ETHICS COMMISSION, State of Oklahoma, Petitioner, v. Frank KEATING, Governor, State of Oklahoma, Respondent.
No. 90010.
Supreme Court of Oklahoma.
May 5, 1998.
1998 OK 36 | 958 P.2d 1250
As Corrected Aug. 20, 1998.
5. Respondent is aware the burden of proof regarding the allegations set forth in paragraph three (3) above rests on the Oklahoma Bar Association, but that he waives any and all right to contest the allegations.
6. Respondent recognizes and agrees he may not make application for reinstatement to membership in the Oklahoma Bar Association prior to the expiration of five years from the effective date of our approval of his resignation;
7. Respondent has agreed to comply with
8. The resignation pending disciplinary proceedings of respondent is in compliance with
9. Respondent‘s name and address appear on the official roster maintained by the Oklahoma Bar Association as follows: Kwame Telli Mumina, OBA # 10415, One Leadership Square, 12th Floor, 211 N. Robinson, Oklahoma City, Oklahoma 73102;
10. Although costs have been incurred by the complainant, Oklahoma Bar Association in the investigation of this matter, complainant has agreed to waive payment by respondent of said costs.
11. Respondent‘s resignation should be approved.
12. Our Order accepting the resignation of respondent is effective as of November 10, 1997, the date the application for approval of his resignation was filed in this Court.
12 It is therefore ORDERED complainant‘s application is approved and respondent‘s resignation is accepted and approved effective November 10, 1997, and respondent‘s right to practice law is relinquished.
13 It is further ORDERED respondent‘s name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from November 10, 1997, the effective date of his resignation and this Court‘s approval thereof.
14 It is further ORDERED respondent comply with
15 ALL JUSTICES CONCUR.
Rebecca Adams, General Counsel Ethics Commission, and David W. Lee of Comingdeer & Lee, Oklahoma City, for Ethics Commission of the State of Oklahoma.
Robert G. McCampbell and Mary H. Tolbert of Crowe & Dunlevy, Oklahoma City, for Frank Keating, Governor of the State of Oklahoma.
¶ 1 Governor Frank Keating and the Oklahoma Ethics Commission have joined in asking this Court to assume original jurisdiction and decide their well publicized controversy. For the reasons to be stated we grant their joint Application to Assume. Our decision is that the transportation provided to the Governor by the Department of Public Safety did not violate the Ethics Commission‘s Rule, that the Rule as written is overly broad in that it purports to control the Governor‘s statutorily provided security, and that it may not be enforced against the Governor in the context of the facts of this case as stipulated.
¶ 2 The Ethics Commission has a Rule that prohibits the use of public property for a partisan political fundraiser. The Governor has appeared at fundraisers for candidates using transportation provided by the Department of Public Safety (Department or DPS). A statute requires the Department to provide transportation to the Governor. The Ethics Commission says that the Governor cannot use this transportation to attend partisan political events. The Governor says that the statute controls. Both sides have asked us to assume original jurisdiction, and each argues that the issues involved in this controversy require a prompt resolution by this Court.1
I. ASSUMPTION OF ORIGINAL JURISDICTION
¶ 3 Before addressing the merits we must inquire whether the controversy is of such a nature that this Court should assume original jurisdiction. Three related controversies involving the Governor and Ethics Commission are pending in the District Court of Oklahoma County. We are not asked to supervise the District Court controversies, but to assume concurrent original
¶ 4 The Ethics Commission argues that time is of the essence. It contends that the three pending suits in Oklahoma County District Court (not to mention any subsequent appeals) cannot be adjudicated prior to the 1998 elections. It further argues that it is a nonpartisan constitutional agency, and that it seeks an immediate adjudication of the issue in order to avoid the appearance of playing a part in the outcome of the 1998 elections. It points out that the issue is one of first impression, that the District Court has ruled that a declaratory judgment is a form of relief not available to the parties in that forum, and that the District Court suits are progressing at different rates. The Governor makes similar arguments, and points to the financial strain on the public purse.
