Attorney: Mayor's e-mail urging vote illegal

August 6, 2001

KANSAS CITY, Mo. (AP) — E-mail messages from Mayor Kay Barnes urging a "yes" vote on light rail may have been illegal, according to a memo from the assistant city attorney.

City voters will decide Tuesday whether to add a half-cent sales tax to pay for a light rail line.

Assistant City Attorney Bill Geary wrote in a memo Thursday that he believes using city e-mail to advocate a position on a ballot question would be illegal. Geary told The Kansas City Star that his memo was not in direct response to Barnes' e-mails, which Geary said he hadn't seen.

The memo was faxed anonymously to The Star and other media Friday.

Barnes sent e-mails headlined "Message from the Mayor" to about 850 people from a computer in the mayor's office on July 30 and Aug. 2.

The July 30 e-mail discussed her support for the tax increase. The e-mail concludes, "I urge you to familiarize yourself" with the issue "and vote yes on Aug. 7."

The Aug. 2 e-mail discusses the mayor's view of a quarter-cent 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 she would reimburse the city for the cost if they were shown to be improper.

"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."

Geary wrote in the memo, "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 barring spending tax money to take a side on a 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 legal, but that use of the city's e-mail system to urge people to vote in a particular way is not.

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 trying to violate the law.

"I think it was a mistake," Danaher said.

Barnes' chief of staff, Joe Serviss, said he sees the e-mails as a way to keep people informed about the mayor's views.

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

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."