In a move to stem a flood of water main breaks, the City of OKC is flushing its pipe replacement plans with cash.
The city has listed several factors for the water line breaks that are plaguing neighborhoods and shutting down roads, including pipe age, corrosion and the environmental stress put upon pipes by Oklahoma’s clay. In response, the OKC Utilities Department will have its replacement funding doubled this fiscal year, with hopes to triple it by 2027.
Meanwhile, Superintendent of Public Instruction Ryan Walters has claimed yet another legal victory, this time in federal court against a former State Department of Education employee who was suing him for wrongful termination.
Out in Green Country, a pair of district attorneys are beginning settlement talks with the U.S. Department of Justice after charging tribal citizens with crimes in Indian Country — a violation of the 2020 McGirt v. Oklahoma decision, according to DOJ attorneys and tribal leaders. While the landmark U.S. Supreme Court decision caused a figurative power shakeup out east, the Corporation Commission has just pre-approved a more literal one, setting the path for Public Service Company of Oklahoma’s purchase of the Green Country Power Plant in Jenks.
Read about all of that, and more, in this roundup.
More money being spent on OKC water main replacement
The Oklahoma City Utilities Department will double its capital spending on water line replacement from $10 million to $20 million beginning this fiscal year, which started July 1 and runs through June 30, 2026. The department plans to increase that total by another $10 million in 2027, the City of OKC announced July 8.
OKC has grappled with frequent water line breaks in recent years. In a typical 12-month period, the utilities department typically deals with about 600 to 800 emergency main breaks. According to a press release from the city, in Fiscal Year 2023, there were 591 breaks, with 621 more in FY 2024. During the most recent fiscal year that concluded June 30, OKC experienced a total of 1,101 breaks for an average of three line breaks per day.
City officials attribute that total to a combination of aging infrastructure — pipes dating back to the 1970s or earlier — and metal corrosion. Prior to the 1990s, the city used iron pipes, which are susceptible to corrosion. The issue is exacerbated in part owing to the city’s soil, which can be corrosive in certain areas.
OKC utilities director Chris Browning said the department is doing its best to pursue long-term solutions.
“Our crews work hard every day to restore service quickly and safely, but we also recognize the need for long-term solutions,” Browning said in the release. “That’s why we’re investing more than ever in replacing the necessary infrastructure. These improvements won’t happen overnight, but they are part of a sustained effort to strengthen our system, reduce future breaks and better serve the people of central Oklahoma for decades to come.”
High water pressure is not typically the cause of broken mains, Browning said.
“In fact, average discharge pressure at our Hefner Water Treatment Plant — which serves the area of OKC with the most breaks — has gone down over time and currently runs around 88 [pounds per square inch],” Browning said. “That’s well within regulatory standards and much lower than pressure levels at our Draper plant, which averages between 118 and 128 [pounds per square inch].”
Federal judge favors Walters in EPS parent’s wrongful termination lawsuit
On June 23, a federal judge granted summary judgment in favor of State Superintendent of Public Instruction Ryan Walters in a lawsuit brought against him by a former State Department of Education employee who claimed Walters violated her First Amendment free speech rights by firing her after she spoke at an Edmond Public Schools Board of Education meeting.
But U.S. District Court Judge for the Western District of Oklahoma Scott Palk ruled that Walters, in his individual capacity, was entitled to qualified immunity. The plaintiff, Janessa Bointy, had initially brought the case against Walters in both his personal and official capacities before withdrawing her claims against him in his official capacity.
A mother of four EPS students, Bointy argued Walters violated her First Amendment rights after she was fired for comments at the EPS meeting about an OSDE program meant to help students with mental health challenges. Speaking during the public comments section of the meeting, Bointy referenced a recent suicide in the district and encouraged the board to apply for a Project AWARE (Advancing Wellness and Resiliency in Education) grant, which she helped manage at OSDE for other districts.
Shortly thereafter, Bointy was fired for violating the agency’s media policy after her comments were broadcast by local news stations. Bointy filed her lawsuit six months later in September 2023. Part of OSDE’s media policy cited in court documents says “any unauthorized individual who makes public comments or addresses the media as an apparent representative of the OSDE may be subject to discipline, up to and including termination.”