¶ 5 In several controversies we have concluded that a public need for a speedy judicial determination was present when the assumption of original jurisdiction was essential for the orderly fiscal management and budgeting of state and local governmental entities. Keating v. Johnson, 1996 OK 61, ¶ 10, 918 P.2d 51, 56; Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069. But the issue before us does not involve budgeting processes or expending funds of the Commission or the Governor. Rather, the essence of the arguments is that the cost of protracted District Court litigation will drain the fiscal resources of the Commission and Governor, and thereby negatively impact the performance of their public duties. Tied to this argument is the concept that the public should not be required to pay needless litigation costs.
¶ 6 The litigation-cost argument is similar to those in Board of County Commissioners of Harmon County v. Keen, 194 Okla. 593, 153 P.2d 483 (1944) and Atchison T. & S.F. Ry. Co. v. Love, 29 Okla. 738, 119 P. 207 (1911). In the former case the Court explained why it would grant prohibition in the context of assuming original jurisdiction. We said that allowing further proceedings when no cause of action existed against a board of county commissioners would result in “a burdensome and expensive trial that will consume public funds, a part of which would not be taxable costs, and those that are taxable might not be recoverable.” 153 P.2d at 485. In Atchison T. & S.F. Ry. Co., the railroad sought original jurisdiction relief and a writ to the Corporation Commission. We said that “the interest of the state” required an early settlement on the issue of the jurisdiction of the Commission, and we then said that several unwarranted proceedings before the Commission would be “an injustice to the people who patronize this transportation company, for upon them finally will fall the great expense growing out of that class of litigation.” Id. 119 P. at 208.
¶ 7 This authority provides a strong argument for our assumption of original jurisdiction. However, many agencies of this State are involved in litigation, and often in opposition with other State agencies. This Court cannot serve as a court of first resort for all such disputes when a district court possesses concurrent jurisdiction. Keating v. Johnson, supra. Intra-governmental disputes are generally adjudicated in a district court with review in this Court by appeal. See e.g., Breeden v. Nigh, 1968 OK 88, 441 P.2d 981, where we affirmed the district court‘s writ of mandamus in a dispute between the Lieutenant Governor and the Director of the Oklahoma Industrial Development and Park Commission. One reason that makes this case an exception is that a pressing need for prompt resolution is present in order to avoid a disruption of the Ethics Commission‘s ability to function.
¶ 8 In Association of Classroom Teachers of Okla. City, Inc. v. Independent School Dist. No. 89 of Okla. County, 1975 OK 118, 540 P.2d 1171, we explained that a time-
¶ 9 The Commission states that the dispute is straining its financial and personnel resources, and that a prompt adjudication is necessary. It reports that its “small staff needs to prepare for the 1998 elections—a process which, for many filers, has already commenced.” It further states that only a rapid disposition of the controversy can assure a smooth operation of its functions associated with the 1998 elections. The election process is protected by our fundamental law, and the Ethics Commission is charged by our State Constitution to investigate and prosecute violations of its rules involving election campaigns. Simpson v. Dixon, 1993 OK 71, ¶ 15, 853 P.2d 176, 183-184;
II. THE TRANSPORTATION PROVIDED TO THE GOVERNOR DID NOT VIOLATE THE ETHICS COMMISSION‘S RULE
¶ 10 The Ethics Commission claims the Governor has violated their Rule 257: 10-1-3(a), which states:
A person shall not use or authorize the use of public funds, property, or time, to participate or assist in the organization of or preparation for a fundraiser for a campaign or in any solicitation of funds for or against a candidate for state office or a ballot measure.
¶ 11 The Governor claims his use of a state vehicle to attend political fundraisers is
The Commissioner of Public Safety shall provide personal security and protection, transportation, and communications capabilities for the Governor, the Governor‘s immediate family, and the Lieutenant Governor.
¶ 12 The Department provides a car designated as the “Governor‘s car” for the Governor to use as transportation. DPS occasionally provides the Governor with an Oklahoma Highway Patrol cruiser for the purpose of transportation. It also provides the Governor with an aircraft for transportation purposes.
¶ 13 The facts, as stipulated by the parties, show that the Governor used the Governor‘s car and the DPS aircraft to attend meetings held for the purpose of raising funds for entities affiliated with a political party and raising funds for individuals campaigning for various public offices. They describe one instance of the Governor using an Oklahoma Highway Patrol cruiser for this purpose. The stipulation describes five fundraisers by the Oklahoma State Republican Committee (Oklahoma State Republican Party), Oklahoma State House of Representatives Republican Committee, and the Oklahoma State Republican Senatorial Committee, and fundraisers for twenty-nine individuals seeking political office.
