of the reliable, material, probative and substantially competent evidence nor was it arbitrary or capricious. Therefore, we may not substitute our judgment for that of the agency's factual determinations.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART.

WATT, C.J., HODGES, HARGRAVE, WINCHESTER, EDMONDSON, JJ., concur.

BOUDREAU, J., concurs in result.

OPALA, V.C.J. and LAVENDER, J. concur in part and dissent in part.

OPALA, V.C.J.,

with whom LAVENDER, J., joins, dissenting in part.

1 I would affirm the trial court's judgment.

      . Title 74 0.9.2001 § 840-6.3 provides:
      "A. Each appointing authority shall establish written policies and procedures for progressive discipline of employees according to the rules established by the Oklahoma Merit Protection Commission. Sections 530:10-11-111 and 10-11-113 of the Oklahoma Administrative Code promulgated by the Administrator of the Office of Personnel Management are hereby transferred to the Oklahoma Merit Protection Commission and shall remain in effect until duly amended by the Commission.
      B. Progressive discipline is a system designed to ensure not only the consistency, impartiality and predictability of discipline, but also the flexibility to vary penalties if justified by aggravating or mitigating conditions. Typically, penalties range from verbal warning to discharge, with intermediate levels of a written warning, suspension or demotion. Absent mitigating circumstances, repetition of an offense is accompanied by a generally automatic progression to the next higher level of discipline.
      C. Each supervisor shall be responsible for applying discipline when necessary that is progressive in nature, appropriate for the offense, and equitable. Each supervisor shall consider aggravating or mitigating circumstances when determining the proper disciplinary action. Each supervisor shall use prompt, positive action to avoid more serious disciplinary actions. The Oklahoma Merit Protection Commission shall promulgate rules to establish the requirements and guidelines for discipline."
      Section 840-6.3 was amended effective March 31, 2003. The amendment deleted the last sentence of subsection (A) referring to the transfer of the Administrative Code sections from the Office of Personnel Management to the Merit Protection Commission and added subsection (D) providing:
      "D. The rules shall prohibit supervisors from considering incidents that occurred longer than four (4) years prior to an offense in order to move to a higher level of discipline. The prohibition shall not apply to incidents involving the following types of conduct:
      1. Criminal activity;
      2. Sexual misconduct and/or harassment;
      3. Racially discriminatory behavior and/or harassment;
      4. Threats or acts of violence against employees in the workplace; and
      5. Drug and/or alcohol use or abuse on the job."

      . Merit Protection Commission Rule OAC 455:10-11-4 provides:
      "(a) Progressive discipline is a system designed to ensure not only the consistency, impartiality and predictability of discipline, but also the flexibility to vary penalties if justified by aggravating or mitigating conditions. Typically, penalties range from verbal warning to discharge, with intermediate levels of a written warning, suspension or demotion. Absent mitigating circumstances, repetition of an offense is accompanied by a generally automatic progression to the next higher level of discipline. (b) Based on relevant circumstances, a single incident may justify a higher step of discipline without proceeding through lower steps of discipline."

      . Title 75 0.S.2001 § 322 provides:
      "(1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand i to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are:
      (a) in violation of constitutional provisions; or
      (b) in excess of the statutory authority or jurisdiction of the agency; or
      (c) made upon unlawful procedure; or (d) affected by other error of law; or
      (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or
      (f) arbitrary or capricious ...
      (3) The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant."

      . Title 75 0.$.2001 § 322, see note 3, supra; Triangle Fraternity v. City of Norman ex rel. Norman Bd. of Adjustment, 2002 OK 80, ¶ 11, 63 P.3d 1; Banks v. City of Bethany, 1975 OK 128, ¶ 6, 541 P.2d 178; Bailey v. Uhls, 1972 OK 147, ¶13, 503 P.2d 877.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, pp. 12-13.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 15.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 22.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 23.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 24.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, pp. 26-27 and pp. 41-42.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 39.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 39.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 40.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 55.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 58.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 59.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 60.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 63.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 65.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 66.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, pp. 73-75.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 79.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, pp. 117 and 121.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 118.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, pp. 111, 115 and 123.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 131.

      . Title 75 0.$.2001 § 318.

      . Title 74 0.S.2001 § 840-6.3, see note 1, supra.

