Opinion No. 2012-094

November 20, 2012

Senator Bill Pritchard and Representative Tim Summers, Chairs
Legislative Joint Auditing Committee
Division of Legislative Audit
172 State Capitol
Little Rock, Arkansas 72201-1099

Dear Senator Prichard and Representative Summers:

I am writing in response to your request for my opinion on the following questions:

Does Ark. Const. art. 2, § 8’s public purpose doctrine, or any other law, prohibit expending public funds on athletic facility membership dues and fees for a Prosecuting Attorney and his or her Deputy Prosecuting Attorneys?

Does Ark. Const. art. 2, § 8’s public purpose doctrine, or any other law, prohibit expending public funds on athletic facility membership dues and fees for other agencies’ (i.e., not the Prosecuting Attorney’s) law enforcement personnel?

As background, you report that the audit report of the 21st Judicial District for the year ending December 31, 2010 contained the following finding:

Review of disbursements indicated $14,390 and $3,580 from 2010 and 2011,[[1]] respectively, were paid from the Drug Control Fund for several athletic facilities membership dues and fees. Of these fees, $1,866 was for the Prosecuting Attorney and Deputy Prosecuting Attorneys and $12,524 and $3,580 from 2010 and 2011, respectively, for other agencies’ law enforcement personnel. It was also noted in the 2009 audit that $12,769 and $3,217 were paid from the Drug Control Fund and the Federal Forfeitures Fund, respectively[,] for athletic membership dues and fees. Of these fees totaling $15,986, $3,335 was for the Prosecuting Attorney and $12,651 for other agencies’ law enforcement personnel. The Prosecuting Attorney indicated he paid these membership fees “for the benefit of officer safety, training, and health reasons” and had done so for several years. Using public funds for athletic facility membership costs appears to conflict with the public purpose doctrine Ark. Const. art. 2, § 8 and may constitute an illegal exaction of public resources in violation of Ark. Const. art. 16, § 13.

My inquiries reveal that the athletic facility memberships at issue were made available to prosecutorial and law enforcement officers, each of whom could accept and use the membership at his or her discretion, with fees to be paid or reimbursed using the referenced public funds.

In the present case, the Legislative Auditor has concluded that the challenged use of public funds “appears to conflict with the public purpose doctrine” and “may constitute an illegal exaction.” I have not been informed of the precise disposition of two hearings reportedly conducted by the Committee concerning this matter and hence do not know whether the Committee concurs in the Legislative Auditor’s findings. Nevertheless, it appears that you are in the process of reviewing the propriety of the Legislative Auditor’s findings and that you are seeking my formal opinion regarding what law might apply to the situation before you.[2] I interpret your questions as focused on whether some principle of generally applicable law may apply to the factual scenario addressed in the audit report.

RESPONSE

In my opinion, with respect to your first question, the applicable law does not appear to contemplate using public funds to purchase a private gym membership in the name of a prosecutor or his deputies. I base this opinion upon the public purpose doctrine, the provisions of Ark. Const. art. 12, § 5 and, with respect to payments made from a Drug Control Fund or federal forfeiture revenues, from the provisions of A.C.A. § 5-64-505. In my opinion, your second question cannot be answered categorically; 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. Only a finder of fact could determine whether in any given instance the expenditure of public funds to promote the physical fitness of law enforcement officers would be statutorily or constitutionally permissible. Subject to this proviso, in my opinion, in instances when a particular law enforcement job requires that an officer meet a minimum standard of physical fitness, I believe a reviewing court might consider it constitutionally permissible to expend public funds to purchase a gym membership for that officer. More generally, if a department lacked the physical facilities to conduct its own conditioning program, I believe a reviewing court might approve as constitutionally appropriate a public contract providing qualifying officers access to private athletic facilities. I have found no Arkansas authority directly addressing this issue.

Question 1: Does Ark. Const. art. 2, § 8’s public purpose doctrine, or any other law, prohibit expending public funds on athletic facility membership dues and fees for a Prosecuting Attorney and his or her Deputy Prosecuting Attorneys?

In my opinion, the answer to this question is, in all likelihood, “yes.”

I must note at the outset that Ark. Const. art. 2, § 8, despite the contrary suggestion in the above referenced audit report, contains no statement of what is generally known as the “public purpose doctrine.” Article 2, § 8 contains various provisions such as a guarantee against compelled self-incrimination, a proscription against double jeopardy, and a guarantee of due process. It makes no reference to the public purpose doctrine.