¶ 14 The Ethics Commission argues that the Governor could not use the Governor‘s car, the DPS airplane, nor the patrol cruiser as transportation to these thirty-four events. The Governor argues that the statute and common sense allow him to use the statutorily-provided transportation for these events.
¶ 15 The Ethics Commission Rule appears to apply on its face when the Governor is transported to a fundraiser: “A person shall not use ... public ... property ... in any solicitation of funds for or against a candidate for state office ....” The vehicles are state property and they were used to directly assist the Governor in participating in the campaign fundraisers. But the Rule does not stop here—it also contains an exception from its application, and the Governor claims that this exception applies to him. Rule 10-1-3 has a subsection which says:
(h) This section, except for Subsection (e), does not apply to:
(1) activities that are a part of the ordinary conduct of the governmental entity; and
(2) nonpartisan voter registration activities.
The Governor and the Commission disagree on how this exception should apply in this case.
¶ 16 The Commission‘s brief states:
The Commission submits that subsection (h) applies not to DPS, but only to the “persons” under the prohibition of 10-1-3(a)—here, the Governor. Thus, the conduct of the department of its Commissioner is not germane.
The Commission notes that 10-1-3(a) prohibits the Governor from using DPS transportation to attend partisan political events. The Commission then argues that 10-1-3(h) applies to “persons” whose conduct violates 10-1-3-(a). The Commission further argues that 10-1-3-(h) would apply in this case only if the Governor‘s presence at partisan political events was an official duty of the Governor‘s office. We disagree with this interpretation.
¶ 17 First, what Section 10-1-3(a) prohibits are certain activities a person may engage in. Section 10-1-3(a) prohibits the activity of using or authorizing the use of public funds, property, or time, in the participation, or assisting in the organization of, or preparation for, a fundraiser for a campaign, etc. Then, section 10-1-3(h) exempts “activities” and not “persons” from the application of subsection (a). Subsection (h) states that “activities” prohibited by subsection (a) are excepted from the prohibition of subsection
¶ 18 We look first to the authority establishing the Governor‘s transportation,
¶ 19 Further, we cannot conclude that the language of § 2-101 prohibits the Governor from using DPS to travel to a destination where activities occur that are unrelated to his official duties. First, the general statute governing state-provided transportation does have limitations upon how that transportation is used.
The responsibility of the Commissioner of Public Safety, under
47 O.S.1991, § 2-101 , to provide the Governor and his immediate family with transportation, is to transport the Governor and his immediate family from place to place. In meeting this responsibility, neither the State-owned airplane nor vehicles may be used for other non-State purposes, such as for transporting persons other than the Governor and his immediate family for non-State-business purposes, such as to a political rally, private business meetings, and the like. Nor, may the State airplane or vehicles be used to display campaign bumper stickers, signs, corporate logs, or for other non-State-business purposes.
A.G. Opin. 97-72, at 122.
¶ 21 In sum, the language of the statute and the discernable intent of the Legislature indicate no limitation upon the Governor‘s use of the DPS-provided transportation to attend partisan political events. It would thus appear at this point that the DPS-provided transportation to the political event is an activity occurring as a part of the ordinary conduct of the Department of Public Safety.
¶ 22 The Commission argues that the transportation was not occurring as a part of the ordinary conduct of a governmental entity. In support of its argument the Commission relies upon the Oklahoma Constitution,
¶ 23 The Commission looks at the activity of the official at the destination to determine if transportation is for a public or private purpose. It reasons that a partisan political event is not an official duty of the office of the Governor, and thus transportation by the Governor to such event is private and not authorized. We must first note that when the Legislature enacted § 156.1 it declined to adopt the Commission‘s definitions of a “public purpose.” Further, we must conclude that the definition used by the Commission is overly restrictive.
