By AMY RILEY
One Citizen's Perspective

Having read with growing interest coverage of the various ethics violation charges brought against local people campaigning prior to last September's special local option sales tax (SPLOST) vote, I began to wonder what is legal when people seek to sway public opinion on a ballot question.

I had believed the Georgia Ethics in Government Act to be a legal document governing candidate behavior, primarily to prevent campaign contributions from corrupting the political process. I had never thought of the act in terms of small scale, local level political expression — until now.

The first round of charges against SPLOST proponent Janet Smola, chairman of Fayette Citizens for Continued Excellence in Education (FCCEE), and the local school system were dismissed for lack of probable cause Nov. 8.

In round two, Smola filed charges against Carl Avrit, chairman of Fayette Citizens for Better Government (FCBG), a group opposed to the SPLOST. Avrit was responsible for the anonymous phone calls the weekend before the vote which urged voters to vote NO on the sales tax increase.

Of the three charges lodged against Avrit, two were dismissed. Avrit was found guilty of a violation for failing to include a tag line at the end of his phone message identifying himself as principal officer of his committee. He was issued a cease and desist order and no fine was imposed.

The result raised some questions. Was the case brought against Avrit a direct result of his decision to register as a campaign committee to fight the SPLOST and his failure to abide by the governing rules of the Ethics in Government Act? If so, then why had he registered in the first place? Would he have been within his rights to act as he did had he not registered?

According to the Georgia Ethics in Government Act, code section 21-5-3, the answer is no. Because Avrit accepted contributions and/or spent money in excess of $500 to hire a phone bank to make calls urging Fayette citizens to vote NO on the SPLOST, he was compelled by law to register with the Secretary of State's office as a campaign committee, and as such, was subject to all the rules therein.

Avrit's case aside, does any person who is willing to spend his or her own money to attempt to sway public opinion on an upcoming ballot question have to register with the state?

In my interpretation, according to the code, the answer is yes, if it involves paying someone else for goods and services, and you spend more than $500, though there is certainly ample room for interpretation in this law.

According to Darryl Robinson in the Georgia Attorney General's office, “noncandidate, local ballot question issues are a separate entity from state wide referendums and constitutional amendments.” In some instances, this law was not intended to apply to individuals acting in local ballot question elections.

Mr. Robinson adds, however, that “one can become a campaign committee de facto, by virtue of one's actions, primarily by accepting contributions from others.”

The bottom line is, there is no litmus test that one can always apply. According to Robinson, “citizens have some First Amendment rights that the government can't infringe on. At some point, these two issues [rights and the law] are going to bump against each other.”

Of all of the instances in which the ethics act comes in to play, local ballot questions are the most nebulous. To some extent these questions can only be answered when they are addressed as a violation before the committee. For those without the monetary means to advocate for constitutional rights, it would probably be a good idea to err on the side of caution and register.

Meanwhile, Janet Smola has been named again, this time along with Connie Leary and Don Apking, in ethics violation charges filed by Bill Webster.

Dr. John DeCotis, Fayette school superintendent, expressed his hope that the public and the school system could put all of this behind them soon and “get on with the business of meeting the needs of our children.”

Smola, who believes that the SPLOST would have passed were it not for Avrit's calls, indicated that she believed the latest charges were made in retaliation for the charges she brought against Avrit. A call to Bill Webster confirmed just that.

Webster, who believes that no one on either side willfully violated the act, believes that it would be irresponsible not to hold each party to the letter of the law. Webster also said, “She [Janet Smola] went out of her way to make Carl look bad because she lost. I thought it would be appropriate to put her through the same experience, and I do believe she violated the ethics code.”

Smola said, “This [process] has served to make every politician more careful about the presentation that they make to the public. If we have done nothing else, we have succeeded in that.”

Conversations with Carl Avrit and his attorney, Don Johnson, indicated that Avrit will appeal his Dec. 20 Commission ruling to either the Superior Court in Fayette County or to the U.S. District Court. The latter could produce a federal supplement decision which is needed in seeking a revision to the language of the law, should the Commission's decision be overturned.

According to Johnson, ACLU attorney Gerry Webber has also indicated an interest in filing a friend of the court brief along with Avrit's appeal. This means that the ACLU has a vested interest in the outcome of Avrit's case.

When asked on what grounds they intend to appeal, Johnson cited several issues. According to Johnson, the Ethics in Government Act is in derogation of common law, meaning the ethics code represents a deviation from common law, which knew no restrictions on speech. Therefore the new statute must be strictly construed. Since the act does not specifically define phone calls as advertising, Johnson argues that there can be no restriction made on the manner in which they are conducted.

The most compelling argument is a test case from Ohio, McIntyre v. Ohio Elections Commission, in which the U.S. Supreme Court overturned an Ohio court ruling that an individual violated an elections statute by failing to identify herself on handbills that she distributed urging voters to vote NO on an upcoming tax increase for schools.

The Supreme Court stated in their decision that, “even though [the Ohio statute] applies evenhandedly to advocates of differing viewpoints, it is a direct regulation of the content of speech.” Justice Stevens, writing for the majority, stated that “the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude.” The decision goes on to assert that a citizen's right to exercise free speech, anonymously if they so choose, goes to “the heart of the First Amendment protection.”

We probably have not seen the last of this case. I can sympathize with members of FCCEE who spent hours of personal time to support the passage of SPLOST for school construction. They were understandably disappointed. Have we subsequently unleashed a firestorm of charges centered around minutiae and technicalities and the parsing of words? Most certainly.

Where will it all lead? Only time will tell, but just so you know, there is no statute of limitations on charges of violations of the Ethics in Government Act. If the Avrit appeal makes it to the appellate court level without being overturned, the original commission decision will become a binding precedent.

In layman's terms, any other candidate or campaign committee in the state who utilized phone bank services without benefit of a tag line will be subject to the same charge. Considering the testimony of John Garst of Rosetta Stone Communications, who indicated that no one in the industry uses tag lines, this could be a mean season for the state Ethics Commission.

[Amy Riley is an Auburn University graduate — B.A. in psychology — who lives in Peachtree City with her husband and three children. She grew up in south Fulton County and describes herself as “a politically conservative, registered Republican, who is very intensely interested in government, policy and history.”]

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