Agency Power Issue
Pitts, William O., THE JOURNAL RECORD
The dispute between Gov. Frank Keating and the Oklahoma Ethics Commission now being briefed in the state Supreme Court may be out of the partisan political arena, at least for the moment. How the court decides the controversy, no doubt, still will provide enough ensilage 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 to 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 the "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 prevails. 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 case. The brief notes "Even the commission does not assert the rule prohibits transportation of the governor merely to attend a fund- raiser. …