I do believe, however, that the public purpose doctrine bars any public expenditure of the sort here at issue. With regard to the scope of the public purpose doctrine, my immediate predecessor has offered the following summation, to which I fully subscribe:

The so-called “public purpose doctrine” is a constitutional common law doctrine[[3]] restricting public expenditures to primarily public purposes with any benefit to a private individual or entity being merely incidental. Opinion 91-410 explained the doctrine as follows:

The determination of this issue will, in my opinion, ultimately involve an analysis of whether the use of public funds for this purpose violates the broad, but often difficult to define “public purpose” doctrine, which generally requires that the expenditure of public funds be for a “public purpose.” See generally Chandler v. Board of Trustees of the Teacher Retirement System of the State of Arkansas, 236 Ark. 256, 365 S.W.2d 447 (1963). . . . It has been stated as regards this doctrine that “[n]o expenditure can be allowed legally except in a clear case where it appears that the welfare of the community and its inhabitants is involved and direct benefit results to the public.” McQuillin, Municipal Corporations, § 12, 190. The determination of whether a particular expenditure is for a “public purpose” is to be made by the legislature. Although ultimately the propriety of a particular expenditure is resolved by the judiciary, great weight must be given legislative declarations of public purposes. Turner v. Woodruff, 286 Ark. 66, 689 S.W.2d 527 (1985).[4]

For present purposes, this passage is primarily significant in two respects: first, it stresses that the public benefit attending any expenditure of public funds must be clear and direct, with any private benefit being merely incidental; and, secondly, it acknowledges that the determination of a public purpose is one to be made by the legislature.

With respect to publicly funding the activities of prosecutors and law enforcement officers, I believe the very statute that controls the disposition of revenues in the funds at issue in the audit states a generally applicable legislative designation of “public purpose.”[5] The statute specifies the following permissible uses for assets drawn from a Drug Control Fund created pursuant to subsection (i)(2)(A): “Moneys in the drug control fund shall only be used for law enforcement and prosecutorial purposes.”[6] The statute further provides as follows regarding the disposition of federal forfeiture funds:

(A)(i)(a) Any moneys received by a prosecuting attorney or law enforcement agency from a federal forfeiture shall be deposited and maintained in a separate account.

* * *

(iii) Moneys in the account shall only be used for law enforcement and prosecutorial purposes consistent with governing federal law.

(iv) The account is subject to audit by the Division of Legislative Audit.[7]

In my opinion, this statute is helpful in stressing that the expenditure of these public funds must exclusively serve the professional interests of the respective prosecutorial and law enforcement recipients. Read literally, these formulations may thus be read as narrowing the general statement of the public purpose doctrine set forth above.

At issue, then, is whether purchasing a gym membership in the name of a prosecutor or deputy prosecutor might be deemed to serve a “prosecutorial purpose.” In my opinion, given that the performance of one’s duties as a prosecuting or deputy prosecuting attorney can at most be described as tangentially involving one’s physical conditioning, it is highly unlikely that the courts would consider such public expenditures as clearly and directly serving the requisite “prosecutorial purposes.”

The Legislative Auditor, whose judgment in these matters is entitled to considerable deference,[8] has broadly concluded that “[u]sing public funds for athletic facility membership costs appears to conflict with the public purpose doctrine . . . and may constitute an illegal exaction of public resources in violation Ark. Const. art. 16, § 13.”[9] With respect to the general category of prosecutors and their deputies, I share the Legislative Auditor’s concerns on this score. 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.

Moreover, a payment to a prosecutor or his deputy to purchase a private gym membership might reasonably be described as affording a private benefit falling outside the range of contractual salary and benefits.[10] In my opinion, any such use of public revenues might further run afoul of Ark. Const. art. 12, § 5, which provides, in pertinent part, that “[n]o county, city town or other municipal corporation, shall . . . obtain or appropriate money for . . . any . . . individual.”[11]

In summary, then, in my opinion, expending public funds in the manner contemplated in your question would likely constitute an illegal exaction in derogation of the public purpose doctrine. Moreover, I believe such use of public funds might be deemed violative of Article 12, § 5. Finally, if, as your factual summary suggests, the public funds at issue came from a Drug Control Fund or federal forfeiture revenues, I believe the challenged expenditures would be prohibited under the statute discussed above, which is in all respects consistent with the constitutional proscriptions just discussed.

