author: Judge KAPELKE.

text:
    Lonnie SCHWINDT and Gina Schwindt, Plaintiffs-Appellants, v. HERSHEY FOODS CORPORATION, Defendant-Appellee.
    No. 02CA1825.
    Colorado Court of Appeals, Div. IV.
    Nov. 20, 2003.

      ' The Frickey Law Firm, Howard Flicker, Janet Frickey, Lakewood, Colorado, for Plaintiffs-Appellants.

      White & Steele, PC, John M. Lebsack, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge KAPELKE.

In this personal injury action for damages allegedly incurred as a result of a work-related injury, plaintiffs, Lonnie Schwindt (Employee) and Gina Schwindt, his wife, appeal the trial court order dismissing their claims against defendant, Hershey Foods Corporation (Employer), as barred by the exclusivity provision of the Workers' Compensation Act, §§ 841-102, C.R.8.2008. We affirm.

According to the allegations of the complaint, Employee was injured on the job while operating one of Employer's machines. Plaintiffs alleged that Employer had modified the machine to bypass the safety switch and to operate with the safety guards open. In addition, plaintiffs alleged that Employer knew that operation of the machine without the safety switch was dangerous, that Employer nevertheless refused to replace the safety switch, and that Employer trained Employee to operate the machine while overriding the safety switch. Employer's actions were allegedly taken "in willful, wanton and reckless disregard for the health and safety of its employees in general and [Employee] ... in particular." Employee's wife asserted a separate claim for loss of consortium.

The trial court granted Employer's motion to dismiss both claims under C.R.C.P. 12(b)(5) based on the exclusivity provision of the Act and the derivative nature of the loss of consortium claim. Plaintiffs did not seek leave to amend their complaint following the dismissal.

I.

Plaintiffs first contend that because their complaint alleged Employer committed an intentional tort, the exclusive remedy provisions of the Act do not bar their common law damage claims. We reject the contention.

We review an order of dismissal under C.R.C.P. 12(b)(5) de novo, accepting as true all allegations of material fact in the complaint. Dismissal is proper only if, based upon the allegations, the plaintiff is not entitled to relief upon any theory of the law. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1100 (Colo.1995).

The Act "provides exclusive remedies for compensation of an employee by an employer for work-related injury." Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo.1991); see § 8-41-102, C.R.S.2008. An employer that has complied with the Act is immune from common law damage actions, and its employees are limited to the remedies provided by the Act. Horodyskyj v. Karanian, 32 P.3d 470, 474 (Colo.2001).

Further, the Act provides the exclusive remedy even where an employee is injured by the intentional tort of a co-employee, absent an allegation that the co-employee was not acting in the course of employment. Kandt v. Evans, 645 P.2d 1300 (Colo.1982); Digliani v. City of Fort Collins, 873 P.2d 4 (Colo.App.1998). However, an employer may be held liable to an employee for common law damage claims for intentional torts committed by the employer or the employer's alter ego "if the employer deliberately intended to cause the injury and acted directly, rather than constructively through an agent." Ventura v. Albertson's, Inc., 856 P.2d 35, 39 (Colo.App.1992).

Here, in their complaint, plaintiffs do not allege that the injuries were caused by one or more of Employee's co-employees. Rather, they allege generally that the acts and omissions causing the injury were those of Employer. As noted, we must assume the truth of the allegations of the complaint for purposes of our review of the dismissal order under C.R.C.P. 12(b)(5). Accordingly, we address the issue whether plaintiffs sufficiently alleged an intentional tort by Employer. We conclude, as did the trial court, that plaintiffs alleged at most a claim for gross negligence and that the exclusivity provisions of the Act therefore bar their action.

"A complaint charging a defendant with wanton and/or willful disregard of the rights and safety of others is not the equivalent of an allegation of willful or intentional injury." White v. Hansen, 837 P.2d 1229, 1233 (Colo.1992).

Here, although plaintiffs alleged that Employer acted in "willful, wanton and reckless disregard for the health and safety" of Employee and others, they did not allege that Employer intended to cause the injury. See Ventura v. Albertson's, Inc., supra.

As plaintiffs point out, courts in several states have held that, for purposes of determining applicability of the intentional tort exception to their workers' compensation law exclusivity provisions, an allegation that the employer knew its conduct was "substantially certain" to cause injury or death adequately states a claim of intentional tort by the employer. See 6 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Low § 108.04[1] (2008)(collecting cases). That analysis remains the minority view, however, and most courts continue to require a showing of an actual and deliberate intent by the employer to bring about injury. 6 Larson's, supra, § 108.08; cf. Ventura v. Albertson's, Inc., supra.

Further, the authors of Larson's criticize the line of cases that has expanded the intentional tort exception to the exclusivity doctrine to include the "substantial certainty" of injury situation:

In jurisdictions that have adopted the "substantial certainty" theory, courts sometimes have failed to examine what the employer believed and simply looked to the hazard condition to determine whether harm was "substantially certain" to occur. Because of this potential for abuse, it is advisable for jurisdictions to avoid this superficially attractive test.

6 Larson's supra, § 108.44], at 108-82. The treatise goes on to state:

[Iln some of the more extreme cases of employer negligence one may understandably feel the urge to chip away at the exclusiveness barrier, but experience has shown that, once a breach is made in that dam to accommodate an appealing case, it will be very difficult for the courts to know where to draw the line.

6 Larson's, supra, § 108.4[4] at 108-33 to - 34.

We agree with the analysis in the Larson's treatise and decline to adopt the "substantial certainty" approach taken by a minority of the courts.

In urging that their complaint adequately alleged an intentional tort by Employer, and that the substantial certainty approach should be followed, plaintiffs rely on White v. Muniz, 999 P.2d 814 (Colo.2000). We are not persuaded. White v. Muniz did not involve the issue of exclusivity of remedies under the Act, but rather concerned whether, and under what cireumstances, a mentally deficient person may be held liable for the intentional tort of battery. The supreme court held that an intentional tort claim requires a showing of a dual intent-"the defendant both intended the contact and intended it to be harmful or offensive." White v. Muniz, supra, 999 P.2d at 818. In so holding, the court indicated it was applying the definition of the intentional tort of battery in the Restatement (Second) of Torts § 18 (1965), and the court quoted with approval the following language from comment e to that section:

[It is necessary that an act be done for the purpose of bringing about a harmful or offensive contact ... to another or to a third person or with knowledge that such a result will, to a substantial certainty, be produced by his act. It is not enough to make the act intentional that the actor realize that it involves any degree of probability of a harmful or offensive contact ..., less than a substantial certainty that it will so result. ©

White v. Muniz, supra, 999 P.2d at 816 n. 6 {emphasis added).

Because White v. Muniz, supra, did not arise under the Act, we do not read the definition of battery approved in that case to apply in the context of evaluating whether an employee's tort claim is barred by the exclusivity provisions of the Act.

Moreover, plaintiffs' complaint here did not plead the intentional tort of battery. Thus, plaintiffs' allegation that Employer acted in "reckless disregard for the health and safety" of Employee does not escape the general exclusivity of remedies under the Act. Cf. White v. Hansen, supra.

IL.

Plaintiffs next contend that the loss of consortium claim of Employee's wife is separate from and independent of Employee's claim and that the trial court therefore erred in dismissing it. We reject the contention.

The exclusivity provision of the Act, § 8-41-102, bars not only personal injury and death claims by the employee, but also common law actions and remedies "for and on account of" such death or personal injury.

A loss of consortium claim is derivative of the underlying injury claim and therefore subject to the same defenses. Lee v. Colo. Dep't of Health, 718 P.2d 221 (Colo.1986); Terry v. Sullivan, 58 P.3d 1098 (Colo.App.2002). Thus, if an employee's injury claim is barred by the exclusive remedy provisions of the Act, a loss of consortium claim by the employee's spouse is also barred. Keefe v. Pizza Hut of America, Inc., 868 P.2d 1092, 1094 (Colo.App.1998), aff'd, 900 P.2d 97 (Colo.1995); see also Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968).

While we agree with plaintiffs that the loss of consortium claim is separate, it nevertheless remains entirely dependent upon Employee's individual right to recover, is subject to the same defenses that apply to that underlying claim, and therefore was properly dismissed. See Colo. Comp. Ins. Auth. v. Jorgensen, 992 P.2d 1156 (Colo.2000); Terry v. Sullivan, supra.

IIL

Relying on Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993), plaintiffs contend that the trial court erred in not conducting an eviden-tiary hearing before dismissing the complaint. We disagree.

In Trinity Broadcasting, the motion to dismiss was for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), rather than for failure to state a claim. Specifically, the motion in that case was based on claimed immunity under the Governmental Immunity Act, which the court determined was a matter of subject matter jurisdiction. The court held that if a motion attacks the jurisdictional allegations of the complaint, the trial court may receive evidence pertaining to the motion.

In contrast, in determining a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5), a court may consider only matters within the four corners of the pleading and must accept the allegations as true. Espinoza v. O'Dell, 633 P.2d 455, 467 (Colo.1981); Kratzer v. Colo. Intergovernmental Risk Share Agency, 18 P.3d 766 (Colo.App.2000).

Thus, in ruling on a CRCP. 12(b)(1) motion, a trial court bases its conclusions of law on the facts it has found, while in ruling on a C.R.C.P. 12(b)(5) motion, as here, the court bases its conclusions of law on the allegations in the complaint. Medina v. State, 35 P.3d 443, 452 (Colo.2001).

Because a motion to dismiss based on the exelusivity provisions of the Act does not go to the subject matter jurisdiction of the court, an evidentiary hearing is neither required nor appropriate. Therefore, the trial court did not err in ruling on Employer's motion without such a hearing.

The order is affirmed.

Judge VOGT and Judge WEBB concur.


source: Caselaw Access Project

author: Judge ROY.

license: Public Domain

text:
    CHRIS THE CRAZY TRADER, INC. and Christopher Dodge, Inc., Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO and Jesus A. Madrid, Respondents.
    No. 03CA0678.
    Colorado Court of Appeals, Div. HL
    Nov. 20, 2003.

