Wes Wagner, an ousted state representative who switched political parties to run as a Republican, has been ordered to reimburse $26,231 to the city of Manila, where he has been city attorney for six years.
The money represents two years' worth of the yearly salary he was paid while he was also serving in the Arkansas House of Representatives and drawing pay from the state.
Pulaski County Circuit Judge Wendell Griffen ruled that the 38-year-old Wagner's dual employment by city and state violates the Arkansas Constitution, which severely restricts representatives and senators from holding other state government jobs while they are in office.
Griffen further deemed Wagner's earnings from Manila to be an illegal expenditure of taxpayer money that requires him to reimburse the city. An appeal is expected once the judge's oral order is put into writing.
Wagner's lawyers stated Thursday that Griffen's decision places other current and former legislators in jeopardy of being sued even though they have been serving in good faith and not deliberately breaking the law.
"If this court's ruling stands, it would potentially open up countless other lawsuits related to General Assembly members serving as city attorneys or other [positions] in the past," Ralph Wilson III wrote in a letter to the court.
Wagner, hired by the city of about 3,300 in 2011, denies any deliberate wrongdoing, arguing that laws regulating how cities hire their own lawyers exempted him from the dual-office prohibition.
Wagner's father is Manila Mayor Wayne Wagner, who served the area in the House from 1987 to 1998, when term limits prevented him from running again. Father and son also share a legal practice.
Intentionally or not, Griffen ruled, Wes Wagner's dual employment violated Article Five of the Arkansas Constitution. Section 10 of that provision prohibits elected state representatives and senators from holding any other "civil office" during their term.
Plaintiff attorney Christopher Brockett said on Thursday that the judge held that the constitution's "clear and unambiguous language" barred Wes Wagner from holding both positions.
The judge also found Wagner's earnings from the city at the time -- $13,180 a year -- to be an illegal exaction of tax money. Wagner also earned $55,738 in salary and expenses for his legislative job during that time frame.
His lawyers argue that Griffen does not have to make Wagner repay the money, asking that the judge consider that Wagner had no intent to break the law.
Wagner disputes that he was "appointed" to the attorney position as envisioned in the constitution. The Manila post is an elected position, and he was "selected" to fill it by the Manila City Council after no candidates ran for the job, court filings show.
The laws governing how city attorneys are hired was modified in 2003, and the provision clearly distinguishes between selecting and appointing them in the event that no one seeks election, his lawyers stated.
"The Legislature ... provided the language 'the city council may select a resident attorney to fill the office for the remainder of the unfilled term," according to the pleadings. "The Legislature could have used the language to appoint a city attorney but did not do so. As such, contrary to plaintiff's arguments, Mr. Wagner was not appointed to such a position and as such did not violate ... the Arkansas Constitution."
Wagner further argued that the constitution only bars representatives from being appointed to government positions after they've been elected to the General Assembly. His situation is different in that he was already the city attorney when he ran for the House and won, his attorneys noted.
Wagner was a Democrat when he was elected in 2013 to the House to succeed his mother in representing parts of Mississippi and Poinsett counties. Charolette Wagner was also term-limited out of office.
Wes Wagner lost his first bid for re-election in 2014, then switched allegiances to the Republican Party in 2015 to run for the District 54 seat again.
He was subsequently beaten in the 2016 primary by about 90 votes by another Democrat-to-Republican convert, Johnny Rye of Trumann, a former tax assessor and lobbyist who was endorsed by Republican Gov. Asa Hutchinson. Rye now holds the seat.
Griffen's ruling was in response to a lawsuit filed in 2014, two days after Wagner's first re-election defeat, by a former high-school classmate, Chris Gamble, a Manila furniture store owner.
Wagner has accused Gamble of targeting him out of spite. Wagner noted that Gamble waited to sue until after he was out of office, then allowed the litigation to go dormant for more than two years. Gamble only reactivated the lawsuit after Wagner petitioned the judge to dismiss the case because Gamble had allowed it to linger so long without any action, he said.
Wagner has prevailed over Gamble in two prior lawsuits. In 2014, the Arkansas Court of Appeals ruled against Gamble, ending three years of litigation by Gamble to force Wagner to reimburse him for an $8,350 electronic sign that Gamble said he had loaned Wagner for his very first state House bid, a losing effort to represent Jonesboro in 2010. The appeals court ruled that Gamble could not prove Wagner was responsible for damage to the sign.
Gamble next sued Wagner in 2012 to challenge the lawyer's eligibility to replace his mother as District 54 representative. Gamble claimed Wagner actually lived in Jonesboro, but Griffen, after a nine-hour hearing, sided with Wagner, who said he'd been residing in Manila for a year to re-establish his residency in the district so he could run to take his mother's place.
To qualify as a legislative candidate, Wagner testified that he had moved out of his Jonesboro home in January 2011 -- a month before the birth of his daughter -- and that his wife and child were still living in Jonesboro, where his wife had her dental practice. The couple now live in Manila.
A key source of contention in that suit was where Wagner was living when he ran for office -- a building behind his parents' home on Arkansas 77 North where he stayed rent-free. The building has at least three physical addresses in official records, and demonstrating its exact location in court required the testimony of the Manila police chief and the city water superintendent.
Metro on 11/10/2017