Has it really been nearly two weeks already? It seems like only yesterday that Mike Huckabee (R-Florida) was still clinging to the chimeric belief that he could be President. Which means it also seems like only yesterday that the most devoted of Hucksterites–Treasurer of State Dennis Milligan and Attorney General Leslie Rutledge–put their elected duties on the back burner and traipsed to Iowa to help Wayne DuMond’s buddy in his final efforts to fool bamboozle woo the Hawkeye-state voters.
Because this story made clear that Rutledge and Milligan would be in Iowa to assist Huckabee on (at least) Thursday, Friday, and Monday (Jan. 28, Jan. 29, Feb. 1), I filed a complaint with the Arkansas Ethics Commission, citing Arkansas Code Annotated 7-1-103, which states:
It shall be unlawful for any public servant, as defined in 21-8-402, 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.
The simplest answer for Rutledge and Milligan would have been to claim that their trips were related to state business, rather than actually being for the Huckabee campaign; unfortunately, their interviews with the Democrat-Gazette and the pictures of them that showed up on social media made that lie unavailable to them.
Make Like A Tree….
Undaunted, both constitutional officers chose a different approach: they told any media who asked them about the allegations that they had taken leave for the trip.
Rutledge’s Spokesperson Judd Deere released this statement to Channel 7 News:
Attorney General Leslie Rutledge was on personal leave on Thursday and Friday.
KATV has reached out to Milligan’s spokesperson, Grant Wallace, who released this statement:
The Treasurer has been on personal leave since last Thursday.
Funny thing about that position, however, is that it is a lie that is premised on something that is literally impossible, because constitutional officers do not have any form of unpaid leave available to them.
Under the Arkansas Constitution, constitutional officers “shall be paid” a set amount of salary per year. 1 Thus, whether that officer is sick and takes a week off, travels to the moon, or decides “screw it…I’m heading to Belize for a month,” so long as the person is not removed from office, they are paid their full annual salary on a bi-weekly basis.
More importantly, perhaps, the uniform leave rules for state employees specifically do not apply to the constitutional officers. So, in terms of how the state does payroll, there is no way for a constitutional officer to request, track, or input leave in a way that would deduct from their salary.
To verify this theory, I requested leave records from the AG’s office and the Treasurer’s office for the relevant period of time. I specifically requested all records relating to leave taken by Ms. Rutledge or Mr. Milligan.
Here are the records from the Attorney General’s office. Spoiler alert: Ms. Rutledge is not listed.
Here are the records from the Treasurer’s office. Spoiler alert: No Milligan, either.
Ignorance of the Law is No Excuse.
Given that the lack of leave in these records, obtained days after the fact, shows no leave for either constitutional officer, we can surmise that both were fully aware that they had not taken unpaid leave at the time they departed for the balmy shores of Iowa, right? So why would they use this excuse at all?
Apparently, it is because at least one of them was aware of a 2002 Ethics Commission advisory opinion, stating that campaigning on state time was illegal under the statute, but that it would not apply if a person “has taken vacation or other personal leave to devote time or labor to campaign activities.”2 Except, again, constitutional officers do not have “vacation or other personal leave” time.
At first blush, perhaps this seems odd. Are we saying that constitutional officers don’t ever get time off? Not at all. What we are saying is that, if a constitutional officer takes a personal day (or forty personal days), he or she is still getting paid. If he or she is sick, he can stay home and not have to track the leave time or have his or her salary docked. If the officer feels like he or she needs a vacation, the officer can do that and not have to worry about vacation days or decreased salary in the next paycheck.
In exchange for that flexibility ability to do state work in the manner that the officer sees fit, we simply impose one requirement — that the constitutional officer not abuse the system by going off and campaigning for someone else during usual business hours. In that instance–and that instance alone–we as a state take the position that an officer is not allowed to skip out on the duties of the office to which he was elected in order to go play politician for someone else.
We don’t even say that a constitutional officer cannot campaign for someone else outside of usual office hours3 After 4:30 or 5pm, those officers can campaign for absolutely anyone they want. On weekends and holidays? Campaign away, Mr. Treasurer; no one is stopping you. Just do not do it when your office is open and you should–in theory–be doing the state-related work that you were elected to perform.
You do recall which position you were elected to, don’t you?
History of the Rule.
If you’re the curious (read: nerdy) type, you might wonder how this statute came about. Well, allow BHR to save you a trip to the microfiche room of your local library.
