City attorney sees city-state conflict in law on exploratory committees | Arkansas Blog

Monday, September 25, 2017

City attorney sees city-state conflict in law on exploratory committees

Posted By on Mon, Sep 25, 2017 at 4:41 PM

click to enlarge TOO SOON: City Attorney Tom Carpenter says Warwick Sabin's soliciation of mayoral contributions is too soon under city ordinance, though the state Ethics Commission declined to find a problem with it.
  • TOO SOON: City Attorney Tom Carpenter says Warwick Sabin's soliciation of mayoral contributions is too soon under city ordinance, though the state Ethics Commission declined to find a problem with it.
City Attorney Tom Carpenter has thrown a wrinkle into efforts by two candidates for Little Rock mayor to use exploratory committees to raise money for a race against incumbent Mayor Mark Stodola.

The state Ethics Commission has effectively cleared the use of exploratory committees such as planned by state Rep. Warwick Sabin and Frank Scott Jr. But Carpenter said a city ordinance restricting fund-raising to a period beginning June 1 before the November 2018 election still should apply to them.

Interestingly, Carpenter's legal opinion rests on an interpretation of whether changes in state law had affected the city's ability to set its own campaign rules. In that interpretation, Carpenter said that while state law allowing exploratory committees doesn't override the city ordinance on a June 1 start, but it DOES override the city ordinance's bar of use of carryover campaign money for a future race. That would make legal Stodola's ability to use carryover campaign money from 2014 in the race against Sabin and Scott, while they would not be able to raise money until next June.

Carpenter's opinion says the fund-raising shouldn't be prosecuted, but the city should consider other actions to resolve the conflict.

The short window on fund-raising was supposed to help the little guy, as I noted here. But Carpenter's opinion decidedly favors the mayor, paid $160,000 a year and able to carry over that amount under state campaign finance law. He had about $78,000 on hand last I checked. The city ordinance requires carryover to be returned to donors or nonpofits.

The Ethics Commission cleared Sabin after a complaint was filed. Scott, a banker, subsequently announced he was creating an exploratory committee too.

Carpenter sent this message to Stodola and the city board:

Attached is the memorandum that I have prepared on the question of whether campaign contributions for a Little Rock municipal office can be collected prior to June 1, 2018. The question arose in part because of the Sabin4Mayor website to contribute to an exploratory committee created on behalf of Mr. Warwick Sabin, and reported statements of Mr. Frank Scott that he intends to create such a committee. The issue is complicated by the fact that an ethics complaint filed on Mr. Sabin’s exploratory committee was held by the Arkansas Ethics Commission to be outside its jurisdiction. As stated in the memorandum, I do not believe this ruling is correct. I set out four options for the Board to pursue (not necessarily in this order):

1. Seek an advisory opinion from the Arkansas Ethics Commission on the interplay of the state statute and the City ordinance;

2. Seek a declaratory judgment in circuit court, or federal district court, on the same issue;

3. Pursue a prosecution (which is not recommended);

4. Repeal § 2-387 (a) in light of changed circumstances.

Please note that I also question if the Board would like to seek outside counsel on this issue. I have no concerns about the conclusion reached in this memorandum. However, because the City Manager and City Attorney are directly hired employees of the Board of Directors, and the next election includes the position of Mayor and a majority of the seats on the Board of Directors, there may be a perception that a review by outside counsel is appropriate.

Finally, it has been known for several weeks that I was working on this memorandum. I have received FOIA requests for my work on this issue. An agreement was reached with two news organizations that they would not demand I produce my notes and earlier drafts if I would accept their FOIA requests – one verbal, one written – and send a copy of the memorandum once it had been distributed to the Board. To that end, I will send a copy of the memorandum to these two entities later today.

As a courtesy, I will also send a copy to Mr. Sabin and Mr. Scott.
Please let me know if you have any questions.


I sought comments from the candidates, including asking Stodola whether he intended to use carryover money.

Stodola's response: "Haven't read it yet."
Scott: "Haven't seen it yet."

Nothing from Sabin as yet.

UPDATE: Statement from Sabin:

"City Attorney Tom Carpenter bends over backwards to protect his longtime friend and boss by stating that the Mayor can use his massive campaign war chest to spend money on his re-election efforts, but the Mayor's potential challengers must wait until June of 2018 to raise or spend funds. This shameless cronyism is why Warwick Sabin believes it's time for a change in Little Rock City Government."

My thinking is evolving on this. Since a good government citizen effort put the late fund-raising deadline in effect (to prevent the slopping of elected officials with campaign money at key voting junctures for extended periods), I'm thinking it remains a good idea. Thus, exploratory fund-raising should be barred, but so should the incumbent mayor's use of carryover money. But if there are to be legal exploratory committees, let the mayor raise money that way only, based on current circumstances. He should not be able to draw on the pile he acquired as an unopposed incumbent in 2014. The system shouldn't be more tilted toward incumbency than it already is.

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