Ain't this a super, soggy Sunday for a Foggy Bottom breakdown

Drummond's recent indictments don't paint a full picture of conspiracy

Late last week indictments were handed down in the Swadley’s Bar-B-Q/Foggy Bottom Kitchen scandal, involving longtime local restaurateur Brent Swadley and the state Department of Recreation and Tourism. Most of you know I covered that story from the beginning for The Oklahoman, so I thought I might offer some analysis on this soggy Sunday.

Tres Savage did as good a job as anyone recapping the story for Non Doc if you want a refresher. The quick and dirty version is Swadley’s Bar-B-Q entered into a contract with Oklahoma’s Tourism and Recreation Department to refurbish state-owned restaurant properties around Oklahoma in March of 2020. One year later, Oklahoma’s Legislative Office of Fiscal Transparency reported concerns over both the deal and Swadley’s accounting practices. Nearly two years after those initial concerns, a full-blown scandal with a criminal investigation resulted in the indictments of owner Brent Swadley, employee Tim Pool and former employee Curt Breuklander.

What strikes me about the three indictments handed down is the charges detailed only speak to the second part of LOFT’s original concerns. Investigators found that Swadley and his company kept separate books, routinely overcharging the state. However, neither Swadley nor the two men who worked for him offered themselves the unprecedented working agreement that birthed the scandal.

Swadley, Pool and Breuklander are accused of conspiring to bilk the state out of money, but the only way Swadley was able to spend freely was because of the contract Tourism gave him. The kind of contract that made annual losses lucrative, turned Swadley into a de facto general contractor allowed to subcontract without going through the competitive bidding required by law.

The fundamental question that’s never been answered by anyone in Tourism, or the offices of Gov. Kevin Stitt or Lt. Gov. Matt Pinnell is how Swadley gog around the Competitive Bidding Act of 1974.

Two and a half years after the deal was signed, the director of Oklahoma's Office of Management and Enterprise Services, Steven Harpe, testified he knew nothing about the original contract between Swadley’s and Tourism until it was amended a year later. OMES acts as Central Purchasing for the state. It assists each department in entering agreements from beginning to end, but for this deal was left in the dark.

Harpe testified that Tourism never provided OMES with a contract to review because Tourism's executive team identified what it believed to be three statutory exemptions.

"They felt they had the ability and authority to act on their own, and therefore they were not using Central Purchasing like most other agencies would," Harpe said in June of 2022.

Long before Harpe was asked the question, I posed the question to Tourism, which was then run by Jerry Winchester and Gino DeMarco. Both were hand-picked by Gov. Stitt to run Tourism. Neither Winchester nor DeMarco addressed the question, but their communications director David White emailed me at the time that general counsel had pointed to Statute (74 O.S. Sec. 2215), which mandates the State Park Division “improve, maintain, equipment, public recreation facilities including lodges (of which the restaurants are a part) … under the jurisdiction and control of the department”

However, the mandate the agency identified didn’t reference any exemptions to the Competitive Bidding Act of 1974 then nor does it now. The only portion of Oklahoma statute that mentions an exemption from the bidding act for Tourism is “for the promotion or support of a special event.”

When Harpe was asked by lawmakers in 2022 who held fiduciary responsibility for Tourism, he said it would fall on the executive team. The Executive Director was Winchester and deputy director was DeMarco. Winchester resigned in April of 2022, and DeMarco left Tourism to serve on Stitt's Health Care Authority Governing Board.

To this day, no one in government has been held to account for giving Swadley the go-ahead to operate outside the law, which is exactly what he did every time he started a new project without going through the bidding process.

Today, Brent Swadley and two people under his authority are facing criminal charges, but those who gave him carte blanche with the state checkbook do not. Both Winchester and DeMarco testified before the grand jury, but that testimony is sealed. We don’t know if state prosecutors asked them to justify how they side-stepped competitive bidding laws. Nor do we know if DeMarco and/or Winchester were asked how they justified giving the contract to Swadley after touring the park properties with him months before the contract was publicly posted for bidding.

Until Attorney General Gentner Drummond issues an opinion or any clarity on the matter, any department head in the state of Oklahoma with a maintenance mandate could come to the same conclusion Winchester and DeMarco did and skirt competitive bidding. Then if any contractor abused the power and got caught, the department head would need only resign to escape legal problems.

The legal proceedings in this case are just beginning. Justice’s arm is just getting unfurled, but if no further indictments come down it might be time to check her blindfold.

Paid subscribers can continue to read about the political football game the Swadley’s Scandal has become, and more details about who might’ve been involved in the conspiracy to fast-track state work, whether or not it broke state law, and why anyone thought it was a good idea to spend money on the restaurant properties at state parks. I’ve also got comment from one of the men indicted, who happened to be the same guy who went to the State Auditor’s Office with concerns in 2022.