McAlester News-Capital, McAlester, OK

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May 11, 2014

Eight years, then one hour, in city of McAlester v. Randy Green case

McALESTER — It took eight years for the city of McAlester’s lawsuit against former City Manager Randy Green to wend its way through the court system and reach a jury.

But it only took an hour for the jury to reach a verdict.

A Pittsburg County jury delivered a unanimous verdict Friday in favor of the city of McAlester in the city’s lawsuit against Green and Green’s counter-suit against the city.

A jury consisting of seven men and five women deliberated for approximately 60 minutes at the Pittsburg County Courthouse before returning with the verdict.

Jurors awarded the city of McAlester three times the actual damages sought — for a total of $3,354,388.77.

On one cause of action, the city won a verdict for three times the actual damages of $457,849 —the amount of vacation and sick leave which federal investigators determined Green was not entitled to that he sold back to the city of McAlester in the early 2000s.

State law allows for triple damages, so the total damages awarded the city on the buyback issue came to $1,489,213.77.

On a second cause of action regarding the transfer of city bond money to other accounts during Green’s administration, jurors awarded the city three times the actual damages of $621,725, for a total of $1,865,175.

The total $3,354,388.77 awarded the city comes from adding the triple damages on the two causes of action together.

Jurors also rejected Green’s counter-claim that he’d been entitled to severance pay in an amount equaling six months of his salary and benefits at the time the McAlester City Council voted to fire him in January 2005.

One matter’s left pending — Green’s claim that his retirement pension from the city should be almost twice what he’s currently getting.

Green’s receiving $3,694.11 in a monthly pension from the city of McAlester, with a quarter of that taken each month because of a federal court order that Green must repay the city for the $457,849 federal prosecutors said he unlawfully took from the city.

Green and his attorneys contend his retirement pension should be $6,554.55 per month.

Before the civil case went to the jury Friday, attorneys on both sides agreed to let Associate District Judge James Bland decide the pension issue as a matter of law. Bland instructed the attorneys to get him written briefs with their legal arguments within 20 days.

Jurors began deliberating the case shortly before noon Friday after listening to closing arguments from attorneys on both sides.

The city of McAlester’s attorneys in the case are City Attorney Joe Ervin, along with Greg Givens and Christopher Combs of an Oklahoma City law firm.

Green’s attorneys are Melvin Hall, of Oklahoma City, and James Polan, of Tulsa.

Givens took the first part of the closing arguments for the city of McAlester on Friday, while Ervin headed the second part.

In his closing arguments, Givens told the jurors to use their common sense.

Green had been convicted in federal court in 2006 on five counts of embezzlement in a case in which federal prosecutors said Green improperly sold $457,849 in vacation and sick leave days back to the city of McAlester.

Green had been sentenced to a 51-month federal prison term for those actions.

Now, Givens, told the jury on Friday, Green’s coming back and asking for more money through severance pay that Green claimed the city owes him.

“Seriously?” Givens asked, looking at the jurors.

He told the jurors they should not feel sympathy for Green and referred to former McAlester City Treasurer Caroyln Hearod and former City Councilor Dave Atteberry, who had been in office during Green’s administration.

Givens noted that Green didn’t come into court and say “I’m sorry I hurt good people like Carolyn Hearod and David Atteberry.”

Givens told jurors they shouldn’t cut Green any slack.

“I submit to you he doesn’t deserve any slack,” said Givens.

“Not only will the defendant (Green) not take any responsibility —he wants more money,” Givens said.

“Seriously?” Givens said. “You take a half-million dollars and now you want the city to give you more money?”

Hall, in his closing arguments on Green’s behalf, said the city councilors who were in office when Green sold the leave buybacks had signed off on documents agreeing to the transactions.

Earlier, Atteberry had testified that he felt he had been duped and betrayed by Green because he hadn’t been aware of the massive amounts of leave Green was selling to the city.

Hall indicated the city councilors in office at the time should have known what was going on with the leave buybacks.

He also referred to former McAlester City Attorney Wesley Brown’s earlier testimony that he (Brown) had determined every time there was a change made in Green’s employment contract, it was a “new contract.”

Many times when there was a “new contract,” Green accumulated  more leave days.

Hall also pointed to a letter that then-Ward 6 Councilor Louis Smitherman wrote to Green shortly after the city council terminated him in 2006, saying the city would pay Green severance pay. Smitherman later lost the city council seat through a recall election.

Hall said there had no victim in the transferring of capital improvement and economic development bond money into other accounts during Green’s administration.

 “Where’s the victim? Who lost money?” Hall asked.

In his closing argument, City Attorney Ervin said the victims were the people of McAlester who didn’t have all of the transferred bond money spent on the capital improvements and economic development purposes for which it was intended.

Ervin also referred to statements by Green’s defense that city councilors in office at the time of Green’s administration should have known what Green was doing.

“What? We have a fiduciary duty to stop him from stealing from us?” Ervin said.

Ervin told the jurors they had the power to make things right.

“I don’t have the power to fix it. That power is sitting right here in that chair — that’s you,” Ervin told the jurors.

“A lot of times we see things in the world and we have no power to change it,” Ervin said.

“If your verdict is for the defendant (Green), then you’re telling him what he did is OK,” Ervin continued.

The jury got the case a few minutes later and returned with the verdict in an hour.

Green said he and his attorneys are considering an appeal. He also said he thinks it’s a dangerous precedent for officials to be held liable years after the fact for the decisions they made while in office.

What about the statements by the city’s attorneys saying he’s shown no remorse for what happened?

“I’m not going to show remorse for things I didn’t do,” Green said.

As for the city’s attorneys, Ervin had a brief comment.

“The city of McAlester is satisfied with the verdict,” he said.

Contact James Beaty at jbeaty@mcalesternews.com.

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