Ethics Commission opinion: Intent crux of legal-fee donation

LITTLE ROCK — Whether paying legal fees on behalf of lawmakers is an acceptable gift hinges on who is making the donation and that person’s intent, according to an advisory opinion the Arkansas Ethics Commission approved Thursday.

The advisory opinion was drawn up at the request of Sen. Alan Clark, R-Lonsdale. Clark is one of 18 legislators named as plaintiffs in a lawsuit alleging Gov. Asa Hutchinson’s response to the coronavirus pandemic exceeds his authority.

After an extensive discussion of a draft version of the opinion at last month’s meeting, commissioners voted to have staff members revise the proposal to clarify that such payments can be considered gifts under state law.

The revised opinion states that the donor and his or her subjective intent determine whether the payment of legal fees would violate state law. Arkansas Code Annotated 21-8-801 prohibits the receipt of a gift or compensation intended to reward a public servant for doing his job.

Arkansas legislators cannot legally allow a lobbyist, a person acting on behalf of a lobbyist, or a person employing or contracting with a lobbyist to pay legal fees on that legislator’s behalf.

“Legislators should identify the donor before allowing someone to pay his or her legal fees,” the opinion states.

If the payment exceeds $ 100, it would be considered a gift and the intent of the donor would determine whether it would violate Arkansas Code Annotated 21-8801, according to the advisory opinion.

“It wouldn’t be advisable for a legislator or anybody else subject to the prohibition set out in the constitution to accept payment for legal fees without knowing who was paying it or giving,” Drew Blankenship, staff attorney for the Ethics Commission, said. “Accepting legal fees or payment of legal fees from somebody who meets that description is just flatly prohibited in the constitution.”

Clark wrote a letter to Ethics Commission Chairwoman Ashley Driver Younger on Oct. 5 asking whether paying for the expense of the litigation could be considered a gift to the legislative plaintiffs. He did not return requests for comment Thursday evening.

Rep. Dan Sullivan, R-Jonesboro, another plaintiff in the lawsuit, has said the Northeast Arkansas Tea Party and Reopen Arkansas collected the money to pay for the suit.

Blankenship stressed Thursday that advisory opinions aren’t meant to apply to actions that have already taken place.

“I just want to get it out on the record as much as we can that an advisory opinion is not designed to make factual findings about things that have already occurred, which this lawsuit did,” Blankenship said.

He added that the opinion is consistent with past advisory opinions and decisions by the commission.

Alice Eastwood, the commission’s vice chairwoman, said the revised opinion was much cleaner and that she agreed with the analysis. Eastwood made the motion to approve the opinion, which commissioner Lori Klein seconded. The vote was unanimous.

The suit was dismissed by Pulaski County Circuit Judge Wendell Griffen in October. The ruling has been appealed to the state Supreme Court.

In addition to Clark and Sullivan, the other lawmakers named as plaintiffs in the suit are: Sens. Bob Ballinger, R-Berryville; Kim Hammer, R-Benton; Terry Rice, R-Waldron; and Gary Stubblefield, R-Branch, as well as Reps. Mary Bentley, R-Perryville; Harlan Breaux, R- Holiday Island; Bruce Cozart, R-Hot Springs; Justin Gonzales, R-Okolona; Stephen Meeks, R- Greenbrier; Josh Miller, R- Heber Springs; John Payton, R-Wilburn; Marcus Richmond, R-Gravelly; Laurie Rushing, R-Hot Springs; Brandt Smith, R-Jonesboro; Nelda Speaks, R-Mountain Home; and Richard Womack, R-Arkadelphia.