Letter from DA says charges against Duncan City Council members 'not warranted'

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Apr. 1—A correspondence between District Attorney Jason Hicks and Oklahoma State Bureau of Investigation (OSBI) indicates charges are unwarranted for three Duncan City Council members who were under investigation for allegedly violating the Oklahoma Open Meeting Act.

The letter from Hicks to OSBI Agent Joe Kimmons came to The Banner following an Open Records Request sent into the City of Duncan the morning of March 31. The letter from Hicks to Kimmons is dated March 29, 2021.

The investigation for the allegations of violating the Open Meeting Act included Councilwoman Patty Wininger, Councilwoman Jennifer Smith and Councilman Nick Fischer. Paperwork also shows these parties, as well as Mayor Ritchie Dennington, Vice Mayor Lindsay Hayes, City Manager Kimberly Meek, City Clerk Christina Johnson, City Attorney David Hammond were interviewed during the investigation.

The letter from Hicks states the three members in question, "just after a scheduled meeting concluded, gathered and discussed the possibility of a special meeting."

Hicks' letter states there "was no business of the Council discussed" during this time and "there was no action taken on anything that could be perceived as business by the council."

"As you are aware, a violation of the Act must be 'willful,'" reads Hicks' letter. "In this instance, there were no actions by the Council members that could be deemed 'willful.'"

Hicks' references Rogers V. Excise Board of Greer County, 1984, in which the Oklahoma Supreme Court stated: "(f)or purposes of Open Meeting Act, willfulness does not require showing of bad faith, malice, or wantonness, but, rather, encompasses conscious, purposeful violations of law by those who know, or should know, requirements of the Act(.)"

Hicks, in the letter, says based on statements received from the interviewees, "there was no 'conscious and purposeful' action by the three council members involved."

"The discussion, which was very short in duration, was nothing more than a query regarding the possibility of a 'special meeting,'" Hicks states in the letter. "In their interviews, the parties stated that they did not know how to call a special meeting of the Council and were simply trying to figure out how to accomplish just that."

In the final portion of the correspondence with OSBI, Hicks states, "It is my understanding that when the investigation was presented to my office, you advised that there should be no charges filed against anyone as a result of the council members seeking to hold a special meeting.

"I agree with the recommendation and also agree that the council members should seek to obtain training from the Oklahoma Attorney General's Office on Oklahoma's Open Meeting Act," Hicks stated.

The investigation took place in November 2020 and news OSBI turned it over to Hicks' office came in mid-March, just three weeks before the April 6 Duncan Mayoral election.

Councilwoman Wininger said she cooperated the entire way and is ready to move forward after receiving the "all clear."

"I am pleased to state that the report from the OSBI and the Stephens County District Attorney Jason Hicks has vindicated and cleared me along with my fellow City Councilors Jennifer Smith and Nicolas Fischer of any wrong doing involving a complaint about a possible violation of the Oklahoma Open Meeting Act," Wininger said. "The OSBI released its investigative report to DA Hicks who also concluded that at no time did any violation of the law occur and that the matter is concluded. I cooperated fully with the OSBI investigation and had confidence in how this was handled."

Wininger, who represents Ward 3, is one of the two candidates in the upcoming election.

"My role as a city councilor is to listen to the people in order to best represent them and I will continue to do so," Wininger said. "I have enjoyed serving the people of Duncan for the past five years and look forward to serving as their new Mayor if elected."

Councilwoman Smith said she's glad the investigation is over and that it has "been hanging over their heads" for long enough.

"I'm very happy that the investigation is over, that we were cleared," Smith said, acknowledging they didn't "do anything wrong to begin with." Ultimately, Smith said she felt the investigation was "unwarranted" but that she's ready to move on and get back to doing work for the city.

"I care for Duncan," Smith said, "and I'm ready to move forward and continue working for what's best for Duncan."

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