By: Heather Mandelkehr on February 3, 2013
In November 2012, the Arkansas Attorney General put a stop to a practice uncovered by a state legislative audit – the use of public forfeiture funds to pay athletic facility membership fees for prosecutors and other law enforcement personnel. The Attorney General’s opinion came in response to an inquiry from state Sen. Bill Pritchard and state Rep. Tim Summers, who serve as chairmen of the Legislative Joint Auditing Committee for the Arkansas legislature.
The funds used for the Prosecuting Attorney’s gym membership, along with the Deputy Prosecuting Attorneys’ memberships, totaled $1,866 in 2011 and $3,335 in 2009. According to the state congressmen’s’ initial inquiry, these sums came from the Drug Control Fund and were also dispersed for the benefit of athletic memberships for other law enforcement personnel. According to the Prosecuting Attorney, “he paid these membership fees ‘for the benefit of officer safety, training, and health reasons.’”
In his analysis of the issue, the Attorney General was swift to state his opinion about the use of the funds: [T]he 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.”
The opinion evaluated the appropriateness of these funds under the limits of Arkansas’s “public purpose doctrine,” which he defined as “a constitutional common law doctrine restricting public expenditures to primarily public purposes with any benefit to a private individual or entity being merely incidental.” Additionally, the Attorney General referenced the state statute controlling the Drug Control Fund, which provides that money in that fund stemming from a law enforcement forfeiture is only to be used for “prosecutorial purposes,” to limit further the common law understanding of public purpose.
Consistent with those guiding principles, the Attorney General determined that not only does “physical conditioning” serve a “tangential” relationship to the duties of a prosecutor under the statute, the use of public funds for individuals’ private gym memberships may be unconstitutional. The Attorney General, however, was quick to distinguish other non-prosecutorial law enforcement personnel from the prohibition, stating that in some instances, use of public funds to improve law enforcement officers’ physical abilities may be allowed when such physical abilities are necessary to carry out job duties.
Overall, it appears that the Attorney General’s opinion and reasoning are sound. Disputes regarding possible misuse of public funds by government employees are not uncommon. Such issues are certainly prevalent with regard to moneys in government possession because of forfeiture proceedings, in which a government agency seizes property associated with the drug trade and then can sell or keep the property to fund its efforts.
In the present case, the Attorney General followed precedent established court cases and previous attorney generals’ opinions in strictly construing the interpretation of the Drug Control Fund statute to limit use of money within the fund to strictly prosecutorial activities. In Board of Trustees for Little Rock Police Dep’t Pension and Relief Fund v. Stodola, the Arkansas Supreme Court in 1997 held that the governing statute requires “that money must be used for law enforcement and prosecutorial purposes in connection with curbing drug trafficking.” Additionally, a 2005 Attorney General’s opinion denied the use of Drug Control Fund money to purchase duffel bags for an organization that helps children under court supervision. In that situation, the Attorney General noted that regardless of the benevolent goal, use of the funds “has absolutely nothing to do with curbing drug trafficking.”
Based on this precedent, the Attorney General’s prohibition on the use of funds for prosecutors’ gym memberships was correctly decided. The current statutory interpretation of the disposition of funds strictly limits the use of funds to particular prosecutorial purposes, which likely does not include physical fitness for personnel. Short of a television-like scenario in which prosecutors find themselves sharing duties with police officers, and thus requiring similarly high levels of physical conditioning, it is unlikely that Arkansas will permit the use of public funds for their gym memberships.
 Ark. Op. Att’y Gen. No. 2012-094 (Nov. 20, 2012), available at http://ag.arkansas.gov/opinions/docs/2012-094.html.
 See id. (quoting findings of audit committee that led to opinion). The memberships were “made available” to prosecutors, who could accept if they desired, and then the fees would be “paid or reimbursed using the referenced public funds.” See id. (detailing specifics of gym membership payment and use).
 See id.
 Id. Although the legislative audit report challenged the use of funds for gym memberships under Article 2 of the Arkansas constitution, the attorney general noted at the outset of the opinion that “public purpose” doctrine is not implicated in that article. See id.
 See id. See also Ark. Code Ann. § 5-64-505 (Supp. 2011).
 See Op. No. 2012-094, supra note 1.
 See id. (“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, no constitutional provision would preclude expending public funds to provide facilities for physical training.”) (footnote omitted).
 See, e.g., Misuse of Public Funds, State of Cal. Dep’t of Justice, Office of the Attorney Gen., http://oag.ca.gov/ethics/accessible/misuse (collecting cases where city and county officials misused public funds for private purposes).
 See, e.g., Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35 (1998) (protesting against idea of “self-financing police agencies” profiting from asset forfeiture); Karis Ann-Yu Chi, Comment, Follow the Money: Getting to the Root of the Problem With Civil Asset Forfeiture in California, 90 Cal. L. Rev. 1635 (2002) (discussing financial incentives of drug-related forfeiture programs).
 942 S.W.2d 255, 258 (Ark. 1997) (emphasis added).
 Ark. Op. Att’y Gen. No. 2005-084 (May 20, 2005).