“Transparency? Not on my watch!” -Chief Alcon (probably)
I try. I really do. I can’t tell you the number of times that an attorney representing a city or county or school district or any number of other public entities has called or emailed me to ask a question about Arkansas Freedom of Information Act compliance. Every single time, I have willingly and quickly responded. I never bill anyone for this; I am happy to do it for free if it means that everyone is on the same page as far as the AFOIA goes.
Likewise, I have written more than once on this blog about AFOIA issues. For instance, here’s a post from 2013 about how then-Sec. of State Mark Martin’s office was violating the AFOIA by refusing to provide electronic copies of email attachments. Here’s a post from 2015 about Attorney General Leslie Rutledge’s incorrect interpretation of “in active use or storage” in the AFOIA. And, most relevant to this post, here’s a post from just last year in which I explained why the Little Rock Police Department’s plan to charge $3 per CD for AFOIA responses was illegal.1
Apparently Mayflower city prosecutor David Hogue and Mayflower Chief of Police Robert Alcon are not Blue Hog Report readers. I say that because I recently received an email that read:
I wanted to see if you were aware of what Mayflower is doing with AFOIA requests. They have instituted the following policy:
-Copy of Reports: $10
-Extra Videos not considered part of case file (i.e., internal office security video): $5
-Provided Thumb Drive containing requested information: $10
According to the fine citizen who alerted me to this, “this policy is being sent out by the Chief of Police, Robert Alcon, and he says that the new policy was ‘due to the increase of FOIA requests’ and was done ‘with the approval of City Prosecutor David Hogue.'” Additionally, “the chief also said that no records will be produced or located until payment has been made.”
David Hogue, who apparently signed off on this new policy.
/pinches bridge of nose /sighs in exasperation
If you’re scoring at home2, there are at least four AFOIA violations at play here, which is an impressive total for such a short policy. Impressive numbers of violations, however, are still violations. We’ll tackle each of these in turn, but, first, for the kids who haven’t been paying attention, let’s review an important fact about the AFOIA.
Right there in the statute3, it says (emphasis mine), “Except as provided in § 25-19-109 or by law, any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.” Actual costs of reproduction would include, for example, the price of a piece of paper or the cost of a CD-R or of a thumb drive.
Everyone on the same page now? Good. Now let’s look at what Mayflower PD plans on charging.
First, regarding the $10 charge for “copy of reports,” there is a state law that allows a police department to charge $10…but only for accident reports.4 That statute reads, in pertinent part, “In order to partially reimburse county and municipal law enforcement agencies for the cost of making copies of motor vehicle accident reports and copies of records of traffic violations, there shall be charged a fee of ten dollars ($10.00) for each copy of a basic accident report and a fee of one dollar fifty cents ($1.50) per page for each copy of a supplemental report.”
It appears that Chief Alcon and Mr. Hogue are trying to extrapolate from that and pretend like every report can be $10. This is wholly incorrect. There is even an old latin maxim to explain why it is incorrect: expressio unius est exlusio alterius, or (loosely), “the express mention of one thing in a class excludes all other things in that class.” By allowing a police department to charge $10 for copies of accident reports “in order to partially reimburse…agencies for the cost of making copies of motor vehicle accident reports,” the legislature has actively and directly foreclosed the ability of an agency to rely on that statute to charge $10 for any other kind of report.
Because a blanket charge of $10 for non-accident police reports is not supported “by law” within the meaning of the AFOIA, Mayflower can only charge for the actual cost of reproduction. Importantly–because I am sure this is likely to come up–the statute also makes clear that Mayflower (or any entity subject to the AFOIA) cannot charge for copies made for the purpose of redacting information. They also cannot charge, as noted a few paragraphs up, for time spent locating and copying (or scanning) records. Meaning, if a person were to request a non-accident police file in electronic format, the only costs Mayflower could charge for would be the CD that the record was burned to, plus whatever infinitesimal cost that one scan and one CD creation represented over the life of a scanner and of a CD burner, respectively. Or…something between about 18 and 30 cents.
The above analysis would also apply to the second part of the new Mayflower policy, the purported charge of $5 for “Extra Videos not considered part of Case File,” so there is no real need to rehash that same argument here. What is worthwhile, though, is recognizing that this prong is a great example for why the policy is illegal on its face.
Consider this hypothetical: One person requests a case file in electronic format, while another requests a security video from some part of the police department. Both receive their requested records on CDs that came from the same package of CDs. In this scenario, the person who requested the case file is paying $10, while the person who requested the video is paying $5, despite the fact that the medium on which they received the records is identical. Yet…the statute makes clear that the medium of reproduction is about the only part of these two requests for which Mayflower can even charge. So how could the same medium of reproduction cost two people two different amounts? (It can’t. At least not legally.)
The third prong of the Mayflower PD policy is that they are going to charge $10 for a thumb drive for production of records. If those drives really are costing the police department $10 each, this could theoretically be acceptable. Of course, it takes all of 10 seconds on Amazon to see that you can get a pack of 10 2GB drives for $27, or $2.70 each. So that $10 cost is going to be pretty hard to justify in the future, even if it is ok at the present.