For many, many years, Arkansas’s public-school system was headed by a State Superintendent of Public Instruction, which was an elected, state-level position with a two-year term that mirrored the terms of constitutional officers.4
In 1914, then-superintendent George B. Cook was running for re-election to the seat, and he came under heavy scrutiny by the Arkansas Gazette for Cook’s use of his state-provided office as a campaign headquarters and his use of other public employees to campaign on his behalf during normal office hours. When the 1915 regular session of the General Assembly rolled around, Representative C.E. Condray of Faulkner County introduced HB 457, “To Prevent Offices and Rooms Furnished by State to Officials from Being Used as Political Headquarters and to Promote Better Service on the Part of Public Officials.” The bill passed quickly through both chambers and became law as Act 219 on March 23, 1915.
As is pertinent here, section two of Act 219 read:
It shall be unlawful for any public officer, deputy, or assistant 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.
Meaning that, in the 100+ years since this was passed, the only change to the law was to replace “public officer, deputy, or assistant” to “public servant, as defined in 21-8-402.” The substance of the law has remained unchanged, even as Arkansas laws were recodified, first in the Annotated Statutes in 1947, then again in the Annotated Code in 1987. In fact, despite 24 amendments to the provisions of Ark. Code Ann. 7-1-103 from 1969 to present, no change has been made to the substantive ban on campaigning for others during normal office hours.
Nor would you really expect a change to be made. One assumes that both Ms. Rutledge and Mr. Milligan, like all constitutional officers before them from 1915 to 2014, were aware at the time that they sought constitutional office that the job paid a set salary and that there was no unpaid leave to go along with the position. Neither of them complained while campaigning that they would be paid a set salary regardless of whether they actually showed up at the Capitol, nor has Mr. Milligan found it burdensome since taking office to be able to leave whenever he wants (if he shows up at all on a given day). To complain now, when the complaint is tied to a desire to go carry water for Mike Huckabee, is not only disingenuous; it’s downright offensive.
After all, I think we can all agree that an elected official should not be out campaigning for someone else while still being paid as if he or she was at work. This campaigning serves no purpose vis-a-vis one’s elected job duties, of course, and we should expect our elected officials to perform their jobs first and foremost. To that end, such a narrowly tailored time/place restriction on public servants is hardly violative of the constitution, no matter how much Rutledge, Milligan, or Milligan’s legal strumpet Byron Freeland might proclaim otherwise.
Three Bits of Irony.
Three interesting nuggets of irony popped up in the research and writing of this post.
First, it would appear that Mr. Huckabee agrees with the idea that Mr. Milligan and Ms. Rutledge violated the law, since it was Huckabee who cited the very same statute in 2002 when he complained about Democrat lawmakers’ having a press conference to urge the dismantling of the Arkansas Administrative Statewide Information System.
Second–and by far the funniest twist, in my opinion–is that the person who actually filed the 2002 complaint for Huckabee? None other than Milligan’s current lackey, Jason Brady, who was then campaign manager for Huckabee. So, I suppose Mr. Brady also sees the problem with his current boss going to Iowa to campaign for his former boss while the current boss still drew his state salary.
Finally, Ms. Rutledge’s reliance on the 2002 ethics opinion, despite the fact that it does not apply to her situation (since she lacks leave or personal vacation time), is extra entertaining in light of the fact that the Arkansas Attorney General’s Office–whose opinions should be more familiar to her, one would assume–specifically noted in a 1992 opinion that, “[i]f the described activity in this instance occurred during usual office hours, it is my opinion that a violation of A.C.A. § 7-1-103(a)(2)(A) may be found.” But maybe Ms. Rutledge thinks that she understands the law better than Winston Bryant did.
Not that her track record would suggest anything of the sort.
Section 7-1-103(b)(2)(B)(ii) specifically notes:
If any person is convicted under the provisions of this section while holding public office, the conviction shall be deemed a misfeasance and malfeasance in office and shall subject the person to impeachment.
To reach that point, however, would require Pulaski County Prosecuting Attorney Larry Jegley to prosecute the A-misdemeanor violation of section 7-1-103(a)(2)(A). I have doubts as to whether that has any chance of happening, no matter what actions are taken, but I can say with some certainty that, if there were going to be a prosecution, it would require someone (or, more likely, many someones) to channel their inner Milligan, walk into the prosecutor’s office, and file a complaint.
To the extent this opinion is referring to paid vacation time, I do not think this is a correct interpretation of the statute; however, this interpretation likely avoids certain constitutional issues, discussed below, so I’m not particularly troubled by it.↩
Which is a condition we put on our judges, by the way.↩
This office was abolished in 1931.↩