Okla. Impeachments: Insurance Commissioner in 2004, Now Auditor

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For the second time in four years, Oklahoma’s speaker of the House has convened a panel of lawmakers to investigate whether a statewide elected official should be impeached.

But the eight-member panel that will investigate state Auditor and Inspector Jeff McMahan may face more obstacles than the one that recommended the impeachment of former Commissioner of Insurance Carroll Fisher in 2004.

House Speaker Chris Benge has appointed four Republicans and four Democrats from the House to an investigative panel that will study McMahan’s activities and recommend whether the full House should impeach him. A vote to impeach would lead to a trial in the Senate and removal from office if McMahan is convicted.

A Democrat serving his second four-year term, McMahan and his wife, Lori, were indicted by a federal grand jury in Muskogee last month on nine counts including conspiracy, mail fraud and violating the Travel Act to commit bribery. The McMahans have pleaded not guilty.

A lawmaker who filed the resolution that launched the impeachment proceeding said he thinks the accusations are a sufficient basis to investigate the state auditor – even if he has not been convicted of the charges.

“Multiple federal indictments give rise to some things that we need to investigate,” said Rep. Mike Reynolds, R-Oklahoma City.

A member of the committee that will investigate McMahan, Reynolds said the panel’s responsibility is to determine whether his conduct violated his oath of office, not whether he is guilty of the accusations beyond a reasonable doubt.

“I’ve had a lot of people I’ve run into say I appreciate you bringing this to light,” Reynolds said. “I’ve had no one say you shouldn’t be doing this.”

Rep. David Braddock, D-Altus, an attorney and co-chairman of the investigating committee, said whether the auditor and inspector should be allowed to continue serving the public is a different question than whether he should be convicted of criminal charges.

“While they have some interconnection, they’re not connected at all,” Braddock said.

“It’s a political process, not a legal process,” said Rep. Rex Duncan, R-Sand Springs, an attorney and former prosecutor who is also co-chairman of the committee.

McMahan, who lives in Tecumseh, has not been to his state Capitol office since he turned over daily operations to Deputy State Auditor Michelle Day a month ago. But he continues to collect his $109,000 annual salary.

“I’m concerned about that. None of us get paid for not showing up,” Duncan said.

“I filed the resolution because I thought he should have resigned,” Reynolds said. “He’s not showing up. He’s not doing his job.”

Although McMahan does not go to his office anymore, “the office has been to him,” said Terri Watkins, spokeswoman for the auditor and inspector.

“Things are constantly being taken over to him and Michelle is in daily contact with him,” Watkins said.

McMahan’s attorney, Rand Eddy, said McMahan stepped aside from his office’s day-to-day operations at the recommendation of Gov. Brad Henry and Attorney General Drew Edmondson.

“What is his other choice?” Eddy said. “I think the people who are criticizing him at this time will criticize anything other than a resignation.”

Eddy said McMahan has no plans to resign and should be allowed to continue performing the duties the voting public elected him to do. He has called the impeachment proceeding premature and “a waste of taxpayer money.”

The charges stem from dealings with southeast Oklahoma businessman Steve Phipps, who is identified only as a coconspirator in the federal indictments. Federal prosecutors said the charges are tied to favoritism shown to Phipps by McMahan as well as excessive political donations to McMahan during his 2002 campaign.

If convicted on all counts, the McMahans could face up to 135 years in prison.

McMahan’s trial is scheduled June 2, the week after lawmakers are scheduled to adjourn their regular legislative session at the end of May.

The House panel will investigate whether McMahan should be impeached for reasons outlined in the Oklahoma Constitution, including willful neglect of duty, corruption in office, habitual drunkenness, incompetency or any offense involving moral turpitude committed while in office.

Impeachment proceedings are relatively rare in Oklahoma but history books contain accounts of some high-profile impeachments. In its first 23 years of statehood, the Senate received 13 impeachments from the House, according to information compiled by the House staff.

Two of them involved former governors Jack Callaway Walton, who was impeached and convicted in 1923, and Henry Simpson Johnston, who was impeached and convicted in 1929.

The most recent impeachment proceeding involved Fisher, the former insurance commissioner who is serving a three-year prison term for embezzling $1,000 from his campaign and lying on a contributions report. He also faces a trial in May on bribery charges.

Fisher’s investigating committee recommended his impeachment in August 2004 and the House voted 95-0 for the recommendation. Fisher resigned before his Senate trial.

Fisher was impeached following a series of quasi-judicial public hearings in which committee members examined evidence compiled by Attorney General Drew Edmondson’s office, which prosecuted Fisher and questioned witnesses.

“The Attorney General’s Office was right there willing to help,” said Rep. Ray McCarter, D-Marlow. But members of McMahan’s investigating committee may not find the same level of cooperation from federal prosecutors, who are typically reluctant to reveal details of a pending criminal case.

“I suspect it will be a little more difficult to access some of the things,” he said. “It’ll be drawn out because of the feds’ involvement.”

“I don’t know the cooperation that we’ll get from the feds,” said Rep. Paul Roan, D-Tishomingo, a former state trooper and the only member of McMahan’s investigative committee who also served on Fisher’s.

“I can see the fine line and the problems they have with exposing grand jury testimony,” said former Rep. John Nance, a former investigator for the Internal Revenue Service who served on the Fisher panel. “It’s a tricky balance when you’ve got something like this.”

The chief prosecutor, U.S. Attorney Sheldon Sperling, has said he will “cooperate with anyone to the extent the law will permit me.” But Sperling also said he will be “very cautious” to protect McMahan’s rights and the integrity of the government’s investigation.

For now, members of the investigative panel are conducting organizational meetings and developing procedures including whether testimony and evidence-gathering hearings will be conducted in public.

Speaker Benge and committee members initially said the hearings would be secret but backed off that stance after learning that the Fisher impeachment hearings were open to the public and press.

“We want to make this as public as possible,” Benge said. “That decision will be made with thorough consideration given to the public interest, while also considering what is legally allowed in this type of proceeding.”