Where the thumb-drive policy runs into real problems is not price, though, but the seemingly mandatory nature of the policy, whereby Mayflower PD is only going to produce requested records on one of their thumb drives. The AFOIA allows a requestor to receive records in any format in which the records currently exist or any format to which it is readily convertible using the agency’s existing hardware and software. Meaning, a person who requests electronic copies of records emailed to them is entitled to receive the records via email, a person who requests those records on a CD is entitled to receive them on CD, and a requester who offers to provide his own USB drive or CD is entitled to receive them that way.5 To the extent that Mayflower’s new policy appears to foreclose the right of requesters to receive the records in these other manners, it absolutely violates the AFOIA.
The fourth AFOIA violation in the policy is more subtle than the first three, and it is the comment that “the chief also said that no records will be produced or located until payment has been made.” Assuming this is true, it is a problem for Mayflower. The AFOIA says, “If the estimated fee exceeds twenty-five dollars ($25.00), the custodian may require the requester to pay that fee in advance.” If someone asks for a police report or a video–especially if he or she requests it in electronic format–even under Mayflower’s (illegal) fee structure, that is well short of $25. Meaning that Mayflower cannot require advance payment before they will fulfill the request; they can only fulfill the request and receive payment at the time the records are picked up.
The AFOIA has been in existence since 1967. The provision regarding “actual cost of reproduction” was put in place in 2001 by the Arkansas General Assembly, and it has been discussed over and over again by both the Arkansas Attorney General and the Arkansas appellate courts. The only reasons I can think of for an agency in 2019 to propose such an obviously improper policy regarding costs for AFOIA compliance are either abject ignorance of the AFOIA generally or, more likely, a desire to reduce the amount of requests (and, by extension, the amount of transparency). Neither is a good look for a police department, especially where that police department claims that a lawyer for the city approved of the new charges.
If you would like to make an AFOIA request to the Mayflower police department, the easiest way is by fax to 501-470-9068. If you do make a request for a police report or a video and they attempt to charge you under this new policy, let me know.
They quickly abandoned this plan after that post went up.↩
Trent Garner (L) and Bob Ballinger, just before Garner began his fanciful testimony in support of SB 484.
If you are reading this, you are (almost by definition) the type of person who spends time on the internet. That being the case, you have likely already seen the recent viral video of State Sen. Stephanie Flowers (D-Pine Bluff) offering an impassioned counterargument to the people pushing a “stand your ground” bill in the Arkansas Senate. That Flowers’ comments got so much attention makes sense and was well deserved, no doubt about that.
One side effect of the attention that Flowers got, however, was that other parts of that hearing that might have otherwise drawn attention got lost in the noise. Most notably among these was Sen. Trent Garner (R-El Dorado) and his story of…um…being a cross between Charles Bronson and Jackie Chan1 when dealing with a would-be mugger.
Before we get ahead of ourselves, let’s first take a look at exactly what Garner claimed happened as far as the altercation with the would-be mugger goes. (You can check the accuracy of this transcription here, starting at around 4:58).
I served two tours in Afghanistan, was in many combat situations as a Special Forces Green Beret. I came back and went out with a couple of my buddies to have a good time. We went to a restaurant to have something to eat and hang out. One of my buddies was a 310-pound offensive lineman who played for a local Arena League team. Another of his buddies was a 250-pound linebacker, and then another Special Forces guy. We parked at the back part of a parking lot.
As we walked out, I got in a car that my buddy had driven, and I heard my 310-pounds [sic] friend’s voice quiver. This wasn’t a man who was scared of many things. I stepped out of the car and saw two gentlemen—one who had a gun on my friend—demanding money, demanding my friend do something. You could tell the situation, the tension, rose [sic] in the air.
I stepped in front of my friend and pulled out Twenty dollars out of my pocket and told the guy, “man, it’s all good. Calm down. It’s fine.”
The [car] door was open in such a way that I was able to hold the money so the man reached for it. When he did, I slammed the car door on his arm, breaking it. After that, I speared him like you see in football, lifted him up on my shoulder and put him in the ground, and I heard the [hand slaps table]. I didn’t know what it was. Only thing I saw after that was a gun on the ground. Me and that person went for that gun. He got to it first and took off running.
I chased him not realizing what had happened, but my buddy grabbed me and pulled me back and said, “Trent, you have been shot.” I noticed my back was wet from the blood coming down my backside.
As soon as he was done speaking, Garner bolted from his chair and away from the microphone. Sen. Alan Clark (R-Lonsdale) asked if Garner would take question, and Garner’s “I’m not taking any questions” response was picked up by one of the microphones.
Garner’s story was unclear as to the particular place and time that this allegedly happened. That was perhaps intentional, given how quickly he left the table and avoided questions. If you cross reference it with some other information, however, it gets a little easier. For instance, on Garner’s website, it says that he was part of Operation Medusa. We know that operation occurred between September 2 and September 17, 2006. Google tells us that Garner started college at UALR in 2008, and he started law school at U of A in 2011.
From public records, we can see that Garner lived in Jacksonville, AR, starting some time in early 2008. And we know that North Little Rock had an arena football team from 2000 to 2009. Based on all of this, one might assume that Garner’s described incident occurred somewhere in central Arkansas at some point between late 2006 and when he went to law school in 2011. However, FOIA requests to all law enforcement agencies that might possibly have responded to this incident turned up empty.