      Gary F. Burke, Arvada, Colorado, for Petitioners.
    Ken Salazar, Attorney General, Eric S. Rothaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    No Appearance for Respondent Jesus A. Madrid.
   Opinion by

Judge ROY.

In this unemployment compensation case, petitioners, Chris the Crazy Trader, Inc. and Christopher Dodge, Inc. {collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) that upheld a hearing officer's decision awarding unemployment benefits to Jesus A. Madrid (claimant). We affirm..

Claimant was hired as a full-time employee in employer's body shop. The hearing officer found with support in the record that (1) upon hiring claimant, employer informed claimant that he would be working full-time; (2) during his first two weeks the employment approximated full-time employment; (8) thereafter, because of a lack of work, employer reduced claimant's hours such that he was working only part time and making approximately $200 per week; (4) claimant eventually quit because he could not afford to continue working the reduced number of hours; and (5) other employees doing body repair work for employer were getting "significantly more hours of work" than claimant got.

The hearing officer concluded that claimant quit because of a substantial change in working conditions with employer that were substantially less favorable to him. Thus, the hearing officer determined that claimant was entitled to a full award of benefits pursuant to § 8-78-108(4)(d), C.R.98.2008. The Panel affirmed.

Employer contends on appeal that the hearing officer and the Panel erred in their construction and application of $ 8-73-108(4)(d). More specifically, employer argues that if benefits are to be awarded under that section, the Division of Employment and Training (Division) has an affirmative duty to obtain evidence concerning employees doing similar work for other employers in the locality. We disagree.

Section 8-73-108(4)(d) provides for an award of benefits if there has been a "substantial change in the worker's working conditions, said change in working conditions being substantially less favorable to the worker." The section goes on to provide: "No change in working conditions shall be considered substantial if it is determined by the division that the conditions prevailing after the change are those generally prevailing for other workers performing the same or similar work." (Emphasis added.)

The § 8-738-108(4)(d) inquiry is not limited to other workers performing the same or similar work for the particular employer involved in the case. Rather, the inquiry should include workers engaged in the same or similar work "in the locality," whether employed by the same employer or by others. See Arias v. Indus. Claim Appeals Office, 850 P.2d 161 (Colo.App.1993). Here, neither party presented any evidence concerning individuals doing similar work for other employers in the locality.

In determining eligibility for unemployment benefits, the Division is an adjudicatory, not investigatory, body. Its function and responsibility are to conduct a neutral adjudication of unemployment claims, not to investigate the factual basis for such claims. See Wafford v. Indus. Claim Appeals Office, 907 P.2d 741 (Colo.App.1995); Rotenberg v. Indus. Comm'n, 42 Colo.App. 161, 590 P.2d 521 (1979).

Contrary to employer's contention, we perceive nothing in the language of § 8-73-108(4)(d) itself or in the Arias decision that imposes an affirmative obligation on the Division to seek out and obtain evidence concerning individuals doing similar work for other employers in the locality.

The order is affirmed.

Jﬁdge MARQUEZ and Judge DAILEY concur.


author: HODGES, J. SUMMERS, J.,

text:
    2003 OK 104
    In Re INITIATIVE PETITION NO. 27 OF THE CITY OF OKLAHOMA CITY, Oklahoma.
    No. 98,781.
    Supreme Court of Oklahoma.
    Dec. 9, 2003.
    James R. Moore, Douglas D. Vernier, James R. Moore & Associates, P.C., Oklahoma City, OK, for the Petitioners Michael Anderson and Roscoe Lewis.
    Brett Robinson, Oklahoma City, OK, pro se Respondent.
    Kenneth Dale Jordan, Assistant Municipal Counselor, Oklahoma City, OK, for Respondent City of Oklahoma City, Oklahoma.
   HODGES, J.

111 The issue before this Court is whether Initiative Petition No. 27 of the City of Oklahoma City, Oklahoma, violates article XVIII, section 4(a) of the Oklahoma Constitution. We hold that Initiative Petition No. 27 addresses administrative matters outside the scope of the powers of initiative reserved to the people of municipal corporations under article XVIII, section 4(a).

I. SUBSTANCE OF INITIATIVE PETITION NO. 27

2 Initiative Petition No. 27 (Petition) covers Oklahoma City's permanent non-supervisory and non-confidential employees as defined by the National Labor Relations Board. Employees in the police and fire departments are excluded. The Petition would provide for the creation of a Labor Relations Board and for the selection of arbitrators. It would establish a procedure for collective bargaining and for arbitration of unresolved issues.

3 If the Petition were adopted, when the covered employees file a petition to be represented by a collective bargaining agent or when Oklahoma City files a petition stating that a labor organization claims to be the exclusive employee representative, the Labor Relations Board (Board) would be convened. The Board (1) would review the petition, (2) would establish procedures for conducting a hearing, (8) if needed, would authorize an election to determine the employee representative, and (4) would certify an exclusive employee representative.

1 4 The Board would deal with unfair labor practices which are defined in the Petition as acts which interfere with the collective bargaining process. When dealing with unfair labor practices, the Board could establish procedures for hearings and could hear disputes. The Labor Relations Board could grant appropriate relief including issuing orders prohibiting a bargaining agent or Oklahoma City from engaging in any unfair labor practices.

1 5 Under the Petition's provisions, a panel of three arbitrators would hear unresolved employee contract issues between Oklahoma City and the employees, acting through their representative. Oklahoma City would submit an offer to the arbitration panel on the unresolved issues, as would the employees. The arbitration panel would chose between the two offers. Oklahoma City could accept the panel's decision. If Oklahoma City rejected the panel's decision, the two offers would be submitted to a vote of the Oklahoma City residents.

T6 The Petition has other provisions. It would prohibit employees from participating in strikes and work stoppages or slowdown. The arbitrators' fees and expenses would be allocated between Oklahoma City and the employee bargaining agent. Lastly, the Petition contains a severability clause.

II. HISTORY OF INITIATIVE PETITION NO. 27

T7 The Petition, together with signature pages and signature verifications, was received by the Clerk of Oklahoma City (Clerk) on December 12, 2002. The Clerk caused notice to be published as required by law. On December 20, 2002, Brett Robinson filed a protest with the Clerk. Robinson protested on the grounds that the Petition "encompasses matters outside the seope of initiative and referendum for municipal corporations and involves administrative functions of elected officials in contravention" of the Oklahoma Constitution as interpreted in Fite v. Lacey.

T8 After a hearing on the protest, the Clerk sustained the protest, finding that the Petition was substantially the same as the initiative petition invalided by this Court in Fite. The Clerk held that the Petition was legally insufficient to be submitted to a vote of the people. The Proponents filed an appeal in this Court. By order this Court determined the procedure to be followed in this case.

III. MOTION TO DISMISS CLERK

T9 The Proponents are seeking to have the Clerk dismissed as a respondent. Section 15-102 permits cities to provide their own procedures for exercising their initiative and referendum powers. Oklahoma City adopted the procedures set forth in title 34 of the 1951 Oklahoma Statutes. If appeal is taken from a city clerk's decision, the procedures require the appellant to serve notice on the city clerk. Under this provision, not only does the Clerk have standing as a defendant, but is a necessary party. By virtue of the ordinance, the Clerk is brought into Court, rendered subject to the Court's jurisdiction, and subject to any orders involving the performance of the Clerk's duties which may be enforced against the Clerk. Thus, the motion to dismiss is denied.

IV. LEGAL SUFFICIENCY OF THE PETITION

110 This Court has long held that the powers of initiative and referendum reserved to the people of a municipality, "apply only to legislative matters and not to administrative acts." The line between legislative matters and administrative acts is not always clear. As a general rule, "[ale-tions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative. Essentially, "f the proposed initiative would put into execution previously declared policies or laws, it is administrative in nature." When an extensive knowledge of fiscal matters are "of prime importance in the decision-making process which [is] the topic of the initiative petition," the petition is usually administrative. Because wages, benefits, working conditions, and hiring and firing decisions require a comprehensive knowledge of a municipality's fiscal affairs, decisions regarding personnel matters are usually administrative.

{ 11 In In re Supreme Court Adjudication of Sufficiency of Initiative Petition of Tulsa, the City Auditor of Tulsa had determined that an initiative petition establishing a minimum number of police officers and setting salaries for police officers was legally insufficient. This Court upheld the auditor's finding because the subject of the petition was administrative in nature.

{12 In Fite the initiative petition proposed collective bargaining and binding arbitration for firefighters and police officers of the City of Muskogee. Because of the impermanence of economic conditions effecting decisions "involving wages, hours or other conditions of employment," the subject of the initiative petition, collective bargaining and arbitration, was administrative.

{18 In Fite and Initiative Petition in Tulsa, the subject matter of the petitions, personnel matters, was the determining factor. The fact that the petitions in these cases required binding arbitration was not decisive. The Petition in this case involves the same subject matter as the petitions in Fite and Initiative Petition of Tulsa: employee wages, hours and other conditions of employment. Thus, the subject of the Petition in this case is administrative, not legislative, and contravenes article XVIII, section 4(a) of the Oklahoma Constitution.

T14 The Proponents rely on Fraternal Order of Police v. City of Choctaw. In Fraternal Order of Police, this Court upheld the Fire and Police Arbitration Act (the Act) against an attack that it violated title XVIII, section 4(a) of the Oklahoma Constitution. This Court found it unnecessary to address whether the Act was administrative because it was not presented through the initiative process and, thus, not restricted by title XVIII, section 4(a). Proponents' reliance on Fraternal Order of Police is misplaced.

V. SEVERABILITY

1 15 The Proponents argue: (1) this Court should declare only the interest arbitration provisions offensive, (2) they should be severed, and (8) the remaining provisions should be submitted to a vote. The Protestant attacked the entire Petition before the City Clerk. When ruling on the Petition, the Clerk did not confine the decision to certain provisions but found that the Petition was "legally insufficient and invalid on its face" because it involved administrative functions in contravention of the Oklahoma Constitution.

