Legislators said Friday that they're frustrated to see officials from the same agencies, cities and counties summoned repeatedly for millions of dollars in audit violations and no criminal charges being filed.
The Arkansas Legislative Audit Division released a special report Friday looking at how each of the 246 audit findings referred to prosecuting attorneys during 2013 and part of 2012 has been handled. At a meeting of the Legislative Joint Auditing Committee, legislators said they were disappointed in the report findings that less than 14 percent of those cases have resulted in criminal charges.
"Our audit department does a great job of putting it together, getting the information and getting it to us," said Rep. Walls McCrary, D-Lonoke. "It seems like to me some prosecuting attorneys in the state don't take it seriously, or it seems to me there are some other considerations I don't understand. But it's really frustrating from our end of it that the state spends all of this money, we have all these hearings ... and then we see the same people back here with the same stuff almost ignoring it."
The Legislative Audit Division is required under Arkansas law to refer to prosecutors all audit findings that "appear to involve criminal offenses," according to the special audit report. Legislators asked for all of the cases reported in 2013, including some arising from 2012 audits.
Of the 246 cases tracked in the report and referred to prosecutors across the state, charges were filed in 33 cases. Overall the audit division referred findings worth more than $15 million in misappropriated, missing or stolen money. The audit report on the University of Arkansas at Fayetteville's Advancement Division represented almost $9 million of that total.
In June, prosecutors said an audit finding a multimillion-dollar deficit in the university's fundraising division would not lead to charges. In a letter, 6th Judicial Circuit Prosecuting Attorney Larry Jegley wrote that the employees involved in the deficit investigation had "differing versions" of events, but "none rise to meet the standards meriting further actions."
So far, defendants in 18 cases -- representing about $887,666 of the $15 million total -- have been convicted. One defendant was acquitted, and 14 cases are pending in court.
According to the annual report, prosecutors in the state's 28 judicial circuits declined to prosecute five cases in 2013, found insufficient evidence in 119 cases and determined in 43 others cases that the actions had been unethical but not illegal. There were 46 cases that were still under review as of the report's filing date.
The 1st Judicial Circuit prosecuting attorney's office, covering Cross, Lee, Monroe Phillips, St. Francis and Woodruff counties, received the most referred cases in 2013 and classified the most cases as having insufficient evidence. In that circuit, 33 cases were referred, with 21 designated to have insufficient evidence, five deemed ethics violations and the prosecuting attorney declining to prosecute two others. According to the report, charges were filed in two cases and three were still being considered.
"When we get a report that said you just wrote yourself a check when you're the mayor or the clerk or whatever, for $4,300 and the law says that's not legal ... how is this a matter of miscommunication when you know what the law is?" asked Sen. Bobby Pierce, D-Sheridan. "We've got to get some control because you look at this stuff and there's money there. It's several thousand dollars and when you see it time after time, you get frustrated."
But Bob McMahan, the state's prosecutor coordinator, told lawmakers that audit staff members have a lesser burden of proof than prosecutors. The Office of the Prosecutor Coordinator is a state agency created to provide professional services to the state's prosecuting attorneys and victims' advocates, including training, education, and working as liaisons between them and other state bodies.
McMahan said prosecutors have to prove intent and criminal wrongdoing beyond a reasonable doubt, while the legislative auditors are looking for findings of appearances of fraud or conflicts of interest.
Dan Shue, the prosecuting attorney for the 12th Judicial Circuit in Fort Smith and the president of the Arkansas Prosecuting Attorneys Association, also testified before the Joint Legislative Audit Committee. Shue gave an example of the difference between the role of an auditor and the role of a prosecutor.
"To make this more concrete, if you come home, your door is kicked in, your jewelry is missing, your coins are missing ... well, a burglary occurred," he said. "We have to figure out who did it. The legislative audit doesn't go out and put people under oath and take confessions."
Shue said the legislative audit can look at the fact that one person had a key to a petty cash drawer and assign responsibility for those funds if they disappear. But prosecutors have to take into consideration that the key was loaned out to five other people regularly who know where it is, and there's no confession and no videotape of the theft, he explained.
McMahan said he and Shue didn't have intricate knowledge of all the cases, but that they'd be glad to invite the relevant prosecutor to testify if lawmakers have questions about a specific referral.
Committee Co-chairman Rep. Kim Hammer, R-Benton, warned that such an invitation would lengthen a future committee meeting but encouraged legislators to let him know which prosecutors they wanted to question.
Hammer said he wanted to leave McMahan and Shue with one question to answer at a future hearing.
"How can something that is in conflict with state law result in insufficient evidence?" he asked.
Metro on 09/13/2014