Ex-mayor: Fee absent, so state subpoena void

— Former Helena-West Helena Mayor James Valley did not have to appear before a legislative committee because his subpoena did not include a witness fee check for $30 and 25 cents per mile for travel to the hearing, his attorney argued in court on Tuesday.

Pulaski County Circuit Judge Jay Moody withheld judgment Tuesday in the contempt case against Valley to review whether the witness fee should have been attached to a subpoena Valley was served in September.

Moody said he would inform both parties of his decision “in a few days,” after he had reviewed the applicable laws and rules.

Valley testified Tuesday that he failed to appear at the Legislative Joint Auditing Committee’s Committee on Counties and Municipalities on Oct. 11 because he had several cases on the docket in Phillips County, where he practices law.

“I could either show up in Little Rock and face the consequences of my law practice and these people who paid me and all these other things, or go to court,” Valley said.

Valley received a subpoena, along with five other people, to appear before the committee to answer questions about problems found in the city’s 2010 audit.

The 2010 audit found the following problems:

$11,347 improperly disbursed to elected officials, employees, vendors or other individuals. Also, two bounced checks from Valley for $3,666 that were supposed to reimburse the city for improper reimbursements in 2006.

$231,049 in disbursements paid to hotels, restaurants or businesses without proper documentation.

$108,610 in payments made by debit card rather than prenumbered checks as required by Arkansas law.

$17,839 in payments either to family members of city employees or employee-owned businesses.

$7,701 in bank overdraft fees.

$61,730 to a local construction company for building repairs. Invoices indicate the same company was paid multiple times for performing the same repairs.

Omissions and errors in the city’s financial records, including improper documentation of $2.8 million in the fund balance, $2.3 million in revenue and $2.16 million in expenditures.

$1.29 million in state aid for streets that was improperly used as general revenue.

According to the Legislative Audit Division, problems have been found year after year since 2006, including its 2011 audit.

The 2011 audit found that the city did not keep proper financial records. It also determined that the district court clerk did not keep proper records on $183,419 in various bank accounts. A similar problem was found in earlier reports.

Valley’s first term as the city’s mayor began in 2006, the year the two cities Helena and West Helena merged, and he left office in 2011.

City Clerk Sandra Ramsey, former Treasurer Michael Boone, former District Court Clerk Linda Danley and former Police Chief Fred Fielder were also subpoenaed and attended the meeting.

The former mayor said he was willing to testify before the committee if a better time and date could be arranged, but that as a private citizen, he could not fix the existing problems in the city’s administration.

“Typically when you go to those hearings, they ask you ‘How are you going to fix it?’ and my answer to that and my answer on the 11th would have been, ‘I can’t fix it, I’m not the mayor,’” Valley said.

Pulaski County Prosecuting Attorney Larry Jegley, who is representing the state in the case, asked Valley if he had informed anyone at Legislative Audit that he could not attend the meeting because he had to represent his clients.

“I don’t recall saying that, no,” Valley said.

Dion Wilson, a Helena-West Helena attorney representing Valley, filed a motion to dismiss the case, stating that the “order to appear and show cause and petition for adjudication of contempt” were not accompanied by a summons, pursuant to Arkansas Rules of Civil Procedure Rule 4.

Jegley said that “notice is notice” and that Valley should have understood that as an attorney.

After Moody dismissed Wilson’s motion, the attorney argued that the subpoena was also invalid because it did not contain a witness fee, citing Rule 45(d).

The rule states that “The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30 per day for attendance and 25 cents per mile for travel from the witness’ residence to the place of the trial or hearing.”

Frank Arey, counsel for the Legislative Audit Division, testified at the hearing that witnesses are not sent a check with a subpoena but are served with forms explaining the process for compensation. He said that he processed the paperwork for all of the witnesses who turned in the form after the hearing.

Wilson argued that the division’s practices were irrelevant and that it should be held to the applicable rules regarding subpoenas.

“What Mr. Jegley is basically trying to tell this court is that the Legislature gets special permission to do whatever they want to, but that’s not what the rules say,” Wilson said.

Front Section, Pages 1 on 01/09/2013

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