116 Because the collective bargaining and interest arbitration provisions violate the Oklahoma Constitution, this Court must consider whether they are severable. The remaining portions of the Petition prohibit city employees from engaging in work stoppages and slowdowns and allow city employees to select a collective bargaining agent. Offending provisions of an initiative petition are not severable if they are fundamental to the petition. Because we view the collective bargaining and interest arbitration provisions as fundamental to the petition, we do not view them as severable.

VI. CONCLUSION

117 In conclusion, the Clerk correctly found the subject of Initiative Petition No. 27 of the City of Oklahoma City was administrative and, thus, the Petition was legally insufficient for a vote of the residents.

RELIEF DENIED.

1 18 WATT, C.J., OPALA, V.C.J., LAVENDER, HARGRAVE, KAUGER, WINCHESTER, JJ., concur.

T 19 SUMMERS, BOUDREAU, JJ., (joins SUMMERS, J.), concur in part; dissent in part.

SUMMERS, J.,

Concurring in part and dissenting in part and joined by BOUDREAU, J.

"[ 1 I concur in assuming jurisdiction. We should assume original jurisdiction for the purpose of explaining that the proper forum for reviewing a municipal clerk's decision is a District Court. I would make this ruling prospective, and then address the merits of the controversy before us. On the merits, I respectfully disagree with the Court's opinion, and I would not invalidate a proposed municipal initiative petition that presents a question on whether a municipality will use collective bargaining with its employees.

I. Assuming Original Jurisdiction

T2 This Court has assumed original jurisdiction to explain novel procedural questions. Christian v. Gray, 2008 OK 10, 18, 65 P.3d 591, 596. We have also made our answer to a novel procedural question on 11 0.8. § 15-104 operate prospectively. Clapsaddle v. Blevins, 1998 OK 5, 116, 66 P.3d 352, 357. One issue in this proceeding is whether the proper appellate forum is in a District Court pursuant to § 15-104 or in this Court pursuant to the city's charter. I would thus assume original jurisdiction pursuant to Art. 7 § 4 of the Constitution to explain that a provision of a municipal charter may not vest jurisdiction of certain controversies in a particular state court.

T3 I would also assume jurisdiction to decide the merits of the controversy. Not every legal question related to public bargaining also involves a question of statewide concern requiring this Court's exercise of original jurisdiction. On the other hand, we have exercised original jurisdiction in public bargaining controversies involving a city's power to take certain acts on an issue of public concern. Fraternal Order of Police Lodge No. 165 v. City of Choctaw, 1996 OK 78, 933 P.2d 261, 265-268; Stone v. Johnson, 1984 OK 76, 690 P.2d 459, 463.

T4 The issue in this controversy involves the power of municipality to create a collective bargaining relationship with some of its employees, and in my opinion, relies on overly broad language in a previous opinion of this Court. The issue has statewide significance, and I would thus assume original jurisdiction to address it. While I concur in assuming original jurisdiction in this particular controversy, most controversies involving a challenge to a decision of a municipal clerk, including those relating to collective bargaining, should be made using the statutory procedure of an appeal to a District Court, unless the parties show an inadequacy of that remedy and a need for speedy review. Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 55-56.

II. The Proper Forum for an Appeal from the Decision of a Municipal Clerk

15 This proceeding may be divided into two parts for the purpose of analysis. The first is whether this proceeding should be in this Court. The second is the substantive issue of whether the proposed law is legislative or administrative in character. I first address the procedural problem.

T6 This matter was filed as an appeal in this Court and converted to a request for extraordinary relief. Our previous order herein did not explain why this was done. We should now clarify for all municipalities across the State that protests of this nature are filed in the District Courts and not this Court.

T7 In 1931 this Court reviewed an initiative petition to amend the charter of the City of Oklahoma City. Ruth v. Peshek, 1981 OK 674, 5 P.2d 108. Therein we followed an earlier opinion by this Court that also reviewed an initiative petition from the City of Oklahoma City. Id., 5 P.2d at 110, citing, Ruth v. Merrill, 1914 OK 564, 144 P. 371. Both of these opinions explain that State procedural law and not a municipal charter provision is the proper authority for initiative petition protests. In short, a municipality lacks the authority to select whether the Supreme Court or a District Court will have jurisdiction over initiative petition appeals from the clerk of that municipality. In Ruth v. Peshek, swpra, we said that:

The city charter of Oklahoma City does not provide a method of appeal in such cases as the case at bar, and, even if it did, the state law providing procedure in such cases and fixing the jurisdiction thereof on appeal would be controlling.
This court in the case of Ruth et al. v. Merrill, 48 Okl. 764, at page 765 and 766, 144 P. 371 of the Oklahoma Report (43 Okla. 764, 144 P. 371), said:
"But let that be as it may, the district court was without jurisdiction to pass on the sufficiency of the petition, and for that reason did not err in dismissing the appeal.
In support of the contention that the court was vested with jurisdiction to entertain said appeal, petitioner says that, although the act of March 17, 1910 (Laws 1910, c. 66), in effect repealed that part of section 6 of the act approved April 16, 1908 (Laws 1907-08, c. 44, art. 1), which vested the district court with jurisdiction to entertain appeals from the action of the city clerk in all cases where the initiative or referendum is invoked upon matters of purely municipal concern, yet he says that, as said section was incorporated in the city charter, adopted March 8, 1911, the effect of the adoption was to vest the district court with jurisdiction to entertain this appeal. There is no merit in this contention, for the reason that the jurisdiction of the courts of this state is fixed by the lawmaking power of the state and not by the lawmaking power of any municipality therein. It goes without saying that when the Legislature authorized the people of this municipality to adopt a charter and legislate therein upon matters of purely local and municipal concern, it did not intend to, and could not, vest the municipality with power to legislate with respect to state government."

Ruth v. Peshek, 5 P.2d at 110, quoting, Ruth v. Merrill, at 371-372. (emphasis added).

The former statutes allowed for an appeal to the Supreme Court, but they were repealed and replaced with statutes providing for an appeal to a District Court. See Fite v. Lacey, 1984 OK 83, 691 P.2d 901, 903-904, and the discussion of both the repealed statutes and 11 0.8.1981 § 15-104 providing for an appeal to District Court.

T8 In Fite we said that:

Title 34, would therefore, determine the procedure for municipal initiative and referendum petitions unless the city charter contained a controlling provision, or if not, unless 11 0.8. §§ 15-101 through 15-110 contained a specific provision. The Muskogee city charter contains a single section which provides only that the procedure shall be in conformance with the Constitution and state laws. A specific procedure for filing a "protest to the petition or the count of signatures" is found in 11 0.8. § 15-104B, quoted above.

Fite, 691 P.2d at 904, (emphasis added).

We did say that a city charter provision would control over Title 34, but such was not the case in Fite, and we did not explain our previous cases such as Ruth v. Peshek, supra, and Ruth v. Merrill, supra, that clearly hold otherwise. A conflict exists between a state enactment and a municipal charter or ordinance when both contain either express or implied provisions that are inconsistent or irreconcilable with one another. Simpson v. Dizon, 1993 OK 71, 853 P.2d 176, 182. Oklahoma's City's charter provision allowing for an appeal directly to the Supreme Court conflicts with the language in § 15-104 stating that a protest is filed in, and heard by, a District Court. 11 0.8.2001 § 15-104. In this case the statute trumps the charter.

19 In Ryan v. Roach Drug Co., 1925 OK 611, 239 P. 912, 915, we said that:

We therefore conclude that the subjects of taxation, the jurisdiction of the courts, and the regulation of the practice and procedure of the courts of this state are matters of general public concern in which the sovereign, the state, has an interest, and that these subjects are subject to control and regulation by the state by general laws.

Ryan v. Roach Drug Co., 289 P. at 915, quoting, City of Sapulpa v. Land, 1924 OK 92, 223 P. 640, (emphasis added).

In City of Sapulpa we said:

The judicial power here conferred by the Constitution is the power to hear and determine those matters which affect the life, liberty, or property of the citizens of the state as distinguished from ministerial power or authority, and the judicial power vested in the courts to determine such controversy must find the source of its authority in the supreme sovereign, which is the state. The Constitution of this state confides the judicial power to no court except those organized under the sanction and regulation of state law. This power camnmot be delegated to cities, and such municipalities cannot confer any jurisdiction upon such courts in any class of cases.

City of Sapulpa v. Land, 223 P. at 644-645, emphasis added.

To put it simply, a municipality has no power to vest power in state courts to hear certain controversies. This conclusion is consistent with our recent opinion explaining that 11 0.8. § 15-104 is the exclusive procedure for testing the sufficiency of a recall petition. Clapsaddle v. Blevins, 1998 OK 5, 114, 66 P.3d 352, 357. Further, we have said that a city charter must give way to a matter of statewide interest. Fraternal Order of Police Lodge No. 165 v. City of Choctaw, 1996 OK 78, 933 P.2d 261, 266. See Matter of Referendum Petition Filed with City Clerk of Norman on January 31, 1980, 1980 OK 61, 610 P.2d 248, 245, citing, Merrill, Constitutional Home Rule for Cities Oklahoma Version, 5 Okla.L.Rev. 139, 169 (1952), (annexation is a "wider public interest" so as to require provisions of the charter of a "Home Rule" city to yield to state law). The power to vest jurisdiction in state courts is a state interest. Ryan v. Roach Drug Co., supra, City of Sapulpa v. Land, supra. The District Court is the proper forum to hear an appeal from the decision of a municipal clerk, 11 0.98.2001 § 15-104, unless a petitioner can show that this Court should exercise a concurrent original jurisdiction.

III. Legislative and Administrative Municipal Powers

May the People of any municipality require the governing body of the municipality to employ its employees in a manner that includes collective bargaining agreements? In the past we have distinguished between the exercise of legislative and administrative power, with the former being a proper exercise of power via the initiative process and the latter an improper exercise:

The constitutional reservation of power to the citizenry of municipal corporations, Const. Art. 18-21-4(a), encompasses all municipal legislative power but does not encompass administrative power. In Yarbrough v. Donaldson, 67 Okl. 318, 170 P. 1165 (1918), this court refused to require the application of the referendum process to a resolution of the city council approving the sale of the city's electric light plant authorized by statute. Syllabus by the court states in part:
'* * * such action is not legislative, but administrative action involving administrative discretion and not within the referendum powers reserved to the people of municipalities * * *,

In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma Numbered 4-1 and 74-2, 1975 OK 36, 534 P.2d 3, 7.

