The rocky road of the Kirby affairs have presented some good lessons in Oklahoma civics. Many laws and remedies seem sensible and comprehensive, until they are put into motion. Such is the case with our options for removing elected officials from office.
In December, Dan Kirby was exposed for his connection to a sexual harassment complaint. He immediately 'resigned'... or so we thought. It seems there is a specific protocol for resigning. If not followed, the declaration is meaningless. So when Kirby told the Speaker-designate, Charles McCall, that he quit, the letter was discarded, since the House was not yet in session and there technically was not yet a Speaker selected. He was supposed to notify the Governor during that interim. Having a change of heart, and discovering the error, Kirby declared 2 days later that he really didn't mean it and he's still determined to stay.
In early January, the House gathered for a 1-day swearing in, and selection of leadership. The leaders decided to swear in Kirby and another colleague, Will Fourkiller, who also had come under scrutiny for inappropriate behavior. The leadership even appointed Kirby to a chairmanship of the Commerce Committee. But the Speaker's Special Investigative Committee, led by Rep Josh Cockroft, went right to work on a 'dicey' process of investigating Kirby and a Democrat, Will Fourkiller; who both were reported for sexual harassment of females assigned to the work of the House.
So the Special Committee Report was scathing. Kirby was to be the first member ever expelled from the Oklahoma House. Fourkiller was severely rebuked by the committee and severe sanctions placed upon him for the next year. The committe determined that not only was Fourkiller vulgar and rude, he was behaving so toward female minors whose parents agreed to let serve as volunteer pages to the House for the great experience of a close up knowledge of how the chamber operates.
With an expulsion vote just a few days away, Kirby filed a preempive resignation, again. This time Kirby did it 'by the book'. There is statutory allowance to a 'post-dated' resignation, but it must be declared "irrevocable" by the resignee, and notice sent to the Secretary of State. Hence, Dan Kirby's Feb. 4th letter was sent to 5 people: Speaker McCall, Governor (Mary Fallin), Secretary of State (Mike Hunter), House Clerk (Jan Harrison), and Secretary of the Election Board (Paul Ziriax).
The Oklahoma statute 26 O.S. § 12-119 says;
"Except as otherwise provided by law, an incumbent in any elective office for which a vacancy is filled by special election called by the Governor may file with the Oklahoma Secretary of State an irrevocable resignation in writing which states that the resignation will not become effective immediately, but rather will become effective on some date certain. Upon receipt of the irrevocable letter of resignation, the Governor shall set the date for the special election. The person elected at the special election shall take office on the later of the date of certification of the results of the special election or the date the resignation of the incumbent becomes effective and shall serve the remainder of the unexpired term."
Sources close to Speaker McCall have expressed some concern with the constitutional fallout of an expulsion vote. There lacks the clarity of what happens to the representation and the salary. If a district elects a representative, but the House chamber expells them or refuses to seat them, do they still retain the title and the salary? Our constitutional experts aren't so sure? It is for this reason that the House leadership may take harsh action on Kirby, but also simply record his irrevocable resignation and call on the Governor to declare a prompt special election, for the sake of HD 75's proper representation to be restored to the House. Kirby will be gone. But without an official expulsion.
The House now sees yet another reason to forward another state question to a vote of the citizens. Oklahoma is grossly out of compliance with our own constitutional mandate to let the people choose whether to hold a state constitutional convention. It was supposed to be asked every 20 years. We haven't asked the voters this question for nearly 50 years! We have a terrible-written constitution. Add to that, our people have amended the document over 150 times! It's a patchwork mess which our State Supreme Court has to follow when making supreme rulings. It's no wonder we have such terrible decisions from the high court.