Illegal Or Just Cheesy?

By Lee White

UPDATE 12:05 p.m. 7/24/2016: Click here for coverage of this event from One of the photo captions states, “The Andover Fire-Rescue Department challenged Sheriff Herzet to a Grilled Cheese Cookoff.” Next time, challenge all the candidates who are running. 

Sheriff Kelly Herzet and Undersheriff Tony Wilhite participated in a grilled cheese cook-off with members of two fire departments at the Andover Dillons supermarket this morning. A supporter of sheriff candidate Mike Holton let me know about the incident. The question is: Did the firefighters’ participation in the cook-off amount to an endorsement of Herzet’s candidacy and, if so, were any laws broken?

Herzet and Wilhite were part of the Benton Fire Department team. They competed against a team composed of Andover firefighters. The Benton team won. It appears that only one Benton firefighter attended (see Herzet’s Facebook photos below). The event was part of a grand opening for a cheese shop.

So what does the law say about electioneering by public officials? Here is K.S.A. 25-4168a:

“(1) No officer or employee of the state of Kansas, or any municipality, shall use or authorize the use of public funds or public vehicles, machinery, equipment or supplies of any such governmental agency or the time of any officer or employee of any such governmental agency, for which the officer or employee is compensated by such governmental agency, to expressly advocate the nomination, election or defeat of a clearly identified candidate to state office or local office. The provisions of this section prohibiting the use of time of any officer or employee for such purposes shall not apply to an incumbent officer campaigning for nomination or reelection to a succeeding term to such office or to members of the personal staff of any elected officer. The provisions of this section shall not apply to the statutory duties of the commission on judicial performance pursuant to article 32 of chapter 20 of the Kansas Statutes Annotated, and amendments thereto.

“(2) Except as otherwise provided in this section, no municipality shall permit or allow any person to distribute, or cause to be distributed, within any building or other structure owned, leased or rented by such municipality any brochure, flier, political fact sheet or other document which expressly advocates the nomination, election or defeat of a clearly identified candidate for state or local office unless each candidate for such state or local office is permitted or allowed to do so in the same manner.

“(3) For the purposes of this subsection, the term municipality shall have the meaning ascribed to it in K.S.A. 12-105a, and amendments thereto.

“(b) Any person violating the provisions of this section shall be guilty of a class C misdemeanor.”

Right off the bat, we see that Herzet and Wilhite did not violate the law by showing up in their campaign attire. The shirts themselves do not “expressly advocate” the election of Herzet as they simply give his name. My source also sent me a picture of Herzet’s campaign truck parked outside. A sign on the truck’s passenger door does expressly advocate Herzet’s election, but he and Wilhite are in the clear as far as the law is concerned.

But what about the firefighters?

The Andover guys were in uniform. They posed with Herzet and Wilhite. One could certainly infer an endorsement by virtue of the fact that only one candidate attended the event and, more likely than not, only one candidate was invited.

Benton’s is an all-volunteer fire department; however, Andover has a combination of paid and volunteer firefighters. It appears that at least a couple of the firefighters had radios or pagers clipped to their belts during the cook-off, so they may have been on duty. It would be easy to determine that from a Kansas Open Records Act request.

Judging by the number of text messages I received, the Holton supporter was upset by what both of us viewed as lending the good name of taxpayer-funded fire departments to a particular political candidate. I find that bothersome, too, and so should the governing body of County Fire District No. 7 (Benton) and the Andover City Council. It is likely that the folks at Dillons’ parent company, Kroger, are going to get an earful Monday from the Holton supporter.

But unless on-duty firefighters actually told people to vote for Herzet or handed out campaign literature encouraging them to do so, they probably did not violate the statute cited above. Cheesy and ill-advised, yes. A misdemeanor violation, no.

Butler County Attorney Darrin Devinney is the one who enforces this law at the local level. Devinney stated during the Andover Chamber of Commerce candidate forum Thursday night that he would consider election law violations, so I will e-mail him a copy of this blog post. If he disagrees with my analysis, he can let everyone know.