Forfeiture Funds Used to Oppose Marijuana Legalization

Sheila Polk, Yavapai County Attorney, wants to use more public funds to fight a planned cannabis legalization measure in Arizona.
Sheila Polk, Yavapai County Attorney, wants to use more public funds to fight a planned cannabis legalization measure in Arizona.
Ray Stern

A law-enforcement task force in Yavapai County cut a $50,000 check from RICO funds to a substance-abuse group dedicated to fighting marijuana legalization in Arizona, New Times has learned.

The deal between the Yavapai County-based Partners Against Narcotics Trafficking (PANT) task force and MATFORCE was made soon after the Marijuana Policy Project announced it would launch a 2016 legalization campaign in Arizona — and more public funding against legalization could be on the way.

Last week, Arizona Attorney General Mark Brnovich issued an opinion, based on a question by Yavapai County Attorney Sheila Polk, that public resources could continue to "educate" the public about the alleged evils of marijuana legalization. The decision allows elected officials to do more than simply use their time for a campaign against a planned ballot initiative — they can apparently spend money on advertising and other efforts, too. But they have to balance their actions against a state ban against the use of public resources for campaigning.

Brnovich's opinion makes it tougher for elected officials to violate that law — and easier to waste public funds while campaigning for their preferred candidates or, in this case, planned ballot measures.

Polk, joined by Maricopa County Attorney Bill Montgomery, sent a letter to Brnovich on February 9, 2015, to ask the AG's office when the ban on using public resources to influence elections arises. She told the AG that the Marijuana Policy Project "has formally announced its committee to push legalization in 2016 in Arizona with an initiative. Within this context, clarification if needed on the question of when, within the statutory process to qualify an initiative for the ballot, the prohibition against using public resources arises."

Brnovich's response in the form of a formal opinion was met with outrage by legalization advocates. He referred to a case from the early 2000s, Kromko v. Tucson, in which the city of Tucson used a website and TV ads to advocate for the passage of two initiatives. A 2002 Arizona Court of Appeals ruling upheld Tucson's position, Brnovich noted.

The appellate court ruled that  "if a reasonable person could conclude that the government entity was educating the public on the issues, albeit in a one-side manner, then it has not used public resources to influence the outcome of an election," Brnovich wrote.

"To the extent you use public resources to communicate," he told Polk and Montgomery, "your efforts may lawfully continue ... so long as they do not unambiguously urge the electorate to cast a vote for or against the measure."

Carlos Alfaro, political director for the Campaign to Regulate Marijuana Like Alcohol, tells New Times that using public resources to attack the legalization effort would be "very deceitful" of Polk and Montgomery.

The officials should have "more important things to do than to continue to advocate for marijuana prohibition," Alfaro says. "Citizens' tax dollars should not be used by public officials for citizens initiatives."

Alfaro's group is a coalition of marijuana advocates including the MPP and various Arizona medical-marijuana dispensaries. They hope to gather enough signatures in time to put the legalization question before Arizona voters in November of 2016. The planned measure would allow adults to grow up to six plants in their homes, (12 max per household), and buy marijuana products at state-regulated retail stores.

Polls show support for such a measure in the state runs about 50-50. Voters in four states and Washington D.C. have legalized cannabis possession and use by adults 21 and older, though the plant remains illegal under federal law.

Lawyer Angela Poliquin, who authored a 2004 article for the Arizona Law Review about the Kromko v. Tucson case, wrote that following the appellate court's ruling on using public resources to influence elections, the result would likely be future political "mischief."

We contacted Poliquin, who now lives in Montana, to ask if using public resources to oppose marijuana legalization was the sort of mischief she had in mind.

"I am offended any time government uses its overwhelming influence over the electorate, and I still agree with Stanson v. Mott's rhetoric that this kind of government speech is dangerous to democracy," she replied. "I am disturbed, but not in the least surprised, by the government's financial support of organizations opposing the marijuana ballot measure."

