The Arkansas Times confirms a rumor that has been circulating for a month or so, that outgoing State Sen. Trent Garner is employed by the Union County Public Defender’s Office. According to the Times:
A call to the Union County public defender’s office confirmed his employment there. Garner appears on the state employee roster as an attorney specialist for the Arkansas Public Defender Commission, at a salary of $59,999.94.
And, as noted by the Times, the state transparency website bears this out:
Reading this, two separate things immediately came to mind. The first is that Garner does not exactly have a record that would suggest that he is supportive of the mission of public defenders generally.
The second–and the one that I think most people will find more interesting–is that state law specifically prohibits Garner from having that job until after he is out of office.
You see, the Arkansas Public Defender Commission is a state agency, created by statute in 1993.1 The commission is composed of seven members, appointed by the Governor, and is headed by an executive director that is selected by the commissioners. That’s all pretty straightforward.
Where it gets sticky, at least for Garner, is Ark. Code Ann. § 21-1-402. This statute states, in pertinent part, “Subject to any restriction or condition prescribed by the Arkansas Constitution and except as provided under subdivisions (a)(2) and (3) of this section and subsection (f) of this section, and unless the person resigns before entering into the employment, a person elected to a constitutional office, after being elected to the constitutional office and during the term for which elected, shall not enter into employment with…any state agency.” Moreover, for our purposes here, “‘State agency’ means every board, commission, department, division, institution, and other office of state government whether located within the legislative, executive, or judicial branch of government and including state-supported colleges and universities.”2
Now, I know what you may be thinking. Doesn’t “constitutional officer” include only the statewide offices like Governor, Lt. Governor, etc.? While that may be the colloquial usage of the term, for purposes of this particular statute, “‘Constitutional officer’ means Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Attorney General, Commissioner of State Lands, Auditor of State, member of the Arkansas House of Representatives, and member of the Arkansas Senate.“3
The statute does not make an exception for a lame-duck senator who will be out of office next January, either. Quite the contrary; it explicitly says that such employment is prohibited “during the term for which elected,” and the only exception is where “the person resigns before entering into the employment.” So, at least on the surface, it is pretty clear that Trent Garner’s employment is violating Ark. Code Ann. § 21-1-402.
If that earlier paragraph was where it got sticky for Garner, however, here where it potentially turns into a La Brea Tar Pits-level kind of sticky. Under Ark. Code Ann. § 21-1-405(a), “Any knowing violation of this subchapter is a Class D felony.”
Admittedly, “knowing” is a high bar to clear in a criminal prosecution. Someone “acts knowingly with respect the person’s conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist.”4 So that could provide Garner with some wiggle room.
Of course, to take advantage of that potential out, Garner would have to believably claim that he was unaware that, by being a state senator, he was prohibited from taking this job until after his term expired. He might be able to skirt it by claiming that he was unaware that this job was a position with a state agency, since he’s reporting to the Union County Public Defender’s Office, but that’s a stretch. As someone who worked in the Pulaski County Public Defender’s Office first as an investigator, I was acutely aware that investigators and other staff were county employees, while public defenders were state employees with different insurance and benefits. I struggle to believe that anyone but a wholly incompetent lawyer who is already on the state payroll would be unaware that this new job was also state employment.
There are two other aspects to this that could conceivably protect Garner from the worst outcomes here. The first is that complaints about a violation of this statute seem designed to be handled by the Arkansas Ethics Commission.5 As we’ve seen multiple times, the AEC is slow to resolve complaints and reticent to do much in the way of holding violators accountable.
The second is that the venue for any criminal prosecution for violating the prohibition on state employment is “the county of the defendant’s domicile.”6 I could be wrong, but I have a hard time imagining that charges for this would be filed and prosecuted in Union County when that is part of Garner’s district and when Garner’s seat is likely to be filled by Garner’s father-in-law Matt Stone in the November general election.
On the other hand, even if there are never criminal charges brought, I suppose a citizen who was concerned about Garner’s violation of the law could file an illegal-exaction suit and seek to have Garner reimburse the state for any salary he has drawn so far in this new job. That’s sort of beyond the scope of this post, however, so we’ll save it for another day.
As a final, preemptive note, let me add this: the statute makes clear that, for this kind of employment to be legal, the elected official has to resign his elected position before beginning the employment with the state agency. This means, unequivocally, that Garner cannot just resign his elected position now and continue on with the public defender position, as if there is no harm, no foul. The employment remains illegal in that scenario.
That said…if Garner did go ahead and resign his senate seat right now, it’s entirely possible that folks would be so happy that he was out of office, they might not even press the issue of whether his hiring as a public defender was illegal. So, maybe give that a try, ya know?
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