A broader public-records search, however, turned up a single-line entry for a Trent Chancey Garner with the address 2-4017 Room 125, Fort Bragg, NC 28310. Fort Bragg is, of course, the primary base for Army Special Forces, which seemed like a place that Garner might have been stationed after returning from Afghanistan but before returning to Arkansas.
I made the assumption that this incident, if it occurred, happened off base, which made nearby Fayetteville, NC, likely if Garner was at Fort Bragg. (There was an Arena league team in the area at the time, but that is irrelevant for reasons that you’ll see momentarily.) I contacted a reporter at the Fayetteville Observer to see if they knew anything about a reported shooting of Trent Garner between October 2006 and March 2008. The reporter responded:
I found this following crime log in our archives dated Aug. 12, 2007: BRAGG BOULEVARD Trent Chancey Garner reported Friday that he was robbed and shot in the arm in the parking lot of Kagney’s nightclub at 944 Bragg Blvd. Other details were not given.
Bingo. A follow-up FOIA request was made to the Fayetteville (NC) Police Department, who provided this report of an incident occurring August 10, 2007. Unfortunately, under NC law, the narrative portion of a police report is not subject to release under the FOIA. That said, we do have the names of parties who were there, and we have some other details from which we can extrapolate, and those details call much Garner’s story into question. 2
First, Garner told the Arkansas Senate committee that there were four people (Garner, two football players, and “another Special Forces Guy”). The police report shows three people:
David Fredrickson, no age given3, 2916 Ivy Stone Court, Fayetteville, NC 28310;
John Andrew Ottinger, 23, 102 Arring Creek Rd., Enterprise, AL 36330.
I have been unable to locate David Fredrickson, but his address shows as being owned by another Special Forces soldier (Joshua Hernandez) at the time of this incident, and the house had been rented to at least one other Special Forces soldier that I was able to locate. So the odds that David Fredrickson, who doesn’t show up in any kind of search for that name as an Arena Football player, was a football player seems slim. (The odds that “David Frederickson” is a fake name that was given by someone at the scene is plausible, if only because it does not appear that the reporting officer looked at this person’s ID, because the actual street is “Iveystone,” not “Ivy Stone,” and no date of birth or age was noted on the report.)
I was able to locate John Ottinger, at least to the extent I can confirm that he’s a real person who now resides in the Fort Worth, TX area. At the time of this incident, he was a pilot for the Army, and it appears he was then-stationed at Fort Rucker in Alabama. (Attempts to reach Ottinger for comment were not returned prior to publication of this post.)
So…if we’re going by the police report, it is safe to say that there was no “310-pound offensive lineman who played for a local arena team” or “250-pound linebacker” present when Garner’s incident occurred.
Second, and directly related to the previous point, recall Garner’s story, in which he said that the mugger initially pulled a gun on one of the friends who was there with him. Had that happened, the friend would have been the victim of (at least) attempted robbery and assault. Yet, the police report lists only Garner as the victim of two crimes: aggravated assault and robbery. The other two men listed are only included as reporting parties, meaning that neither of them was the victim of a crime. It also makes one begin to wonder if those men were even there with Garner, or if they were witnesses who saw something happen and came over to check on Garner after the fact (which would be wildly different that Garner’s story, obviously.)
Third, Garner described the location as a restaurant where they were going to “have something to eat and hang out.” That’s a pretty liberal use of the word “restaurant.” The address on the police report is 944 Bragg Blvd., which matches the “Kagney’s” referenced by the newspaper. While it did apparently serve food to some extent, Kagney’s was a sketchy night club (since closed down) with a long history of fights and other violence. (An Army specialist was killed there in April 2008, for instance.) No one who was trying to give an accurate recount of what happened would refer to Kagney’s as a “restaurant.”
But–and this is a big “but”–it’s not clear that Garner was actually at Kagney’s. You see, Kagney’s was in the same building as Sharky’s Cabaret, and, well, I’ll just let a Yelp reviewer describe Sharky’s for you:
“It’s a dirty, grimy place filled with cheap dancers that double as prostitutes, and lots and lots of drugs.”
Sharky’s also served something close to food, though, based on that Yelp review, I can’t imagine it was something you would want to eat. Even so, no person would ever refer to Sharky’s as a “restaurant.” At least not if they were being honest about the situation. On the other hand, referring to it that way, while glossing over the actual location, is what someone would do if he was trying to hide the fact that the story he was telling actually took place at an absurdly seedy strip club.
Fourth, Garner made it sound like the whole incident took place some time around a normal time that people would go out to dinner (e.g., hours that “a restaurant” would normally be open). In fact, the police report shows that the call came in just after midnight on Friday morning, meaning Garner had been out very late on a Thursday night. A minor detail? Perhaps. But, again, ask yourself, why would Garner be vague about the details and location if he was regaling the Senate committee with an accurate recounting of a real incident?
Fifth, and certainly most interestingly, the police report specifically says nothing about a weapon being used. According to the Public Information Officer at the Fayetteville Police Department, this is because the officer who arrived on scene did not note the use of any weapons in the commission of the two crimes.