      . Merit Protection Commission Rule OAC 455:10-11-4, see note 2, supra.

      . Anderson v. City of Lawton, 1987 OK CIV APP 91, 748 P.2d 53, an opinion released for publication by the Court of Civil Appeals, holds that the failure of the city to follow its termination and disciplinary procedures mandated reversal of a former police officer's discharge, that the discharge was not channeled through the city manager's office, as required by city ordinance, nor did the city follow its progressive discipline procedures anticipated by ordinance and a collective bargaining agreement. The opinion is non-prec-edential [Rule 1.200, Supreme Court Rules, 12 O.S.2001, Ch. 15, App. 1] and is distinguishable on the facts. In Anderson, the police officer was not afforded procedural guarantees and was disciplined for off-duty behavior. Here, there are no allegations that the termination decision did not proceed through the correct channels. Furthermore, although Cox asserted that he did not tell off-color jokes in the office, he did utilize the department electronic mail to forward such jokes. Neither are we bound by an unpublished opinion of the 10th Cir. In Adams v. City of Oklahoma City, 1998 WL 381062 (10th Cir.1998), the federal court determined that, where there are options for other actions, you need not follow progressive disciplinary policy.

      . Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438; Cooper v. State ex rel. Dept. of Public Safety, 1996 OK 49, ¶ 10, 917 P.2d 466.

      . Smicklas v. Spitz, 1992 OK 145, ¶ 8, 846 P.2d 362; Clifton v. Clifton, 1990 OK 88, ¶ 7, 801 P.2d 693; Fuller v. Odom, 1987 OK 64, ¶ 4, 741 P.2d 449.

      . McSorley v. Hertz Corp., 1994 OK 120, ¶ 6, 1992 OK 61, ¶ 8, 832 P.2d 834; Smicklas v. Spitz, 885 P.2d 1343; Oglesby v. Liberty Mut. Ins. Co., see note 32, supra.

      . Haney v. State, 1993 OK 41, ¶ 5, 850 P.2d 1087; Public Serv. Co. of Oklahoma v. State ex rel. Corp. Comm'n, 1992 OK 153, ¶ 8, 842 P.2d 750.

      . Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082; Fuller v. Odom, see note 32, supra; Darnell v. Chrysler Corp., 1984 OK 57, ¶ 5, 687 P.2d 132.

      . Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶ 5, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523 (1995); Wilson v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1979 OK 62, ¶ 5, 594 P.2d 1210; Affiliated Mgt. Corp. v. Oklahoma Tax Comm'n, 1977 OK 183, 570 P.2d 335.

      . Haggard v. Haggard, 1998 OK 124, ¶ 1, 975 P.2d 439; Price v. Southwestern Bell Tel. Co., 1991 OK 50, ¶ 7, 812 P.2d 1355.

      . State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶ 9, 950 P.2d 824; Matter of Estate of Flowers, 1993 OK 19, ¶ 11, 848 P.2d 1146.

      . United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶ 7, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147; Forest Oil Corp. v. Corp. Comm'n, 1990 OK 58, ¶ 26, 807 P.2d 774.

      . Minie v. Hudson, see note 35, supra; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶ 9, 619 P.2d 869.

      . Title 75 0.$.2001 § 250.2.

      . Title 75 O.S.2001 § 308.2; Indiana Nat'l Bank v. State ex rel. Dept. of Human Serv., 1993 OK 101, ¶ 13, 857 P.2d 53.

      . Oklahoma Alcoholic Beverage Control Bd. v. Burris, 1980 OK 58, ¶ 13, 626 P.2d 1316, 20 A.L.R.4th 593.

      . Schulte Oil Co., Inc. v. Oklahoma Tax Comm'n, 1994 OK 103, ¶ 4, 882 P.2d 65. The language found in 74 0.$.2001 § $40-6.3 first appeared in legislation promulgated in 1994. The administrative rule followed the next year.

      . Title 74 0.$.2001 § 840-6.3, see note 1, supra.

      . Merit Protection Commission Rule OAC 455:10-11-4, see note 2, supra.

      . Title 75 0.$.2001 § 250.2(B)(4).

      . Title 75 0.$.2001 § 250.2(B)(6).

      . Title 75 0.$.2001 § 253(H).

