Olens clarified that no new legal ground has been “broken” during his correspondence with Barge via a letter of correspondence.
“[The letter] simply stated what the Georgia Supreme Court made very clear more than 30 years ago,” Olens said. “Local governments cannot expend taxpayer resources to tell taxpayers how to vote. This rule applies equally to supporters and opponents of the [constitutional charter] amendment.”
Barge previously provided to the press his proclamation of opposition toward the amendment and the proclamation was posted on the Department of Education’s website, www.doe.k12.ga.us, but the statements were removed from the website last week. Afterward, a banner stating the departments neutrality on such matters was posted on the site but has since been removed.
Olens said during the conference call this rule of law only applies to the use of taxpayer funds. In his letter to Barge, Olens cited the 1971 Georgia Supreme Court case Harrison v. Rainey, in which county commissioners were mailing brochures at county expense and urging voters to approve a referendum changing constitutional provisions regarding county government.
“Government officials and government employees still retain First Amendment rights to express their personal opinion, they simply don’t have the right under the First Amendment or any legal provision to expend public resources in communicating their opinions,” Olens said.
Olens refused to answer any questions regarding scenarios of government officials on the state or local level advocating for or against constitutional amendments, citing he currently was addressing the situation dealing with his client, Barge, and that any similar situation would have to be judged based on facts surrounding the situation. This leaves the matter unclear as to what constitutes the use of taxpayer funds by a government official or elected office or entity to show support for or against an issue ultimately left to voters.
“Some questions, like whether certain groups have broken the law, I can’t answer because they are fact-intensive questions and I don’t have the facts,” Olens said. “I’m not going to get into answering hypothetical questions about what does and doesn’t violate the law when I have an active matter on the issue.
“We’re currently working on advice to the state school superintendent on what enforcement mechanisms may be appropriate or necessary. Because that’s active, I’m not going to get into those details right now.”
The Daily Tribune News asked local attorney Boyd Pettit for his opinion on governmental leaders and bodies showing support for or against an issue while in their official capacity or during an official meeting. For example, Bartow County Commissioner Clarence Brown’s recent proclamation of opposition to the bill as well as the City of Cartersville Board of Education proposed resolution.
He could not comment on the latter because he had not seen the proposed resolution at the time of interview.
“In my opinion, there would be no violation [for Brown’s proclamation] and [Olens] seems to clarify part of that in his statement ... about people being able to voice their opinion, but I think he makes it very clear that any claim of violation against a school board or any other public entity would be ... fact specific,” Pettit said. “Clearly, I don’t see the commissioner has done anything inappropriate.”
He added, “Look at [Gov. Nathan Deal]. He has been all over the state promoting [the charter amendment] and I think he has every right to. ... I know it’s a sensitive topic and I know there are strong opinions on both sides and I can understand why someone would raise a question or complain, but I don’t think [Commissioner Brown] has done anything wrong.”
Olens said another letter to Barge will be sent and will be made available to the press later this month.