HAS PERMITTED HIS OR HER INDEPENDENT JUDGMENT TO BE COLORED BY THE AFFILIATION WITH THE FOUNDATION, A VIOLATION OF 74 O.S. 4241. IF THE PERSON RECEIVES ANY COMPENSATION FROM THE FOUNDATION FROM A PROJECT THAT THE STATE COULD HAVE POSSIBLY OBTAINED, THE MATTER IS MADE ALL THE WORSE.
INDEED, THERE ARE A NUMBER OF OTHER STATUTORY PROVISIONS THAT COULD BE BROUGHT INTO PLAY IN A GIVEN SITUATION. FOR EXAMPLE, IF AN EMPLOYEE OF THE DEPARTMENT IS TO RECEIVE COMPENSATION FOR HIS OR HER CORPORATE ACTIVITIES FOR THE FOUNDATION IN SOME RESEARCH PROJECT, AND THE DEPARTMENT ENTERS INTO A CONTRACTUAL RELATIONSHIP WITH THE FOUNDATION TO ADMINISTER THE PROGRAM JOINTLY, IT COULD BE TECHNICALLY ILLEGAL FOR THE DEPARTMENT TO ENTER INTO THE AGREEMENT IN THE FIRST PLACE, UNDER 74 O.S. 4243 (1987).
PERHAPS OF EVEN GREATER CONCERN IS THAT OF THE DEPARTMENT PERFORMING ITS PUBLIC DUTIES IN A MANNER NOT PERMITTED BY LAW. UNDER ARTICLE X, SECTION 14/ARTICLE X, SECTION 15 TO THE OKLAHOMA CONSTITUTION, THE STATE MAY ENGAGE IN PERFORMING PUBLIC SERVICES THROUGH PRIVATE MEANS ONLY WHERE THE LEGISLATURE HAS SPECIFICALLY AUTHORIZED SUCH ACTIONS, AND ACCOMPANIED THAT AUTHORIZATION WITH DETAILED INSTRUCTIONS AND GUIDELINES RELATED TO IMPLEMENTATION. WAY V. GRAND RIVER LAKE ASSOC. INC., 635 P.2D 1010 (OKLA. 1981). IF MS. ENNIS' REPRESENTATIONS CONCERNING THE USE OF THE FOUNDATION ARE ACCURATE, THE DEPARTMENT WOULD REALLY BE USING THE FOUNDATION TO PERFORM ITS STATUTORY DUTIES, WITH THE FOUNDATION MAINLY A SHELL FOR THE RECEIPT OF FUNDS. ALL REAL WORK AND SUPPORT FOR THESE ACTIVITIES WOULD BE PROVIDED BY THE STATE. STATE PERSONNEL, EQUIPMENT, SERVICES, SUPPLIES AND SECURITY WOULD BE AT THE DISPOSAL OF THE FOUNDATION. WHILE CERTAINLY MOST STATE CONTRACTS WOULD NOT HAVE TO MEET THE WAY REQUIREMENTS FOR LEGITIMACY, IF MS. ENNIS IS TRULY CORRECT IN HER JUDGMENT ON THE MANNER OF OPERATION IN THIS FOUNDATION, THIS RELATIONSHIP WOULD REQUIRE SPECIFIC LEGISLATIVE AUTHORIZATION TO BE VALIDLY ENGAGED IN.
UNTIL SOME CONCRETE ACTION IS TAKEN BY THE FOUNDATION, AND SOME MONIES POTENTIALLY AVAILABLE TO THE STATE ARE INSTEAD SOUGHT AFTER BY THESE STATE EMPLOYEES AND DIVERTED TO THE FOUNDATION, THERE IS LITTLE MORE THAT I CAN ADVISE. I WOULD NOT BE SURPRISED IF A COURT WERE TO RULE THAT INVOLVEMENT IN THE FOUNDATION BY DEPARTMENTAL EMPLOYEES IS NOT A PER SE VIOLATION OF STATE LAW. HOWEVER, I FAIL TO SEE HOW, IN A PRACTICAL MANNER, THE FOUNDATION CAN OPERATE AS INTENDED AND INDICATED IN ITS FORMATION DOCUMENTS WITHOUT THE RESULT BEING A VIOLATION OF STATE LAW BY THE EMPLOYEES INVOLVED.
(MICHAEL SCOTT FERN)