Neither Crain nor Jordan are eligible for District Attorney

Article 5, Section 23, of the Oklahoma Constitution:

No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any office or commission in the State, which shall have been created, or the emoluments of which shall have been increased, during his term of office, nor shall any member receive any appointment from the Governor, the Governor and Senate, or from the Legislature, during the term for which he shall have been elected, nor shall any member, during the term for which he shall have been elected, or within two years thereafter, be interested, directly or indirectly, in any contract with the State, or any county or other subdivision thereof, authorized by law passed during the term for which he shall have been elected.

State Sen. Brian Crain stepped out of the race for District Attorney in Tulsa County this weekend, citing the above constitutional provision. HJR1096, which was approved by the House on Wednesday and the Senate on Friday, increases salaries for judges by 6% and indirectly increases salaries for district attorneys, which are set as 98% of a district judge's salary.

State Rep. Sydney Fred Jordan Jr., another candidate for DA, claims that he isn't affected by this provision because, as a House member, his term expires this year, while Sen. Crain isn't up for replacement until 2016.

But the term of office doesn't expire until after the November elections. New legislators are sworn in in late November, after their election has been certified. If the Governor were to call a special session between now and that time, Sydney Fred Jordan Jr. would still be the representative for House District 69. Jordan is as ineligible as Crain is.

Jordan appears to have been aware of a potential problem -- he claimed "Constitutional Privilege" when the issue came before the House. Perhaps he thought it would exempt him from the constitutional provision, but Article 5, Section 23, doesn't care whether you voted yes or no, or abstained, just whether the raise was enacted during the legislator's term of office, when the legislator may have had opportunity to exercise influence in support of the raise, whether or not he voted for it.

Joe Dorman, leading Democratic candidate for governor, also claimed Constitutional Privilege, even though the bill expressly excludes the Governor and other statewide elected officials from receiving an indirect raise as a result of the judicial raise, which means Article 5, Section 23, won't affect Dorman's candidacy.

Crain had the decency to recognize the problem and back out of the race, rather than force the public to endure lengthy litigation in the event he had been elected. Jordan should do the same. Steve Kunzweiler, the remaining candidate, is currently the head of the criminal division in the DA's office and is well prepared to move up a step to the top job. Tulsa County residents will be in good hands for the next four years. If, in 2018, Crain or Jordan feels that Kunzweiler needs to be replaced, he can run at that time without any constitutional impediment.

MORE:

The Oklahoma Legislative Manual, available online, explains rules, procedures, terminology, and tradition.

David Van Risseghem at Sooner Politics wonders if Steve Kunzweiler will be declared the winner without an election, and he wonders whether other violations of Article 5, Section 23, are just waiting to be found.

Then there's the issue of former legislators doing business with the state. It happens in some very subtle ways and often the state agency's procurement systems don't always know who owns the company they are awarding contracts to. Will there be a new effort to hunt down violators? It will be very interesting to see how this provision is enforced.

Did Brian Crain already violate the last half of Article 5, Section 23? In 2005, Crain co-sponsored (with Rep. Ron Peters) SB 478, which authorized county treasurers and county assessors to employ their own general counsel. This was a sensible bill -- these officials deal with specialized law involving real estate and finance, matters beyond the usual ambit of the District Attorney's office. In 2007 (within the same term of office in which the bill was approved), according to news reports, Crain was paid, via his law firm, to represent the Tulsa County Treasurer's office in bankruptcy proceedings, and in 2008 (still within the same term of office), the County Treasurer directly contracted with Crain for the same role.