The Gazette filed the request for interpretation on June 10, and asked the commission to clarify four things: who has jurisdiction over complaints about campaign filings in municipal elections; where must a contribution and expenditure report be filed by groups supporting or opposing candidates for municipal office; on what basis would an entity be exempt from classification as a political action committee; and if an entity sending money to a nonprofit organization that is participating in electioneering would also be subject to campaign disclosure requirements.
Most of the questions revolved around the Political Subdivision Ethics Act (PSEA), which governs municipal and school board elections, and were instigated by the 2011 City Council elections, in which two groups, Committee for Oklahoma City Momentum and Better Local Government Political Action Committee, spent more than a half-million dollars.
The groups were funded exclusively by newly established nonprofit organizations, which did not disclose donors.
Momentum was funded by money from the Greater Oklahoma City Chamber’s Forward IV program, while firefighters were the funding source of Better Local Government.
The Oklahoma chapter of Common Cause, a nonprofit government openness and accountability orga nization, and the League of Women Voters also filed documents supporting the request for interpretation.
The meeting was also attended by Ward 2 Councilman Ed Shadid, Ward 4 Councilman Pete White, (pictured, below) who both spoke to the commission in favor of more disclosure in municipal elections, and City Clerk Frances Kersey.
“There was national attention on that election. People have asked me on the national level about that experience, because there’s concern that what happened in Oklahoma City will replicate itself across the country at the municipal level,” said Shadid, who was targeted by the Momentum group during the election and asked the commission to consider further reporting requirements for independent expenditure groups.
White said what happened in the 2011 council race was legal, but it changed the character of the process.
“To not require disclosure … will throw us back into the Dark Ages of campaigns,” White told the commission. “To throw it back to how it was 30 years ago, when it’s all in the shadows, is a gross mistake. I would urge you to do whatever you can to require disclosure.”
Edwin Kessler (pictured, above), vice chairman of Common Cause Oklahoma, told the Ethics Commission the two sources of law influencing the situation, the PSEA and the 2010 U.S. Supreme Court ruling in Federal Election Commission vs.
Citizen United, still allow the requirement of donor disclosure.
“The overall situation is very complex. If (the act) currently does not require disclosure in these circumstances, it should,” Kessler said. “We also say that our view of the desire of some to avoid disclosure is cowardly and possibly a mask for pursuit of personal interests at cost to all people.”
Bill Bleakley, publisher of Oklahoma Gazette, said the newspaper intended to bring the matter before the commission to clarify if persons who make contributions to oppose or support candidates in a municipal election have to make campaign finance disclosure. The goal was to inform readers of failures to comply with the disclosure law and the complaint procedure.
The OKC municipal counselor’s office also filed a document stating that the PSEA left it unclear who has the power to investigate and receive complaints regarding a failure to file reports in a municipal election, and that the Legislature should clear up the matter.
On June 28, the commission announced it would hear Bleakley’s request at its next regular meeting.
However, before presentations could be made, Ethics Commission Executive Director Marilyn Hughes said she had contacted Oklahoma Attorney General Scott Pruitt’s office, which had stated over the phone the morning of the Aug. 19 meeting that members of the press did not have proper standing to bring the request before the Ethics Commission and, therefore, the commission could not hear the request.
To have standing, Hughes said, the person making the request would have to claim to be under the authority of the Ethics Commission, such as a candidate or a campaign contributor.
“We believe the voters of Oklahoma City are entitled to disclosure of this information and to know where to file a complaint if the disclosures have not been made,” Bleakley said after the meeting. “After receiving our request for interpretation and processing the inquiry for two months, the Ethics Commission terminated the process on the day of the hearing instead of continuing it to give us an opportunity to respond.
“Nothing is more important to the election process than full and timely campaign finance disclosure. It’s disappointing not to have resolved this issue today.”
Hughes said she asked for an attorney general opinion at the request of Commissioners M. Robert McKinney and Karen Long (pictured), who had concerns the commission was not responsible for issuing interpretations on the PSEA.
Although only about four other cases in relation to the PSEA had been brought before the commission in its history, the Aug. 19 meeting was the first time the commission’s ability to answer such questions had been challenged, Hughes said.
“The commission in the past has always answered questions under (the act),” Hughes said on Aug. 19. “That’s never been challenged. The chairman and the vice chairman today challenged it.”
According to the attorney general’s office, the commission is able to interpret the PSEA, Hughes said.
McKinney said he wanted the opinion because he had questions regarding whether the commission could answer questions about municipal candidates, but said the issue will probably come before the commission again.
“We have to be very, very careful about how we go forward,” McKinney said. “What will happen is probably an individual will come back and ask us. It’s a fine line, and we have to be fair about it.”
Long had expressed stronger reservations about whether the commission can oversee city and school board candidates, Hughes said, and the commission will likely be working with the attorney general’s office to clarify the decision.
So, who would issue an interpretation on city and school board elections if the Ethics Commission does not have jurisdiction to do so?
Nobody except a judge, Hughes said.
“A lawyer would have to file an action for declaratory ruling in court to determine what the answer would be,” Hughes said.
Photos by Mark Hancock