The dispute between Gov. Frank Keating and the Oklahoma Ethics
Commission now being briefed in the state Supreme Court may be out
the partisan political arena, at least for the moment. How the court
decides the controversy, no doubt, still will provide enough
for the coming political season.
The real and most important issue at this point is not partisan
politics, but the power of a constitutionally created state agency
act in a manner superior to other constitutionally created branches
of government. Hopefully the court will resolve this broader issue,
despite a limited stipulation of facts and concise issues of law
agreed to by the two parties.
The court is asked to rule on four issues.
Does commission rule 10-1-3(a) prohibiting the use of "public
funds, property, or time, to participate or assist in the
organization of or preparation for a fund-raiser campaign" apply to
the facts in the case?
Are the rule and the statute (47 O.S. 2-101) requiring the
Department of Public Safety to provide transportation for the
governor in conflict?
If they do not conflict, can the rule be applied to prohibit the
conduct set out in the factual situation?
If they do conflict are they reconciled to prohibit the governor
from such conduct?
The stipulated facts in the case relate only to the use of a state
car and airplane by the governor to attend political fundraisers.
The briefs of both parties address the four issues from their
respective viewpoints. There is no argument over the facts.
The real controversy centers on the authority of the commission.
It claims a constitutional directive to assure integrity in election
campaigns by "leveling the playing field" respecting use of public
resources. Accordingly, its rules are "the controlling law over the
area it governs."
Any doubt the commission believes it has powers to countermand
existing statutes is dispelled by its own brief. It admits being "on
notice and well aware of 47 O.S. Sec. 2-101 when it drafted the
ethics rules," and chose not to include exceptions for the governor
and lieutenant governor. In essence saying it does not matter
whether the law requires transportation to be provided to the
governor, its rules prohibit him from using it.
The commission contends it must have this power in order to carry
out its constitutional duty to prevent unethical conduct, or even
"appearance" of unethical conduct in campaigns. While the brief
argues there is no conflict between the law and the rule, if there
is, the court is urged to "harmonize" them so that the rule
Rule does not apply
The governor's brief counters by saying the rule does not even
apply to transportation. It does not prohibit him from "using state
property to be transported to a political fund-raiser." It only
prohibits instances in which "the property (car or plane) itself is
used to solicit funds." For example if rides in the state airplane
were auctioned off for political contributions, which is not the
The brief notes "Even the commission does not assert the rule
prohibits transportation of the governor merely to attend a fund-