Friday, April 1, 2016

Matt Campbell makes ethics complaint against governor for campaigning during office hours

Posted By on Fri, Apr 1, 2016 at 3:24 PM

MATT CAMPBELL: Back to the Ethics Commission.
  • MATT CAMPBELL: Back to the Ethics Commission.

Matt Campbell,
the Little Rock lawyer and Blue Hog Report blogger, is trying to exploit a potential hole in state ethics law by filing a complaint that Gov. Asa Hutchinson violated ethics laws by campaigning for state legislative candidates during regular office hours. He cites two appearances Hutchinson made for Sen. Eddie Joe Williams on Feb. 29.

Here's his complaint.
Campbell complained earlier that Attorney General Leslie Rutledge and Treasurer Dennis Milligan had violated state law by campaigning during office hours for presidential candidate Mike Huckabee. They argued they took leave. The Ethics Commission found against Campbell, but never reached the issue of campaigning during office hours. Instead, it noted that federal candidates are exempted from the law and dismissed the complaint on that ground.

So now Campbell proceeds under the language of the law barring campaigning on state time for state candidates This is somewhat easy to monitor for conventional state employees. Elected officials punch no time clock and file no vacation or leave requests as a rule. They need not work at all.

A spokesman for Gov. Asa Hutchinson has already said the governor should have the same leeway to campaign for state politicians as he does for federal politicians. As a practical matter, the argument has some merit. Carried to its conclusion,  after all, state politicians couldn't even campaign for themselves.  As a legal matter, if the plain language of the law means anything — which the Arkansas Supreme Court has said at various times should control — it's another matter. Graham Sloan, Ethics Commission director, in an interview in the Arkansas Democrat-Gazette this morning, seemed reluctant to accept the reasoning that state politicians can't campaign for other state politicians. The D-G quoted Sloan:

"We've advised them to take steps to document that they're off the clock, so to speak, but exactly how you would do that, it's never been spelled out," Sloan said.
Many politicians have campaigned for other politicians during office hours and beyond. I doubt the law was intended to prevent that. But it could be the law needs cleaning up. And toughening in a number of other respects.

Campbell provides some additional thinking on the issues:

1. I don't think there's merit to Hutchinson's contention that the same rationale should be extended to campaigning for state candidates. The Ethics Commission—incorrectly, in my opinion—that federal candidates weren't candidates specifically, and solely, because they are exempted in subchapter six of the election laws. Those same definitions explicitly include all non-federal candidates. It may be that the Ethics Commission can extend some other basis for the Governor, but his argument that the same thing should apply here as it did in Milligan/Rutledge is incorrect on its face.

2. The statute in question only prohibits campaigning during normal office hours. Asa and others can campaign on weekends, evenings, before work, whatever. Really, this is no different from the federal law that prohibits federal employees from doing political work during business hours. And it's way more narrowly tailored than the ban on judges doing any political work at all. Basically, it boils down to, if you're elected to a position, do your job first (i.e., during business hours) and save the politicking for your own time.

3. Finally, it's interesting to me that Asa called me on Feb. 15, two weeks before the Eddie Joe stuff, and talked about how the law "could be a problem" and seemed clear in what it said. I even played devil's advocate and tried to give him wiggle room, but he disagreed that there was much wiggle room at all. I've attached that recorded phone call.

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