Palk found that Walters was not individually responsible for Bointy’s firing and that he did not act with “any culpable state of mind” in Bointy’s termination. Palk further ruled that OSDE’s media policy and its application in Bointy’s firing did not constitute a First Amendment violation.
“There is no evidence to support a finding that defendant Walters caused the constitutional violation or acted with any requisite mental state,” Palk wrote in his opinion. “Accordingly, defendant Walters is entitled to qualified immunity as Ms. Bointy has not demonstrated the violation of her First Amendment rights by defendant Walters.”
Iski, Ballard enter settlement talks with U.S. for prosecuting tribal citizens
District Attorneys Carol Iski and Matthew Ballard have entered into talks with attorneys for the United States to settle a lawsuit filed against them over the pair’s prosecution of tribal citizens in state court for crimes committed within Indian Country, a legal term of art defined by the U.S. Department of Justice as land held in trust for tribal nations, reservations defined by treaties or executive orders and other “dependent Indian communities.”
Iski is the top attorney for Okmulgee and McIntosh counties, while Ballard is the lead prosecutor for Craig, Mayes and Rogers counties. District attorneys in Oklahoma are the top elected prosecutor in their judicial district, which can include one or more counties.
According to a pair of similar rulings from Senior Judge Claire Eagan in both U.S. District Courts for the Eastern District and Northern District of Oklahoma, the DOJ and the two defendants have until Aug. 11 to provide the court with a “joint report regarding the status of settlement discussions.” The settlement negotiations come after the Legislature’s Joint Committee on State-Tribal Relations approved appropriating $175,000 for Ballard and Iski’s legal defense, where Ballard said the December 2024 ruling in City of Tulsa v. O’Brien.
While Gov. Kevin Stitt formally objected to Tulsa Mayor Monroe Nichols entering into a settlement agreement with the Muscogee Nation to settle a lawsuit with near-identical jurisdictional issues, he does not appear to have commented on the district attorneys entering similar talks with the DOJ. If approved by U.S. District Court Judge John D. Russell, the Tulsa agreement would transfer criminal cases involving tribal citizens with “Indian blood” from Tulsa Municipal Court to the Muscogee Nation District Court in Okmulgee. Nichols and Muscogee Nation Principal Chief David Hill signed the agreement June 25, but Russell has yet to rule on Stitt’s objection or on whether to accept the agreement.
Another jurisdictional suit filed by the Muscogee Nation against Tulsa County District Attorney Steve Kunzweiler and Sheriff Vic Regalado has several motions to dismiss pending before U.S. District Judge Gregory Frizzell and Magistrate Judge Jodi F. Jayne.
OCCA orders new DUI trial after special judge denied counsel to defendant
A unanimous Oklahoma Court of Criminal Appeals decision held July 3 that whether a defendant ultimately receives a suspended sentence is irrelevant when examining right-to-counsel violations. Judges ordered a new trial for Robert Wayne Spybuck, who was charged with one count of driving under the influence after a 2023 arrest in Lawton. The ruling, Spybuck v. Oklahoma, clarifies the extent of the right to an attorney during criminal trials under Oklahoma law and saw a rare attorney general’s brief conceding error to ask for a new trial.
“In his sole proposition of error, [Spybuck] argues, and the [Attorney General’s Office] judiciously concedes, he was denied the right to counsel. We agree,” Judge Scott Rowland wrote. “The fact that appellant’s sentence was suspended in its entirety by the trial court has no effect upon his constitutional right to counsel. A defendant who is given a suspended sentence may one day be forced to serve that sentence of incarceration, and thus the right to counsel is the same as if the sentence were not suspended.”
In January 2023, Lawton Police Officer Jesse Alverson responded to a drug overdose in progress and allegedly found Spybuck “unconscious behind the wheel of [a] dump truck with the keys in the ignition” with an unidentified woman attempting to perform CPR from the truck’s passenger seat. The woman told Alverson that Spybuck “smoked a pill,” which court documents indicate was fentanyl, and “medical personnel” administered naloxone, a drug that temporarily reverses the effects of opioid overdose. Twenty minutes later, a still-delirious Spybuck consented to a blood draw, and testing later found “the presence of methamphetamine, amphetamine, fentanyl and a metabolite of THC.”