      . Walker v. Group Health Serv., Inc., 2001 OK 2, ¶ 32, 37 P.3d 749; Peterson v. Oklahoma Tax Comm'n, 1964 OK 78, ¶ 16, 395 P.2d 388.

      . Branch Trucking Co. v. State ex rel. Oklahoma Tax Comm'n, 1990 OK 41, ¶ 6, 801 P.2d 686; Oral Roberts Univ. v. Oklahoma Tax Comm'n, 1985 OK 97, ¶ 17, 714 P.2d 1013.

      . World Pub. Co., v. Miller, 2001 OK 49, ¶ 10, 32 P.3d 829; Case-Aimola Properties, Inc. v. Thurman, 1988 OK 30, ¶ 9, 752 P.2d 1120; Grand River Dam Auth. v. State, 1982 OK 60, ¶ 25, 645 P.2d 1011.

      ., B.E. & K. Constr. v. Abbott, 2002 OK 75, ¶ 17, 59 P.3d 38.

      . Our determination is consistent with the majority of jurisdictions considering the issue of whether progressive disciplinary steps must always be followed. See, Bruce Hardwood Floors, Div. of Triangle Pacific Corp. v. UBC, Southern Council of Indus. Workers, Local Union No. 2713, 103 F.3d 449, 453 (5th Cir.1997), cert. denied, 522 U.S. 928, 118 S.Ct. 329, 139 LEd.2d 255 (1997) [Discharge reinstated where allegations of failure to follow procedure.]; Gibb v. World Book, Inc., 29 F.3d 411, 413 (8th Cir.1994) [No need to rigidly follow steps where policy contained permissive language.]; Anderson v. Stauffer Chemical Co., 965 F.2d 397, 402 (7th Cir.1992) [Need not follow when not strictly mandatory.]; Life Care Centers of America, Inc. v. Dexter, 2003 WY 38, ¶¶ 11-12, 65 P.3d 385 (2003) [Discretion to avoid steps with employee in which have lost confidence under policy.]; Maryland Trans. Auth. v. King, 369 Md. 274, 799 A.2d 1246, 1253 (2002) [One incident sufficient for discharge where language indicates possibility.]; Churchey v. Adolph Coors Co., 759 P.2d 1336, 1349 (Co.1988) [Company's failure to follow policy not outrageous conduct.]; Lynn v. Camp, 2003 WL 22401280 (Tenn.Ct.App.2003) [Employee may be fired for first incident where discretion exists.]; Hanford v. City of Arnold, 49 S.W.3d 707, 711 (Mo.App.2001) [When policy provides may be dismissed for a single incident, firing following one infraction complied with policy.]; Fredon Corp. v. Zelenak, 124 Ohio App.3d 103, 705 N.E.2d 703, 708 (1997) [No need to follow where policy not mandatory.]; Dept. of Corrections v. Shaw, 217 Ga.App. 33, 456 S.E.2d 628, 630 (1995) [No abuse where do not follow policy.]; Frigm v. Unemployment Comp. Bd. of Review, 164 Pa.Cmwlth. 282, 642 A.2d 629, 631 (1994) [No need to comply when there is an exception for serious conduct.]; Hattervig v. de la Torre, 870 S.W.2d 895, 901 (Ct.App.Mo.1994) [Where policy flexible, can skip progressive steps.]; Bhatia v. Department of Employment Sec., 834 P.2d 574, 579 (Ct.App.Utah 1992) [Can act so badly as to justify ignoring policy.]; Lyles v. Department of Trans., 183 Ill.App.3d 901, 132 Ill.Dec. 270, 539 N.E.2d 833, 840 (1989), appeal denied, 127 Ill.2d 619, 136 Ill.Dec. 589, 545 N.E.2d 113 (1989) [Need not follow when con duct serious.]; Battiste v. Department of Social Serv., 154 Mich.App. 486, 398 N.W.2d 447, 450 (1987) [Although failure to consider progressive discipline found arbitrary, did not dismiss possibility that one incident would support firing.]; Pryse v. Yakima School Dist. No. 7, 30 Wash.App. 16, 632 P.2d 60, 66 (1981) [Serious conduct will excuse use of remedial procedures.]. But see, G.B. Goldman Paper Co. v. United Paperworkers Inter'l Union, Local 286, 957 F.Supp. 607, 615 (E.D.Pa.1997) [Failure to follow procedures gave arbitrator authority to fashion remedy.]; Byrd v. City of Atlanta, 709 F.Supp. 1148, 1151 (N.D.Ga. 1989) [Failure to follow when allowing for limited discharge gave rise to due process challenge.]; Local 2195, Lumber & Sawmill Workers Union v. International Paper Co., 488 F.Supp. 877, 880 (D.Oregon 1980), aff'd, 685 F.2d 443 (9th Cir.1982) [Failure to follow precludes discharge.]; New Mexico Regulation & Licensing Dept. v. Lujan, 127 N.M. 233, 979 P.2d 744, 748-49 (1999) [Must follow steps of discipline.]; Rebel v. Unemployment Comp. Bd. of Review, 692 A.2d 304, 307 (Pa.Cmwlth.1997), appeal granted, 548 Pa. 573, 699 A.2d 732 (1997), aff'd, 555 Pa. 114, 723 A.2d 156 (1998) [Where limited to discharge for a major action and incident does not meet definition, must follow policy.]; America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 914 (Ct.App.Tex.1996) [Where company rules provided for progressive policy, jury could conclude firing unjust where not followed.]; Pickett v. Unemployment Comp. Bd. of Review, 55 Ohio App.3d 68, 562 N.E.2d 521 (1989) [Failure to follow mandatory progressive policy resulted in discharge without just cause.]. See also, Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1515 (10th Cir.1995) [Permissive statement in policy gives rise to jury question on requirement to follow steps.]; Tennes v. Commonwealth of Massachusetts, Dept. of Revenue, 944 F.2d 372, 379 (7th Cir.1991) [Failure to follow might be factor when coupled with other evidence on age discrimination.]; Randall v. Unitech Sys., Inc., 243 F.Supp.2d 822, 832 (N.D.Ill.2003) [Failure to follow alone not sufficient to show discriminatory intent.]; Lehighton Area School Dist. v. Pennsylvania Labor Relations Bd., 682 A.2d 439, 443 (Pa.Cmwlth.1996) [Failure to follow could show animus.]; In re Brooks, 135 Vt. 563, 569, 382 A.2d 204 (1977) [Can contract for progressive disciplinary policy.]; Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 707 (Minn.1992) [Can contract for progressive disciplinary policy.]; DeBois v. Department of Employment Sec., 274 Ill.App.3d 660, 210 Ill. Dec. 874, 876, 653 N.E.2d 1336 (1995) [Have policy and fail to follow, cannot deny unemployment benefits.].

