The $1,000 fine handed the Norfolk city administrator because he wrongly used the city's e-mail system to discuss a ballot issue is akin to using a sledgehammer to kill a mosquito.
Posted: Tuesday, January 6, 2009 12:00 am
The $1,000 fine handed the Norfolk city administrator because he wrongly used the city’s e-mail system to discuss a ballot issue is akin to using a sledgehammer to kill a mosquito.
The penalty assessed by the Nebraska Accountability and Disclosure Commission is out of step with the rapid evolution of telecommunications in the past few years.
A more reasonable view of the incident came from State Auditor Mike Foley, who testified during a hearing on the case.
Foley said that his office has concurrent jurisdiction with the commission on the case but has taken no action because of his view that it amounted to a “de minimis” use of public resources.
“De minimis” refers to a legal doctrine applied by a court to avoid the judicial resolution of trivial matters. It comes from a Latin expression that translates, “the law cares not for small things.”
Foley went on to express the opinion in testimony that it would be irresponsible to prosecute people in such cases.
If it stands — it has been appealed to Lancaster District Court — the ruling is liable to scare public servants away from using modern technology to communicate about the public’s business in some situations.
In the case, Norfolk City Administrator Mike Nolan testified that he tried to follow state law forbidding the use of public resources to campaign for or against a ballot issue by using his own laptop computer and writing e-mails during nonwork hours.
But at least one of his e-mails went through the city-owned server, or computer that managed the city’s network. The commission determined that Nolan had his laptop “hardwired” to the city system when an e-mail on the ballot issue was sent.
Nolan’s attorney contended that the 32-word e-mail tied up the city-owned server for less than a fraction of a second and cost the city less than a cent.
In the e-mail to Waverly City Administrator Roger Rix, Nolan encouraged action by the state organization to which they belonged to oppose Initiative 423, the proposed limit on state spending that was rejected by voters in 2006.
The ruling opens a Pandora’s box of possibilities. What would the commission have ruled if the e-mail had gone from Nolan’s laptop through a city-owned wireless network open to the public? Would the commission have busted Nolan for that? What’s the $1,000 difference?
To be sure, tax funds should not be used to campaign for or against ballot issues.
But a $1,000 fine for one wayward e-mail is “absurd,” as Lynn Rex of the Nebraska League of Municipalities put it.
The law also should recognize that city officials often are the best sources of information for voters. Unfortunately, the ruling will discourage the free flow of information in all sorts of circumstances.
Nolan may succeed in his appeal, but that would be inadequate to deal with negative consequences of this case. State senators need to step in to clarify the law and bring it up to speed with today’s technology.