Ethics Commission v. Keating

1998 OK 36, 958 P.2d 1250, 1998 WL 241848

• Court: Supreme Court of Oklahoma
• Decided: August 20, 1998
• Docket: 90010
• Status: Published

Opinions

SUMMERS, Vice Chief Justice.

¶ 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 jurisdiction and grant declaratory relief on the merits of the issue before the District Court. Frequently, when this Court has assumed original jurisdiction in a publici juris controversy we have done so because of a public need for a speedy judicial determination. See, e.g., Post Oak Oil Co. v. Oklahoma Tax Commission, 1978 OK 20, ¶ 5, 575 P.2d 964, 967; Halstead v. McHendry, 1977 OK 131, ¶ 4, 566 P.2d 134, 186.

¶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 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-consuming district court trial and subsequent appeal would have led to a disruption of the educational system in a teacher-contract dispute. Id. at ¶ 20, 540 P.2d at 1175. We noted the disruption to fiscal planning and administration of the school district. Id. at ¶ 8, 540 P.2d at 1174. Original jurisdiction was assumed so that the important function of education would continue without disruption.

¶ 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; Okla. Const. Art. 29 § 4. Although we most often decide election-jurisprudence disputes in the context of reviewing an adjudication of a district court,² we have assumed original jurisdiction in certain disputes without requiring those litigants to first seek relief in a district court. See e.g., Box v. State Election Board of Oklahoma, 1974 OK 104, 526 P.2d 936; Golden v. Okfuskee County Election Bd., 1986 OK 57, 723 P.2d 982. In this publici juris dispute where public funds may be needlessly expended and the 1998 campaign season has commenced, the public’s interest in a functioning Ethics Commission for the 1998 election season outweighs the need for the dispute to be resolved first in the District Court.³ We accordingly assume original jurisdiction pursuant to Art. 7, § 4 of the Oklahoma Constitution.

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.

74 O.S.Supp.1995, Ch. 62, App., Rule 257:10-l-3(a).

¶ 11 The Governor claims his use of a state vehicle to attend political fundraisers is authorized by the statute at 47 O.S.Supp.1992 § 2-101(b), in relevant part as follows:

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.

74 O.S.Supp.1995, Ch. 62, App., Rule 257:10-l-3(h), (emphasis added).

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-l-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-l-3-(a). The Commission further argues that 10-l-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-l-3(a) prohibits are certain activities a person may engage in. Section 10-l-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-l-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 10-l-3(a) when the “activities are a part of the ordinary conduei of the governmental entity.” The Rule requires that we look at the specific activity prohibited by subsection (a), and then subsection (h) requires that we determine if that activity is a part of the ordinary conduct of the governmental entity. The governmental entity is the Department of Public Safety. The activity prohibited is transportation of the Governor to a political fundraiser. The question then becomes whether DPS transportation provided to the Governor is a part of the ordinary conduct of the DPS when such transportation is used to attend a partisan political event.

¶ 18 We look first to the authority establishing the Governor’s transportation, 47 O.S. 1991 § 2-101. Paragraph (b) of that statute states that 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. This statute contains no express limitations upon the use of DPS transportation for the Governor. In construing statutes we look to the language to determine if the legislative will is clear and unambiguous.

Cox v. Dawson, 1996 OK 11, 911 P.2d 272, 276. There are no express limitations in the specific statute authorizing the Governor’s use of DPS 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. 47 O.S.Supp.1996 § 156.1(A).⁴ No such limitations occur in § 2-101, the specific statute authorizing the Governor’s transportation. When we combine the legislative silence in § 2-101 on the topic of restricting the Governor, with the legislative voice imposing restrictions on other state employees in § 156.1, we must conclude that the Legislature has intended that while some officers and employees should have certain travel restrictions, the Governor is not so restricted. See City of Duncan v. Bingham, 1964 OK 165, 394 P.2d 456, 459-460, where we explained that legislative silence, when it has authority to speak, may be considered as giving rise to an implication of legislative intent.⁵

¶ 20 We must also note that a similar result was reached by the Oklahoma Attorney General where he concluded that the state-provided transportation could not be used to transport persons to political rallies other than those persons specified in § 2-101. The Attorney General said:

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.