Obviously, this is at odds with the Fayetteville Observer blurb, which stated that “Trent Chancey Garner reported Friday that was robbed and shot in the arm.” So, what gives? Well, remember, North Carolina public-records law prohibits the release of any police narrative or notes. It does not, however, prohibit the release of certain parts of 911 calls. So, according to another reporter at the Observer who spoke to us, the information that goes in those crime blurbs either comes from someone listening to a police radio scanner or from a summary of 911 calls.4 Meaning that, as the newspaper blurb notes, the “shooting” was apparently reported by Garner (or someone at the scene), whereas the police report is an objective evaluation of the facts as presented to the reporting officer.
Sixth, related to the shooting, Garner implied that he had been shot in the back, stating “my back was wet from the blood coming down my backside.” At best, assuming a shooting happened at all, Garner’s own statement on the 911 call was that he had been shot “in the arm.” Is it possible to be shot in the arm in a way that your back is soaked with blood despite you not realizing you’ve been shot? I suppose anything is possible. Does it seem plausible, though, that someone who has been in combat would not recognize the sound of a gun going off AND would be unaware that he had been shot in the arm to such a degree that the back of his shirt was “wet with blood”?
Seventh, Garner mentioned that they were “parked at the back part of a parking lot.” The call to police noted specifically that it was the “parking lot of Kagney’s Night Club.” Here’s what that looks like:
It’s not clear why Garner specifically mentioned being “at the back” of the parking lot, but it is clear, based on the scale in the lower right of that satellite photo, that no part of the parking lot is more than 100 feet from some part of the building. Even the furthest point at the back of the lot (near the top of the picture) is just over 100 feet from this entryway:
The only thing I can figure is that Garner referenced being “at the back” of that lot so that his story would sound like he was in a situation where no one was around who could help. You know…other than the three other people he claimed were with him, but who did nothing and weren’t referenced on the police report.
So…yeah. There are a lot of questions surrounding Garner’s story, and I reached out to him for information about the incident. At the very least, I wanted to see if he would tell me where and when it happened, and maybe answer a couple of the other questions I have. He received the email, and he opened it three times as of this writing–once around 7pm on an iPhone near Hamburg, AR, and twice today around 9am on an iPad, also near Hamburg–but he has not responded.
On some level, all of this is less important than the overall absurdity and insanity of what Garner was saying overall, and that is something we’ll get into in the next post. Yet, all of the above still strikes me as relevant because of the “trust me, I know what I’m talking about, and here’s a totally real thing that happened to me” tone that Garner took when telling his story. If you are going to condescendingly act like the expert on a subject, and you’re basing that expertise on something that you did, it is fair game for the rest of us to look at your claims and see if the incident ever even happened.
Earlier today, thirty-eight representatives voted down HB1655, “An Act to Protect Victims of Domestic Abuse.” 1 That bill, sponsored by Rep. Nicole Clowney (D-Fayetteville), would have brought Arkansas law more in line with federal law by amending the existing Arkansas Code Annotated section 5-26-313. As amended under HB1655, where a person is convicted of a misdemeanor offense involving domestic violence, that statute would have required the court where he/she was convicted (1) to note on the judgment of conviction that the conviction prohibited the person from owning a firearm and (2) to transmit a copy of that record to the Arkansas Crime Information Center (ACIC). ACIC would then determine if the offender was eligible to be placed on the National Instant Criminal Background Check System and, if so, to enter the person into that system.
The bill also would have amended Arkansas Code Annotated section 5-73-103(a) to include “a misdemeanor involving domestic violence” to the list of persons who could not own firearms under that subsection. Finally, HB1655 would have put specific due-process protections into 5-73-103 such that, broadly speaking, a person would only be ineligible to own a firearm after conviction if the person had been represented by counsel and had been convicted by a jury, unless the person waived either or both of those rights.
Now, keep in mind, federal law already prohibits someone convicted of domestic violence from owning a firearm under 18 U.S.C. 922(g). Some people have complained that the federal statute does not go far enough in how it defines who is ineligible to own a gun, but HB1655 was not trying to expand that definition at all. Indeed, HB1655 specifically defined “misdemeanor offense involving domestic violence” as “a misdemeanor crime of domestic violence, as defined in 18 U.S.C. § 921(a)(33), as it existed on January 1, 2019.”
So, all told, HB1655 was simply a way to make sure Arkansas law was in line with federal law while also actively providing notice to convicted persons that the conviction made them ineligible to own a gun. This should not have been a particularly controversial vote, at least not in a state where the legislature is not comprised of people who value gun ownership over protecting the victims of domestic violence. Nevertheless, as mentioned, the measure failed.
Considering the nature of the bill, all of the “no” votes are troubling. However, one of the people voting against HB1655 was Rep. Jack Ladyman (R-Jonesboro), who has literally been accused, in graphic detail, of domestic violence in the past.
In March 1999, Linda Ladyman filed for an ex parte order of protection in the Craighead County Chancery Court, alleging, in part:
Last night he said he was going to kick me out. He was upset about an overdraft from bank and other bills that haven’t been paid. He is blaming me for the financial problems when I have 4 jobs and do what I can. He yells and screams at me and calls me a whore. He yells cuss words at me all the time and tells me that I don’t do anything right (cooking, cleaning, etc.). He tells me that I owe him. He says I’m going to pay him back for everything that I’ve done, when I haven’t done anything. He has locked me out of the house three times in THE last four months. One time I had to spend the night in the car. About three weeks ago when my son hurt his shoulder [jack] pushed a stretcher into my side when we were in the emergency room.