      . Cox also argued before the Court of Civil Appeals that the administrative hearing officer did not properly memorialize the findings of fact or adequately consider circumstances outlined in Merit Protection Commission Rule OAC 455:10-9-2(C) requiring the presiding official, upon a finding that just cause existed for adverse action but did not justify the severity of the discipline imposed, to consider: the seriousness of the conduct relating to the employee's duties and responsibilities; the consistency of action taken with respect to similar conduct; the previous employment and disciplinary records of the employee; and mitigating circumstances. The argument is unconvincing. The final order specifically provides that DHS showed, by a preponderance of the evidence, that the discharge did not constitute an abuse of discretion under the facts and circumstances of the cause. Therefore, it was unnecessary for the administrative hearing officer to outline the considerations imposed by the rule.

      . Title 75 O.S.2001 § 322, see note 3, supra; Triangle Fraternity v. City of Norman ex rel. Norman Bd. of Adjustment, see note 4, supra; Banks v. City of Bethany, see note 4, supra; Bailey v. Uhls, see note 4, supra.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 92.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 63.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 65.

      . Transcript of hearing on petition for reconsideration, August 22, 2000, p. 66. Such a believe has, in itself, been determined to be rational support for failing to follow progressive steps in disciplining an employee. Barakat v. Taco Bell, Inc., 970 F.Supp. 634, 640 (N.D.Ill.1997).

      . Title 74 § 840-2.9. See also, Oklahoma's Anti Discrimination Act, 25 0.$.2001 § 1101 et seq.

      . Title 74 0.$.2001 § 840-6.3, see note 1, supra.

