Due Process Requires Separation of Duties in Municipal Settings

Due Process Requires Separation of Duties in Municipal Settings

On December 21, 2020, the elected leaders in Talihina voted to give one person the role of Prosecutor, Judge, Hearing Officer, and Town Attorney via Ordinance 2020-15.  The vote was close with Mayor Renee Monsour-Bailey, Vice-Mayor Nikki Hibdon, and Anita Duncan voting in favor of the ordinance.  Roger England and Don Faulkner voted against the ordinance.

It is my opinion that this opens the city to legal liability for violating the rights of its citizens.  When you are accused of violating city, state, or federal law, you are entitled to due process under the 14th Amendment of the United States Constitution.  Our legal system is designed to honor your due process rights by having three parties to every controversy, at minimum. 

In the case of a town like Talihina, you will have a defendant, prosecutor, and a judge/hearing officer.  With the passing of 2020-15, Talihina built in a conflict of interest to their municipal system by making it so that the prosecutor is also the judge, that is a functional bar to proper due process. Attorneys and judges have an affirmative obligation to avoid conflicts of interest.  Without getting too far into the weeds, the ordinance makes it impossible to comply with many legal requirements of due process, not the least of which is avoiding conflict of interest considerations.  There is no possible way for one person to prosecute a case and be the final arbiter of fact in an unbiased manner.  There is an inherent conflict of interest in such a set up with one person attempting to fill two of the three roles required for due process.  This unfairly tips the scales in favor of the city, which already carries a pretty big stick. 

Who will the prosecutor side with as judge, once everyone has presented their version of the facts and legal support?  No matter the decision made, there would always be a cloud of suspicion surrounding the ruling.  Did the judge side with herself because that is what the correct decision is or is it because they are biased toward their interests?

Such questions subject Talihina to potentially expensive legal battles, should they implement the ordinance as written, in context of ordinances already on the books. Unfortunately, in such a situation the only folks who really win are the attorneys. The defense attorneys will get paid, the City will pay their attorneys, and potentially the defense attorneys when an ordinance is ruled to be unconstitutional. This has the potential to cost a lot of money that could be put to good use improving Talihina and attracting new businesses and tourism.

This ordinance as passed is untenable.  We need to stop going for easy fixes and start looking at the big picture.  Is it painful at times to slow down and do things right? Yes.  Are there sometimes some negative consequences? Yes.  When our Board of Trustees act, we need them to take the time to do things right the first time and avoid the wheel spinning like we recently had with the annexation west of town.  In my experience cleaning up a mess later almost always ends up being more difficult and costly than taking the time to do things right the first time around. We need to start doing things right the first time.

I am a firm believer in Talihina.  We have a great community and the potential to be a place people travel from Tulsa or Dallas to visit.  If we are going to achieve that potential, we need to make sure that we doing things right.

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