John Miley, general counsel of the Oklahoma Employment Security Commission and husband of Oklahoma Supreme Court Justice Noma Gurich, may have run afoul of a state ethics rule.
Miley says he doesn't believe he violated the anti-electioneering rule, but would do things differently if he had it to do over.
Miley used his state agency email account to send a message to dozens of state agency legal advisers, encouraging them to advocate for the retention of his wife and other state appellate judges in the November general election.
“Most voters turn to attorneys they know for guidance on how to vote in these areas,” Miley wrote in the Oct. 1 email. “Please spread the word to your family and friends that we need their vote for retention.”
The email was sent during normal working hours and some of the lawyers who received it have privately questioned whether it violates a state anti-electioneering rule that bans the use of public funds, property, time and personnel to influence elections.
“This was a nonpartisan retention election, so it's not really an election at all,” said Miley, 53. “That ethics rule doesn't apply to this type of thing. … There is no opponent.
“Sure, had I had a chance to do it all over again, I would do it differently,” he said. “Whether it was legal or not, it's the perception and I would not want this agency or the state to have the perception that was going on. I certainly would not have done it in an election. I certainly would not do it for anything else.”
Miley didn't point out in his email that Gurich is his wife. He said most of the people he sent the email to knew that.
Miley said his wife didn't ask him to send the email.
“I was not requested by any of the judges or justices on the list,” he said. “She did not request me to do this. We did not talk about this.”
Gurich confirmed Tuesday that she was not consulted by her husband and said it would be inappropriate for her to comment on whether she thought the email was legal.
“I wasn't involved,” Gurich said. “He's a legal professional. He has to make his own decisions on things. I'm certainly aware of the ethical rules in terms of judicial ethics. … I pay direct and careful attention to all those rules.
“I just think that he cares deeply about me as any husband would probably care about their spouse,” she said.
Anti-electioneering ethics rule
The anti-electioneering ethics rule states: “A person shall not use or authorize the use of public funds, property, or time to produce, print, publish, broadcast, or otherwise disseminate material designed or timed to influence the results of an election for state office or a ballot measure, except political activities or statements inherent to or part of the function of a candidate or an elected officer or the performance of a state officer's or state employee's duties or as allowed by law, regardless of the lack of specific reference to the election.”
“I don't think it meets the definition of a ballot measure,” Miley said of retention ballot issues. “It's definitely not an election.”
“I don't think any laws were broken or any ethics laws were violated,” he said.
Rebecca Adams, general counsel of the Oklahoma Ethics Commission, said by law she could “neither confirm nor deny” whether any complaint has been filed with the commission and it would be inappropriate for her to offer an opinion on whether Miley's email violated the rule.
Miley said he has not received any direct complaint from individuals who received the email and he has not been contacted by the Ethics Commission.
Miley sent the email to 126 individuals associated with the General Counsels Forum, a group of Oklahoma agency legal advisers that shares best practices and discusses common issues that they confront. Miley signed the email as president of the organization.
Miley said Tuesday the email was intended solely for members of that group and they are used to sharing ideas and opinions for the betterment of the state. He said he wasn't trying to run a campaign.
In the email, Miley states the Oklahoma judicial system “is currently under attack by special interests,” an apparent reference to a group backed by The State Chamber releasing an initial evaluation of state Supreme Court justices last month that gave them scores based on their rulings on liability cases, including workers' compensation and medical malpractice matters.
“As a member of the State Bar, I believe we must do what we can to protect our judicial system,” Miley wrote.
In an interview Tuesday, Miley said: “The judicial system in Oklahoma is very important to us and we can see how it impacts the daily lives of the citizens and the businesses in Oklahoma and these judges and justices are very good. They're good, conservative people ... and are very experienced and very good at what they do.”
Miley said the evaluations were a bad idea.
“I think it will be bad for the businesses of Oklahoma,” he said. “I think it will be bad for the citizens of Oklahoma.”
However, Miley said his comment about the judicial system being under attack really referred to things going on across the nation.
Fred Morgan, president and chief executive officer of The State Chamber, which has backed legislation seeking to overhaul the workers' compensation system and how lawsuits are treated in court cases, said his group's study was intended to be informational for voters.
“As far as use of the state email system to campaign for or against a judge, I just leave that to the attorney general to decide whether that's appropriate or not,” he said.
No appellate judge or justice has ever been defeated on a retention ballot in the history of Oklahoma, but Miley said it has happened in Iowa.
In the email, Miley listed the names of his wife and 11 other justices and judges on the Oklahoma Supreme Court, Oklahoma Court of Criminal Appeals and Oklahoma Court of Civil Appeals whose names will appear on the Nov. 6 general election ballot.
“It would be a great loss to the citizens and businesses of this state to lose any of these judges or justices,” he stated.
Judicial retention races for Oklahoma's three top appellate courts are nonpartisan. There are no opposition candidates. Voters cast ballots on whether to retain each judge.
If a majority votes in favor of a particular justice or judge, that individual serves another six-year term.
If a majority rejects a particular justice or judge, the governor must appoint a replacement from a list of three names submitted by the state Judicial Nominating Commission.