Stonewalling continues on the legal questions surrounding the lawsuit filed by 18 state lawmakers alleging unconstitutional overreach by Health Department Director Jose Romero in issuing rules endorsed by Governor Hutchinson as emergency responses to the coronavirus pandemic.
Rep. Dan Sullivan (R-Jonesboro) is the lead legislator in the effort and I checked back with him today on questions raised when the suit was filed.
Governor Hutchinson, for one, called on the legislators to identify who was paying the legal bill for Travis Story, the suit’s lawyer and former law partner of one of the plaintiffs, Sen. Bob Ballinger.
Sullivan said at the time the suit was filed that the money was “collected” by the Northeast Arkansas Tea Party and Reopen Arkansas as well as from legislators. He specified no amounts. He did not reveal who contributed to the two groups. He didn’t specify which lawmakers contributed and how much.
I sought more specifics from him today — both as to donors and about ethical questions raised by the lawsuit — and got this response:
1. None of the law makers collected $ so we have no record of donors to disclose.
2. I disagree that there are any ethical issues.
I’m attempting some followups.
First, I agree that the lawmakers aren’t required to make the two groups disclose their donors, though I think the governor’s call for transparency is fair.
But the issue is NOT that they didn’t collect the money. The issue is that the lawmakers might be BENEFITTING from the money.
Here’s what we need to know. How much the legal expenses are and what the pro-rata share of those costs are for legislators. (There are also non-legislative plaintiffs.)
Two issues are at work:
The lawsuit is filed in the legislators’ “official capacity.” State law is clear. A lawmaker may not receive a benefit (anything of value) for performing the duties and responsibilities of the office. The lawsuit says explicitly that legislators are suing in their official capacity. If they are subsidized by others in their legal fees here, they are getting a benefit.
Even if that particular law doesn’t apply, lawmakers are also prohibited from receiving gifts, defined as things with a value of more than $100 (except from relatives and the like.)
If the subsidy of legal representation by others ends up being worth more than $100 to an individual legislator, it would be prohibited by ethics law. Or so it seems to me.
I’ve asked Sullivan for more legal defense of legislators’ receipt of below-cost legal services. Or, alternately, a full disclosure that all legislator plaintiffs will be paying their pro-rata share of all fees and costs. (Legally, I think the outside money can only go to subsidize the non-legislative plaintiffs if the ethics law means anything.) I’ve also encouraged him to reveal more about the identities of the financiers of the lawsuit, as the governor has suggested.
Should he provide more information, I’ll pass it along.
UPDATE: To multiple questions, I got this response:
I can’t disclose what I don’t know. I have no idea who donated.
He wouldn’t address the ethical issues of financial subsidies for legislators.
If Arkansas had an Ethics Commission worth the name, it would investigate the slippery slope on display here. If lawmakers can rely on secret financial subsidies to bankroll pet political lawsuits for themselves or their lobbyist benefactors it will not be the last time we see such a perversion of ethical standards.