Ethics complaint on governor tossed

Gov. Asa Hutchinson is shown at a press conference from May, 2016.
Gov. Asa Hutchinson is shown at a press conference from May, 2016.

The Arkansas Ethics Commission dismissed a complaint against Gov. Asa Hutchinson on Friday for campaigning during "usual office hours."

It was the latest move in an ongoing dispute that involves a self-described left-leaning blogger and three constitutional officers.

Matt Campbell, the Little Rock lawyer and blogger who filed the complaint against Hutchinson, responded to the decision by filing an appeal later Friday afternoon in Circuit Court.

"They've made it where the statute is pretty much meaningless and created an exemption that does not exist, and they don't have an authority to create an exemption," Campbell said after the commission hearing. "If you just take the evidence you have and what the statute says, it's pretty straightforward. It should have been almost mechanical application."

The hearing was closed to the public. Hutchinson did not attend.

Kevin Crass, a partner at Friday, Eldredge & Clark who represented the governor, said he was pleased by the decision.

"The governor felt like he was exercising his constitutional right to go campaign," Crass said after the hearing. "He actually documented that he took leave of office on that day to do so. That's clearly permissible under state law."

Campbell said the Republican governor should not have appeared at two campaign events in support of Sen. Eddie Joe Williams, R-Cabot, on Feb. 29 during office hours. Hutchinson campaigned for Williams -- and other Medicaid expansion supporters -- before the primary on March 1.

In his complaint, Campbell cited Arkansas Code Annotated 7-1-103, which states, "It shall be unlawful for any public servant ... to devote any time or labor during usual office hours toward the campaign of any other candidate for office or for the nomination to any office."

A 2002 Arkansas Ethics Commission advisory opinion states "that the prohibition does not apply to situations in which a public servant has taken vacation or other personal leave to devote time or labor to campaign activities."

"I think the law's pretty clear when you combine it with advisory opinions that this commission has previously issued," Crass said. "A literal reading of the statute, I don't think, is logical or fair to apply in these situations."

Likewise, Hutchinson spokesman J.R. Davis said, there are no specific leave provisions under state law for the governor or any other constitutional officer. Salaries are set by law and don't change based on work hours.

"The Governor, or any other Constitutional officer for that matter, is expected to perform the duties of the office whether in the office, out of the office or on vacation," he said in an email. "For that reason, the state law in reference to regular office hours does not fit the historic, constitutional and legal duties of Governor."

But Campbell said in his appeal that "the Ethics Commission improperly created an exception that is not contained in the plain language" of the law. He is asking the Pulaski County Circuit Court to reverse and remand the Ethics Commission's decision with instructions on how to proceed.

Campbell had filed a similar complaint against Attorney General Leslie Rutledge and Treasurer Dennis Milligan in February when they traveled to Iowa to support former Gov. Mike Huckabee in his failed pursuit of the Republican presidential nomination.

The Ethics Commission tossed that complaint because the state's definition of candidate does not include those running for federal office. Campbell did not appeal that decision.

"It was an easy way to punt," Campbell said Friday.

In April, commission Director Graham Sloan said the commission's analysis stopped when it established that Huckabee did not meet the state's definition of candidate.

The commission has ruled in the past that public servants -- such as rank-and-file employees who clock in -- may take leave to support a candidate. There was no clear precedent for constitutional officers, such as the governor, who do not punch a time card or accrue vacation.

However, in a letter to Hutchinson sent Friday, Sloan said: "Evidence gathered during the course of the investigation reflected that elected officials are not required to keep records of the time they work and that they do not actually accrue leave time. However, the evidence reflected that you notified your staff in advance that you would be out of the office on the day that you attended the campaign events for the re-election of State Senator Eddie Joe Williams. In addition, those events were placed on your office calendar as personal meetings."

After the hearing on Friday, Crass said Hutchinson's actions were "clearly permissible under state law."

"The dismissal means they didn't even find probable cause to go forward with a hearing," he said.

Sloan said the vote was 3-0 in favor of dismissal. Commissioner Sybil Jordan Hampton, who was present, abstained. Commission Vice Chairman Sharon Trusty was absent.

"As we've said from the beginning, it has always been our belief that the complaint was without merit because a governor, by both tradition and constitutional right, does not abandon his or her right to campaign just because they are elected," Davis said Friday. "Today's ruling by the Ethics Commission underscores that point, and we are delighted by their judgment on the matter."

Metro on 07/23/2016

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