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Friday, February 15th, 2019Last Update: Thursday, January 31st, 2019 08:02:19 PM

End Does Not Justify the Means

By: Steve Byas

I was disappointed when I saw some folks that I consider conservatives – folks who believe in the concept of following the Constitution – cheering Governor Mary Fallin’s executive order, dictating that a consolidation/annexation plan be implemented, according to her specifications, for the public schools.

It is really not relevant whether her dictate is good or bad public policy. She had no authority to do what she did.

In no place in our state Constitution is the governor given such authority, and there has been no statute enacted by the Oklahoma Legislature turning power over to the governor to enact such a policy. While I am sympathetic to the idea that there are fiscal reasons to consolidate some functions of administration for our public schools (such as accounting), the Oklahoma State Constitution, in Article 18, clearly states that the Legislature shall establish and maintain a system of free public schools.

Furthermore, it states that the supervision of instruction in the public schools shall be vested in a Board of Education, whose powers and duties shall be prescribed by law. Again, the Legislature makes the law, not the governor.

Since that time, the Legislature has provided that members of the Board shall be appointed by the governor. Just because she appoints other constitutional figures, such as judges, it does not follow that she has any authority to dictate to them. I can assure you that the framers of our state’s Constitution did not intend for us to have a dictator for governor. On the contrary, they created what is called a “weak governor” system.

It would be indeed amazing that if they intended such, considering the governor was originally one member of the Board and State School Superintendent was to be its president. They did not intend for the governor to be the Boards’s boss.

Article 18 also stipulates that the Legislature shall appropriate funds and allocate such funds to the various school districts “in the manner and by a distributing agency to be designated by the Legislature.” The governor has not been designated as the “distributing agency.”

In the statutes, it states, “The public school system in Oklahoma shall be administered by the State Department of Education, State Superintendent of Public Instruction, boards of education of school districts, and superintendents of school districts.” Not one word is said about the governor administering the schools.

Another statute states that the State Board of Education shall be authorized to promulgate rules and regulations regarding the procedures necessary to accomplish mandatory annexation or consolidations. Of course, the Legislature can change by statute what they enacted by statute, but notice that no power whatsoever is given to the governor in this regard.

Certainly she is free to make suggestions to the Board of Education. So can I. But in reading Fallin’s executive order it is quite clear that she is not merely making a suggestion. After all, if she were just making a suggestion, she could have mailed them a letter. An executive order, on the other hand, is, well, an order.

As you read the governor’s executive order, she cites her authority as coming from Article VI, sections 1 and 2 of the state Constitution, which basically just states that the chief magistrate of Oklahoma shall be called the governor. In her order, she dictates that the State Board shall compile a list of every public school district that spends less than 60 percent of their budget on instruction. She goes on to give dates that this shall be accomplished, directs the State Board to “determine a plan for administrative consolidation or annexation, and all plans shall be implemented with the 2020-21 school year.” This does not sound like simply administering the law.

It sounds like legislation.

The governor cannot enact legislation via an executive order. The purposes of executive orders are directed at persons in the executive branch to implement laws. Again, the Board of Education is a constitutional body. The governor cannot simply order them to do something, unless the Legislature has passed some sort of legislation dictating such – and they have not done so.

I have spoken with a couple members of the Legislature, who are lawyers, and actually support school consolidation, yet they both told me that this action by our governor is unconstitutional. Now, I don’t believe you have to be a lawyer to be able to read the plain language of our state Constitution and understand it. I have taught government for several years, and I even believe I am quite capable of reading and understanding the plain language of the Constitution, as well.

Amazingly, our state’s major newspapers have not even addressed this issue, of whether the governor can legally do this, choosing instead to discuss the merits of her plan. The danger of doing something via an unconstitutional method, even if we like the result, is that we weaken the concept of fidelity to a written Constitution.

In the end, that is more important than school consolidation.

Steve Byas is editor of the Oklahoma Constitution newspaper. He may be contacted at:

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