City Council President Arnie Fielkow has issued a newsletter on the taxpayer-financed city website that urges readers to vote for an upcoming ballot initiative, but he says his actions don’t violate state laws against using public funds to influence an election.
That’s because the newsletter, written by his communications director, didn’t cost anything beyond what the city already pays her, and posting it to the website didn’t cost anything extra either, Fielkow said.
“There’s no additional public dollars being spent,” he said in an interview Tuesday. “There certainly was no intent to violate the law.”
But Bill Bryan, an assistant attorney general for Louisiana who handles election issues, said public officials can’t use taxpayer money or public resources to persuade the electorate.
At issue is a proposed change to the New Orleans Recreation Department. Voters will be asked Oct. 2 to decide a change to the city charter that would remove the department from the city administration and put it under a newly formed New Orleans Recreation Development Commission, with a separate governing board.
Fielkow has championed the proposal and helped move it from being a concept to being a ballot proposition, and no law prevents him from speaking in favor of it. But the Louisiana Constitution says he can’t spend taxpayer money to push the issue:
“No public funds shall be used to urge any elector to vote for or against any candidate or proposition,” reads Article XI, Section 4.
It goes on to say that public money can be used to distribute factual information on the ballot item.
His newsletter is less of a factual exercise and more of a campaign speech:
“The election to reform NORD will take place on October 2nd,” it reads. “I encourage you all to get to the polls and vote YES for recreation reform, yes for our kids, yes for our seniors.”
As with most of Fielkow’s regular bi-weekly newsletters, this was written by his communications director Danielle Viguerie and approved by the councilman, he said.
“She’s an employee of my office, and my office is advocating for NORD,” Fielkow said.
A representative of the state public-policy watchdog organization said technology advancements have created a gray area in the law that should be addressed by state legislators.
“As Web and email communications have become cheaper and easier to use, it has become more difficult to draw the line,” said Jennifer Pike, research director for the Public Affairs Research Council of Louisiana. “Certainly, if a public employee prepares the communication while on the clock, there is a measurable public expense, and it would be a clear violation of the law. However, when there is no additional cost to add a new message to a blog or to send out an email and no staff time is used, where is the expenditure and how do you measure it?
“Until the law is clarified, it would be wise policy for public officials to keep their professional duties and political activity clearly separated and abstain from using publicly funded computers, Web sites, email systems or internet connections to distribute political communications.”
In addition to the constitution, the state elections codes make it a criminal offense to use public money to advocate for a ballot item, so Bryan said it would be up to the district attorney to consider any possible violations.
A representative for Orleans Parish District Attorney Leon Cannizzaro said the office doesn’t routinely investigate matters, generally relying on the police to examine a case. Still, it has the authority to do so, and has in some instances, such as post-Katrina contractor fraud.
“If a citizen came to this office with a complaint of criminal wrongdoing, we will investigate it,” Assistant District Attorney Chris Bowman said.
Fielkow said he’s well aware of the ban on using public money to influence the election, and insisted that he’s been careful not to do so.
He appeared aware of the legal line at a recent press conference alongside Mayor Mitch Landrieu, where they were marking the ceremonial beginning of the Joe Brown Park swimming pool.
According to an account in The Times-Picayune, Fielkow was hesitant:
“I can’t advocate for things up here. But I will tell you: Please, please, learn the facts.”
Landrieu, who also supports the initiative, leaned over and said, “Go ahead, you can advocate up here.”
Taking the cue, Fielkow seized the moment.
“Please, please in two weeks, please go to the polls and please vote yes for the NORD reform,” he said.
Landrieu spokesman Ryan Berni did not respond to a request asking about the propriety of the advocacy at a city press conference.