How does the Court determine whether a particular exercise of power is administrative or legislative?

{11 Public duties (or governmental functions) were identified with the exercise of legislative power, and distinguished from business and administrative (private) functions. For example, we said that: "Municipal corporations in operating a water plant exercise business and administrative functions, rather than those strictly governmental in their nature, and in the exercise of such functions are governed largely by the same rules applicable to individuals or private corporations engaged in the same business," Moomaw v. Sions, 1923 OK 481, 220 P. 865, 867, quoting, Fretz v. City of Edmond, 1916 OK 516, 168 P. 800. Moomaw further described this dualistic view of municipal power thusly:

A city has two classes of powers, the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other, proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality.

Moomaw, 220 P. at 867, quoting, Illinois Trust & Savings Bank v. City of Arkansas City, 76 F. 271, 22 C.C.A. 171, 34 L.R.A. 518 (8th Cir.1896).

One question in Moomaw involved the contractual powers of a board of trustees of an incorporated town as such related to that city's operation of a facility for generating electricity, and we said that: "The authority given the municipality to undertake the operation of a business enterprise necessarily carries with it the authority to deal with the same in the same manner that private corporations would deal with its property, subject only to constitutional and legislative restrictions." Moomaw, 220 P. at 867. Opinions such as In re Supreme Court Adjudication of Initiative Petitions in Norman, Yarbrough, and Moomaw do support defining the exercise of administrative power so as to include all aspects of a municipality's employer/employee relationships that are not otherwise specifically controlled by statutory or constitutional law.

4 12 Some opinions, such as Fite v. Lacey, 1984 OK 88, 691 P.2d 901, rely, in part, upon the underlying philosophy found in Moomaw, and define administrative power as that exercised to address a temporary condition. In Fite we said that:

This court has repeatedly held that the constitutionally reserved powers of initiative and referendum apply only to legislative matters and not to administrative acts. Okl. Const. Art. 18, § 4(a) provides:
The powers of the initiative and referendum, reserved by this Constitution to the people of the State and the respective counties and districts therein, are hereby reserved to the people of every municipal corporation now existing or which shall hereafter be created within this State, with reference to all legislative authority which it may exercise, and amendments to charters for its own government in accordance with the provisions of this Constitution.
In Brazell v. Zeigler, 26 Okl. 826, 110 P. 1052 (1910), this court stated that acts which are subject to the initiative and referendum powers "must be considered in the sense of general laws, namely rules of civil conduct prescribed by the lawmaking power and of general application ... the law is said to be a rule, not a transient, sudden order to and concerning a particular person, but something permanent, uniform and universal."
The distinction between subjects of a temporary nature and those of a permanent character is also discussed in MeQuil-lin, Municipal Corporations, § 1655 @@rd ed.1981). A pertinent portion of that discussion provides: '
Actions relating to subjects of a permanent and general character are generally regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative ... Obviously, details which are essentially of a fluctuating sort, due to economic or other conditions, cannot be set up in and by an Ordinance to be submitted to the vote of the people.
Collective bargaining with compulsory binding arbitration is a tool of personnel management which involves the consideration of a number of factors which are subject to change. Variable economic conditions, distribution of work force and a number of ever-changing factors which effect the work environment must be taken into consideration. Periodic re-examination of established policies is necessary for effective personnel management. Such a process cannot logically be said to be of a permanent character. Due to this lack of permanence, it is more properly characterized as an administrative function of elected officials.

Fite v. Lacey, 691 P.2d at 904-905.

Thus, Fite defines administrative acts as transient in nature and affecting particular people, as opposed to legislative acts that are "general laws" and "rules of civil conduct" that are "of general application."

113 Historically, courts identified legislative and administrative powers with governmental and private powers, e.g., the common-law distinction between public wrongs (or public duties) and private wrongs (or private duties). A "private wrong" springs from a breached duty owed to a particular individual as opposed to the public at large, and thus, a city's duty to provide a safe working environment for its employee was said to be private, and springing from the private contractual relationship with its employees as opposed to any duty to the citizenry at large. Rhobidas v. City of Concord, 70 N.H. 90, 47 A. 82, 87 (1900). Fite's conclusion that collective bargaining is an administrative function is consistent with the common-law distinction.

€ 14 But this Court is not bound to blind adherence to every rule of common law. A universal and literal application of Fite would also necessarily mean that the People residing in a particular municipality would not have the power to legislate with regard to any subject relating to that municipality's employment contracts unless specifically authorized by some authority that supercedes municipal authority, eg., when specifically allowed by state statute or constitution. This view fails to incorporate the more modern view expressed by many courts that the nature of a municipality's employer/employee contractual relationship with its employees does involve an exercise of governmental power.

T15 Employees of governmental entities may possess, as employees, certain liberty and property interests protected by the Due Process Clause. Hennigh v. City of Shawnee, 155 F.3d 1249,1253 (10th Cir.1998). One source for these protected rights may be the contractual obligations and rights of the parties. For example, this Court recently reviewed an allegation of a procedural due process violation in the context of a municipal employment contract which limited an employer's discretion, and gave an employee a legitimate expectation of continued employment in a certain capacity. Barnthouse v. City of Edmond, 2003 OK 42, 113-14, 73 P.3d 840, 847. This case involved a contract that was a collective bargaining agreement, but this fact is not the critical one. The form of the contract as a collective bargaining agreement did not create the protected interest; rather, it was its substance, i.e., the fact that the employer's discretion was limited and the employee's expectation was created by a contract or agreement made by the parties.

16 When explaining Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Tenth Cireuit court said that: "The Court explained that legitimate claims of entitlement arose from independent sources such as state law, rules, or understandings that secure benefits to an employee." Asbill v. Housing Authority of Choctaw Nation of Oklahoma, 726 F.2d 1499, 1501-1502 (10th Cir.1984), (emphasis added). For example, we applied Asbill in Blonton v. Housing Authority of City of Norman, 1990 OK 38, 794 P.2d 412, 414-415, where we explained that Blanton's evidence was insufficient to show that his employment contract contained a substantive restriction on the Authority's power to discharge him from employment.

T17 It is certainly true that not every provision of a public contract gives rise to a corresponding constitutional interest. But the illustrative importance of these Due Process opinions to the case today is simply this: a municipal employment contract is no longer considered to be merely a private business activity between the contracting parties. Such contracts are no longer considered to involve matters outside the seope of an exercise of governmental power. The case today is not about personnel decisions with regard to specific employees. Instead, the issue is the policy controlling the general nature of employment contracts a city should have with its employees-if approved by the People.

118 One of the ironies in this controversy is that a municipality is claiming that it, in an administrative capacity, has authority, to the exclusion of the expressed will of the People, to determine if the municipality should create collective bargaining employment contracts, with the contemporaneous creation of expectation (or Due Process) interests. In other words, the city claims that it should, as an administrative matter, determine to what extent constitutional rights are created by its contracts, and the People should not have the ability to vote on this issue. I must conclude that The People do possess an interest in determining the policy and the general nature of how a city contracts with its employees, and whether constitutionally protected property and liberty interests are thereby created. I would thus issue mandamus and require the clerk to proceed without invalidating the petition by reason of its substance.

      . Okla. Const. art. XVIII, § 4(a), provides:
      The powers of the initiative and referendum, reserved by this Constitution to the people of the State and the respective counties and districts therein, are hereby reserved to the people of every municipal corporation now existing or which shall hereafter be created within this State, with reference to all legislative authority which it may exercise, and amend-menis to charters for its own government in accordance with the provisions of this Constitution.

      . This type of arbitration is known as interest arbitration which is the process used to resolve impasses which parties reach when negotiating new contract terms. Fraternal Order of Police v. City of Choctaw, 1996 OK 78, ¶ 9, 933 P.2d 261, 265.

      . 1984 OK 83, 691 P.2d 901.

      . Okla. Stat. tit. 34, §§ 8, 51 (1951).

      . Cattron v. Hough, 1933 OK 398, 23 P.2d 677, 679 (1933).

      . See In re Initiative Petition No. 23, State Question No. 38, 1912 OK 611, 127 P. 862, 864.

      . Brazell v. Zeigler, 1910 OK 193, 110 P. 1052; Fite v. Lacey, 1984 OK 83, ¶ 16, 691 P.2d 901, 904; See Okla. Const. art. XVIII, § 4(a). Section 4(a)'s restriction does not apply to acts of the Oklahoma Legislature, which are governed by article V, § 36. Article V, § 36 provides:
      The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.

      . See 5 Eugene McQuillin, The Law of Municipal Corporations 1 16.57 (3rd ed.1996)

      . Id. at 116.55; Fite, 1984 OK 83 at 117, 691 P.2d at 905.

      . McQuillin, at § 16.55.

      . Fite, 1984 OK 83 at 119, 691 P.2d at 905.

      . See Fite, 1984 OK 83, 691 P.2d 901; In re Supreme Court Adjudication of Sufficiency of Initiative Petition in Tulsa, 1979 OK 103, 597 P.2d 1208.

      . 1979 OK 103, 597 P.2d 1208.

      . Id. at ¶ 2, 597 P.2d at 1209.

      . Id. at ¶ 9, 597 P.2d at 1211.

      . Fite, 1984 OK 83 at ¶ 1, 691 P.2d at 902.

      . Id. at ¶¶ 19, 21, 691 P.2d 905.

      . 1996 OK 78, 933 P.2d 261.

      . Okla. Stat. tit. 11, §§ 51-101 to 113 (Supp. 1979).

      . In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, 15, 649 P.2d 545, 548.

      . Id.