In the next section, where the form asked why Mrs. Ladyman was afraid of Rep. Ladyman and why there was an immediate and present danger of domestic abuse to her, she wrote:
About 5 to 7 years ago he pushed me down some steps at the Valley View School gym with other people around. It broke my ankle. He got mad because I couldn’t do things for him. The doctor told me to stay off the ankle. Jack told me I could do just as much in the wheel chair as I could standing.
October 26th of 1998 he broke a mirror and didn’t clean it up. I cut my foot on the glass and had to seek medical attention.
Thanksgiving he was trying to put a bed in a room and got mad because it wouldn’t fit. He got mad and broke out a window.
Things are escalating to the point where I think the verbal abuse is again going to turn physical. I’m scared of what he might do the next time he gets mad.
That order of protection was entered, and it lasted until March 2000. In July 2000, Mrs. Ladyman again sought an order of protection against Rep. Ladyman. This time, she wrote:
On 7-9-00 [Jack Ladyman] called the petitioner and told [her] he was going to get her one way or another. The petitioner took this statement as a threat. During February and March [Jack ladyman] mailed the petitioner 10 letters stating how [he] was going to get [her] back.
Again in the section where she describes the immediate and present threat of abuse, Mrs. Ladyman wrote:
The petitioner had an order of protection that expired in March of 2000. The petitioner is afraid that since the order has expired [Jack Ladyman] will come after her again. Since the order has expired, [Jack Ladyman] has come to the petitioner’s house. [He] told her he could because he was no longer subject to the order of protection. On 7-8-00 and 7-9-00, [Jack Ladyman] came to the petitioner’s house and demanded they talk. [Jack Ladyman] told the petitioner he would talk to her one way or another.
Now, it is worth noting, if only for the sake of clarity and full disclosure, that it does not appear that any charges were filed against Rep. Ladyman for any of the abuses outlined in the two petitions for order of protection. This is not uncommon; abused spouses often seek an order of protection but stop short of seeking criminal charges, whether out of fear or love or some combination of both. Importantly, however, this means HB1655 would explicitly not have applied to Rep. Ladyman had it been in effect in 1999 or 2000, because he would not have been “convicted of a misdemeanor offense involving domestic violence.”
That said, the pattern of abuse shown in the two petitions–and the statement “Things are escalating to the point where I think the verbal abuse is again going to turn physical”–show exactly why a bill like HB1655 is both necessary and helpful. Domestic abuse rarely happens in a vacuum, and it is rarely a one-off incident. Often it takes multiple incidents before a victim is actually willing to go to the police and pursue criminal charges. When that happens, any conviction that comes out of those charges generally represents only the most recent or the (up to then) most egregious acts of abuse, not the sum total of all past abuse. Why would we as a state–and the legislature as a body that is supposed to put the people’s interests first–not want to take the basic, minor step to try to prevent an abuser in that scenario from obtaining a firearm after such a conviction?
It is one thing for the other thirty-seven representatives who voted against HB1655 to do so. It’s not a vote that I can understand, but it’s a political calculation of some sort, and that’s the world we live in.
But for Jack Ladyman to vote against HB1655? That doesn’t look like politics, and anyone who knows the backstory, regardless of party, should be appalled.
These votes were bolstered by the twenty-seven cowards who either didn’t vote or voted present, but that’s neither here nor there.↩
You have to hand it to current Land Commissioner, Pirate Captain, and Secretary of State-elect John Thurston. Usually, a person has to actually be in the office they were elected to before it is possible to violate laws related to personnel hiring, firing, and leave.
Thurston, however, is an overachiever.
On November 30, on some snazzy new Secretary-Elect letterhead, Thurston sent the following letter to ten current Secretary of State employees:
I regret to inform you that your employment with the Secretary of State’s office will end on January 14, 2019.
Thank you for your service to the Secretary of State’s office, and I wish you all the best in your future endeavors. Please contact Vicki Slay in the Human Resources division by Monday, December 3 with any questions and to complete your exit paperwork.
According to affected staff, and as reported elsewhere, while the employees’ service was going to end on January 14, those employees were told to go ahead and clean out their offices, as they would be on administrative leave with pay from December 3 through January 14.
That is to say, John Thurston was telling current Secretary of State staff that they were no longer needed for work, but that they would still get paid. Why Thurston, who is not yet the Secretary of State, would have the authority to tell people not to work or to determine who was paid and in what capacity prior to his swearing in was unclear.
What was clear, however, to everyone but Thurston and (apparently) current office-holder Mark Martin, was that this arrangement was not legal. On December 7, Chief Deputy Kelly Boyd sent a letter to the same employees, writing:
The Arkansas Attorney General has notified us that we are unable to offer administrative leave with pay to those employees who will not be retained by Secretary of State-Elect John Thurston. As a result, we are providing you with two options:
1. You can resign effective Monday, December 3, 2018 and receive any due unpaid accrued vacation time with your final pay (up to 240 hours).
2. Alternatively, you may choose to exhaust your accrued leave and remain an SOS employee during that time. Once accrued leave has been exhausted, you will be placed on leave without pay until January 12, 2019 at which time your employment will cease. If you find employment elsewhere during this time, you must notify the human resources department immediately.