The Yavapai County RICO fund, which Polk described as pooled from the area's law-enforcement agencies, is made up of criminal assets seized by forfeiture proceedings. Polk notes by way of quoting Arizona law that anti-racketeering funds can be used for many purposes, including "substance abuse education."

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But the law also says the funds can be used for the cost of investigating and prosecuting a case. Since the latter costs are typically paid by taxpayer dollars, spending RICO dollars to influence an election clearly comes at a cost to taxpayers.

In this case, it seems that Polk — a Republican who's been county attorney since 2000 — has a lot of power to carry out her personal jihad against the freedom for adults to use marijuana. She's an influential board member of both PANT and MATFORCE.

New Times submitted a records request to Polk last week asking for records of any funds going to marijuana or anti-legalization "education." We have to hand it to her office — she satisfied the request promptly. The Maricopa County Attorney's Office is as slow as molasses with such things.

Polk sent us a copy of a December 11, 2013, letter she sent to MATFORCE Director Merilee Fowler, asking Fowler to accept a $50,000 check from PANT "to support public education regarding marijuana." The PANT board of directors approved the funds for that use on October 24, 2013, she wrote.

One month earlier, the MPP had announced its plans to put the legalization measure on the 2016 ballot. Another group was then in the process of what was ultimately an unsuccessful effort to collect enough signatures for a 2014 legalization ballot measure.

We've asked Polk to elaborate on how the $50,000 was used by MATFORCE. We also put in a call for comment to Chief Jody Fanning of the Cottonwood Police Department — he's the chair of the PANT board of directors. We're curious if more RICO funds will be used for these efforts. Polk says she plans to use no funds from her county attorney office budget to oppose legalization either this year or next.

Montgomery tells us that the May 4 opinion by Brnovich "simply confirms that I can continue educating the public with respect to the impact of drugs on our community without being accused of misusing my official position by marijuana legalization advocates. I currently have no plans for any spending of public funds specifically addressing the marijuana initiative so I have neither conducted nor asked for any analysis regarding expenditures."

At a debate in March, Montgomery invoked religious reasons for opposing marijuana legalization and called a Navy veteran an "enemy" after the veteran admitted he was both a medical and recreational user of marijuana.

We don't want to make any rash assumptions, but a Google search shows that MATFORCE conducted quite a bit of anti-marijuana-legalization campaigning in early 2014, after it received the RICO funds. Various boards and town councils were approached and asked to sign resolutions against legalization — resolutions which were sometimes filled with half-truths and rank propaganda. A few months after getting Polk's RICO check, MATFORCE also brought in nationally-known anti-legalization speaker Kevin Sabet for its annual conference that April. We'll let you know if we find out Sabet received expense reimbursements or direct payments from MATFORCE for his appearance.

Regardless of the precise details, it seems clear that the RICO funds clearly subsidized, at least, MATFORCE's anti-legalization push.

Considering Brnovich's ruling, using public funds to meddle in an election like this will be standard in Arizona's future.

UPDATE May 14: Sheila Polk got back to us, letting us know — essentially — that we were correct. The RICO funds helped pay for Sabet's appearance in April of 2014. Here's her email to New Times:

"The RICO funds have been used by MATFORCE to conduct a public awareness campaign on the harms of marijuana through billboards, focus groups on effective messaging, radio PSAs, rack cards, a marijuana tool kit, books, associated contract and travel expenses, and two conferences on marijuana in 2014. Our first conference was in April where we brought out Kevin Sabet, the leading national expert on marijuana, its harms, and the negative impact on communities in states that have legalized it for either medical or retail purposes, and the second was in November. Both conferences were open to the public. Kevin Sabet is the founder of SAM, Smart Approaches to Marijuana, along with Patrick Kennedy.

"RICO funds can be used for substance abuse education and prevention programs - see ARS§ 13-2314.03. MATFORCE is a 501c and is regularly audited to ensure that all expenses are accounted for and meet spending requirements. "

Got a tip? Send it to: Ray Stern

Follow Valley Fever on Twitter at @ValleyFeverPHX

Follow Ray Stern on Twitter at @RayStern


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