Bodies metabolize different drugs at different rates and since any traceable amount of a controlled substance in the body is grounds for a DUI charge, a criminal prosecution can be based on drug use from days prior to an arrest. Amphetamine metabolizes from the bloodstream after one to three days; methamphetamine metabolizes after one to four days; fentanyl after one to two days; and THC, the active ingredient in marijuana, can take one to 30 days to leave a bloodstream, depending on the consumer’s frequency of use.
In October 2023, Spybuck was brought to trial in front of Comanche County Special Judge Susan Zwaan, a 10-year veteran of the judiciary. Spybuck requested an attorney be appointed for him and filed two pauper affidavits before the start of trial. Despite the requests, Zwaan proceeded with a bench trial for Spybuck’s DUI charge, where he was forced to represent himself. During his closing argument, Spybuck quoted extensively from the U.S. Supreme Court decision Powell v. Alabama, the seminal case on the right to counsel in the United States from 1932 where the court ordered new trials for nine Black teenagers, ranging from 12 to 19 years of age who had been convicted of rape in Alabama and sentenced to death without representation.
“‘[T]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science law. If charged with (a) crime, he is incapable generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without aid of counsel, he may be put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence,'” Spybuck said, quoting Justice George Sutherland, before adding in his own words. “Actually, I was just hoping (…) to get this quashed, the arrest and all. This cost me my job. I got an eviction notice yesterday. If need be to continue on, I request a third pauper’s affidavit for my appeal, because this is not right.”
Zwaan responded, “Yes, sir,” to his request for a third affidavit, drawing a, “That’s it?” question from Spybuck, which went unanswered, according to his appellant brief. After prosecutors presented their case, Zwaan sentenced Spybuck to a one-year suspended sentence and a $300 fine. He appealed, represented by Jeremy Stillwell with the Oklahoma Indigent Defense System, and the Court of Criminal Appeals agreed that his right to counsel had been clearly violated.
Corporation Commission pre-approves PSO bid for Green Country Power Plant
Oklahoma Corporation Commissioners voted 2-1 to pre-approve the Public Service Company of Oklahoma’s controversial $730 million purchase of the Green Country Power Plant on June 4.
“The [commission’s] approval marks a step forward in PSO’s commitment to deliver affordable and reliable energy to its customers while supporting Oklahoma’s economic development,” PSO press release stated. “Bringing the Green Country Power Plant into PSO’s generation portfolio strengthens PSO’s ability to provide stable, secure power to customers.”
The Green Country Power Plant is a 23-year-old 795 megawatt natural gas-fired generation facility in Jenks, which sits near the bank of the Arkansas River. According to PSO, acquiring this facility will help PSO meet the electricity demands of customers.
“We recognize the strong leadership from the Oklahoma Corporation Commission and the open and collaborative process that enabled a positive result for our customers,” said Leigh Anne Strahler, president of PSO, in the press release. “Through this purchase, we are adding energy stability and reliability for the communities we serve.”
Chairwoman Kim David and Commissioner Brian Bingman supported PSO in the vote, while Commissioner Todd Hiett voted against it. According to PSO, the acquisition should be finalized this month.
Bingman and David agreed with PSO that they see a future need for electric production, a part of why they granted pre-approval. David indicated there is a need for acquisition so PSO could provide power for a proposed $4 billion aluminum smelting plant at the Port of Inola. However, Hiett said that project should not be considered because PSO did not mention the plant in legal filings or testimony.
The commission’s decision follows a judge’s recommendation to deny the company’s acquisition of the power plant. Administrative Law Judge Carly Ortel determined the costs of the purchase would be unpredictable and would result in higher monthly rates for customers.
According to the Green Country Power Plant’s website, PSO’s acquisition will result in a 5 percent, or about $7.24 per month, increase for “the average PSO residential customer.” For Hiett, that was enough to vote against the proposal.
“We’re putting ratepayers at risk. I think this is a major disservice to ratepayers of Oklahoma without some level of protection,” Hiett said. “We have to have some type of guardrail around it.”
Hiett later added that the acquisition “places more risk on ratepayers than [he has] ever seen in [his] years on the commission.”
Despite pushback from Hiett and energy consumer groups like the Petroleum Alliance of Oklahoma and the Oklahoma Industrial Energy Consumers, PSO maintains that its acquisition of the power plant will strengthen grid reliability and generate local benefits.