Question 2: Does Ark. Const. art. 2, § 8’s public purpose doctrine, or any other law, prohibit expending public funds on athletic facility membership dues and fees for other agencies’ (i.e., not the Prosecuting Attorney’s) law enforcement personnel?

In my opinion, the analysis offered in my response to your previous question applies to law enforcement personnel,[12] but it does so in a somewhat more nuanced, case-by-case fashion that renders it impossible for me to offer a general response to your present question. I can and will opine, however, that when the benefits of fitness training are directly relevant to job performance, as would appear to be the case whenever an officer’s job duties potentially involve significant physical exertions,[13] no constitutional provision would preclude expending public funds to provide facilities for physical training. Although any such facilities would ideally be publicly owned and administered, I further believe a finder of fact acquainted with budgetary realities might acknowledge the propriety of a department’s negotiating a public contract with a private facility to provide such access. For reasons discussed above, however, I believe the public expenditure might prove subject to constitutional assault if it were to take the form of a payment to a law enforcement officer to purchase a private gym membership used, if at all, at the officer’s discretion. As previously noted, I am not situated to apply these general principles to the factual scenario giving rise to your request.

Having offered the foregoing constitutional analysis, I feel obliged to note what may be a statutory restriction on the use of federal forfeiture funds. With respect to such funds, the state law discussed above provides as follows: “Moneys in the account shall only be used for law enforcement and prosecutorial purposes consistent with governing federal law.”[14]

The referenced “federal law” authorizes the conveyance of property forfeited under federal law to state or local authorities, including prosecutors.[15] The specific restrictions on a recipient’s use of such funds are set forth in regulations (the “Guide”) issued by the Criminal Division of the U.S. Department of Justice.[16] The Guide sets forth a list of permissible uses of equitably shared property, including the “purchase, lease, maintenance, or operation of law enforcement equipment for use by law enforcement personnel that supports law enforcement activities” – a category expressly identified as including “fitness equipment.”[17]

At issue is whether this express authorization should be read as restricting expenditures relating to physical fitness to the purchase or lease of “fitness equipment” used directly by a law enforcement agency. In my opinion, this express authorization of a recipient’s use of forfeiture proceeds to obtain fitness equipment would not in itself foreclose using public forfeiture funds to purchase a gym membership. Rather, I consider the equipment-purchase provision to be tailored to a situation in which a department already owns or has access to a physical fitness facility – a circumstance that does not exist in numerous Arkansas jurisdictions. Stated differently, I do not read the Guide as imposing restrictions on the use of federal forfeiture funds that would, in the present context, narrow the range of permissible expenditures described in the constitutional analysis set forth above. Indeed, the Guide expressly authorizes public expenditure of forfeiture funds for “the training of officers, investigators, prosecutors, and law enforcement support personnel in any area that is necessary to perform official law enforcement duties”[18] – a category that might reasonably be read as including physical training for officers required to be fit to perform their duties.[19]

Removed as I am from the factual context giving rise to your request, I can do little more than echo the Legislative Auditor’s concern that a public purchase of a private gym membership for a public employee may prove constitutionally offensive. In my estimation, a court would view with skepticism any such expenditure if the connection between job performance and physical conditioning were remote. By contrast, its concern might be considerably less if the surrounding circumstances clearly confirmed the public nature of the expenditure and its direct bearing on a public employee’s job performance. In my opinion, determining the propriety of such a public expenditure to buy private gym memberships for law enforcement 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.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,



DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

[1]I cannot explain why an audit of activities running through December 31, 2010 addresses activities occurring in 2011.
[2]I assume you are asking me only to opine in global fashion whether it is invariably offensive under the public purpose doctrine or other applicable law to expend public funds to purchase private gym memberships for prosecutors and their deputies, on the one hand, and for law enforcement officers, on the other. I do not consider your request to be one to conduct the review called for in A.C.A. § 10-4-419(b)(3) (Repl. 2012), which mandates that the Legislative Auditor’s findings of perceived financial improprieties in a prosecuting attorney’s office be reported “to the Attorney General for review and appropriate action.” I could not, in any event, perform that duty in an official opinion.
[3]See Chandler v. Board of Trustees of the Teacher Retirement System of the State of Arkansas, 236 Ark. 256, 258, 365 S.W.2d 447 (1963) (“No principle of constitutional law is more fundamental or more firmly established than the rule that the State cannot, within the limits of due process, appropriate public funds to a private purpose.”).
[4]Op. Att’y Gen. No. 2004-311 (emphases added).
[5] A.C.A. § 5-64-505 (Supp. 2011). As the Arkansas Supreme Court noted in In re Three Pieces of Property Located in Monticello, Arkansas, 81 Ark. App. 235, 242, 100 S.W.3d (2003): Arkansas Code Annotated section 5-64-505 is part of the Uniform Controlled Substances Act and sets forth the property that is subject to forfeiture under the act along with the procedures to be followed. As one of my predecessors has noted, “moneys paid into a Drug Control Fund are considered public funds.” Op. Att’y Gen. No. 91-416.
[6] Id. at (i)(2)(A)(v) (emphasis added).
[7] Id. at (i)(4) (emphasis added).
[8] As I have noted above, the legislature is the primary determinant of what uses of public funds will be permissible as serving a “public purpose.” It follows that any reservation harbored by the Division of Legislative Audit, which is an arm of the legislature, regarding a particular use should in itself call into question whether that use serves a public purpose.
[9] Article 16, § 13 provides as follows: Any citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever. The Arkansas Supreme Court has defined an illegal exaction as follows: “An illegal exaction is . . . any exaction that either is not authorized by law or is contrary to law.” Stromwall v. Van Hoose, 371 Ark. 267, 273, 265 S.W.3d 93 (2007), citing Brewer v. Carter, 365 Ark. 531, 231 S.W.3d 707 (2006). This constitutional proscription has been held applicable in cases seeking to encompass what are known as “public funds” cases seeking “the prevention of a misapplication of public funds or the recovery of funds wrongly paid to a public official.” See, e.g., Pledger v. Featherlite Precast Corp., 308 Ark. 124, 128, 823 S.W.2d 852 (1992), citing Brewer v. Hawkins, 241 Ark. 460, 408 S.W.2d 492 (1966).
[10]Indeed, in a portion of his audit not quoted in your request, the Legislative Auditor drew precisely this conclusion regarding the payments at issue in the audit.
[11]For analyses of the Arkansas Supreme Court’s historical application of this constitutional proscription, see Ops. Att’y Gen. Nos. 1999-408 and 2005-205.
[12]For purposes of clarity, I will in the ensuing discussion exclude from the scope of the terms “law enforcement officer” and “law enforcement personnel” all prosecuting attorneys and their deputies, whose circumstances are discussed in my response to the previous question.
[13]This description would at a minimum appear to apply, for instance, to certain “cops on the beat,” Drug Task Force officers or specialized officers such as SWAT team members.
[14]A.C.A. § 5-64-505(i)(4)(a)(iii) (emphasis added).
[15]See 21 U.S.C. § 881(e)(1)(A) (as to Department of Justice forfeitures); 19 U.S.C. § 1616a (as to Treasury Department forfeitures) and 18 U.S.C. § 981(e) (as to Department of Justice, Department of Treasury and United States Postal Service forfeitures); see also Op. Att’y Gen. No. 99-282 (generally discussing the application of these statutes). With regard to the scope of “law enforcement and prosecutorial purposes,” the federal statute relating to the disposition of forfeited property provides that any transfer to local authorities must “serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement agencies.” 21 U.S.C. 881(e)(3)(B).
[16]U.S. Department of Justice, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (April 2009). Discretionary distributions to state and local prosecutorial agencies are addressed in the Guide at § II(C). The recipient is required to specify the intended use of forfeiture proceeds, in compliance with the Guide’s directives, in an application for transfer designated a DAG-71 Form, which has the binding force of contract. See Op. Att’y Gen. No. 91-416 (discussing the disposition of federal forfeiture funds in accordance with the terms of this form).
[17]Id. at VIII(A).
[18]Id. at VIII(A)(1)(a).
[19]By the same token, however, the Guide forecloses a use of forfeiture funds that would be constitutionally questionable in that it would appear to confer a primarily private benefit. Subsection VIII(A)(2)(e), for instance, prohibits “[a]ny use that creates the appearance that shared funds are being used for . . . personal purposes. . . .” Subsection VIII(A)(2)(g) further mandates that shared federal forfeiture funds be used “prudently and in such a manner as to avoid any appearance of extravagance, waste, or impropriety.” The National Code of Professional Conduct for Asset Forfeiture, which is incorporated into the Guide, further declares in item 1: “Law enforcement is the principal objective of forfeiture.”