¶ 24 These two conclusions are illustrated by examining the type of transportation authorized by § 156.1. For example, § 156.1 states that a state employee who receives
¶ 25 The Governor is the chief officer of the Department of Public Safety (§ 2-101), and he states that the DPS transportation is, in the exercise of his statutory discretion, a permissible means of responding to emergency calls and making himself available to perform the duties of his office regardless of his location. In other words, the Governor does not stop being the Governor at 5:00 p.m. He is Governor twenty-four hours a day, and must respond to the duties of his office whenever they arise.
¶ 26 It is common knowledge that certain law enforcement employees use their vehicles for transportation to and from their homes. They do not travel to their residences for the purpose of fulfilling an official duty. The Commission thus asks us to adopt a view of the Oklahoma Constitution that would make statutes authorizing this practice to be unconstitutional.7 But clearly, § 156.1 indicates that government transportation to a destination (private residence) for a private purpose (to go home at the end of the work-day) does in fact fulfill a public purpose, because the employee responds to emergencies from the residence. The Legislature has indicated in § 156.1 that the public receives a public benefit in having employees timely respond to emergencies related to the performance of their official duties. The same may be said with regard to the Governor in § 2-101, since the Legislature has not imposed restrictions on the Governor‘s travel.
¶ 27 But is § 2-101 nevertheless unconstitutionally applied by the Governor when he uses DPS transportation to attend a political fundraiser? In other words, is the public purpose of the Governor‘s being able to respond to emergencies and being constantly accessible to the institutions of government in some way less of a public purpose when he attends a fundraiser? The answer to this question must be in the negative.
¶ 28 The public purpose of DPS transportation is not lessened by the fact that the Governor travels to a destination for a private purpose. His duties to respond as Governor are not lessened by the fact that he travels to a destination for a private purpose, nor by where in the state he is located.8 Disasters are not unknown in this state. They are not pre-scheduled for the benefit of a timely government response, and neither do they necessarily occur within the regularity of a forty-hour work-week. See for example
¶ 29 Once we conclude that providing the Governor with DPS transportation fulfills a public purpose although the destination is unrelated to his official duties, we must necessarily again conclude that the public purpose fulfilled by providing such transportation is one of those “activities that are a part of the ordinary conduct of the governmental entity.” The DPS transportation used by the Governor to attend a partisan political event is thus first prohibited by Commission Rule 10-1-3(a), but then exempted by Rule 10-1-3(h).
¶ 30 Our conclusion is that the transportation provided to the Governor by the Department of Public Safety did not violate the Rule of the Ethics Commission, and the Commission‘s construction of its Rule is not required by the Oklahoma Constitution. We conclude that the Oklahoma Constitution was not violated, and we reject the Commission‘s definition of a “public purpose” for measuring the constitutionality of statutes providing government-funded transportation.
III. THE ETHICS COMMISSION LACKS POWER TO REGULATE THE GOVERNOR‘S SECURITY
¶ 31 There is yet another reason why the Governor must prevail in this controversy. An important publici juris issue before us is whether the Ethics Commission has the power to regulate the Governor‘s security arrangements when the Governor participates in partisan politics. The Governor urges that adequate security is impossible if the Rule is followed as interpreted by the Commission, that his transportation is for the purpose of security even when attending partisan political activities, and that provisions concerning the security of the Governor are within the law-making power of the Legislature, as opposed to the rule-making power of the Commission.
¶ 32 The Ethics Commission is empowered by
¶ 33 On the other hand, the Ethics Commission cannot usurp the power of the Legislature in matters over which the Commission has no constitutional grant of power. For example, in Ethics Commission of State of Okla. v. Cullison, supra, we discussed the Legislature‘s amendment to
¶ 34 Rule 10-1-3(a) prohibits the use of public funds for a fundraiser for a campaign.
¶ 35 The Ethics Commission argues that security and communications capabilities may be split from transportation in applying the Rule. The Commission argues that a DPS cruiser and patrolman may follow behind the Governor‘s private car and provide the security and communications needs of the Governor without violating the Rule. The Commission would thus draw a distinction between the Governor‘s use of transportation and his use of security. But the plain language of subsection (a) would prohibit both in political campaigning.
¶ 36 The same may said with the Commission‘s view of communications capabilities. The Commission points to the language in § 2-101 that authorizes installing state-owned communications equipment in a private vehicle. Could state-owned equipment in a private vehicle be used by the Governor while campaigning? Again, the plain language of the Rule would prohibit this practice if applied consistently by the Commission.