      . Id.

      . Merit Protection Commission Protection Rule OAC 455:10-11-4, see note 2, supra.

      . Title 75 0.$.2001 § 322, see note 3, supra; Triangle Fraternity v. City of Norman ex rel. Norman Bd. of Adjustment, see note 4, supra; Banks v. City of Bethany, see note 4, supra; Bailey v. Uhls, see note 4, supra.


text:
    2004 OK CR 8
    Ronald W. WILLIAMS, Petitioner, v. STATE of Oklahoma, Respondent.
    No. PC-2003-1074.
    Court of Criminal Appeals of Oklahoma.
    Feb. 12, 2004.
   ORDER REMANDING POST-CONVICTION MATTER FOR FURTHER PROCEEDINGS

¶ 1 On October 1, 2008, Petitioner, a prisoner in the custody of the Oklahoma Department of Corrections, filed with the Clerk of this Court a pro se Petition in Error. Through this Petition he appeals a September 4, 2008, order pronounced in the District-CourtofTulsaCounty by the Honorable Gordon McAllister, District Judge, Case No. CF-2002-4097. Judge McAllister's order denied a post-conviction pleading that Petitioner filed in the District Court on June 2, 2008. Petitioner's pleading was entitled "Motion to Amend Sentence and Modify the Same Nunc Pro Tunc" (hereinafter referred to as "Motion to Amend").

¶ 2 In CF-2002-4097, Petitioner, while represented by counsel, was sentenced on September 19, 2002, to a term of six years imprisonment for Burglary in the Second Degree. This conviction followed a plea of guilty, which, according to Petitioner and the order appealed, was entered pursuant to a plea agreement with the State. Pursuant to the agreement, the District Court was to sentence Petitioner to a six-year term of imprisonment, and it was also to order that term to be served concurrently with those terms of imprisonment imposed in two earlier Tulsa County District Court matters, Case Nos. CF-98-6028 and CF-98-6177 (hereinafter referred to as the "1998 terms"). The limited post-conviction appeal record before us indicates the District Court did indeed, when sentencing Petitioner, order that his burglary sentence be served concurrently with Petitioner's 1998 terms. Petitioner did not appeal his burglary conviction.

¶ 13 Within his Motion to Amend, Petitioner complained that the Department of Corree-tions was refusing to permit him to serve his burglary term of imprisonment and his 1998 terms concurrently. Attachments to Petitioner's Motion indicated that when Petitioner's burglary sentence was imposed, Petitioner was on parole upon the 1998 terms, and that it was not until March 24, 2008, that the Governor revoked this parole. (O.R. 8-9.) The Governor's Certificate of Parole Revocation ordered that the remaining unexecuted portion of Petitioner's 1998 terms "run consecutively with the term received in CF 02-4097," Petitioner's burglary sentence. (O.R. 9.) Because Petitioner believed that the Governor's executive order for consecutive service of the 1998 terms was contrary to the plea agreement made with the State in his burglary case, Petitioner asked the District Court "that the [burglary] Judgement and Sentence be modified from six to two years and six months to serve, with the parole revocation of 1300 days to be served consecutively for a term in full of six years, as the plea agreement provides." (O.R. 6-7.)

¶ 4 The District Court construed Petitioner's Motion to Amend as a claim for the writ of habeas corpus. The District Court held:

In essence, this is a claim that the petitioner will be held longer than the time called for in the Judgment and Sentence. This claim amounts to nothing more than a premature claim for release from custody. The District Court will [therefore] treat this application as a writ of habeas corpus.

(O.R. 19.) Having so held the District Court concluded that it must deny Petitioner habe-as relief for two reasons: first, "it lacks venue in this case because the Petitioner is confined in Payne County and not in Tulsa County" (@d.); and secondly, because Petitioner did not prove that he was entitled to immediate release (O.R. 20-21).

