Fort Smith city e-mail has statewide impact

What one Fort Smith city employee did on Tuesday (May 14) could soon be a criminal offense according to Arkansas Ethics Commission Director Graham Sloan.

At issue is an e-mail sent from Jayne Hughes, a city employee who serves as a liaison to the Central Business Improvement District, in which she advocated for the passage of the county's one cent sales tax renewal yesterday (May 14).

The full text of Hughes' e-mail, which was sent from her official city e-mail address:

"Hi everyone,
I just wanted to remind everyone to get out and vote today and of course I encourage you to vote FOR the renewal of the 1% County Sales Tax. As you know a great majority of County Sales Tax revenues must continue to fund public safety operations. In speaking of the Fire and Police Departments , Currently 76% of county sales tax revenues go to fund public safety. Other areas of operations that will be funded include Senior programs, Parks and Recreations, and our interest is the Downtown Improvements and Riverfront Development we are currently working on to encourage economic development and investment. In addition the Libraries and Public Transit are all funded by the tax. Again not a new tax but certainly very important to renew today. So please get out there and vote!  
As always, you have all been very supportive of our Downtown program and We really appreciate that. There is so much more to come in the near future for Downtown and the Riverfront!"

According to Sloan, the law does not currently prohibit Hughes' actions, though it does require reporting of any non-cash contributions to a political cause.

"But it's hard to place a value on that," he said. "Arguably, you're sitting at a government desk and the government lightbulb is providing you the light and how many clicks do you get on the mouse (to send the e-mail)? We normally value it as an expense that would not be incurred."

INCIDENTAL USE DEFINITION
The reporting threshold for non-monetary contributions normally stands at $500, he said, though such things as lightbulb usage in the office for sending an e-mail would not normally fall in that guideline.

Sloan said once a new law, House Bill 1187, goes into affect, Hughes' actions could be considered illegal and could be punishable by "fines from $50 to $200." A violation would be a class A misdemeanor.

Activities, such as sending e-mails on government e-mail addresses, would only be investigated should a complaint be filed, Sloan said.

But the bill's sponsor, Rep. Nate Bell, R-Mena, said he disagrees with Sloan's interpretation of his legislation.

"The instance you mention probably doesn't break the law," he said. "Incidental use, particularly of someone in a supervisor or director position, is still permitted under the law. Typically e-mail would be incidental use."

INAPPROPRIATE ACTION
That said, Bell did not endorse Hughes' actions.

"I think it's inappropriate. I'd like it to be illegal," he said. "I believe it's inappropriate for public employees to engage in political activities on public time, period."

HB 1187 does state that "it is unlawful for a public servant or a governmental body to expend or permit the expenditure of public funds to support or oppose a ballot measure."

But just below that, an exception is included, though it does not specifically address Hughes' actions: "This section does not…prohibit the incidental use of state resources by a public servant, including without limitation travel costs, when speaking to an event in which a ballot measure is discussed if the subject matter of the speaking engagement is within the scope of the official duties and responsibilities of the public servant."

When reached for comment, Fort Smith City Administrator Ray Gosack said he was aware of the e-mail but said he had not yet been able to address the issue with Hughes.

"We're just going to have to reinforce that we don't use city e-mails or other resources to tell people how to vote on any issue, even if it is a tax issue that the Board of Directors has endorsed (with a resolution)."

‘DAMAGE WAS DONE’
He said the city had been very careful to not cross a line in telling citizens how to vote when using official communication channels, such as Facebook and Twitter.

"I had that conversation at the beginning that we do not advocate how people should vote on the Facebook page," Gosack said.

All city staff will be reminded to not use city resources to push for political issues again, he said.

"If we (allow city employees to advocate), we have to give the side against it the same opportunity to use city resources to advocate their position," Gosack said. "The best approach is to not use the city resources to advocate for a certain position."

But he said in this case, it would be too little, too late.

"By the time I saw it, the damage was done. There is no un-ringing the bell. I did not have prior knowledge that she was going to send that."

Bell said that while he does not believe HB 1187 would apply to an instance similar to this in the future, he would introduce legislation in the next legislative session to deal with such a problem.

"The people who have done this have breached the public trust and shouldn't be there," he said.

HB 1187 will take affect after the legislative session has been officially closed for 90 days.