      . 11 0.$.2001 § 15-104.
      § 15-104. Publication announcing the filing of petition-Protests
      A. When signed copies of a petition are timely filed with the clerk, the clerk shall make a physical count of the number of signatures appearing on the petitions. He shall then publish, in at least one (1) newspaper of general circulation in the municipality, a notice of the filing and the apparent sufficiency or insufficiency of the petition. The notice shall also state that any qualified elector of the municipality may file a protest to the petition or an objection to the count made by the clerk.
      B. A protest to the petition or the count of signatures shall be filed in the district court in the county in which the situs of the municipality is located within ten (10) days after the publication. Written notice of the protest shall be served upon the clerk and the parties who filed the petition. In the case of the filing of an objection to the count, notice shall also be served upon any party filing a protest. The district court shall fix a day, not less than ten (10) days after the filing of a protest, to hear testimony and arguments for and against the sufficiency of the petition. A protest filed by anyone, if abandoned by the party filing it, may be revived within five (5) days by any other qualified elector. After the bearing, the district court shall decide whether such petition is in form required by law.

      . For a discussion of private wrongs and public wrongs see Cummings v. Board of Education, 1942 OK 154, 125 P.2d 989, 994 and 3 W. Blackstone, Commentaries, ® 2.


author: OPALA, V.C.J. 123 BOUDREAU, J.,

text:
    2003 OK 112
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert F. GROSHON, Jr., Respondent.
    No. SCBD4663.
    Supreme Court of Oklahoma.
    Dec. 16, 2003.

      Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Robert F. Groshon, Jr., pro se, Oklahoma City, OK, for Respondent.
   OPALA, V.C.J.

T1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? and (2) Is a public censure and the payment of costs associated with this proceeding an appropriate disciplinary sanction for respondent's breach of professional discipline? We answer both questions in the affirmative.

I.

INTRODUCTION TO THE RECORD

12 The Oklahoma Bar Association (OBA) charged Robert F. Groshon, Jr. (Groshon or respondent), a licensed Oklahoma lawyer, with three counts of professional misconduct by filing a formal complaint in accordance with the provisions of Rule 6, Rules Governing Disciplinary Proceedings (RGDP). The complaint alleges in three counts Groshon's violation of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC). The Bar rests its counts on ORPC Rules 1.1, 1.7(b)(2) 1.8(b), 2.1, 8.4(a) and (d), and RGDP Rule 1.3; it withdraws its reliance on ORPC Rule 8.4(b).

T3 The Professional Responsibility Tribunal (PRT) held a hearing on 24 June 2008 to consider the charges. The trial panel recognized for the record the parties admitted fact stipulations, conclusions of law and agreed disciplinary recommendation. Respondent concedes (by stipulation)that his conduct violates RGDP Rules 1.3 and ORPC Rules 1.1, 1.7(b)(2), 1.8(b), 2.1 and 8.4(a) and (d).

{4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued its report (which incorporates the parties' stipulations). It recommends that the respondent (1) receive a public reprimand and (2) pay the costs of this proceeding.

IL.

THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVI DENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

[1-4] 15 In a bar disciplinary proceeding this court functions as an adjudicative licensing authority that exercises exclusive original jurisdiction. Its authority rests on the constitutionally vested, nondelegable power to regulate the practice of law (which includes the ethics, licensure, and discipline of the State's legal practitioners) In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, this court conducts a nondeferential, full-seale de novo examination of all relevant facts, in which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive. We are not restricted by the seope-of-review rules that govern corrective relief on appeal or in certiorari proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference.

16 This court's duty can be discharged only if the trial panel submits a complete record of the proceedings. Our initial task is to ascertain whether the materials are sufficient to permit (a) an independent determination of the critical facts and (b) the crafting of an appropriate measure of discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the respondent lawyer.

T7 Groshon admits, and the proof supports, the charge of professional misconduct. Upon consideration of the record, we conclude that its contents are adequate for this court's de novo consideration of respondent's professional misconduct.

III.

FACTS ADMITTED BY STIPULATION

T8 The parties have tendered their stipulations by which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement by the parties that a particular fact (or facts) in controversy stands admitted. It serves as an evidentiary substitute that dispenses with the need for proof of facts that are conceded by the parties' agreement. Stipulations are subject to the approval of the court in which they are entered. Respondent's fact stipulations (a) have been made voluntarily and with knowledge of their meaning and legal effect and (b) are not inconsistent with any facts otherwise established by the record. We henee approve and adopt the parties' tendered stipulations.

A.

Count I

T9 The charges against respondent arise from a client complaint that respondent made suggestive comments to and engaged in inappropriate touching of her of a sexual nature. Shortly after her divorce in February, 2000 Mrs. C. hired Groshon to represent her in an emergency hearing for child custody brought by her former husband. Recognizing that she did not have the funds to pay him at that time for his legal services, respondent agreed to allow her to make payments whenever she was able to do so. Respondent did not bill her for this service, nor did Mrs. C. make any effort to pay.

110 Over the next few months Mrs. C. continued to call respondent concerning other matters relating to the child custody issue, including harassment and nonpayment of alimony by her former husband, possible modification of the divorce decree and repeated threats by the ex-husband of taking custody of the minor child. During one of these conversations respondent asked Mrs. C. if she would like to go out or meet him for drinks. She refused. Respondent stipulated that he was not aware of nor did he ever advise her of the possible conflict of interest which might arise should she have accepted this invitation. Respondent further admits that he made to his client various inappropriate and unprofessional comments of a sexual nature. Mrs. C. indicates that because she was uncomfortable with the situation at this time she contacted other lawyers but found that none was willing to allow her the same fee arrangement as did respondent.

B.

Count II

1 11 In September of 2000 Mrs. C. contacted Groshon and indicated that her former husband had filed a motion to modify the divorce decree, asking for full custody of the parties' minor child, and that he be released from the duties of support alimony. Respondent informed Mrs. C. that she needed to make an appointment with his partner to sign a fee agreement with the firm. She complied with this request. On 18 April 2001 Mrs. C. met with respondent in his office to prepare for trial. She became emotional and began to ery. Respondent came around his desk where Mrs. C. was sitting and embraced her. Respondent stipulates that he recalled the details of that meeting differently from Mrs. C.'s recollection but admits making improper sexual remarks to his client and touching Mrs. C. on both her breast and thigh. Although he agrees it does not excuse his behavior, he states that he believes his advances were welcomed by Mrs. C. as a consenting adult.

C.

Count III

T12 The next day Mrs. C telephoned respondent's secretary to advise the office that she would be coming in to obtain a document she had left on respondent's desk, and an appointment was made for her with Groshon for the next day. As a precaution she carried a recorder in her purse and subsequently taped the conversation between respondent and herself. The tape reveals that respondent first made several remarks to Mrs. C. of a flirtatious and sexual nature when he passed by her in the reception area. These comments, as well as conduct of a sexual nature, continued after Mrs. C. entered respondent's private office and attempted to discuss her legal situation with him. Respondent accompanied Mrs. C. to the office elevator which they both entered. The suggestive remarks and conduct continued until the parties exited the elevator. Although respondent's description of the events differ in several aspects from those of Mrs. C., he agrees that he acted in an unprofessional manner by flirting with, hugging, and attempting to kiss and touch his client in a sexual manner. He maintains that he believed his advances were, at all times, invited and welcomed by Mrs. C.

113 A few days later Mrs. C. contacted Groshon's office requesting an itemized bill for the legal services provided. Mrs. C. obtained a new attorney and, on 22 May 2001, filed this grievance against respondent with the OBA.

" 14 Groshon is charged with (1) failure to provide competent representation to a client, ORPC Rule 1.1, (2) failure to inform a client and obtain consent where representation of that client may be limited by the lawyer's own interests, ORPC Rule 1.7(b)(@2), (8) use of information relating to representation of a client to the disadvantage of the client without the client's consent, ORPC Rule 1.8(b), (4) failure to exercise independent professional judgment and render candid advice, ORPC Rule 2.1, (5) violating the Rules of Professional Conduct, ORPC Rule 8.4(a), (6) engaging in conduct that is prejudicial to the administration of justice, ORPC 8.4(d), and (7) the commission of an act which would reasonably be found to bring discredit upon the legal profession, whether or not the act is a felony, misdemeanor or a crime at all, RGDP Rule 1.3. Groshon stipulates that his actions violated these provisions. We accept respondent's stipulations-and find by clear and convincing evidence-that his admitted conduct offends each rule with whose violation he stands charged.

IV.

MITIGATING FACTORS

115 Mitigating cireumstances may be considered in arriving at the assessment of the appropriate measure of discipline. The PRT report contains numerous factors to be considered for purposes of mitigation. It states respondent: (1) was admitted to the practice of law in 1998 and has never been disciplined for professional misconduct, (2) has acknowledged and accepted responsibility for his professional misconduct, (8) has expressed sincere remorse for the harm his actions have caused to Ms. C. and to the reputation of the legal profession, and (4) has been fully cooperative in the investigation of this matter. In addition respondent's conduct appears to be an isolated incident rather than an ongoing pattern of acquittal towards female clients. We take these into account in determining the discipline to be imposed on the respondent.

v.

RESPONDENTS MISCONDUCT WARRANTS A PUBLIC REPRIMAND

116 A license to practice law is not conferred for the benefit of the licensee, but for that of the public. The disciplinary process, including the imposition of a sanetion, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, the judiciary, and of the legal profession. Disciplinary sanctions serve not only to deter the offending lawyer from committing similar acts in the future, but also operate to put others on notice that departures from ethical norms will not be tolerated. The disciplinary measure to be imposed upon the offending lawyer should be consistent with the quantum of discipline visited upon other practitioners for similar acts of professional misconduct.

{17 Extant jurisprudence teaches that a lawyer's sexual advances toward a client take advantage of the attorney-client relationship and constitute professional misconduct that will result in disciplinary action against the attorney when the matter is brought to the attention of the Bar. Respondent should not have taken advantage of the professional relationship to approach Mrs. C. in a sexual manner. Because of the status of the attorney-client relationship, whether a lawyer believes an overture of a sexual nature is welcomed-or even encouraged-by a client in no way excuses the attorney's engaging in unprofessional con-duet.

