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No investigation in campaign e-mail case

By Randi Pierce
Staff Writer

Despite a written request to the District Attorney’s Office, no investigation has yet been completed concerning an e-mail sent by local Visiting Angels franchise owner Chris Smith to his employees.

Smith’s e-mail, sent prior to the election, informed employees of a possible detriment to the business should President Obama be reelected.

According to District Attorney Todd Risberg, of the Sixth Judicial District, in order for an investigation to take place concerning possible violations of election law, a sworn affidavit must be filed.

A Monday e-mail to SUN staff stated that no such affidavit had been received.

On Oct. 22, Chris Smith, owner of the local Visiting Angels franchise, sent an e-mail to company employees containing information as to how the Affordable Care Act (known as “Obama-care”) would affect the business and a plea to vote in the election.

The information included came from a webinar on the employer mandate included in the act that was presented by an eastern U.S. law firm trained in the company’s trade.

Contained in that e-mail plea, however, was a reference to the possibility of the Affordable Care Act being repealed should Gov. Mitt Romney win the election.

The e-mail reads as follows in its entirety:

“The Affordable Care Act, aka ‘Obama-Care’, which is set to begin in a few months, will crush Visiting Angels and hurt your job when it takes effect. I recently attended the first detailed seminar from the legal counsel of our trade association. In it we finally got hard facts about how employers will have to administer this new law. Legal counsel gave us these options:

“1. Cut hours to as many employees as possible to get them below 30 hours per week. a. I don’t think any of you are hoping to get a cut in hours. b. Clients don’t want 7 different caregivers. 2. Raise your prices by 10% to cover this new expense, or cut pay rates to all employees. a. Raising prices will make health care more expensive, and reduce the amount of business we can get. Meaning less work for everyone, and less care for the clients. 3. Downsize your business to keep below the threshold of 50 employees. a. I started this business in hard times to create a job for me and as many others as possible. Did I misunderstand? 4. Pay the tax. Don’t provide health care for your employees. a. Because group health insurance runs about $15,000/year per employee, for the employer, it is much less expensive to pay the $2,000 tax, per year per employee. If many employers choose the much cheaper option, insurance will become a thing of the past, and health care in America will be run completely by the government. It will be like having Medicaid for everyone. Our business is in the health care industry and represents millions of employees. Downsizing business in today’s economy is the opposite of what America needs. We are not trying to sway your vote but sharing the facts of your future employment situation under these immediate political situations. If Romney is elected in 3 weeks, The Affordable Health Care Act, aka ‘Obama Care’ has a good chance of being repealed and small businesses like ours will not drown. For the sake of the 80 people working for Visiting Angels and your own paycheck, remember, on November 3, it will be a close presidential race. Please VOTE!”

After portions of the e-mail appeared in The Durango Herald, Colorado Ethics Watch Director Luis Toro sent a letter, dated Oct. 30, to Risberg’s office alleging the e-mail was a breach of election law, specifically Colorado Revised Statutes 1-13-719.

A section of that statute, 1-13-719(d) (concerning unlawful acts by employers), states, “Within ninety days of any election provided by law, to put up or otherwise exhibit in his factory, workshop, mine, mill, boardinghouse, office, or other establishment or place where his employees may be working or be present in the course of such employment any handbill, notice, or placard containing any threat, notice, or information that, if any particular ticket or candidate is elected, work in his place or establishment will cease in whole or in part, or his establishment will be closed, or the wages of his workmen will be reduced or containing other threats, express or implied, intended or calculated to influence the political opinions or actions of his employees.”

“Voter intimidation is a serious threat to the fundamental right to vote,” said Toro Oct. 30 in a press release posted to his group’s website. “Threats by employers that jobs or hours will be cut if a certain candidate wins have been illegal in Colorado for many years, because Election Day is supposed to be the one day where all Americans are truly equal with the same voice. But election laws don’t enforce themselves, and that’s why we’re calling on the District Attorney to take appropriate action against those responsible for this email.”

In an interview, Toro said Ethics Watch is still pursuing the situation with the DA’s office, and said they are seeking a recipient of the e-mail willing to submit the affidavit required by the DA’s office (versus Ethics Watch submitting an affidavit from Denver, based on information seen in a newspaper).

“We’re not giving up,” Toro said.

Toro noted the belief that filing an affidavit now could also be protection in the future should anyone be fired or their hours cut from the company and added that someone willing to submit an affidavit would not have to work through Ethics Watch, but that the organization is willing to help.

In a previous interview with SUN staff, Smith said he sent the e-mail after taking part in the mentioned webinar.

“They need to know that there’s a massive new tax coming to employees,” Smith said, adding, “The e-mail I sent was to inform them that they’re looking at a significant pay cut due to this new act and some other possible repercussions to their employment.”

Smith said he was not aware of any statutes that the e-mail would have violated when he sent it, but that he has since received legal advice from his company’s corporate legal counsel that the e-mail did not violate statute.

“I was not trying to coerce, I was trying to inform,” Smith said of the e-mail.

randi@pagosasun.com

This story was posted on November 19, 2012.