The employees were then told to let human resources know which option they wanted by December 10, 2018, with anyone who did not select an option being automatically put into the first group.
It is one thing to buy a boat with office funds based on some weird, demonstrably false assertion that you needed the boat to inspect lands. It is quite another thing to come in before you’ve even taken office, demonstrate to everyone that you have no idea what the limits of your ability to pay people are, and then force current employees to either take vacation leave as a lump sum or use it and continue to be employed in name only. The former marks you as someone who pushes the limits of his office’s powers; the latter means that you literally have no idea what the limits are and you are willing to act before finding out.
I did not think it was possible that we would ever pine for the halcyon days of Mark Martin’s tenure in office. Over the next four years, John Thurston might prove me wrong.
If you’ve been reading this blog for more than a week or so, you might recall that we filed an ethics complaint against Gov. Asa Hutchinson on October 24. Long story short, the Hutchinson campaign reported twice as much in contributions from a Ms. Scarlett Basore in Rogers, AR, taking $5,400 from her for both the primary and general elections.1
On Saturday, we received a letter from the Arkansas Ethics Commission, in which the Commission said that the complaint had stated a possible violation of campaign-finance rules and, therefore, the Commission was opening an investigation. You can see the entire letter here.
Give the facial impropriety of the donations, it is no surprise that the Commission would open an investigation. Indeed, the post of this post is less to note the investigation and more to address the idea that, if the contributions were improper, state law will allow Hutchinson simply to return the contributions and amend his CC&E2 Reports.
They might do that. But it would be a complete misreading and improper application of the law.
The “do-over” rule3 was the brainchild of former Sen. Jon Woods (R-Federal Bureau of Prisons) as part of the ethics “reform” that the legislature so kindly gifted to us in the 2015 session. Codified at Ark. Code Ann. 7-6-229, it says, in pertinent part:
It is an affirmative defense to prosecution or disciplinary action if a person required to file a report under this subchapter amends the report within thirty (30) days of discovering or learning of an unintentional error in the report.
That last bit — “unintentional error in the report” — is important in the current situation. At least vis-a-vis the allegations about Basore contributions, Gov. Hutchinson’s CC&E Reports do not contain an error. Indeed, the contributions were reported 100% correctly from all outward appearances. The CC&E entries contain the date the contribution was received, the name and address of the contributor, and other required information.
By its own terms, however, the rule under 7-6-223 only provides an affirmative defense when someone amends a report to correct an unintentional error in the report. It says nothing about accepting an illegal contribution then simply returning the contribution within 30 days if and when someone notices it.
The difference in these situations should be obvious, but perhaps it isn’t. Let’s reduce it to a few hypotheticals.
Hypothetical 1: Candidate A receives a contribution for $500 from Donor A, but, when filling out his CC&E and balancing the first page, Candidate A types “$50” into the calculator rather than “$500,” so his balances are wrong. Section 7-6-223 should apply because this is a (1) unintentional (2) error (3) in the report.
Hypothetical 2: Candidate B receives a $100 cash contribution from Donor B, but he keeps the money for himself and does not report it on his CC&E. Donor B notices the lack of an entry for his contribution and brings it to the Ethics Commission’s attention. Section 7-6-223 should not apply because, while this is an error in the report, it was not unintentional.
Hypothetical 3: Candidate C receives three maximum contributions for the general election from the same person, but each is given under slightly different names (we’ll use “C. Donor,” “Clarence Donor,” and “Clarence P. Donor”). These are entered into the CC&E separately and the totals on the first page of the CC&E accurately reflect the total amount received. If and when a plucky blogger notices the contributions, section 7-6-223 should not apply because, even if this was an unintentional error, the error was in accepting the contributions, not in the reporting and filing of the CC&E. That is, the unintentional error was not “in the report.”
Such an interpretation makes sense from a practical standpoint, too. The CC&E, as filed, is the only record of the contributions to a candidate that 99.9% of people ever look at.4 Considering that a CC&E requires that the person submitting it swear under oath that everything in the report is true and correct, and considering that the political practices pledge that every candidate signs says that they will comply with campaign-finance statutes, the onus has to be on the candidate (or his campaign staff) to ensure that the contributions received are legal.
Any other interpretation–or any application of the “do-over” under section 7-6-223 to apply to anything more than errors on the face of the reports–renders nearly all protections and limits worthless. If section 7-6-223 applies to accepting illegal contributions and gives thirty days to return the contribution and amend the reports, a person could give multiple times the maximum amount to a candidate, using a slightly different name each time, and it would only ever matter at all if someone found the duplicate contributions and filed a complaint. The election–and the benefit from receiving that money–could be long gone, and the candidate would only have to pay back the donor from carryover or debt-elimination funds to avoid any kind of sanction at all.
Do I put it past Jon Woods to have hoped for such a broad reading of the statute. Of course not. But the statute says what it says, and those words limit the applicability to unintentional errors in the report.
Nevertheless, it is entirely possible that the Ethics Commission will allow Gov. Hutchinson to avail himself of section 7-6-223. If they do, we should all be concerned that the Commission is reading an already absurd rule so much more broadly than it was intended to be read, to the point of more or less eviscerating individual contribution limits.