( 18 The parties are in agreement concerning discipline and submit that a public censure is warranted for respondent's misconduct. The parties cite to State ex rel. Bar Ass'n v. Sopher and State ex rel. Oklahoma Bar Ass'n v. Copeland as precedent for their disciplinary recommendation. Sopher and Copeland establish public censure as the proper disciplinary norm for unprofessional behavior that serves an attorney's personal interest in sexual gratification. We agree with the parties' recommendation. The Bar has a vital responsibility to effect the efficacious transition from what once, regrettably, may have been tolerated, if not indeed accepted, behavior to new standards of professional etiquette. A public reprimand serves here the Bar's goal of giving unmistakable notice of its commitment to the enforcement of new standards.

VI.

SUMMARY

€19 In sum, the record bears clear and convincing proof that respondent's participation in unprofessional conduct violates the rules that govern professional responsibility. After a thorough review of the record and due recognition of the factors tendered in mitigation,

120 RESPONDENT IS ORDERED DISCIPLINED BY PUBLIC CENSURE AND DIRECTED TO PAY THE COSTS OF THIS PROCEEDING, WHICH SHALL BE DUE NOT LATER THAN NINETY DAYS AFTER THIS OPINION BECOMES FINAL.

121 HODGES, LAVENDER, HARGRAVE, SUMMERS, AND WINCHESTER, JJ., CONCUR.

122 WATT, C.J., KAUGER AND BOUDREAU, JJ., CONCUR IN PART AND DISSENT IN PART.

123 BOUDREAU, J.,

with whom WATT, C.J., and KAUGER, J., join, concurring in part and dissenting in part.

I would impose a thirty-day suspension from the practice of law.

      . The record consists of the PRT hearing's transcript, the PRT report, the parties' stipulations of fact and conclusions of law, the mitigating factors to be considered in conjunction with the charges, the exhibits offered by the parties and a joint brief of the parties in support of the PRT report and recommendation.

      . The provisions of RGDP Rule 6.1, 5 0.$.2001, Ch. 1, App. 1-A, state in pertinent part:
      ''The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court. s

      . 50.$.2001 Ch. 1, App. 3-A.

      . The terms of ORPC Rule 1.1 provide: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

      . The provisions of ORPC Rule 1.7(b)(2) state:
      "(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

      . The terms of ORPC Rule 1.8(b) provide:
      "b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 or Rule 3.3."

      . The provisions of ORPC Rule 2.1 state:
      "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."

      . The pertinent provisions of ORPC Rule 8.4(a) provide:

        "It is professional misconduct for a lawyer to:
      (a) violate or attempt io violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; * * *"
      Although the complaint neglected to include ORPC Rule 8.4(d), the Assistant General Counsel for the OBA stated during the bar hearing that this was inadvertent and should be included in the complaint. (Transcript p. 5.) The terms of ORPC Rule 8.4(d) state:
      "It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice; * * **"

      . The terms of RGDP Rule 1.3 provide:
      ''The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline."

      . The terms of ORPC Rule 8.4(b) provide:
      "It is professional misconduct for a lawyer to:
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; * * *"

      . State ex rel. Oklahoma Bar Ass'n v. Schraeder, 2002 OK 51, ¶ 5, 51 P.3d 570, 572; State ex. rel. Oklahoma Bar Ass'n v. Cox, 2002 OK 23, ¶ 5, 48 P.3d 780, 782; State ex rel. Okla. Bar Ass'n v. Leigh, 1996 OK 37, ¶ 11, 914 P.2d 661, 666; State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, ¶ 8, 914 P.2d 644, 647; State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344; State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 545; State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265; In re Integration of State Bar of Oklahoma, 1939 OK 378, 95 P.2d 113, 115.

      . Schraeder, supra note 11, at ¶ 5 at 573; Cox, supra note 11, at ¶ 5 at 782; Eakin, supra note 11, at ¶ 8 at 648; State ex rel. Okla. Bar Ass'n v. Downing, 1990 OK 102, ¶ 12, 804 P.2d 1120, 1122-23; Raskin, supra note 11, at ¶ 11 at 265-66.

      . Schraeder, supra note 11, at ¶ 5 at 573; Cox, supra note 11, at ¶ 5 at 782; Leigh, supra note 11, at 111 at 666-67; Eakin, supra note 11, at ¶ 8 at 647-48; State ex rel. Okla. Bar Ass'n v. Lloyd, 1990 OK 14, 787 P.2d 855, 858; State ex rel. Okla. Bar Ass'n v. Stubblefield, 1988 OK 141, ¶ 7, 766 P.2d 979, 982; State ex rel. Okla. Bar Ass'n v. Cantrell, 1987 OK 17, ¶ 1, 734 P.2d 1292, 1293; State ex rel. Okla. Bar Ass'n v. Brandon, 1969 OK 28, 15, 450 P.2d 824, 827.

      . Schraeder, supra note 11, at ¶ 5 at 573; Cox, supra note 11, at ¶ 5 at 782; Eakin, supra note 11, at ¶ 8 at 648; Raskin, supra note 11 at § 11, at 265. The court's range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a). Its terms provide:
      "(a) The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate."

      . Schraeder, supra note 11, at ¶ 5 at 573; Cox, supra note 11, at ¶ 5 at 782-83; Eakin, supra note 11 at ¶ 8 at 648; Bolton, supra note 11, at ¶ 15 at 344; State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, ¶ 5, 796 P.2d 627, 630.

      . Schraeder, supra note 11, at ¶ 6 at 573; Cox, supra note 11, at 16 at 783; Eakin, supra note 11, at ¶ 9 at 648.
      The terms of RGDP Rule 6.13 provide in part: "Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel's findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered."

      . Schraeder, supra note 11, at ¶ 6 at 573; Cox, supra note 11, at ¶ 6 at 783; Eakin, supra note 11, at ¶ 9 at 648; Bolton, supra note 11, at ¶ 16 at 345; Perceful, supra note 15, at ¶ 5 at 630.

      . Cox, supra note 11, at ¶ 8 at 783; State ex rel. Okla. Bar Ass'n v. Livshee, 1994 OK 12, ¶ 7, 870 P.2d 770, 774.

      . Mrs. C. was the biological mother of the minor child. Her former husband adopted the child during the parties' marriage. Their divorce decree provided for a joint custody arrangement.

      . Respondent filed a motion for an attorney's fee for his work on the emergency hearing which was denied.

      . (Joint Stipulations, p. 4)

      . Although respondent does not recall his exact statements to Mrs. C. he admits that his conversation and conduct were of a flirtatious and sexual nature. Respondent did advise Mrs. C. that she should record her conversations with her ex-husband and recommended that a recording device be installed on her house phone and that she carry one in her purse in the event her former husband attempted to contact her outside her home. Respondent offered and Mrs. C. agreed to have him come to her house and install the recording device. Mrs. C. asserts that she agreed to this because she was financially limited. While at Mrs. C.'s house, both parties agree that they discussed Mrs. C.'s breast implant surgery but disagree about the details of that discussion.

      . In January of 2001 Mrs. C. remarried and began using her new surname.

      . Mrs. C. asserts that in her effort to leave respondent's office quickly, she forgot to get all of her materials.

      . Mrs. C., additionally, asked her niece to accompany her and wait in the car for her return. She was instructed by Mrs. C. to go into the law office in the event Mrs. C. did not return in forty-five minutes.

      . Upon seeing Mrs. C. in the reception area, that tape indicates respondent walked by her and stated, in part, "(Y)ou just couldn't stay away from me, huh? Oww! That flatters me. Well, darling what are you doing back?" When Mrs. C. indicated she had returned to obtain an original document she had left, respondent replied, "Okay, well come on into my lair-I mean my office." (Tape transcript, exhibit 3)

      . The tape reveals the following portion of the conversation between Mrs. C. and respondent.
      # ock a
      Groshon: "You alright?"
      Mrs. C.;: "Um, hmm."
      Groshon: "You see I was getting all excited because I thought it was your hormones that brought you back down here and I thought I would get to chase you around a little bit more."
      Mrs. C.; "No."
      Groshon: "No?"
      Mrs. C.: "Nub-ub."
      Groshon: "Oh."
      Mrs. C.: "Stop! You're embarrassing me when you do that."
      Groshon: "Why are you getting embarrassed?"
      Mrs. C: "Cause you are making me turn red. I can feel it."
      Groshon: "Well, that's alright."
      Mrs. C.: (Exhaling)
      Groshon: (Laughing) "You shouldn't be embarrassed."
      Mrs. C.; "Why?"
      Groshon: "Hm?"
      Mrs. C.: "Why?"
      Groshon: "Because you are one of the sexiest women I've met."
      Mrs. C.: "Ob, thank you. (Laughing) Are you trying to earn brownie points?"
      Groshon: "No, I've been coming on to you ever since I've met you."
      Mrs. C.: ""I know you have."
      Mrs. C.: "Okay, I can't believe I walked out of here without these. I did so well to hang (sic) to these papers when I left (meaning her ex-husband). I was pretty upset though."
      Groshon: "You were pretty upset when you left here?"
      Mrs. C.; "About the whole scenario."
      Groshon: "Hell, I thought I had you all excited when you left ... that you wanted to see me again."
      Mrs. C.: "(Laughing) Okay. Well, I won't keep you. I think there's a bunch of people out there."
      Groshon: "Well, I'm getting ready to go to the courthouse anyway."
      Mrs. C.; "Oh, really?"
      Groshon: ""I've got to file some stuff."
      Mrs. C. "Okay."
      Groshon: "You know you never bother me when you're here. You know there is always the that fantasy that your hormones will kick in and I'll get to do lewd and lascivious things to you."

      Mrs. C. "Stop. You need to behave yourself, stop! You're so bad!"
      Groshon "I know it."
      Mrs. C.: "You need to behave yourself! a

      Groshon: "I didn't know you had a tattoo." (referring to a tattoo on Mrs.C.'s right breast) Mrs. C.: "Yeah, I had it lasered a couple of times." * * * (Tape transcript, exhibit 3)

      . The tape reveals the following conversation between respondent and client.
      Groshon: ''Trapped in an elevator!"
      Mrs. C.: "Stop! It is dangerous being on an elevator with you."
      Groshon: "Um humm! (Laughing) I'm going to go take a shower now."
      Mrs. C.: "Yeah, you need to." * * * (Tape transcript, exhibit 3)

      . Schraeder, supra note 11, at ¶ 27 at 578; Cox, supra note 11, at ¶ 11 at 784.

