Prosecutors’ gym fees fodder of opinion

McDaniel: Physicality of job likely at issue in using public funds for dues

— State law does not appear to contemplate using public funds to purchase a private gym membership for a prosecuting attorney or his deputy prosecuting attorneys, Attorney General Dustin McDaniel said in an advisory opinion requested by the co-chairmen of the Legislative Joint Auditing Committee.

Prosecuting Attorney Marc McCune of Cedarville had said in June that he has used drug-control and federal-forfeitures funds to pay gym fees for himself, his deputies and other law-enforcement agencies’ employees. But from now on, McCune and other fitness-conscious state government lawyers will have to foot their own fees if they want a turn on the treadmill.

For police officers and sheriff’s deputies, however, the answer isn’t so clear-cut.

McDaniel said he cannot categorically answer the committee co-chairmen’s question about whether the public-purpose doctrine or any other law prohibits spending public funds on gym membership dues and fees for other agencies’ lawenforcement personnel.

“Instead, I believe the pertinent analysis in each instance will entail a factual consideration of the extent to which physical conditioning might be described as bearing directly on an officer’s ability to perform his official duties,” McDaniel said in his advisory opinion dated Tuesday and released Wednesday.

In June, McCune told a Legislative Joint Auditing Committee that he and his staff need to be as physically fit as any other law-enforcement officer and said he doesn’t plan to reimburse the state for the years of private gym memberships paid for with public funds.

But the audit committee’s Committee on Counties and Municipalities disagreed and forwarded an audit of McCune’s office books to McDaniel along with a request for an advisory opinion on whether the prosecutor’s office also can pay for gym memberships for police officers.

McCune told the auditing committee in June that he started to pay for gym memberships in 2003 for his employees and for police officers in departments that did not have training facilities. He said he stopped purchasing the memberships in 2011 after an auditor raised concerns.

Deputy Legislative Auditor Kim Williams said McCune’s office paid a total of $5,201 for gym memberships for McCune and a few of his deputies in 2009, 2010 and part of 2011.

McCune’s off ice paid $16,231 for gym memberships for other agencies’ law-enforcement personnel in 2009, 2010 and 2011, a 2010 audit report found, according to a July 2 letter to McDaniel from Rep. Tim Summers, R-Bentonville, and Sen. Bill Pritchard, R-Elkins, who are co-chairmen of the Legislative Joint Auditing Committee.

The disbursements came from the Drug Control Fund and Federal Forfeitures Fund in 2009, and from the Drug Control Fund in 2010 and 2011, the letter said.

Summers said Wednesday that he believes that the money McCune’s office paid for gym memberships for Mc-Cune and his deputy prosecutors should be paid back to the government. But, he said, he would need additional information to determine whether the funds paid by McCune’s office for the gym memberships for other agencies’ lawenforcement personnel also should be paid back.

Pritchard said he hadn’t seen a copy of McDaniel’s opinion, so he declined Wednesday to comment about it.

McCune could not be reached for comment at his office Wednesday.

McDaniel said in his advisory opinion that he shares Legislative Auditor Roger Norman’s concerns that using public funds for gym memberships for a prosecutor and his deputies appears to conflict with the public-purpose doctrine and may constitute an illegal exaction of public resources in violation of Article 16, Section 13 of the Arkansas Constitution.

“The connection between prosecutorial job performance and physical conditioning is at best attenuated, and I agree that publicly funding any private gym membership for prosecutors would not appear directly to serve ‘prosecutorial purposes,’ which is what governing law requires,” he said.

McDaniel, a former state representative and Jonesboro police officer, said determining the propriety of a public expenditure to buy private gym memberships for lawenforcement officers “will necessarily entail considering all of the attendant circumstances, focusing above all on the need for such training to ensure the officers’ adequate performance of their duties.”

Front Section, Pages 1 on 11/22/2012

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