¶ 5 Petitioner argues that his claim was properly brought under the Post-Conviction Procedure Act and that it was error for the District Court to treat his motion as a habeas matter and thereby deny him the modification order for which he prayed. We FIND that it was indeed error for the District Court to construe Petitioner's Motion to Amend as an action for the writ of habeas corpus rather than as a claim for post-conviction relief. We further find that this error requires that Petitioner's matter be remanded to the District Court for further proceedings under the Post-Convietion Procedure Act. ‘

6 Construed in the light most favorable to Petitioner, his Motion to Amend alleged that he entered his plea of guilty to Burglary in the Second Degree pursuant to a plea agreement that would require, if the agreement was accepted by the District Court, that the sentence imposed be served concurrently with his 1998 terms of imprisonment. Petitioner's Motion to Amend may further be construed as acknowledging that the District Court did indeed order the burglary sentence to be served concurrently with the 1998 terms, but that the District Court's order was not being carried out because of the directives within the Certificate of Parole Revocation.

¶ 7 From the foregoing it becomes apparent that Petitioner's complaint does not lie with that which occurred within his burglary case, for in that case the District Court entered those orders required by the plea agreement. Rather Petitioner's complaint is with that directive within the Certificate of Parole Revocation directing that his 1998 terms be served consecutively with the term received in CF 2002-4097. It is therefore within the parole revocation proceedings where Petitioner's complaint properly lies.

¶ 8 A person who believes that his parole has been unlawfully revoked is permitted to. challenge that revocation through post-conviction proceedings. Such a post-conviction action may be commenced once the Governor has formally revoked parole. The proper venue for a post-conviction action challenging a revocation of parole is "the county in which the person's Judgment and Sentence on conviction was imposed. It is under these authorities that Petitioner may commence a post-conviction action challenging the Certificate of Parole Revocation. The action should be commenced within Case Nos. CF-98-6028 and CF-98-6177, the cases imposing those sentences upon which Petitioner was paroled and thereafter had his parole revoked.

¶ 9 Upon commencing such a post-conviction proceeding and giving proper notice, Petitioner may then proceed to establish that the Governor exceeded his authority when he included within the Certificate of Parole Revocation a directive that Petitioner's 1998 terms must be served consecutively to the term imposed in CF-2002-4097. Petitioner's legal basis for this claim rests upon 22 0.8.2001, § 976, which provides that "the sentencing judge shall, at all times, have the discretion to enter a sentence concurrent with any other sentence. Because the Legislature has vested sentencing judges with authority to order sentences to be served concurrently, the Governor cannot override a judge's lawful order for concurrent terms of imprisonment. Neither can the Governor, in an ex post facto fashion, increase the sentence previously rendered in a final judgment and sentence. Onee establishing that the Governor exceeded his authority in ordering consecutive service of Petitioner's terms of imprisonment, Petitioner would be entitled to a post-conviction judgment in his favor. This judgment should either order that the unlawful portion of the Certificate of Parole Revocation be stricken or order that the Governor file an Amended Certificate of Parole Revocation that omits the unlawful directive for consecutive service of Petitioner's terms of imprisonment.

¶ 10 IT IS THEREFORE THE ORDER OF THIS COURT that the September 4, 2003, order of the District Court of Tulsa County, Case No. CF-2002-4097, is REVERSED AND REMANDED for further proceedings. Upon remand the District Court shall afford Petitioner an opportunity to retain counsel, or if indigent, shall appoint counsel for Petitioner unless waived on the record after proper disclosures. The District Court shall then, in accordance with the analysis set out in this order, permit Petitioner an opportunity to amend his post-conviction pleadings to challenge that directive within the parole revocation that requires Petitioner's terms of imprisonment in Case Nos. CF-98-6028 and CF-98-6177 to be executed consecutively to Petitioner's term of imprisonment.in Case No. CF-2002-4097.

¶ 11 IT IS THE FURTHER ORDER OF THIS COURT that upon Petitioner amending his post-conviction pleadings, the District Court shall adjudicate the same and enter a final judgment thereon in a manner that comports with the relevant procedures set forth in 22 0.8.2001, § 1083, and if an eviden-tiary hearing is deemed necessary, Section 1084. The District Court's final order shall set out its specific findings of fact and conclusions of law in regard to the matters presented.

¶ 12 IT IS THE FURTHER ORDER OF THIS COURT that when entering its final judgment, the District Court shall specify the pleadings, documents, exhibits, and specific portions of the record and transcripts considered in adjudicating Petitioner's post-conviction claims. See Rule 5.4(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004). Upon completion of its final order, a certified copy thereof setting forth findings of fact and conclusions of law shall be mailed or personally delivered to Petitioner (and his counsel, if any) as required by Rule 5.3(A). An additional certified copy of the final order shall also be transmitted to the Clerk of this Court to be filed herein within sixty -(60) days from the date of today's Order.