¶ 37 The Commission argues that it may treat security, transportation, and communications as severable items, and apply its Rule solely to the Governor‘s transportation. No Commission rule makes these items severable. Rather, the Commission relies upon two statutes,
¶ 38 Section 2-101 merely states that transportation, security, and communications capabilities are to be provided to the Governor, and that state-owned communications equipment may be installed in a private vehicle. As we said earlier, nothing in the express language of § 2-101 or the Oklahoma Constitution either requires or allows the Commission to treat these items differently.
¶ 39 Section 2-105 states that “No member of the Oklahoma Highway Patrol while in the performance of the member‘s assigned duty of providing security and protection shall be considered as participating in a political campaign.”10 This language contains nothing characterizing acts of a Governor. In short, these statutes do not support the argument by the Ethics Commission that security and communications should be treated differently than transportation.
¶ 40 In our view, the Commission does not possess the authority to determine the manner or method of security provided by a governmental entity to state officials. The Legislature has the power to provide the Governor with transportation, security arrangements, and communications capabilities.
The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.
No provision of the Oklahoma Constitution has been cited by the Commission that would
¶ 41 The Commission, however, concedes that the Governor needs public vehicles for security reasons, and offers a way he could modify his security plan in order to conform to the Commission‘s Rule. It suggests that security vehicles could travel with the Governor to fundraisers so long as he doesn‘t ride in them. The Governor says this is lacking in common sense. He also points to and relies upon a study performed by the U.S. Secret Service assessing proper security measures for the State Capitol and the Governor‘s Mansion. For example:
It is apparent that effective “part time” security cannot exist. A potential assassin or group of assassins/terrorists need only observe a protected person‘s activities for a period, or the security routine at a government facility, and then attack at a time of greatest vulnerability. Protection must be a 24-hour a day, seven days a week operation. Any other method is a waste of manpower and resources.
U.S. Secret Service, Security Survey of the Oklahoma State Capitol and Governor‘s Mansion, at p. 4, (1987).
He then argues that the Commission‘s interpretation of its rule strips him of the security recommended by the U.S. Secret Service.
¶ 42 The essence of the Commission‘s view is that the Governor‘s security may be regulated by Commission rule when that security takes place during campaign activities. In Ethics Commission v. Cullison, supra, we examined the nature of the legislation to determine if it involved a subject within the power or authority granted to the Commission pursuant to Article 29 of the Oklahoma Constitution. Article 29 of the Oklahoma Constitution contains no express provision giving the Commission the authority to make judgments as to the type or nature of security arrangements provided to public officials. The Commission has not pointed to anything showing an expertise by the Commission in matters of security for public officials.
¶ 43 A statute which we upheld in Cullison was not merely a tax statute, but one that involved campaign contributions. We said that the statute was beyond the Commission‘s power to alter by Commission rule. Ethics Commission v. Cullison, 1993 OK 37, at ¶ 23, 850 P.2d at 1077. We conclude that just as an income tax statute involving campaign contributions was beyond the authority of Ethics Commission to alter, so too, a statute providing the Governor with security arrangements used in campaigning is also beyond the power of the Ethics Commission to alter by application or interpretation of this Rule. Ethics Commission v. Cullison, supra. As to the Governor, the statute must trump the Rule.
IV. FEDERAL CONSTITUTIONAL CLAIM
¶ 44 The final claim of the Commission is that the DPS transportation, in the form of security arrangements or otherwise, violates the First and Fourteenth Amendments to the U.S. Constitution. The Ethics Commission argues that the Governor has the discretion to refuse security transportation while campaigning, and that he is constitutionally required to do so. The Commission relies upon Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), where government employees objected to public-sector unions charging compulsory fees for a number of activities that were economic, political, professional, scientific and religious in nature of which they did not approve, and in which they had no voice, and which were not part of the union‘s collective bargaining activities. The Abood holding was explained in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986).
Still later, in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), we found no constitutional barrier to an agency shop agreement between a municipality and a teachers’ union insofar as the agreement required ev-
Id. 475 U.S. at 294, 106 S.Ct. 1066, quoting, Ellis v. Railway Clerks, 466 U.S. 435, 447, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428 (1984).
