Legality of mayor's e-mails on tax issues questioned

August 3, 2001

Two e-mail letters from Mayor Kay Barnes urging people to vote "yes" on two tax increases Tuesday may be unlawful, according to an opinion by an attorney in the city's law department.

The e-mails — headlined "Message from the Mayor" — went to about 850 persons from a computer in the mayor's office on July 30 and Aug. 2.

The July 30 e-mail discussed the mayor's support for a light-rail proposal that calls for a half-cent, 25-year sales tax increase. The e-mail concludes, "I urge you to familiarize yourself with all of the issue (sic) pertaining to light rail and vote yes on Aug. 7."

The Aug. 2 e-mail discusses the mayor's view of a quarter-cent, 15-year sales tax increase for the Fire Department and also urges a "yes" vote.

Barnes routinely sends e-mails to constituents in which she discusses issues facing the city. She said Friday that she did not think her latest e-mails were unlawful and that if they were later shown to be improper, she would reimburse the city for any costs incurred.

"I have operated under the assumption — because it's been said to me several times by several attorneys — that elected officials are exempt from the requirements that other city employees operate under," Barnes said. "That was the basis on which I've been operating, that we are free to advocate and express our views....I was not aware there were any exceptions to that. So if it is a problem, obviously I won't do it again."

But in an Aug. 2 memo that was anonymously faxed to the media from the office of the City Council on Friday, Assistant City Attorney Bill Geary wrote: "You have asked if a council member may use the city's e-mail system to urge a particular vote on a specific ballot issue. It is my opinion use of city e-mail to advocate the passage or defeat of a ballot measure is unlawful."

The memo cites a state law saying that no expenditure of public funds shall be made by any officer of a political subdivision to advocate, support or oppose any ballot measure. It also cites an attorney general's opinion that a mass mailing from the St. Louis mayor on a ballot measure there was unlawful.

Geary's memo said that providing factual information to voters is not unlawful but that use of the city's e-mail system to urge people to vote in a particular way is. Geary, however, would not comment Friday about his memo, except to say it was not referring to the mayor's e-mails, which he had not seen.

Councilman Paul Danaher, who opposes both tax increases, said Friday that after he saw the mayor's e-mails he asked Geary whether he could send an e-mail urging constituents to vote "no."

Danaher said he was not the person who released Geary's response to the media. And he said he did not think the mayor was blatantly trying to violate the law.

"I think it was a mistake," Danaher said. "Someone has to point out that things are getting out of hand....There's a difference between telling people your position and campaigning."

Mike Reid, director of compliance with the Missouri Ethics Commission, could not be reached for comment about the legality of the mayor's e-mails.

But Barnes' chief of staff, Joe Serviss, said he and others on Barnes' staff see the e-mails as a way to keep people informed about her views.

"We use this as an electronic press conference," Serviss said. "If there was a mistake, it was a high-tech mistake."

Serviss said that there was no intent to do anything wrong but that in the future, if the mayor urges people to take a particular side on a ballot measure, she would probably do it from a computer not on city property.

"We're caught off guard," Serviss said. "We didn't envision it would be a problem. She will do the appropriate thing."

Pat O'Neill, campaign consultant for a group that opposes the light-rail proposal, said the mayor's e-mail message was even more blatant than an earlier city brochure that also seemed to advocate positions on the tax issues.

"City Hall seems to be willing to push the legal envelope," O'Neill said. "We haven't discussed any formal complaint or action. It's causing us to shake our heads and wonder why they're so desperate."

To reach Lynn Horsley, City Hall reporter, call (816) 234-4317 or send e-mail to lhorsley@kcstar.com.