      . Schraeder, supra note 11, at ¶ 32 at 579; Cox, supra note 11, at ¶ 12 at 784.

      . Schraeder, supra note 11, at ¶ 32 at 579; Cox, supra note 11, at ¶ 12 at 784.

      . Schraeder, supra note 11, at ¶ 32 at 579.

      . State ex rel. Oklahoma Bar Ass'n v. Sopher, 1993 OK 55, ¶ 14, 852 P.2d 707, 711-12; State ex rel. Bar Ass'n v. Copeland, 1994 OK 21, ¶ 4, 870 P.2d 776, 777.

      . Some aspects of this proceeding's scenario are troubling. These include 1) the lengthy duration of the attorney-client relationship despite respondent's conduct and 2) Mrs. C.'s sometimes equivocal manner and responses in the recorded conversation that could be interpreted as flirtatious rather than as a firm, non-consensual response to respondent's advances. (See supra notes 27 and 28.) Ms. Farabow, the Assistant General Counsel, directly addressed the latter matter with Mrs. C. and before the PRT. Mrs. C. explained that she had been sexually molested as a child and learned that if she defended herself, it made matters worse than if she accepted the behavior or acted as if she enjoyed it. In light of Ms. Farabow's experience as a former prosecutor, she believes Mrs. C.'s explanation is an acceptable response. She filed charges because the "(tape sounds so very different from the actual reading of that transcript." (PRT report p. 7.) The former concern was tangentially addressed at the PRT hearing by Ms. Farabow's question to respondent: "Did it ever occur to you that because she didn't have the money and because of her limited background or educational background that she might have to appear to enjoy your advances or appear to flirt back with you so that she wouldn't lose you as an attorney?" Respondent's answer: "No. I can't say that that ever ..."
      We note these concerns solely in an effort to characterize the parties' relationship as presented by testimony before the PRT and recorded conversation. In no manner do we suggest that respondent's conduct is mitigated by these cir-Clients who seek a lawyer's assis-cumstances. tance are often emotionally distraught. To take advantage of the attorney-client relationship for one's own gratification-even if one believes it is encouraged or welcomed-is a violation of the ORPC which is not to be tolerated.

      . Sopher, supra note 33, at ¶ 14, at 712; Copeland, supra note 33, at ¶ 5 at 777.

      . Copeland, supra note 33, at ¶ 5 at 777.

      . Because there was no finding that respondent has engaged in a predatory pattern of sexual misconduct at clients' expense, the Assistant General Counsel did not believe that the discipline of suspension (as imposed in State ex rel. Bar Ass'n v. Miskovsky, 1997 OK 55, 938 P.2d 744) was warranted. (PRT transcript p. 55-57)

      . .Etiquette is "(he unwritten or conventional laws of courtesy observed between members of the same profession." Crameres' Twentiere Can-tury Dictionary 319 (London & Edinburgh 1943). Professionalism is that conduct which binds a professional or deals with one who is not a client. WesstEr's Terp New Internationat DictioNary or THE Lancuace 782 (Springfield, Mass.1961). "... the usages of professional intercourse." Funx & WacnaLts New CormEor Stanparp Dictionary 403 (New York 1947).


author: REIF, J:

text:
    2003 OK CIV APP 103
    Charlie HEES, Plaintiff/Appellee, v. Patsy HEES, Defendant/Appellant.
    No. 97,132.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    May 20, 2003.
    Rehearing Denied July 15, 2003.
    Certiorari Granted and Modified Oct. 20, 2003.

      Lisa Conpel-Hurtt, Philip A. Hurtt, Hurtt, Roberts and Hurtt, P.C., Oklahoma City, for Appellee.
    Odell D. Campbell, Larry A. Morgan, Morgan and Morgan, Inc., Oklahoma City, for Appellant.
   REIF, J:

T1. Custodial mother Patsy Hees appeals the order that modified the child support obligation of noneustodial father Charles Hees. Mother contends that the trial court erred in calculating the modification by excluding the value of father's on-base military housing from father's income. Mother notes 43 0.8.2001 § 118(E)(B)(e) specifies that "free housing," received by a parent in the course of employment, is an in-kind payment that "shall be counted as income" in computing child support. Mother asserts that the trial court erred as a matter of law in this regard.

T2 In response, father points out that § 118(E)(B)(e) does not count "free housing" as income in all cases, but only when it is "significant and reduce[s] personal living expenses." Father argues that this limitation gives a trial court discretion to determine whether "free housing" will be counted as income for child support purposes. Father asserts that the record fails to demonstrate an abuse of discretion that would warrant reversal on appeal.

T3 The only record concerning the issue of father's "free housing" is the order modifying support and the order denying mother's motion to reconsider. The order modifying support states:

1. That Defendant's Motion to Modify Child Support is hereby sustained.
2. That Plaintiff father's monthly income is determined to be $2,844.00.
That Defendant mother's monthly income is determined to be $1,813.00.
That the parties' Decree of Divorce be and hereby is modified, and Plaintiff is hereby ordered to pay to Defendant mother the amount of Five Hundred Forty-seven and 17/100 Dollars ($547.17) child support per month pursuant to the Child Support Guidelines. That the percentage for unpaid medical expenses is 61% for Plaintiff father and 839% for [Defendant] mother.
That Plaintiff father, Charlie Hees, is a member of the United States Air Force and currently resides on Tinker Air Force Base, Oklahoma, in government housing at no cost to Plaintiff.
6. As a result of Plaintiff's housing; Plaintiff does not receive a monthly housing allowance he would otherwise receive if he lived off base.
7. That said unpaid housing allowance is determine[d] not to be included in Plaintiff father's gross monthly income for purposes of child support computation.

The order denying mother's motion to reconsider further states:

1. That Plaintiff, Charlie Hees, is a member of the United States Air Force, Pay Grade E-7, and lives on Tinker Air Force Base, Oklahoma.
2. That Charlie Hees, as a member of the U.S. Air Force living on Tinker Air Force Base, receives housing for which he pays no monthly rent.
3. That the United States Air Force values such free housing at $688.00 per month, and if Plaintiff, Charlie Hees, lived off base, he would receive said $688.00 as part of his monthly income.
4. The Court therefore finds that such free housing should not be treated as in-kind payment pursuant to 48 O.S8. § 118E(G)e.
5. Defendant's income for child support purposes should not be increased as a result of Plaintiff's free housing.

Reading the orders together reveals that the trial court refused to include the value of father's on-base military housing in his income, because he did not receive the "free housing" as a paid "allowance" or in some other "payment" form.

T4 From the foregoing, it is clear that mother, father, and the trial court each have a different interpretation of § 118(E)(8)(e). In order to resolve this controversy, the text of this statute must be examined. The text of § 118(E)(@8)(e) reads:

Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses. Such payments may include but are not limited to a company car, 'free housing, or reimbursed meals.

By giving "a company car" and "free housing" as examples of "expense reimburse ments" or "in-kind payments" that shall be counted as income, it is reasonably clear that the legislature was not limiting income to sums paid to or on behalf of the parent. This section reflects a clear intent to treat the value of significant living expense benefits received by a parent from their employer, like free housing and transportation, as income.

15 Under this statute, the trial court is not given discretion to decide whether free housing or a company car should be or can be income. To the contrary, the trial court is given a mandatory directive to include free housing as income where the free housing is "significant and reduce[s] personal living expenses." Application of this standard to a particular case does not involve the exercise of discretion, but rather presents a question of fact.

T6 Father correctly points out that "(aln action to pay increased child support on change of condition is one of equitable cognizance [and appellate courts] will accord great weight to the findings of the trial court." Wilson v. Wilson, 1957 OK 286, ¶ 0, 317 P.2d 249, 250 (syllabus 1). However, it is equally true of appellate review in cases of equitable cognizance that the appellate court is "not bound either by the reasoning or the findings of the trial court" and "must render, or cause to be rendered, that judgment which in its opinion the trial court should have rendered." Carpenter v. Carpenter, 1982 OK 38, ¶ 10, 645 P.2d 476, 480 (footnote omitted).

T7 In the instant case, this court will accord great weight to the trial court's findings concerning the parties' respective monthly incomes and the value of the monthly living allowance father would receive if he lived off base. We do so in view of the fact that the parties do not contest these findings. However, we will not follow the reasoning of the trial court nor uphold the trial court's judgment, because the trial court misinterpreted § 118(E)(@B)(e). We will, therefore, cause to be rendered the judgment the trial court should have rendered based on the correct interpretation of this statute as discussed above.

18 Accepting the finding that father's monthly income was $2,844 per month, and using the amount of the off-base living allowance ($688/month) as the value of the on-base free housing father receives, this court concludes the value of the on-base free housing was significant and reduced father's personal living expenses. Accordingly, the trial court's modified support judgment should have included the value of the on-base free housing and it was error for the trial court to find and conclude otherwise.

T9 This Court reverses the trial court's decision to exclude the value of the on-base free housing and remands to the trial court with directions to recompute child support by including the value of father's on-base housing in his income. The recomputed child support amount shall be effective June 26, 2001, the date the motion to modify was filed. 43 0.8. 2001 § 118(E)(16)(a)(d). After recomputing the amount, the trial court shall determine the most equitable way for the father to pay the resulting child support arrearage.