A similar case is Keller v. State Bar of California, 496 U.S. 1, 13, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), where the Court said that ”Abood held that a union could not expend a dissenting individual‘s dues for ideological activities not ‘germane’ to the purpose for which compelled association was justified: collective bargaining.”
¶ 45 The Ethics Commission argues that DPS is publicly funded, that the Governor‘s use of public vehicles is for political purposes, and that public funding of campaigns or partisan political activity is unconstitutional. The U.S. Supreme Court, however, apparently views financing via a public appropriation to be different in character from an enforced individual contribution to a particular cause.
¶ 46 In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), there was a challenge to the public financing of campaigns by using the Religion Clauses of the First Amendment, and the challengers argued that just as the government “may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others ....” so too, the government could not assist particular campaigns. Buckley, 424 U.S. at 92, 96 S.Ct. 612. But the Court explained that the assistance was by congressional act to facilitate and further First Amendment values. Id. 424 U.S. at 92-93, 96 S.Ct. 612. It stated that the government financing did not violate the equal protection component of the Fifth Amendment, and explained that its Fifth Amendment analysis was the same as that required by the Fourteenth Amendment. Id. 424 U.S. at 93, 96 S.Ct. 612. The Court also noted that:
Our statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media,
47 U.S.C. §§ 390-399 , and preferential postal rates and antitrust exemptions for newspapers,39 C.F.R. § 132.2 (1975) ;15 U.S.C. §§ 1801-1804 .
Buckley, 424 U.S. at 94, n. 128, 96 S.Ct. 612. Buckley thus shows that government funding of speech does not necessarily violate the U.S. Constitution.
¶ 47 One state court has recognized that public funding of political speech is allowed pursuant to Buckley. State v. Republican Party of Florida, 604 So.2d 477 (Fla.1992). The Abood claim raised therein did not prohibit public funding per se, but required that the funding not be necessarily derived from a group of individuals including those with opposing political views. In State v. Republican Party of Florida, supra, a statutory 1.5 percent assessment was made upon certain political party contributions, and those funds were then used to fund certain candidates. The assessment on political contributions could thus be used to support candidates with views in opposition to those who made the contributions. The court said:
While publicly funding candidates advances the interest put forth by the State and does not abridge First Amendment values, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), singling out political parties and associations to support the fund bears no relationship to the interest advanced. There are equally effective means of supporting the trust fund without infringing on the appellees’ constitutional rights, such as devoting a
larger percentage of the filing fees to the fund or supporting the fund through general revenues.
Id. 604 So.2d at 480, note omitted.
Buckley and Republican Party of Florida thus show that public funding of political speech does not necessarily violate the U.S. Constitution, particularly if funded through general revenues.
¶ 48 The Abood argument made by the Commission is that government funding of political speech (i.e., the Governor‘s use of public vehicles) via tax revenues necessarily violates the Constitution because some taxpayers may object to the content of that publicly-funded speech. A person has a First Amendment right to a particular political belief, but the preservation of that right does not necessarily entail stripping public funding appropriated for the use of public individuals who articulate opposing political beliefs. Indeed, some forms of government-funded speech are protected by the First Amendment from government restrictions. See FCC v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984), where the Court held that a provision of the
¶ 49 A proper challenge to the public funding in controversies of this nature is not whether particular taxpayers find such funding objectionable because it violates their personally held beliefs, but whether the funding fulfills a proper exercise of legislative power in accordance with our State and Federal Constitutions, and whether the funding is consistent with the federal constitutional right at issue. The Commission‘s brief seeks to justify its Rule as a valid limitation on political speech because the Governor‘s “speech” results from government-funded transportation that does not fulfill a proper exercise of legislative power. But we have concluded that the transportation in the form of security arrangements does fulfill a proper exercise of legislative power as contemplated in the statutes and our Constitution.
