Ruling suggests state officials commit misdemeanors while campaigning, related complaint filed on Gov. Hutchinson

An ethics commission ruling in mid-March could mean campaigning for certain candidates by constitutional officers, and possibly legislators, is a misdemeanor crime that could lead to removal from office and the ruling could open the door to widespread federal campaigning by state employees during work hours.

Also, a new ethics complaint that will test the ruling was filed Thursday (March 31) by Blue Hog Report blogger and attorney Matt Campbell.

On March 18, the Arkansas Ethics Commission ruled on a complaint brought by Campbell against Attorney General Leslie Rutledge and State Treasurer Dennis Milligan. Campbell alleged that the two constitutional officers violated Arkansas statutes when they campaigned in Iowa “during office hours” for GOP Presidential candidate and former Arkansas Gov. Mike Huckabee.

The Ethics Commission ruled that the two did not violate the law because Huckabee was a candidate for federal office and therefore did not meet the commission’s definition of a candidate.

“The Ethics Commission’s decision was based upon a finding that although the term ‘candidate’ is not specifically defined in Ark. Code Ann. § 7-1-103(a)(2)(A)(i), it is defined in both Ark. Code Ann. § 7-6-201(2) and 200(b) of the Ethics Commission’s Rules on Campaign Finance & Disclosure (RCF&D) to mean ‘any individual who has knowingly and willingly taken affirmative action, including solicitation of funds, for the purpose of seeking nomination for or election to any public office.’ In turn, the term ‘public office’ is defined in Ark. Code Ann. § 7-6-201(16) and 200(v) RCF&D to mean ‘any office created by or under authority of the law of the state of Arkansas or of a subdivision thereof that is filled by voters, except for federal office.’ By rule, the Ethics Commission has previously adopted a definition of the term ‘candidate’ which excludes an individual who is seeking nomination for or election to a federal office,” wrote Ethics Commission director Graham Sloan in announcing the dismissal of the complaint.

THE CRIME QUESTION
The ruling suggests that former and current state elected officials have broken the law under the Ethics Commission’s interpretation, argues Dustin McDaniel, legal contributor to Talk Business & Politics and the former Democratic Attorney General for Arkansas.

If the Ethics Commission logic is applied to current officeholders, it means a Governor’s assistance with a fundraiser for a state legislative candidate or possibly a state lawmaker’s endorsement of other non-federal office seekers are Class A misdemeanors, potentially punishable by up to a year in jail, a $1,000 fine, and removal from office.

The ethics panel interpretation could also mean that state employees – who like elected state officials are defined as “public servants” – can campaign for federal candidates during working hours. Rutledge and Milligan were cleared as “public servants” campaigning for a candidate for federal office, which suggests that any public servant is free to campaign for federal candidates without violating the law.

“Thus, it appears that public servants may (at least under this act) devote time to help Mike Huckabee, Marco Rubio, Ted Cruz and John Boozman (as many elected officials have), because those guys aren’t really ‘candidates’ under state law. However, to do the same thing for a state candidate would be a crime, according to the commission ruling,” McDaniel opined.

REACTION
Campbell, who filed the original complaint against Rutledge and Milligan, is ready to test the theory. On Thursday, he filed a complaint against Gov. Asa Hutchinson regarding his participation in two campaign events in February for incumbent State Sen. Eddie Joe Williams, who successfully won his race in the GOP primary election on March 1.

Campbell cited the Ethics Commission’s previous ruling in his newest complaint indicating that “because Sen. Williams was seeking election to the office of Arkansas State Senator, he is a state candidate, rather than a federal candidate.”

“I think Mr. McDaniel’s analysis is exactly correct, at least in the context of what the Arkansas Ethics Commission has previously found,” Campbell said. “The Commission has created a scenario where campaigning for a federal candidate during usual business hours is acceptable, but only because they are federal candidates. By extension, campaigning for a state-level candidate would almost certainly have to be a violation of Ark. Code Ann. § 7-1-103 in the eyes of the Commission. Any other outcome would undermine the Ethics Commission’s legitimacy.”

J.R. Davis, spokesman for Gov. Hutchinson, provided a statement to Talk Business & Politics before Thursday’s ethics complaint was filed. Davis noted that while the issue involving federal campaigning has been decided, the Ethics Commission has not ruled on a similar case involving state campaigning.

“The Ethics Commission ruling simply says there is no prohibition on a state official in campaigning for a federal candidate,” Davis said. “That principle should be extended to state officials who may campaign for state candidates. When a person is elected to office, he or she does not give up the freedom to engage in campaign activities. Obviously, a governor or any elected official must carry out the duties of office, but there is a reason governors for decades have campaigned for state candidates in various ways. It is intertwined with the overall public responsibility.”

ETHICS COMMISSION RESPONSE
Graham Sloan, executive director of the Arkansas Ethics Commission, was asked, under hypothetical circumstances, if Rutledge and Milligan would have violated state law or ethics rules if they were campaigning for a state candidate.

“If a public servant was campaigning for a candidate for a State, District, County, Municipal, or School Board office, then further analysis would be needed. The prohibition is worded in terms of ‘devoting time or labor during usual office hours.’ The term ‘public servant’ includes public employees, public appointees, and public officials. The Commission has previously recognized that a public employee can take personal leave and devote time or labor toward a campaign without running afoul of the § 7-1-103(a)(2)(A) prohibition. And by Advisory Opinion and Rule recognized that Public servants who have usual office hours but are on call 24 hours a day are only prohibited from campaigning for another candidate during their usual office hours. That’s pretty much the extent of the responsive information I have on this topic.”

Sloan also noted that the Ethics Commission does not have the authority to pursue criminal penalties.

“A prosecuting attorney would have the power to bring criminal enforcement proceedings,” Sloan wrote in his response to Talk Business & Politics.

The section of the code governing the issue states that a person convicted of a violation shall have committed a Class A misdemeanor, which carries with it a $1,000 fine and up to a year in jail. It also states that a conviction shall make a person ineligible to hold office or employment in any of the departments of the state; shall be removed from employment immediately; and the conviction “shall be deemed a misfeasance and malfeasance in office and shall subject the person to impeachment.”