Ed. note: Of course, there is technically an error on Hutchinson’s CC&E, since the cumulative contribution from Ms. Basore should have said $5,400 after the second contributions, rather than $2,700. If Hutchinson were to amend his CC&E to reflect the correct cumulative total, section 7-6-223 would apply to that amendment. However, it would still not apply to the steps involved in returning the contribution and filing a new CC&E to reflect the return.
Honestly…that’s not that long of a story, nor is it particularly shortened. So that prefatory phrase was probably unnecessary. Whatever.↩
I’ve long wanted to call this “the Milligan mulligan,” but I haven’t had success in getting that name to catch on.↩
We only discovered the duplicate contributions to Gov. Hutchinson by downloading the raw contribution data from the Secretary of State website, and, even then, only found it by chance when looking for something else.↩
Last week, we kicked off this series about candidates who have surprisingly few donors who actually live in the district they are running for, by pointing out Marcus Richmond (R) over in District 21. His only donors in the district were two in-laws and one employee. He also had the second largest geographic district in the state.
Lest you think that this lack of donors in Republican districts is only a problem in rural districts, however, today we take a look at the second-smallest district in the state, District 38. It is all in Pulaski County and encompasses parts of North Little Rock and Sherwood. It is almost an entirely residential district, with a total population (2016 estimate) of 30,562, of which 22,865 are 18 or older (voting age).
Many1 people may remember Carlton Wing as being a sportscaster for KARK Channel 4. It’s almost too bad he didn’t work for KATV Channel 7 though.
Well, they have that segment called “Seven on Your Side,” and that would have dovetailed perfectly with the number of individual in-district donors in District 38 who have contributed to Wing’s campaign.
All told, as of October 18, Wing had raised $47,885.00 from all donors (PAC/Party/Individual), both in and outside of his district. Those seven individuals in the district who have chipped in have combined for $3,100, or 6.5% of this total contributions.
As with Richmond, Wing’s main contributors are PACs, who have combined for a little over 62% of his money. Not that these two are unique. Many of the Republicans that we’ve looked at this cycle are approaching fundraising the same way: no sense in wasting time talking to constituents to get contributions when PACs will cut a much fatter check much more quickly.
It is noteworthy, though, that Wing’s opponent, Chase Mangiapane, had twenty-four individual in-district donors in his September CC&E alone. It will be interesting to see if the voters in District 38 choose the candidate who has actually knocked on doors and raised money from within the district, or the one who has relied on PACs over people for nearly all of his fundraising.
In response, and based on all then-available evidence, I wrote:
Scrolling through the comments of that post, I then saw this bit of uninformed idiocy:
So, possibly more full of piss and vinegar than I needed to be, I replied:
Now, were either of my comments necessary? Of course not. Nothing on Twitter is necessary. As twitter comments go, however–where Cesar Sayoc is allowed to make death threats without being suspended–I didn’t think either comment was noteworthy.
Imagine my surprise, then, when I woke up the next morning to find that my account was suspended for seven days. Why? Because Garner had complained about those comments. He had also gone back a few months and retroactively decided that these tweets were just too much for his precious self to handle:
Annoyingly, to begin the suspension, I would have to delete the posts. Yet, to appeal to suspension–which I wanted to do, I could not delete the posts until after the appeal was ruled upon. Meaning that, if the suspension was upheld on appeal, the 7-day suspension would really be 7 days plus however many days the appeal took. Still, given the kind of stuff that is allowed to remain on Twitter all the time, I figured the appeal was worth it.
Last Monday, I received Twitter’s response. The suspension was upheld because–and get this–my tweets amounted to harassment based “on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.”
Imagine the kind of thin-skinned baby you have to be to complain that you are being harassed based on any of the comments above. That’s Jason Rapert-level cowardice. It’s certainly not the kind of reaction you would expect from someone who touts his Green Beret background at every possible chance.
It’s more the kind of thing you would expect to see from someone who…just hypothetically speaking…harassed a girl or girls in high school to the point that restraining orders were filed. Or was kicked off a high school football team for attacking a coach. Or had a military career come to an abrupt end under very questionable circumstances that might, hypothetically, have involved drugs and/or guns.
Not that I am saying Sen. Trent Garner did those things. Just that his whininess about a few tweets is the kind of thing you might expect if he was the type of person who did those other things.
*Obviously, this title is a lie. But I love the idea of Garner complaining to Twitter about a tweet linking to a post with that title.
You probably did not notice, but humor me here, alright?↩
Yes, this is both his actual middle name and (phonetically) the name of a Pokemon who is described as “It walks carefully to prevent its egg from breaking. However, it is extremely fast at running away.”↩
RPA Chairman Doyle Webb has gone beyond the district wall looking for donors.
Without a doubt, money has polluted our politics to the point of being obscene.1 Most candidates accept contributions from any and everywhere, and voters are generally of the belief that politicians are beholden to those who finance their campaigns. Some candidates refuse to accept PAC money. Others, not so much.
Generally speaking, however, conventional wisdom says that the amount of money a candidate can raise from the voters in the district they hope to represent is generally a strong indicator of the support that candidate has from people in the district. And that support from within the district, one assumes, will translate (usually) to votes in the legislature that reflect the interests of the district.
But…what if nobody in the district actually contributed to the campaign? If nobody in the district backs the candidate financially and he wins, where do you think that legislator will put his loyalty when it comes time to make a tough vote?