¶ 50 It may well be that DPS-provided security/transportation furthers the Governor‘s political speech when he uses such transportation to attend political events. But the method selected shows that the funding does not violate taxpayers’ federal constitutional rights. DPS transportation for the Governor is funded from the general revenues. In State v. Republican Party of Florida, supra, that court suggested that supporting political speech from “general revenues” was a possible constitutionally permissible solution. Id. 604 So.2d at 480. The Commission has not shown otherwise in our case today. Thus, the Commission‘s Abood claim that allowing DPS transportation to be used by the Governor to attend political events necessarily denies the First Amendment rights of those with opposing beliefs is one that is without foundation.
CONCLUSION
¶ 51 We conclude that the transportation provided to the Governor by the Department of Public Safety did not violate Ethics Commission Rule 10-1-3. We further conclude that the Rules of the Ethics Commission, insofar as they control those subjects constitutionally placed in the Commission, have no less weight than statutes. Those Rules, however, cannot override the powers of the Legislature on subjects over which the Commission has no constitutional grant of power. Statutory provisions for the Governor‘s security are in the latter category. Therefore, we conclude that Ethics Commission Rule 10-1-3 cannot be applied to the Governor so as to deprive him of, or dictate the form of, his security statutorily provided by the Department, within the context of the facts as stipulated. We finally conclude that the constitutional arguments of the Ethics Commission are without merit. Declaratory relief is granted to the extent of, and consistent with, this opinion.
¶ 52 SUMMERS, V.C.J., and HODGES, LAVENDER, HARGRAVE, JJ., concur.
¶ 54 KAUGER, C.J., concurs in result.
¶ 55 ALMA WILSON, J., dissents in part.
¶ 56 SIMMS and OPALA, JJ., dissent.
WATT, Justice, concurring specially:
¶ 1 I concur in today‘s pronouncement by the majority because I believe the security of our Chief Executive which is clearly set forth by statute cannot be overridden by rule of the Ethics Commission. The competing public policies of providing security for our Chief Executive and enforcing ethical standards for political candidates are both essential in today‘s society.
¶ 2 Our Governor, regardless of party affiliation, becomes Chief Executive when the oath of office is administered and remains Chief Executive until a subsequent oath of office is administered to another. Scheduling of gubernatorial appearances takes place months in advance and most, if not all, trips away from the Capitol will involve more than one appearance or engagement. Often, unexpected events, emergencies or natural disasters will dictate last minute changes or cancellation of appearances.
¶ 3 I am also mindful that all candidates are subject to and must comply with those ethical standards set forth by the Ethics Commission. In balancing these competing public policies, one thing remains constant, that being the security for our Chief Executive on a twenty-four hour a day basis.
¶ 4 The solution to these competing public policies, if any there be, is one for the Legislature, should they chose to do so.
¶ 1 KAUGER, Chief Justice, with whom HODGES, Justice, joins, concurring in result:
¶ 2 If the Ethics Rule were the only authority addressing the issue, it would control. However, I concur with the majority that the unseverable power to regulate the Governor‘s security and transportation is vested in the Legislature, and that it cannot be overridden by the Ethics Commission. Under Oklahoma law, the Legislature is in a unique position to balance the two equally valid but competing public policy considerations of the Ethics Commission by placing statutory limitations on transportation and security by modifying the Ethics Commission Rules. However, the Legislature has exercised its authority in such a way that it has left a statutory lacuna insofar as the way in which legitimate gubernatorial travel and security considerations relate to the need to ensure that public resources are not used for political campaign and personal travel.
¶ 3 If the Legislature chooses further to exercise its power, it may provide, as has the Congress in regard to the President‘s security and transportation, that expenses incurred during political campaigns be reimbursed, and that expenses be pro rated when personal, political, and official appearances are intermingled.
ALMA WILSON, Justice, with whom OPALA, Justice, joins, dissenting in part:
¶ 1 Ethics Commission v. Cullison determined that the Ethics Commission has primary legislative power to regulate ethical conduct of state officials. Cullison struck down 37 statutes because the Legislature encroached upon the legislative power of the Ethics Commission. The same pen that wrote Cullison, today, declares that the constitutionally-vested legislative power of the Ethics Commission is restricted by a 25-year old statute. The majority opinion is inconsistent with Ethics Commission v. Cullison. Accordingly, I respectfully dissent in part.
