by Max Brantley
I now have a thorough legal defense of the state taxpayer-financed politicking in the form of a legal memorandum from the Department of Human Services. It's a persuasive case. Doesn't make them right on the facts or honest in their presentation, of course. Just legal.
(Does anybody but me think it a little strange that one of the biggest arguments against this law to provide relief for sick people is that licensed physicians will abuse the law and give out prescriptions willy nilly, if it's marijuana. Has it occurred to anyone that this same argument could be used regarding legal — and much more dangerous — prescription painkillers, stimulants and other drugs?)
PS — Some 70 doctors will announce their support for the initiative today. Also, another group of about 25 doctors announced an ad hoc group opposed to use of marijuana as medication.
The DHS analysis follows. It is lengthy:
The question is whether officials of the state office responsible for the treatment of drug abuse may speak publicly on a ballot measure related to the availability of drugs. There are three laws to consider in answering this question, two state laws and the Hatch Act. All laws on the same subject must be read harmoniously if possible. That is, one law cannot be read to conflict with another unless the conflict is unavoidable and irreconcilable.
The first law is the federal Hatch Act. As you pointed out in your blog, that law does not restrict the activities in question because it only prohibits “partisan” political activity. Hatch Act guidance from the U.S. Office of Special Counsel lists the following permitted activities for state employees:
State and Local Employees — Examples of Permitted Activities
Employees may, for example:
register and vote as they choose
assist in voter registration drives
express opinions about candidates and issues
contribute money to political organizations
attend political fundraising functions
attend and be active at political rallies and meetings
join and be active members of a political party or club
sign and circulate nominating petitions
campaign for or against referendum questions, constitutional amendments and/or municipal ordinances
campaign for or against candidates in partisan elections
make campaign speeches for candidates in partisan elections
distribute campaign literature in partisan elections
campaign for and hold office in political clubs or parties
volunteer to work on a partisan political campaign
participate in any activity not specifically prohibited by law or regulation
Arkansas law for all state employees is found at Ark. Code Ann. § 7-1-103. It, too, applies to partisan elections, and defines elections and campaigns as the campaigns of candidates for elective office. Support or opposition for ballot measures is expressly permitted.
(a) The violation of any of the following shall be deemed misdemeanors punishable as provided in this section:
(1) It shall be unlawful for any person to appoint or offer to appoint anyone to any office or position of trust or for any person to influence, attempt to influence, or offer to influence the appointment, nomination, or election of any person to office in consideration of the support or assistance of the person for any candidate in any election in this state;
(2)(A)(i) 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.
(ii) Devoting any time or labor during usual office hours toward the campaign of any other candidate for office or for the nomination to any office includes without limitation the gathering of signatures for a nominating petition.
(B) It shall be unlawful for any public servant, as defined in § 21-8-402, to circulate an initiative or referendum petition or to solicit signatures on an initiative or referendum petition in any public office of the state, county, or municipal governments of Arkansas or during the usual office hours or while on duty for any state agency or any county or municipal government in Arkansas.
(C) It shall be unlawful for any public servant, as defined in § 21-8-402, to coerce, by threats or otherwise, any public employee into devoting time or labor toward the campaign of any candidate for office or for the nomination to any office;
(3)(A) It shall be unlawful for any public servant, as defined in § 21-8- 402, to use any office or room furnished at public expense to distribute any letters, circulars, or other campaign materials unless such office or room is regularly used by members of the public for such purposes without regard to political affiliation. It shall further be unlawful for any public servant to use for campaign purposes any item of personal property provided with public funds.
(B) As used in subdivision (a)(3)(A) of this section, "campaign materials" and "campaign purposes" refer to the campaign of a candidate for public office and not efforts to support or oppose a ballot measure;
(4) It shall be unlawful for any person to assess any public employee, as defined in § 21-8-402, for any political purpose whatever or to coerce, by threats or otherwise, any public employee into making a subscription or contribution for any political purpose;
(5) It shall be unlawful for any person employed in any capacity in any department of the State of Arkansas to have membership in any political party or organization that advocates the overthrow of our constitutional form of government;
(6) It shall be unlawful for any campaign banners, campaign signs, or other campaign literature to be placed on any cars, trucks, tractors, or other vehicles belonging to the State of Arkansas or any municipality, county, or school district in the state;
(7)(A)(i) All articles, statements, or communications appearing in any newspaper printed or circulated in this state intended or calculated to influence the vote of any elector in any election and for the publication of which a consideration is paid or to be paid shall clearly contain the words "Paid Political Advertisement", "Paid Political Ad", or "Paid for by" the candidate, committee, or person who paid for the message.