AG. Opin. 97-72, at ¶ 22.

¶ 21 In sum, the language of the statute and the diseernable 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, Art. 10 §§ 14, 17, 19.⁶ The Commission’s arguments from these sections of the Oklahoma Constitution may be summarized in one proposition, namely, that the Governor’s transportation to a partisan political event is . not transportation for a public purpose. The Commission’s arguments characterize the Governor’s transportation as fulfilling a private purpose. One problem with this analysis is its method of determining which activity is, and is not, for a public purpose.

¶ 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 emergency telephone calls regularly at the employee’s residence while not on duty, and is thus called upon to use a vehicle in response to the emergency calls, may use a state vehicle for transportation to and from the employee’s residence. Id. § 156.1(B)(1). If we were to adopt the Commission’s analysis we would examine the conduct of the employee at the point of destination to determine if it was an official duty of the employee. If not, the transportation was not for a public purpose and it would violate the Oklahoma Constitution.

¶ 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 63 O.S.1991 § 683.8.⁹ Similarly, our State Constitution provides that: “The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as .prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of peace throughout the State.” Okla. Const. Art. 6 § 8 (emphasis added). We conclude that the DPS transportation does not violate the Oklahoma Constitution when used by the Governor to attend a political event.

¶ 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-l-3(a), but then exempted by Rule 10-l-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 Oklahoma Constitution, Art. 29 § 3, to promulgate rules-of ethical conduct for state officers and for campaigns for elective state office. Because of the constitutional underpinning of these Rules we believe they have no less weight than statutes. See Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069. Of course newly approved, modified, and repealed rules of the Commission are subject to disapproval by joint resolution of the Legislature and subsequent veto by the Governor. Id. 1993 OK 37 at ¶ 19, 850 P.2d 1069; Okla. Const. Art. 29 § 3.

¶ 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 74 O.S.1991 § 4218, a statute that provided an income tax deduction for persons contributing to a political party or candidate. We explained that the statute did not violate the grant of power to the Ethics Commission, because the Commission had no authority over tax deductions, even if they involved contributions to campaigns. Id. 1993 OK 37 at ¶ 23, 850 P.2d at 1077.

¶ 34 Rule 10-l-3(a) prohibits the use of public funds for a fundraiser for a campaign. The Commission urges that the rule prohibits public transportation to a fundraiser. But the Rule is not limited to the prohibition of transportation. The governor’s security and communications capabilities, insofar as he uses them en route to and while participating in a political fundraiser, implicate the use of public funds every bit as much as his transportation. A literal reading of the Rule, if it is valid as to the Governor, is that he is forbidden to use public funds when he participates in a fundraiser, whether those funds be for security, transportation, or communications capabilities.

¶ 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 severa-ble. Rather, the Commission relies upon two statutes, 47 O.S.Supp.1992 § 2-101, and 47 O.S.Supp.1994 § 2-105.

¶ 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.

Okla. Const. Art. 5 § 36.

No provision of the Oklahoma Constitution has been cited by the Commission that would strip from the Legislature its power to provide these services to the Governor.

¶ 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 Culli-son 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 every employee in the unit to pay a service fee to defray the costs of collective bargaining, contract administration, and grievance adjustment. The union, however, could not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collective-bargaining agent. In neither Allen nor Abood, however, did the Court find it necessary further to define the line between union expenditures that all employees must help defray and those that are not sufficiently related to collective bargaining to justify their being imposed on dissenters.

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 Public Broadcasting Act of 1967 violated the First Amendment when it forbade editorializing by noncommercial television and radio stations receiving federal funds.

¶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.

¶ 60 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

¶ 61 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 authority. 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.

¶ 62 SUMMERS, V.C.J., and HODGES, LAVENDER, HARGRAVE, JJ., concur. ¶ 53 WATT, J., concurs specially. ¶ 54 KAUGER, C.J., concurs in result. ¶ 55 ALMA WILSON, J., dissents in part. ¶ 56 SIMMS and OPALA, JJ„ dissent.

