Ethics Commission v. Cullison

ALMA WILSON, Justice,

concurring specially:

I concur in the majority opinion but write separately to direct attention to the redistribution of legislative power mandated by the people in adopting Article 29 of the Oklahoma Constitution.1 Within the framework of our separation of powers doctrine,2 Article 29 must be construed as a prohibition on the Legislature’s power to confine, restrict, limit or otherwise infringe upon the rule-making authority of the Ethics Commission by enacting a statutory scheme relating to ethical conduct for state election campaigns and state officers and employees.3

Article 29 vests in the Ethics Commission the primary legislative or rule-making authority to determine, define and delineate ethical conduct for persons involved in state election campaigns and persons serving as state officers and state employees and to fix civil penalties for violation of the rules for ethical conduct; and it RESERVES to the Legislature the authority to reject, modify or repeal the rules of the Ethics Commission and to enact other ethics laws, including criminal laws.4 Accordingly, the *1086Legislature’s attempt to enact a comprehensive ethics plan in H.J.R. 1077 before the Ethics Commission has done so is an unconstitutional exercise of the primary legislative power vested in the Ethics Commission.

. Article 29, sections 1 through 7, was added to the Constitution of Oklahoma, by adoption of State Question 627, Initiative Petition No. 341 at an election held on September 18, 1990.

. Okla. Consti., Art. 4, § 1.

. In ascertaining the constitutionality of a legislative act, we do not look to the constitution to determine whether the Legislature is authorized to do an act, but whether the Legislature is prohibited from doing an act. Reherman v. Oklahoma Water Resources Bd., 679 P.2d 1296 (Okla.1984).

. Section 3 of Article 29 requires the Ethics Commission to legislate rules of ethical conduct for persons involved in state election campaigns and persons serving as state officers or state employees and civil penalties for violations of the rules of ethical conduct. Section 3 of Article 29 reserves to the Legislature the power to disapprove the rules of the Ethics Commission prior to their effectiveness; to repeal effective rules of the Ethics Commission; to modify effective rules of the Ethics Commission; and to enact other governmental ethics provisions to be enforced by the Ethics Commission. By this reservation, the Legislature’s power to develop the policy of governmental ethics laws is now secondary to that of the Ethics Commission. That is, the Legislature’s power to develop policy is second in order of time to that of the Ethics Commission and the exercise of its power is limited to modification or repeal of any effective rule of the Ethics Commission and/or enactment of other ethics laws to be enforced by the Ethics Commission. Section 3 further restricts the Legislature’s power to develop the policy of governmental ethics laws by requiring that the Legislature’s disapproval, repeal or modification of the rules of the Ethics Commission be by joint resolution, subject to veto by the Governor. The Legislature may reject the rules of all other agencies by concurrent resolution which is not subject to gubernatorial veto. 75 O.S.1991, § 308.

The distribution of policy-making power in Article 29 turns aside our well settled principle *1086that the Legislature may delegate to state agencies the power to make rules of a subordinate character to carry out the policy developed by the Legislature. City of Sands Springs v. Department of Public Welfare, 608 P.2d 1139, 1144 (Okla.1980). It is noted that the legislative power to define crimes and fix punishments in the area of governmental ethics remains solely with the Legislature. Okla. Const., art. 29, § 6.