(ii) Both the persons placing and the persons publishing the articles, statements, or communications shall be responsible for including the required disclaimer.
(B)(i) All articles, statements, or communications appearing in any radio, television, or any other electronic medium intended or calculated to influence the vote of any elector in any election and for the publication of which a consideration is paid or to be paid shall clearly contain the words:
(a) "Paid political advertisement" or "paid political ad"; or
(b) "Paid for by", "sponsored by", or "furnished by" the true sponsor of the advertisement.
(ii) Both the persons placing and the persons publishing the articles, statements, or communications shall be responsible for including the required disclaimer;
(9)(A) No election official acting in his or her official capacity shall do any electioneering on any election day or any day on which early voting is allowed. Except as provided in subdivisions (a)(9)(B) and (C) of this section, no person shall hand out or distribute or offer to hand out or distribute any campaign literature or any literature regarding any candidate or issue on the ballot, solicit signatures on any petition, solicit contributions for any charitable or other purpose, or do any electioneering of any kind whatsoever in the building or within one hundred feet (100<
(B) During early voting days, no person shall hand out or distribute or offer to hand out or distribute any campaign literature or any literature regarding any candidate or issue on the ballot, solicit signatures on any petition, solicit contributions for any charitable or other purpose, or do any electioneering of any kind whatsoever during early voting hours in the building or within one hundred feet (100<
(C) When the early voting occurs at a facility other than the county clerk's office, no person shall hand out or distribute or offer to hand out or distribute any campaign literature or any literature regarding any candidate or issue on the ballot, solicit signatures on any petition, solicit contributions for any charitable or other purpose, or do any electioneering of any kind whatsoever in the building or within one hundred feet (100<
(10) No election official shall perform any of the duties of the position before taking and subscribing to the oath provided for in § 7-4-110;
(11) No person applying for a ballot shall swear falsely to any oath administered by the election officials with reference to his or her qualifications to vote;
(12) No person shall willfully cause or attempt to cause his or her own name to be registered in any other election precinct than that in which he or she is or will be before the next ensuing election qualified as an elector;
(13) During any election, no person shall remove, tear down, or destroy any booths or supplies or other conveniences placed in any booth or polling site for the purpose of enabling the voter to prepare his or her ballot;
(14) No person shall take or carry any ballot obtained from any election official outside of the polling room or have in his or her possession outside of the polling room before the closing of the polls any ballot provided by any county election commissioner;
(15) No person shall furnish a ballot to any elector who cannot read informing him or her that it contains a name or names different from those that are written or printed thereon or shall change or mark the ballot of any elector who cannot read so as to prevent the elector from voting for any candidate, act, section, or constitutional amendment as the elector intended;
(16) No election official or other person shall unfold a ballot or without the express consent of the voter ascertain or attempt to ascertain any vote on a ballot before it is placed in the ballot box;
(17) No person shall print or cause to be printed any ballot for any election held under this act with the names of the candidates appearing thereon in any other or different order or manner than provided by this act;
(18) No election official shall permit the vote of any person to be cast in any election precinct in this state in any election legally held in this state when the person does not appear in person at the election precinct and actually cast the vote. This subdivision (a)(18) shall not apply to persons entitled to cast absentee ballots;
(19)(A) No person shall vote or offer to vote more than one (1) time in any election held in this state, either in person or by absentee ballot, or shall vote in more than one (1) election precinct in any election held in this state.
(B) No person shall cast a ballot or vote in the preferential primary of one (1) political party and then cast a ballot or vote in the general primary of another political party in this state;
(20) No person shall:
(A) Vote, knowing himself or herself not to be entitled to vote;
(B) Vote more than once at any election or knowingly cast more than one (1) ballot or attempt to do so;
(C) Provide assistance to a voter in marking and casting the voter's ballot except as provided in § 7-5-310;
(D) Alter or attempt to alter any ballot after it has been cast;
(E) Add or attempt to add any ballot to those legally polled at any election either by fraudulently introducing it into the ballot box before or after the ballots have been counted or at any other time or in any other manner with the intent or effect of affecting the count or recount of the ballots;
(F) Withdraw or attempt to withdraw any ballot lawfully polled with the intent or effect of affecting the count or recount of the ballots; or
(G) In any manner interfere with the officials lawfully conducting the election or the canvass or with the voters lawfully exercising their right to vote at the election;
(21) No person shall make any bet or wager upon the result of any election in this state;
(22) No election official, poll watcher, or any other person in or out of this state in any primary, general, or special election in this state shall divulge to any person the results of any votes cast for any candidate or on any issue in the election until after the closing of the polls on the day of the election. The provisions of this subdivision (a)(22) shall not apply to any township or precinct in this state in which all of the registered voters therein have voted prior to the closing of the polls in those instances in which there are fifteen (15) or fewer registered voters in the precinct or township; and
(23) Any person, election official, county clerk, or deputy clerk who violates any provisions of the absentee voting laws, § 7-5-401 et seq., shall be punished as provided in this section.
