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,

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."]