A Washington County prosecutor said he has begun his investigation into accusations that University of Arkansas Chancellor G. David Gearhart ordered public documents to be destroyed to keep them from the media, auditors and the public.

Deputy prosecutor David Bercaw issued subpoenas in mid-September for working papers from the Legislative Audit Division and the University of Arkansas System, both of which had investigated a multimillion-dollar deficit in UA’s Advancement Division.

Bercaw said Friday that the Legislative Audit Division provided its working papers more than a week ago, but he was still waiting for papers from the UA auditors. Bercaw said he expects those documents to arrive next week.

“I’m still trying to digest all of this information,” he said. “There’s just a tremendous amount of information.”

Bercaw said his investigation will likely take weeks.

On Sept. 13, testifying before the Legislative Joint Auditing Committee, former UA spokesman John Diamond said Gearhart ordered public documents to be destroyed in a Jan. 14 meeting. The documents pertained to a financial report and a “gift tax” on donations that was proposed to raise additional revenue for the Advancement Division, he said.

“The chancellor got very upset, got angry, and made several statements which concluded with an instruction to all of us to get rid of those documents and not to produce any more,” Diamond told legislators.

The chancellor’s directive is one reason auditors had trouble locating documents during their investigations, Diamond told the committee. The Legislative Audit Division said its investigation was “limited in scope” because of insufficient records.

Gearhart denied Diamond’s accusation, saying UA complies with requests under the Arkansas Freedom of Information Act and that Diamond is a “disgruntled” former employee.

Diamond has said he was fired Aug. 23 because of disagreements with Gearhart and others involving public-records laws. Chris Wyrick, vice chancellor for Advancement, said Diamond was fired for insubordination.

“I categorically deny that we have ever said to anyone to destroy documents,” Gearhart told the committee Sept. 13. He said the university doesn’t retain all “working papers.”

Under Arkansas Code Annotated 25-19-103, a part of the Freedom of Information Act, “public records” means “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency, or any other agency or improvement district that is wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.”

After Diamond’s testimony, legislators decided to leave the audit open, and legislative auditor Roger Norman notified Washington County Prosecuting Attorney John Threet about the allegations of criminal conduct.

Under Arkansas Code Annotated 5-54-121, destroying a public record could be a felony punishable by up to six years in prison. Violation of the state’s Freedom of Information Act is a misdemeanor with a maximum penalty of up to 30 days in jail.

Bercaw said he hasn’t issued subpoenas for witnesses to testify.

“What we’ve done so far … is we just call them up and ask them to come up,” he said. “The only time I would subpoena anybody is if they refused to come in.”

Bercaw said some witnesses already have testified, but he wouldn’t say who or how many.

The Legislative Audit investigation determined that the Advancement Division had a cumulative deficit of $4.19 million as of June 30, 2012. UA said that cumulative deficit was reduced to $3.21 million as of June 30, 2013, after a $4 million transfer from reserves was made in January to cover overspending in fiscal 2013.

Two more transfers from reserves are expected during the current fiscal year, and those could cover the remaining cumulative deficit by June 30, 2014, said Mark Rushing, a UA spokesman.

UA officials have repeatedly said the deficit, which was discovered in 2012, was “driven” by hiring people whose salaries were unfunded in preparation for a fundraising drive headed by the Advancement Division.

Gearhart has said former Vice Chancellor for Advancement Brad Choate and Joy Sharp, a budget officer in the division, were overspending without requesting additional money to cover the cost of the new hires.

Gearhart asked for an audit Feb. 5, seven months after he first learned about the deficit and three months after he demoted Choate. Choate and Sharp are no longer employed at UA.

The prosecutor’s subpoenas requested “any and all work papers and supporting documentation, including but not limited to recordings of interviews and electronic data from the audit of the University of Arkansas Division of University Advancement for the period of July 1, 2008, through June 30, 2012.”

Also on Friday, UA denied a request under the Freedom of Information Act for the Arkansas Democrat-Gazette to review copies of Advancement Division payment-authorization forms that were cited in the audit. Legislative auditors indicated they found copies of 765 payment-authorization forms for fiscal 2012 and only 20 for the previous two years at UA.

“The documents you seek are subject to a prosecutor’s subpoena,” wrote Frank Arey, legal counsel for the Legislative Audit Division, in an email to Rushing that was forwarded to the newspaper. “Therefore, we do not believe we are at liberty to release these documents (or copies) to anyone else.”

During the Sept. 13 legislative meeting, UA Treasurer Jean Schook said the payment forms at UA were copies of the originals that were stored at the University of Arkansas Foundation and were accessible to auditors.

The versions at UA were “often incomplete, draft copies,” she told legislators.

“The originally, fully executed forms are on file at the UA Foundation,” said Schook.

The foundation declined to provide the payment-authorization forms to the newspaper. The foundation has consistently claimed it is exempt from the state’s public-records law.

The foundation is “a separate, independent organization supported solely by private funds that receives no direct public support from the state or the University of Arkansas,” Clay Davis, the foundation’s executive director, wrote in an email.

The foundation supplements many functions of the university, including the Advancement Division, with earnings from private funds.

Front Section, Pages 1 on 09/28/2013