Mayor Baker gets ‘verbal warning’ about campaign activities

story by Michael Tilley

Fort Smith Mayor Ray Baker recently received a “verbal warning” and copies of Arkansas campaign laws, according to Fort Smith City Administrator Dennis Kelly.

On Sept. 24, Fort Smith Mayor Ray Baker announced he would seek a sixth term as mayor. Prior to the event, Baker had Susan Robles — his secretary and a city employee — use her computer — city equipment — to notify members of the press about his announcement. He then used his Mayoral office — city space — for the campaign announcement.

Baker confirmed this process in an interview with The City Wire.

Arkansas law prevents a public servant in the course of an election or reelection campaign from using public employees, equipment and public property not normally open to all citizens. In other words, if a citizen chose to run for Fort Smith mayor, the mayor’s office would be off limits because that space is not a commonly used space for citizen/public activities. Also off limits to the citizen would be the brief use of a city employee and city computer to make his or her campaign announcement. Therefore, a public servant and/or incumbent, according to the law, should not have greater access to taxpayer-funded resources than a citizen.

A Sept. 19, 2008, opinion from the Arkansas Ethics Commission notes: “It shall be unlawful for any public servant, as defined in 21-8-401, to use any office or room furnished at public expense to distribute any letters, circulars, or other campaign materials unless such office or room is regularly used by members of the public for such purposes without regard to political affiliation. It shall further be unlawful for any public servant to use for campaign purposes any item or personal property provided with public funds.”

Violation of the law is a misdemeanor offense.

In the opinion, the Ethics Commission noted: “It is clear that the law prohibits a public servant from using public property for campaign purposes when the access to the property is acquired solely by virtue of the public servant’s position. … The Commission is aware that the usage of personal property is often times less noticeable and therefore the potential for abuse is greater. Accordingly, the Commission urges extreme caution by any public servant using a public facility or its equipment for campaign purposes.”

Also, a May 17, 2002, opinion from the commission further explains: “It shall be unlawful for any public servant, as defined in § 21-8-402, to devote any time or labor during usual office hours toward the campaign of any other candidate for office or for the nomination to any office. … On its face, Ark. Code Ann. § 7-1-103(a)(2)(A) prohibits a public servant from devoting time or labor to someone else’s campaign during usual office hours. It is the Commission’s opinion that this statutory provision serves to prohibit a public servant from diverting his or her energy from governmental business to campaigning during his or her normal working hours.”

When asked about his actions and the potential conflict with the law, Baker said he didn’t do anything wrong.

“That’s the mayor’s office, it’s not the citizen’s office. That’s my office,” Baker said.

Baker did not back away from his assertion when challenged about who “owns” a space within city offices.

“Yes, but that is my office,” Baker said. “I don’t want to keep on talking about it, because you’re just going to try to make some sensational story and I don’t agree with the way these things are being reported, and I have not done anything wrong. That is my office as long as I am mayor of this city.”

An attorney with the Ethics Commission said the commission does not investigate potential violations unless a formal complaint is made by a citizen. If a complaint is filed, the commission investigates and will report a final action. That action can be a dismissal of the complaint, a public warning or a range of fines from $50 to $2,000 per violation. The commission will fax or mail complaint forms to citizens who request them.

The local prosecuting attorney may also get involved, according to the Ethics Commission attorney.

Sebastian County Prosecuting Attorney Dan Shue would not comment on the issue of Mayor Baker’s campaign announcement, but said his office would give appropriate consideration to any final action report from the Ethics Commission.

Kelly said the verbal warning was decided upon after consultation with City Attorney Jerry Canfield. Baker was given copies of the state statutes that apply to election laws and asked to comply with them, Kelly explained.

“I’m not going to pursue anything,” Kelly said. “We needed to inform the Mayor what the statutes say.”