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Ask the Times: When does an elected official crossing the line become illegal? 

click to enlarge CROSSING THE LINE?: Rep. Mary Bentley.
  • CROSSING THE LINE?: Rep. Mary Bentley.

Q: Earlier this month, the Arkansas Times reported on an incident in which state Rep. Mary Bentley (R-Perryville) allegedly threatened fiscal retribution against the Arkansas Game and Fish Commission when a wildlife officer questioned Bentley's husband, Ted, about supposed violations of rules on wildlife baiting and ATV use in the Ouachita National Forest. According to the officer's incident report, "Ms. Bentley made the statement that we ... need to be real careful, that times were tough and money was tight and that they [the state House of Representatives) are looking for places to get money for funding and the Game and Fish Commission would be a good place to look." When does an elected official cross the line when it comes to brandishing his or her official authority? We all know people in positions of power sometimes get special treatment, but at what point does it become illegal?

A: We asked Graham Sloan, executive director at the Arkansas Ethics Commission, to shed some light on the rules about using official authority to grant favors.

Although such actions are under the jurisdiction of the Ethics Commission, Sloan said, "Our bread and butter is campaign finance and lobbying and things like that." Still, the commission does get complaints from citizens about actions that are seen as "just not right," but which don't involve money changing hands.

The closest thing to a general catch-all, "do-right" provision in state ethics law, Sloan said, is Arkansas Code Annotated 21-8-304(a). Here's that statute:

No public servant shall use or attempt to use his or her official position to secure special privileges or exemptions for himself or herself or his or her spouse, child, parents, or other persons standing in the first degree of relationship, or for those with whom he or she has a substantial financial relationship that are not available to others except as may be otherwise provided by law.

"I think you could break that down into four elements," Sloan said. "First, 'public servant,' is broader than an elected official. It would include appointed officials and employees," such as law enforcement officers.

"Then there's 'use or attempt to use,' so you would have to use your office or position" in the course of the unethical behavior. "The 'special privilege or exemption' is not statutorily defined, but by rule we have defined it as 'a benefit unfairly conferred or the release of an obligation required of others.' "

"But you could do all of that, those first three requirements or prongs, and then it boils down to who the favor was for. Was it for your spouse or family member or business partner? Or was it just your old high school friend? You're not prevented from using your position for anybody on the planet. ... The recipient of that special privilege or exemption has to be on that list of people." That is: your spouse, close family members or someone with whom you share a financial relationship. "If you did a favor for your next door neighbor ... it falls outside the scope of that statute."

Sloan said the commission regularly investigates complaints involving ACA 21-8-304(a). "We've had a lot of cases that have involved that statute. A lot of them involve tractors and backhoes: The mayor had the water department digging the stump out of his yard. 'Do y'all dig stumps out of just anybody's yard?' ... [Or] somebody on the school board votes to hire their brother for a position they're not properly credentialed for."

As for consequences, Sloan said, "all the statutes under our jurisdiction carry the same penalty. A public letter [of] caution, warning or reprimand. There's fines from $50 to $2,000. And there's ... criminal penalties as well, but that would be the prosecuting attorney." Whether the Ethics Commission would refer a violation of this statute to a prosecutor would be a decision made by the agency's five-member board of commissioners. But, Sloan said, prosecutors aren't typically receptive to pursuing such low-level criminal charges.

"The time or two we've tried to send something that way ... we got a letter back saying they were busy with robberies and murders, and if [they] ever get caught up [they'll] take a look at it."

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