(b)(1) Except as otherwise provided, the violation of any provision of this section shall be a Class A misdemeanor.
(2)(A) Any person convicted under the provisions of this section shall thereafter be ineligible to hold any office or employment in any of the departments in this state.
(B)(i) If any person is convicted under the provisions of this section while employed by any of the departments of this state, he or she shall be removed from employment immediately.
(ii) 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.
(c) Any violation of this act not covered by this section and § 7-1-104 shall be considered a Class A misdemeanor and shall be punishable as such.
As noted, Ark. Code Ann. § 20-76-207 is an additional provision for Department of Human Services employees. When reading that statute, it is important to note that subdivision (b)(1) forecloses any restriction more onerous than the Hatch Act unless that restriction is specifically stated within § 207. The Hatch Act does not restrict activities related to ballot measures, and Hatch Act guidance expressly permits employees to speak on ballot measures. Thus, § 207 cannot apply here because it contains no restriction related to ballot measures.
Moreover, Ark. Code Ann. § 7-1-103(a)(3)(B) specifically allows state employees to express opinions on ballot measures. There is a conflict between two statutes only if § 207 prohibits what § 103(a)(3)(B) permits. However, both statutes may be read together harmoniously because § 207 is silent on the subject of ballot measures, and thus creates no conflict.
Your email specifically mentions subdivision (a)(1), which refers to interfering with or affecting the results of elections. Throughout the Arkansas code, “election” is defined as the election of a candidate to public office. To “elect” is to “select by vote for an office or for membership.” American Heritage Dictionary, 442 (2d College Ed. 1982). If successful, the Medical Marijuana ballot measure will pass, it will not be “elected.”
Nor does speaking to a ballot measure constitute a prohibited political purpose or prohibited partisan political activity. Read in context, when (a)(1) refers to “political” and “activity,” it means partisan political activities, not ballot measures. For example, (a)(2) states that no employee shall devote any efforts during office hours to “any partisan political activity, nor shall any activity be conducted upon the premises …” Clearly the General Assembly saw no need to apply modifiers each time it used a word, for unless “activity” means “partisan political activity,” (a)(2) prohibits employees from doing anything at all during working hours. Similarly, when (a)(4) refers to “political activity,” it must mean partisan political activity. Otherwise, there is no frame of reference to identify an “allowable political activity,” which in context clearly means partisan political activity that is not carried out during working hours or using communication, vehicles, stationery, or other material property of the State of Arkansas. As a result, there is no basis to infer any application of (a)(1), (a)(2), or (a)(4) to a ballot measure.
For all these reasons, it is our opinion that the statements regarding the Medical Marijuana ballot initiative are legal.
(a)(1) No officer or employee of the appropriate division of the Department of Human Services or of a county office shall use his or her official authority to influence or permit the use of the program administered by the division or the county offices for the purpose of interfering with an election or affecting the results thereof or for any political purpose.
(2) No officer or employee shall devote his or her office hours, or efforts during office hours, towards any partisan political activity, nor shall any activity be conducted upon the premises of the employee or officer's agency, commission, or board.
(3) Furthermore, no communication, vehicles, stationery, or other material property of the State of Arkansas shall be utilized for any partisan political activities by the officers or employees.
(4) No officer or employee shall conduct himself or herself in such a manner during allowable political activity so as to reflect that his or her position is that of the State of Arkansas, or his or her agency, commission, or board.
(b)(1) Except as noted otherwise in this section or as necessary to meet the requirements of federal law as pertains to employees, no restrictions shall be imposed upon the political freedoms of an officer or employee.
(2) No officer or employee shall be deprived either of his or her right to vote or expression of opinion as a citizen on political subjects.
(c)(1) No officer or employee shall solicit or receive directly or indirectly any political funds or contributions from other officers or employees of that agency; nor shall any officer or employee be obliged to contribute or render services, assistance, subscriptions, assessments, or contributions for any political purposes.
(2) However, during nonduty hours and away from state premises, an officer or employee may communicate through the mails requests for political support from the public at large which may include officers and employees of the agency.
(d) Any officer or employee of the division or of a county office violating this provision shall be subject to discharge or suspension or such other disciplinary measures as may be provided by the rules and regulations of the division.