Ship of Fools: An AJC Editor Doubles Down on Wrong

Someone claiming to be Richard Halicks, Editor, Sunday @issue at The Atlanta Journal-Constitution, came slumming over here and wrote a comment in response to my “Paper Planes” post.

Halicks criticizes the length of my post but its length was necessitated by the profound misunderstanding the article demonstrated of principles of administrative law. It sometimes takes more words to correct a misunderstanding than to impart a correct understanding in the first place. To paraphrase Barry Goldwater, “conciseness at the expense of accuracy is no virture, and long-windedness in telling the truth is no vice.”

Halicks repeats the misstatement that pervaded the original article’s discussion of how the Deal campaign should have reported the costs associated with their use of noncommercial aircraft. In doing so, Halicks doubles down on wrong; rather than resurrecting the credibility of the AJC article at question, he compromises his own.

AJC Article and Halicks Demonstrate a Fundamental Misunderstanding of Administrative Law

Both Halicks and Jim Walls, author of the AJC article at issue fail to understand three foundational principles of Administrative Law in Georgia.

These principles are:

(1) administrative agencies like the State Ethics Commission are creatures of the legislature and have only those powers granted them by the legislature or those necessarily implied in order to carry out the implicit powers;

(2) because agencies’ powers are granted by their enabling legislation, these powers are limited by the legislation itself and agencies have no authority to adopt rules in contravention of their enabling legislation; and

(3) If an agency rule appears to contradict the enabling legislation, the rule must be construed in a limited fashion so as not to contradict the legislation or exceed the authority of the agency.

So when, as in the case of the rules governing disclosure of aviation expenses, we are presented with a statutory requirement on the one hand, and an agency rule on the other, which appear to contradict each other, we must obey first the statutory law.

The requirement in §21-5-34 of the Ethics in Government Act that a campaign report “ [a]s to any expenditure of more than $100.00, its amount” and Rule 189-3-.01(3)(d) which requires that a campaign disclose “the amount of the expenditure” are compatible, so the Rule may be enforced.

However, to the extent that Rule 189-3-.06(4) purports to require the disclosure of any amount other than the actual amount of an expense, such as “fair market value” it directly contradicts §21-5-34, which is part of the agency’s enabling statute. A rule that conflicts with the agency’s enabling legislation is null and void, thus Rule 189-3-.06(4) cannot operate to change the disclosure requirement for actual expenses.

Likewise, to the extent that the Rule purports to require greater disclosure than the statute, such as arrival and departure times, it is in excess of the Commission’s authority and likewise cannot be applied to change the disclosure requirement where a campaign make a cash expenditure.

There is a way to save some meaning to this Rule. It can be construed to operate only in instances in which the statute does not give campaigns any guidance on what amount to report or where the campaign may be unable to disclose the actual amount of the expense. The only instance that meets those criteria is in-kind contributions. This is the point that Rick Thompson makes where I quote him in my original post, and which Mr. Halicks dismisses.

Because the Deal campaign had no in-kind contributions of noncommercial air travel, there was no instance in was required to disclose the information that Rule 189-3-.06(4) asks for. Both Jim Walls’s article and Richard Halicks’s comments are wrong and I’m right.

About Those Alleged Subpoenas and Proposed Complaint

Halicks also takes me to task for writing “Walls alleges” when the article written by Walls reads “the proposed complaint said . . .” and then writes  “[i]f Mr. Rehm has a quarrel with the complaint, he should see the state officials – in this case, the former state officials — who prepared it, not the journalist who reported it.”

Here’s the problem with that scenario. The alleged documents are both attorney work product of the Commission and investigatory materials, and they are shielded from the Open Records Act. The only people other than the staffers who allegedly prepared them who have seen the alleged documents are Jim Walls and whichever AJC editors saw them in the process of editing the Walls article. You did ask to see those document, right Mr. Halicks?

Well, I for one don’t believe the liberal media, and until I see the documents, they will remain allegations written by Walls and published by the AJC. Don’t like that? Fine. Prove it. Publish the alleged subpoenas and proposed complaint. Prove not only that they say what you say they say, but prove also your commitment to transparency and freedom of information.

Halicks Criticizes My Point of View as Biased

Halicks argues that I accused the AJC of trying to create an impression of wrongdoing by misstating the law. Perhaps I overstated their intent. He states specifically:

Mr. Rehm’s point of view asserts itself early in his piece. His second paragraph begins:

“In an attempt to create the impression of wrongdoing by Governor Deal’s campaign . . . .” This is Mr. Rehm’s opinion – a supposition that he cannot factually support. We did not attempt to create the impression of wrongdoing. We published the contents of proposed subpoenas that were to be served on the governor and some of his associates. We believed the story was newsworthy then, and we still do.