1 . Included in their submissions to this Court is a purported agreement as to the penalty imposed by the Ethics Commission if the Court concludes that the Commission's Rule is validly applied. We note that our State Constitution states that:

"The Commission may settle investigations and accept payment of fines without Court order.” Okla. Const. Art. 29 § 4. The agreement is not at issue before the Court, and we need not address it further in light of our ruling.

2 . The reason for this is due to at least two principles. First, this Court does not create election-jurisprudence remedies that were unknown at common law. Wagoner County Election Bd. v. Plunkett, 1956 OK 329, 305 P.2d 525, 530-531, (Court expressly explained why it would not fill-in a legislative gap and create a remedy unknown at common law for challenging a primary election). Second, in many of the disputes a statutory procedure is provided that involves a district court adjudication, and we have explained that this procedure is mandatory and jurisdictional. Duggan v. Bailey, 1957 OK 214, 317 P.2d 200, 202. Of course, this Court is empowered to review, by original action, such an adjudication by a district court, as well as a decision of an election board acting in a quasi-judicial capacity. McKye v. State Election Bd. of State of Oklahoma, 1995 OK 15, ¶ 5, 890 P.2d 954; Stover v. Alfalfa County Election Bd., 1975 OK 6, ¶ 8, 530 P.2d 1020, 1022; Boevers v. Election Bd. of Canadian County, 1981 OK 138, ¶ 6, 640 P.2d 1333, 1335. We have also explained that this Court is empowered to issue mandamus to an election board for the purpose of correcting an arbitrary abuse of discretion or to compel the performance of a ministerial duly. Box v. State Election Bd. of Okla., 1974 OK 104, ¶¶ 16-18, 526 P.2d 936, 939; Brown v. State Election Bd., 1962 OK 36, 369 P.2d 140, 152.

3 . We must also note that this Court has assumed original jurisdiction in a dispute where a Governor's activities were questioned, raising an issue of constitutional and statutory interpretation. Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232. This controversy similarly rests upon statutory interpretation.

4 . 47 O.S.Supp.1996 § 156.1(B) states:

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.

5 .. We note that during the pendency of this litigation the Legislature has imposed travel limits upon all persons using aircraft owned, leased, chartered, or operated by the State. These limitations are found in H.B. No. 3226 passed by the Oklahoma Senate on April 1, 1998, by the Oklahoma House of Representatives on April 27, 1998, and signed by the Governor on April 29, 1998. It shall be codified at § 500.6 of Title 74, Oklahoma Statutes. The terms of the Bill state that it shall take effect upon its passage and approval, and thus it has no effect upon this controversy.

6 . Okla. Const. Art. 10 § 14 states:

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).

Okla. Const Art. 10 § 17 states:

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.

Okla. Const. Art. 10 § 19 states:

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.

7 . This is so because the Commission argues that the Oklahoma Constitution requires courts to examine the activities of the state employee or official at the point of destination, and the Commission makes no argument why in its view a required rule of constitutional interpretation would be applied unequally so as to prohibit the Governor from driving to a private destination but not apply to law enforcement officials when they drive to a private destination.

8 . This controversy does not involve the Governor using publicly funded transportation outside the State while the Lieutenant Governor is fulfilling the duties of the Governor. See Okla. Const. Art. 6 § 16. We need not, and do not, address this circumstance since this Court grants declaratory relief to adjudicate justiciable controversies and not hypothetical ones. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073.

9 .63 O.S.1991 § 683.8 states:

(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.

10 . In 1990 the Ethics Commission was given the constitutional power to regulate the ethical conduct of campaigns for elective state office. Okla. Const. Art. 29 § 3. Section 2-105 defines the assigned duties of a member of the Highway Patrol giving security and protection as not participating in campaign activities. Section 2-105 predates the grant of power to the Ethics Commission. 47 O.S.Supp.1983 § 2-105, eff. June 23, 1983. We are not called upon in this controversy to determine the continued validity of this statute. However, we do note that the Ethics Commission is asserting in this proceeding that a statute, § 2-101, enacted prior to the creation of the Ethics Commission, is subject to the regulatory power of the Ethics Commission. The Commission has not pointed to any of its rules that expressly state language similar to § 2-105.