¶ 13 IT IS THE FURTHER ORDER OF THIS COURT that upon the filing of the District Court's final judgment with the Clerk of this Court, this Court will then enter such other orders, as may be necessary for final disposition of this post-conviction appeal.

¶ 14 The Clerk for the Court of Criminal Appeals is directed to transmit a copy of this Court's Order to the Honorable Gordon McAllister, District Judge; to the Tulsa County Court Clerk; and to Fred J. Morgan, Assistant District Attorney; as well as to Petitioner. ~

¶ 15 IT IS SO ORDERED.

¶ 16 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 12th day of February, 2004.

/s/ Charles A. Johnson 1 CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Tile STEVE LILE, Viee Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/) Reta M. Strubhar RETA M. STRUBHAR, Judge

      . Because we find that Petitioner's Motion to Amend should have been construed as an application for post-conviction relief, we allow Petitioner's matter to proceed in this Court under the authority of 22 0.$.2001, § 1087, as an appeal from a final judgment denying post-conviction relief.

      . 22 0.$.2001, § 1080(e); Delfrate v. Oklahoma Dep't of Corrections, 1999 OK CR 42, ¶ 16, 991 P.2d 549, 552 ("a challenge to the validity of a revocation of parole is to be brought, not in a petition for writ of habeas corpus, but as an application for post-conviction relief"); see also Hoover v. State, 2001 OK CR 16, ¶ 3, 29 P.3d 591, 593 (an appeal from a "revocation of parole is governed by post-conviction procedures").

      . Frazier v. State, 2002 OK CR 33, ¶ 13, 59 P.3d 512, 516.

      . Delfrate, § 22, 991 P.2d at 553.

      . This same statute also gives authority for the sentencing judge to specifically order consecutive sentences "[ilf the defendant has been convicted of two or more offenses" and is awaiting judgment on those offenses. 22 0.$.2001, § 976. In such cases the sentencing judge may make the judgment "be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses." Id.

      . This conclusion also finds support within 21 0.S.2001, § 61.3. This statute deals with the Governor's power to order concurrent parole revocations. Section 61.3 provides that the Governor, when revoking the parole of a defendant who "is also under sentence from a {federal court or another state's court," may in such instances "'direct that custody of the defendant be relinquished to the federal or another state's authorities and that such parole revocation may run concurrently with the federal or another state's sentence which has been imposed." Id. Section 61.3 then states, "The Governor may also order that a parole revocation run concurrently with any other sentence rendered by an Oklahoma state court." Notably this statute makes no specific grant of authority to the Governor to order a parole revocation to be served consecutively to another sentence. The statute only grants the Governor a special power to order concurrent sentences. In cases where the Governor chooses not to exercise this limited special power to order concurrent terms, then the revoked parole term will be served in the manner specified within the Judgment and Sentence; and if the Judgment and Sentence does not specify, it runs as otherwise required by operation of law. CJ. 21 0.$.2001, § 61.1 (providing that sentences are to be served by a defendant in the order in which they are received by the institution "unless a judgment and sentence provides that it is to run concurrently with another judgment and sentence").

      . Although the constitutional prohibition against ex post facto laws is generally recognized as being applicable only to retrospective legislative enactments, we find those principles underlying the ex post facto doctrine logically compel the prohibition of retrospective decrees by the Executive branch of government, which increase a final judgment and sentence entered in a criminal prosecution. The decision in Ekstrand v. State, 1990 OK CR 21, 791 P.2d 92, illustrates that an existing sentence may not be lengthened by subsequent government action. In Ekstrand, the government attempted to apply a new earned credit statute that would cause a prisoner's credits to be calculated in a way which would reduce those credits granted by the statute in existence at the time of the prisoner's offense. The Court held that such "reduction lengthens the period that someone in petitioner's position must spend in prison," and thus "constricts an inmate's opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment." Id. T11, 791 P.2d at 95. The Court concluded, "This result simply runs afoul of the prohibition against ex post facto'laws." Id.