It’s more than my opinion, Mr. Halicks. It is an inescapable conclusion that Jim Walls misstated and the AJC printed an inaccurate account of what the Deal campaign should have reported with respect to its use of private aircraft. But you may have done so in the absence of malice.

Having read Mr. Halicks’s regurgitation of the original story’s misstatement of the law I am open to the possibility that neither Walls nor Halicks actually understood what they were attempting to write about and that the incorrect impression of wrongdoing by the Governor’s campaign is a result of ignorance rather than malice.

Finally, I wish to apologize for the single typo that Mr. Halicks identified in my 2500+ word post. I typed rule 189-3-.06(4)(d) when I meant to type Rule 189-3-.04(4)(b). I have made this correction in the original. I hope this clarification satisfies you, Mr. Halicks, and that you will follow my example by issuing a correction to the story Jim Walls wrote and that the Atlanta Journal-Constitution published. I await your response.

__________Full Text of Comments by someone claiming to be Richard Halicks__________

As an editor at The Atlanta Journal-Constitution, I’d like to respond to Todd Rehm’s exhaustive critique of our article. Mr. Rehm’s work is 1,000 words longer than the story that prompted it, so it is indeed a detailed analysis. But he gets some of the details wrong.

Here’s an example:

Mr. Rehm wrote: As to the allegation in the Walls article that “[t]he proposed complaint said that Deal failed to disclose the departure and arrival airports for those flights,” Thompson said that the requirement in Rule 189-3-.06(4)(a) and (d) that a campaign disclose an arrival, departure and other information is only relevant when the campaign is disclosing estimated or apportioned values, not the actual, known expenditures.

But that is not what Rule 189-3-.06(4) says. (Note, as well, that Rule 189-3-.06(4) does not contain a paragraph d.) From rule 189-3-.06(4)(a):

(4) Disclosure. Reporting of flights on noncommercial aircraft for campaign purposes by a candidate, public officer or member of a committee shall be as follows:

(a) The candidate, public officer, or committee that makes an expenditure for a flight (or that records an in-kind contribution for a flight) must disclose on the Campaign Contribution Disclosure Report due for the reporting period in which the flight occurred the departure and arrival airport(s) of the flight and the Commission mileage rate applicable to the aircraft used and by which the value of the flight is being assessed.

This appears to say the opposite of what Mr. Rehm reports. His assertion of what the rule was *intended* to say is not relevant.

And perhaps most important, note that Jim Walls wrote that “the proposed complaint said . . .” This was not an allegation lodged by Mr. Walls but an allegation contained in a document that was *reported* by Mr. Walls. If Mr. Rehm has a quarrel with the complaint, he should see the state officials – in this case, the former state officials — who prepared it, not the journalist who reported it.

Mr. Rehm’s point of view asserts itself early in his piece. His second paragraph begins:

“In an attempt to create the impression of wrongdoing by Governor Deal’s campaign . . . .” This is Mr. Rehm’s opinion – a supposition that he cannot factually support. We did not attempt to create the impression of wrongdoing. We published the contents of proposed subpoenas that were to be served on the governor and some of his associates. We believed the story was newsworthy then, and we still do.

I won’t continue for 2,000 more words. Just a few additional points:

Mr. Rehm devotes nearly a dozen paragraphs to an exploration of the use of aircraft as an “in-kind” contribution to a campaign. But this was not an instance of in-kind contributions. As The Atlanta Journal-Constitution has reported, the Deal campaign paid cash for the use of the aircraft, which were owned by Mr. Deal and his associates. These facts are not in dispute.

Mr. Rehm has a point when he says there is confusion in the way the state values the flights of different kinds of noncommercial aircraft. The rules say that a flight by a noncommercial plane with a single-propeller engine should be valued at $500 an hour. A flight by a jet aircraft that seats fewer than 12 passengers is valued at $3,000 an hour. In fact, the plane in question has a single-propeller engine. It is also a turboprop – a jet engine that drives a propeller. The AJC used the closest description of the plane that the rules provide: a single-propeller engine. This point may in fact be arguable. But until the ethics commission changes or clarifies the rule, we stand by what we reported.

I’m approaching 700 words and am now well into the weeds, so I’ll wrap it up. But here’s a very important final point: Mr. Walls’ report was an accurate record of what was contained in subpoenas that were drawn up but never served. As noted, Mr. Walls did not write the subpoenas or cause them to be written. Instead, he did what he used to do at The Atlanta Journal-Constitution for nearly 30 years and what he has continued to do since he retired from the newspaper: He found a story, reported it meticulously and fairly and – with the considerable skills he has honed over decades – offered the information to readers.