SIMMS, Justice, dissenting:
¶ 1 I would not assume original jurisdiction. The parties are merely seeking an advisory opinion from this Court by way of an action for declaratory judgment which we do not have the jurisdiction to render. A fairly concise summary of my views of these
OPALA, Justice, with whom ALMA WILSON, Justice, joins, dissenting.
¶ 1 The court holds today that when the Governor uses a publicly funded state vehicle to travel to a partisan political fund raiser, he does not violate Ethics Commission [Commission] Rule 10-1-3(a), which proscribes the use of public funds, property, and time to participate in fund raising events for political campaigns or in races of candidates for state office. The opinion‘s rationale rests upon the authority conferred by
¶ 2 Rule 10-1-3 narrows the range of activity that may seem permissible under the provisions of
¶ 3 Should the Commission determine that the Governor did have adequate advance notice to conform his conduct to the Rule 10-1-3 requirements, he should be ordered to pay the penalty set by the parties’ agreement. I would apply my pronouncement to this case, to all like controversies now pending before judicial or administrative tribunals, to those presently in the appellate litigation process, and prospectively to all controversies over like or identical ethics issues to arise from acts, conduct, or omissions occurring after the court‘s opinion will have become final.
MARIAN P. OPALA
JUSTICE
Notes
A. It shall be unlawful for any state official, officer, or employee, except any essential employees approved by the Governor and those officers or employees authorized in subsection B of this section, to ride to or from the employee‘s place of residence in a state-owned automobile, truck, or pickup, except in the performance of the employee‘s official duty, or to use any such automobile, truck, ambulance, or pickup for other personal or private purposes.
B. 1. Any state employee, other than the law enforcement officers provided for in paragraph 2 of this subsection, who receives emergency telephone calls regularly at the employee‘s residence when the employee is not on duty and is regularly called upon to use a vehicle after normal work hours in response to such emergency calls, may be permitted to use a vehicle belonging to the State of Oklahoma to provide transportation between the employee‘s residence and the assigned place of employment, provided such distance does not exceed seventy-five (75) miles in any round trip or is within the county where the assigned place of employment is located.
2. Any employee of the Department of Public Safety, Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, Oklahoma State Bureau of Investigation, Alcoholic Beverage Laws Enforcement Commission, Oklahoma Horse Racing Commission, Office of the Inspector General within the Department of Human Services or Office of the State Fire Marshal, who is a law enforcement officer, or any employee of a district attorney who is a law enforcement officer, may be permitted to use a state-owned vehicle to provide transportation between the employee‘s residence and the assigned place of employment and between the residence and any location other than the assigned place of employment to which the employee travels in the performance of the employee‘s official duty.
3. The Director, department heads and other essential employees of the Department of Wildlife Conservation, as authorized by the Wildlife Conservation Commission, may be permitted to use a state-owned vehicle to provide transportation between the employee‘s residence and the assigned place of employment and between the residence and any location other than the assigned place of employment to which the employee travels in the performance of the employee‘s official duty.
Taxes shall be levied and collected by general laws, and for public purposes only, except that taxes may be levied when necessary to carry into effect Section thirty-one of the Bill of Rights. Except as required by the Enabling Act, the State shall not assume the debt of any county, municipal corporation, or political subdivision of the State, unless such debt shall have been contracted to defend itself in time of war, to repel invasion, or to suppress insurrection. (Emphasis added).
The Legislature shall not authorize any county or subdivision thereof, city, town, or incorporated district, to become a stockholder in any company, association, or corporation, or to obtain or appropriate money for, or levy any tax for, or to loan its credit to any corporation, association, or individual.
Every act enacted by the Legislature, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.
(a) The Governor shall have general direction and control of the Civil Defense Agency and shall be responsible for carrying out the provisions of this act and, in the event of disaster beyond local control, may assume direct operational control over all or any part of the civil defense or emergency functions within this state.
(b) The Governor shall have general direction and control of the Emergency Resources Management within the state and all officers, boards, agencies, individual or groups established under the Emergency Resources Management Plan. The Governor shall have the authority under this act to establish such offices, boards, agencies, or positions as may be necessary to carry into effect the Emergency Resources Management Plan.
(c) In performing his duties under this act, the Governor is authorized to cooperate with the federal government, with other states, and with private agencies in all matters pertaining to the civil defense of this state and of the nation and the emergency management of resources.