{10 AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

GOODMAN, P.J., and RAPP, J., concur.


author: JOHN F. REIF, Judge.

text:
    2003 OK CIV APP 102
    STATE of Oklahoma, ex rel. OKLAHOMA BUREAU OF NARCOTICS AND DANGEROUS DRUGS CONTROL, Malcom Atwood, Director, Petitioner/Appellee, v. ONE (1) STEVENS 12 GA. SHOTGUN, Ser. #0895260; One (1) Interarms 7MM Rifle, Ser # B230478 With Scope; One (1) Browning Arms 7MM Rifle, Ser #137PZ13543, Bushnell Scope and Sling; One (1) Wards Western Field 12 GA. Shotgun, Ser. #02177V; One (1) Winchester 308 Rifle, Ser. # 84394 and Sling; One (1) Remington Arms .410 Rifle, Ser. #R013274H; One (1) Springfield Armory U.S. MDL 1898 Rifle, No Serial Number; One (1) Cannon Breech Rifle, No Serial Number; One (1) Colt .45 Pistol., Ser. #SN06313 With Extra Magazine; One (1) Colt Diamond Back .22 Revolver, Ser. #042335; One (1) Colt Python .357 MAG. Revolver, Ser #E31973; One (1) Browning Semi Auto .22 Rifle, Ser #0383ZPY166, With Scope; One (1) Winchester .22 MAG Rifle, Ser. #F204969; One Browning 44 Rifle, Ser. #1277PX167; One (1) Remington 34 Rifle, Ser. #6335; One (1) Colt .380 Pistol, Ser. #MU67357; One (1) Colt .380 Pistol, Ser. # RC97788; One (1) Browning 20 Gauge Shotgun, Ser. #01079PZ161; One (1) Browning 20 Gauge Shotgun, Ser. #17199PT162; One (1) Thompson .45 Black Powder Pistol, Ser. #14141, With Leather Holster; One (1) .54 Black Powder Rifle, Ser. #47111; One (1) Thompson .50 Black Powder Rifle, Ser. #229533; One (1) Ruger Semi Auto .22 Rifle, Ser. #24580135; One (1) Cannon Breech 12 Gauge Shotgun, Ser. #A2230; Miscellaneous Ammunition, Respondents/Appellants.
    No. 96,676.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    July 29, 2003.

      Mark Lane, Assistant General Counsel, Oklahoma State Bureau of Narcotics, Oklahoma City, OK, for Appellee.
    Michael Gardner, Law Offices of Joe Far-nan, Purcell, OK, for Appellants.
   Opinion by

JOHN F. REIF, Judge.

T1 This appeal concerns the forfeiture of twenty-five firearms that were seized during the execution of a search warrant on the home of Norvel West, Sr. Agents for the Oklahoma Bureau of Narcotics and Dangerous Drugs obtained the search warrant after meeting with Mr. West outside the house and obtaining his consent to examine suspected marijuana plants growing on his property about one hundred yards from the house. In the time between examining the plants (that appeared to be cultivated) and the execution of the search warrant, the agents took Mr. West into custody and detained two occupants of the house outside the house. Neither Mr. West nor the two occupants had any weapons on their persons. During the search of the house, a loaded handgun was found beneath a sofa cushion, but all the other firearms were found in plain sight, primarily in an open gun cabinet and on two gun racks. In addition to the firearms, the agents found a small amount of marijuana, marijuana seeds, tie-down material for growing plants, and evidence marijuana had been smoked in the house.

12 Mr. West objected to the forfeiture of the firearms, but died before the forfeiture hearing. Nola Shepard, his mother and the executrix of his estate, pursued the return of the firearms. Ms. Shepard explained that Mr. West was a gun collector and asserted there was no "nexus" between the firearms and the marijuana cultivation and use.

T3 In granting the forfeiture of the firearms, the trial court stated: "I don't see any evidence that they use [the cultivated mari-juanal for profit [and] I don't know that they're dealers, but I do know that the cultivation is a crime even if it was just for personal use." The trial court further observed: "I believe that in this particular family guns are in their culture. They collect guns. They use guns to shoot rats. [GJuns are a part of their history." The court went on to say, however, that "just because you have an additional innocent use of the guns is not ... a defense to the forfeiture if the guns are used or available for use to facilitate the crime [of cultivating marijuanal." The trial court concluded that "when you have guns in a house where there are drugs, the implication is that the guns are used to ward off people ... in the cultivation of the marijuana and the protection of the property from other drug users or dealers or for protecting the marijuana and the people that are doing the cultivation from attack from wherever it comes."

{4 The dispositive question on appeal is whether the trial court correctly concluded that the firearms in question were "available for use in any manner to facilitate a violation of the Uniform Controlled Dangerous Substance Act." 63 0.8.2001 § 2-508(A)(9). There is a split of authority in both the federal circuits and among state courts that have considered the issue of the type of connection property must have to a crime in order to be forfeited. Im re Forfeiture of $5,264, 432 Mich. 242, 439 N.W.2d 246, 254 (1989). In this case, the Michigan Supreme Court noted that one line of cases requires a "substantial connection" between the property and the underlying criminal activity, while the other line of cases allow forfeiture if there is "any manner" of connection to the unlawful drug offense. The Michigan Supreme Court adopted the "substantial connection" requirement, stating it "strikes the proper balance between the rights of the individual property owners and the state's need to use the weapon of forfeiture in its war on wholesale drug dealing."

15 In view of the fact that the Oklahoma legislature provided for forfeiture of weapons that were "available for use in any manner to facilitate a violation of the [Act]," this court does not believe that a "substantial connection" must be shown to support forfeiture. We do agree, however, with the Michigan Supreme Court that it would be "unreasonable ... for a court to order the forfeiture of property which has only an incidental or fortuitous connection to the unlawful activity." Id.

16 In Katner v. State, 655 N.E.2d 345, 348-49 (Ind.1995) (citing U.S. v. Real Estate Known as 916 Douglas Avenue, 903 F.2d 490, 494 (7th Cir.1990)), the Indiana Supreme Court noted that the government must demonstrate that the nexus between the property sought in forfeiture and the underlying offense is more than incidental or fortuitous. The Indiana Supreme Court observed that "[this nexus requirement is a means to guarantee that the government is seizing actual instruments of the illegal drug trade ... in hopes of retarding, through asset forfeiture, expanding drug commerce." (Emphasis added.) Id. at 349 (emphasis added).

T7 The establishment of some link or nexus is particularly important in cases involving a residence where people commonly keep all of their possessions (both legal and illegal) to which they want ready access. If mere presence with drugs and a dangerous capability to protect the drugs were alone sufficient to support forfeiture, a child's baseball bat, kitchen knives, ordinary scissors, sharp tools, and even the family dog who displays aggressiveness toward strangers would all be subject to forfeiture as "available weapons" if found in the same room as drugs.

T8 Like the Indiana Supreme Court, we believe the nexus that the legislature intended the state to demonstrate is found in the statutory language. To forfeit weapons under § 2-503(A)(9), the State must demonstrate that the weapons have somehow "facilitated" the offense or offenses that serve as the basis of their forfeiture. This is the approach taken in Platt v. United States, 163 F.2d 165 (10th Cir.1947).

T9 The Platt case involved the forfeiture of an automobile that a drug addict drove to a drugstore to obtain morphine by a forged prescription. The forfeiture statute in Platt provided for forfeiture of any vehicle that was used "to facilitate the ... receipt, possession [or] purchase ... of any contraband article." Id. at 166. The court noted that "[the word 'facilitate' is one of common use in business and transactions between ordinary persons [and] is a term of everyday use, with a well understood and accepted meaning." Id. The court cited standard dictionary sources, one of which defined "facilitate" as meaning: "To make easy or less difficult; to free from difficulty or impediment; as to facilitate the execution of a task. (2) To lessen the labor of; to assist;...." Id. at 166-67. The court concluded, "What is then meant by the use of the word 'facilitate' is that if an automobile is used to assist in the commission of the crime, it is subject to forfeiture." Id. at 167 (footnote omitted).

110 The court noted that the crime charged was illegal purchase of narcotics and "[t]he use of the automobile did not make the accomplishment of the purchase more easy, or free it from obstructions or hindrance, or make the sale any less difficult." Id. at 167 (emphasis added). The court stressed that the automobile "was merely the means of locomotion ... to get to the store more quickly than if she had walked or had used a slower means of transportation [but any] means employed ... in going to the store had nothing to do with the purchase." Id.

T11 Like the Platt case, the necessary facilitation nexus has not been shown between the firearms in the residence and the marijuana being cultivated on the property some one hundred yards from the residence, or even the possession and use of marijuana in the residence. In particular, there is no showing that the firearms made the cultivation and possession of marijuana more easy or less difficult, or somehow lessened the labor of the cultivation or possession.

112 In reaching this conclusion, we are cognizant that an agent with considerable training and experience testified that marijuana cultivators will have numerous weapons around their residence or growing operation to "use those weapons to protect their crops." However, he prefaced this testimony by also relating his general experience that "a lot of people own firearms throughout the state." While the agent's testimony helps explain why he would seize the firearms in the course of serving a search warrant for evidence of cultivating marijuana, it does not supply the necessary facilitation nexus to support forfeiture.

T13 In reaching this conclusion, we wish to stress that the State can meet its burden to demonstrate a facilitation nexus by circumstantial evidence. We also recognize that the "totality of the cireumstances" may indeed provide the basis of an inference to support forfeiture, as the trial court observed. However, the totality of the cireum-stances in the instant case do not provide the basis of an inference that the firearms in question facilitated the cultivation and possession of marijuana. It was necessary to show some additional fact or cireumstance, such as statements by Mr. West that he would shoot anyone who bothered his marijuana crop, testimony that Mr. West had been observed carrying a firearm while tending or harvesting the plants, or even that a firearm or weapon was found concealed on his person when he was arrested.

114 Under the totality of the cireum-stances in the instant case, the connection between the firearms and the drug offenses was nothing more than incidental and fortuitous. Significantly, the trial court recognized that the firearms were present in the residence, because the residents "collect guns." This gun collection, which included a vintage military rifle, match pistols and black powder firearms, had no more connection to the drug offenses than the furniture in the residence or the clothes being worn by Mr. West. Without a facilitation nexus, the firearms are not subject to forfeiture and the trial court erred in ordering the firearms forfeited in the absence of evidence to establish a facilitation nexus. Accordingly, the order of forfeiture is reversed and this case is remanded with directions to deny forfeiture and return the firearms to the executrix of the estate of Mr. West.

115 REVERSED AND REMANDED WITH DIRECTIONS.

GOODMAN, P.J., and RAPP, J., concur.