The prosecuting attorney for the 21st Judicial District said Thursday that he and his staff need to be as physically fit as any other law enforcement officer and he doesn’t plan on reimbursing the state for years of private gym memberships paid for with public funds.
The Legislative Joint Auditing Committee’s Committee on Counties and Municipalities disagreed and has forwarded the 2010 audit of his office to Attorney General Dustin McDaniel along with a request for an attorney general opinion on whether it was all right for the prosecutor to also pay for gym memberships for police officers.
Prosecuting Attorney Marc McCune told the committee that he started to pay for the gym memberships in2003 for his employees and for police off icers in departments that did not have training facilities. He said he stopped purchasing thememberships in 2011 after an auditor raised concerns.
The 21st Judicial District is Crawford County.
The audit shows $14,390 was spent in 2010 and $3,580 in 2011 from the Drug Control Fund.
Of that, $1,866 was for McCune and his deputies. The other $16,104 was for memberships for law enforcement officers.
The issue also arose in McCune’s 2009 audit but was not resolved. He said he did not receive clear enough guidance from the committee on resolving the problem.
The current audit recommendation is that the prosecuting attorney and his deputies reimburse the state for the memberships and ask the attorney general to weigh in on whether the memberships for police officers were acceptable.
McCune told the committee he disagrees with the findings, thinks it was an appropriate use of money and does not plan to reimburse the state. He said the prosecuting attorney and his staff are considered law enforcement and should be fit and healthy like a police officer.
“There is no difference between us and law enforcement,” McCune said.
Rep. Andy Mayberry, RHensley, questioned whether the deputy prosecuting attorneys should have publicly funded workouts if they aren’t required to passfitness tests.
McCune said that while there is no legal requirement that his staff members be fit, they occasionally accompany officers who are serving a warrant or going to a crime scene and need to keep up.
“That is basically common sense,” McCune said.
The prosecutor said he doesn’t see the difference between him buying gym memberships for police officers, and police departments in other areas of the state purchasing and housing their own training facilities.
McCune also argued that the money didn’t come from taxpayers, but from the Drug Control Fund, which is funded from the sale of seized property.
Legislative Audit Division counsel Frank Arey disagreed. He said that the money was collected by a public agency and held in a public account for a public purpose.
“I think there was no question they were public funds,” Arey said. He said a public benefit may be found for the memberships for police officers, but the attorney general should weigh in.
The audit states that using public funds for athleticfacility memberships appears to conflict with the publicpurpose doctrine of Article 2, Section 8 of the Arkansas Constitution and with Article 16, Section 13, which gives the public the right to sue over the misuse of public funds.
Article 2 is the due-process portion of the constitution and requires the state to respect the rights of its citizens.
The 1963 Chandler v. Board of Trustees of the Teacher Retirement System case set a precedent that public funds must be used for public benefit. In its ruling, the state Supreme Court wrote, “The state cannot, within the limits of due process, appropriate public funds to a private purpose.”
Usually, if there is a question of whether a public official has misused public funds, the audit is referred to the prosecuting attorney for the area. Because these audit findings dealt with a prosecuting attorney, the audit was referred to the attorney general, committee staff member JuneBarron said.
The audit also questioned whether the gym memberships were properly reported to the Internal Revenue Service as taxable fringe benefits.
“This benefit could be and should have been reported,” assistant Auditor Kim Williams said.
She said the prosecuting attorney’s office should update its 1099 form for the affected years so that it includes the membership.
Northwest Arkansas, Pages 7 on 06/22/2012