No legislator could possibly think they could win an election with no donations from the people in the district, right?2
Though the tabulations are still ongoing in the BHR Data Analysis and Operations Center, there’s not just one legislator who has almost no financial support from anyone in his district, there are a number of them. While the quest continues this week to find the elusive zero in-district donors candidate, we will highlight some of the most pathetic ones we have come across so far in this series.
According to the US Census Bureau, Arkansas House District 21 has an estimated population (2016) of 28,199 people, of which 21,952 are 18 or older, which means they are potential voters. It is also the second largest geographic district in Arkansas. It takes in parts of Crawford, Garland, Perry, Polk, Scott, Sebastian, and Yell Counties. The incumbent representative is Marcus Richmond (R) and he is running for reelection. Richmond is the House Majority Leader, so he’s got some pull with the state GOP. According to Richmond’s latest CC&E3 report, he has $59,371.75 in his campaign account, of which $40,557.95 is money he personally loaned his campaign.4 Richmond has raised $27,800 so far this cycle, which is a respectable amount for a state rep race.
Care to guess how much of that $27,800 was from people in his district?
A whopping $1,100 (4%)!
The source of the $1,100 is where this story takes a really depressing turn. Of 21,952 people of voting age in the district, THREE (3) gave to his campaign, and it is a safe bet they felt obligated to make those contributions.
Only three people??? Surely you can’t be serious!5 His mother in law contributed $500, as did his father-in-law. The other $100 came from a person who works for him.
Here is a picture of what this sadness looks like:
It’s only one dot with a 3 in it because his employee lives so close to Richmond’s mother and father-in-law that it merges into one dot at this scale.
The state party hasn’t even contributed to this guy’s campaign – and he is the house majority leader!
Where did all that money he got come from you ask? A mere 81% of all the money he has raised came from–wait for it–PACs. A GOP candidate funded almost entirely by special interest and corporate money? Shocker, right?6
Can 21,949 people be wrong? Is it really not worth donating a dime to this guy?
Maybe not. After all, since being in office, Richmond has pushed and supported bills that would have ended the private option entirely. He has placed his business interests ahead of doing what is right.7 He has routinely supported absolutely anything that keeps straight, white, Christian men armed and subjugates every other group, and he constantly makes misogynistic, transphobic, and homophobic jokes on social media.
From that perspective, it almost makes sense that no one in his district would want to give him any money.8 And Richmond doesn’t care–he’ll happily ride that PAC-money train and hope the R by his name will get him re-elected.
The district has already decided that Richmond is not worth donating to; maybe eventually they will decide he’s not worth voting for either.
Programming note: If you think maybe the lack of financial support is due to his being in an obscenely large rural district, tune in to Game of Donors Monday when take a look at a tiny urban district.
And that’s without even getting into money paid by Republicans to porn stars!↩
Arkansas’s campaign-finance laws are fairly clear when it comes to the upper limits of contributions. Specifically, it is unlawful for a candidate for public office or for any person acting on the candidate’s behalf to accept campaign contributions in excess of two thousand seven hundred ($2,700) per election from an individual.1
While looking at Gov. Asa Hutchinson’s CC&E2 Reports, we noticed that Hutchinson reported two contributions of $2,700 each for the primary and general election from Ms. Scarlett Basore of Bella Vista, AR, received on September 29, 2017. These were reported on page 49 of Hutchinson’s Third Quarter 2017 CC&E.
Those contributions were all well and good.
Unfortunately, at least from a legal standpoint, Hutchinson reported an additional $2,700 primary election contribution from Ms. Basore on May 7, 2018, on page 86 of his 10-day pre-primary CC&E.
Page 5 of Gov. Hutchinson’s May 2018 CC&E (filed June 15, 2018) also reflects an additional $2,700 general election contribution from Ms. Basore, also on May 7.
Those additional primary and general election contributions are, on their face, illegal under Arkansas law. Additionally, by failing to properly report the cumulative total contributed by Ms. Basore for each election, Gov. Hutchinson also appears to have committed two violations of Arkansas Code Annotated § 7-6-207(b)(1)(C), which requires that the cumulative amount from a donor be listed on the CC&Es.
Given the obvious nature of this violation, I would expect the Ethics Commission to open an investigation pretty quickly. Whether Hutchinson will admit his mistake and return the illegal $5,400 promptly remains to be seen.
According to her Campaign Contribution & Expenditure (CC&E) reports, Rutledge received a $2,700 contribution from “Republican Attorneys General Association Arkansas PAC” on May 21, 2018. Thing is, that PAC did not register with the Arkansas Secretary of State until May 29, 2018. That May 21 contribution was, therefore, illegal on its face under Arkansas Code Annotated 7-6-203(a)(1)(B).
In a letter dated October 22, 2018, the Ethics Commission wrote (emphasis added):
It has been determined that said complaint meets the requirements set forth in subparagraph A(3) of Section V of the Ethics Commission’s Rules of Practice and Procedure. Accordingly, an investigation is being commenced.
Generally, the next step for such a complaint will be a probable-cause hearing after the investigation has concluded. If the Ethics Commission finds probable cause to believe that a violation occurred, they will make a settlement offer to Rutledge. If the settlement offer is rejected, a full hearing will be held, at which time the Commission will rule.