NEWS

Use of seized funds to campaign vs. marijuana draws fire

Yvonne Wingett Sanchez
The Republic | azcentral.com
  • Attorney Kory Langhofer%2C who represents a pro-legalization group%2C said Matforceis required to be neutral on the proposed marijuana initiative since it is spending public funds.
  • Some say the group%27s use of the RICO money could violate campaign-finance laws.
  • The planned 2016 ballot initiative would ask voters to legalize marijuana for recreational use and establish a network of licensed cannabis shops where sales of the drug would be taxed%2C in part%2C to fund education.

A Prescott Valley anti-drug group is drawing fire for using money seized by law enforcement to warn about the dangers of marijuana.

The criticism comes from supporters of a proposed ballot measure to legalize the drug, who are also raising legal questions about the line between educating and campaigning.

Matforce, a non-profit organization, has received $110,612 in government-seized racketeering money over the past five years to educate the public about the harmful effects of marijuana, methamphetamine and other drugs. The group advocates against the legalization of marijuana using other funds, including private donations.

The focus of the dispute is the group's receipt and spending of $50,000 in RICO funds in December 2013. Since then, Matforce has spent the money on billboards, focus groups, radio public-service announcements and conferences featuring opponents of marijuana on public-health grounds, among other things.

Some say the group's use of so-called RICO money could violate campaign-finance laws, although no one has elevated the dispute to an official complaint.

Yavapai County Attorney Sheila Polk, who is leading an effort to oppose legalization, dismissed the criticism, saying it is the "playbook" of marijuana supporters to "intimidate public officials" who oppose marijuana legalization into silence.

Attorney Kory Langhofer, who represents a pro-legalization group, said Matforce is required to be neutral on the proposed marijuana initiative since it is spending public funds. He said it is most likely illegal for the group "to spend money in a biased way."

He added: "They're spending tens of thousands of dollars that come from public coffers just at the time a ballot initiative is preparing to launch."

Langhofer cites a statute that requires neutrality in government expenditures that could influence elections. He said Matforce can use RICO funds to educate the public on election-related matters but its message must be neutral.

The problem arises when a political initiative comes into play, Langhofer said: "The government cannot fund propaganda."

The racketeering money comes from cash and assets seized in criminal investigations. They are distributed to law-enforcement agencies and can fund gang-prevention programs, substance-abuse prevention and education programs, and to combat certain crimes spelled out in state and federal statutes.

ARIZONA ON A ROLL WITH POT-GROWING PERMITS

A Yavapai County task force, which includes Polk, the sheriff and police chiefs, selects which organizations in the area receive the money.

Polk pointed out that Matforce, which she helped to found, received its money "three years before any election on the legalization of marijuana" became an issue and all of the money has been spent. In her view, the RICO funds were not used to influence the election, even though the group "is absolutely permitted to engage in activities regarding ballot initiatives."

She said the RICO funds were strictly used to "educate" the public about the dangers of marijuana and that group did not co-mingle that money with other funding. Matforce's has also used RICO funds, grants and private money to warn the public about the dangers of methamphetamines, synthetic drugs, prescription drugs and heroin.

"Very clear lines have been drawn and will continue to be respected as we move forward," she wrote in an e-mail.

"To ask a substance-abuse coalition that's focused on our kids and their future to never use the word 'legalization' long before its ever an issue in our state, is really ludicrous," she said, saying the group has advocated for drug prevention since 2006. "We are trying to raise awareness about the harms of marijuana. Along comes Marijuana Policy Project, and it targets Arizona for 2016 — which by the way is 18 months away."

Polk said Matforce was recently awarded $98,000 from the Arizona Criminal Justice Commission through a competitive grant process for marijuana substance-abuse prevention and education activities. Those public-health funds will be used "to implement a mass media campaign on the harms of marijuana," she said.

The planned 2016 ballot initiative would ask voters to legalize marijuana for recreational use and establish a network of licensed cannabis shops where sales of the drug would be taxed, in part, to fund education. Supporters of the Regulation and Taxation of Marijuana Act will soon start collecting signatures.

Attorney Tom Irvine said Matforce's spending of RICO funds on anti-marijuana legalization is not a black-and-white issue.

"Is there an election in the vicinity? If there's nobody circulating petitions and it's not on the ballot yet, there's public discussion on this," he said. "Certainly the minute an election is called then, boom, you can't spend government money anymore."

Christina Sandefur, vice president for policy at the Goldwater Institute, said when there is no election, using public resources to present factual information cannot reasonably be considered "influencing an election." ​But once a petition or ballot initiative papers are filed, "we are then dealing with an election, and the law requires absolute impartiality and neutrality," she said.

"At that point, public funds can only be used in a neutral manner, for purposes that are purely informational and provide an equal opportunity to all viewpoints," Sandefur said. But, she added, the group cannot be expected to "be a mind reader" about whether papers would be filed years later.

Carlos Alfaro, Arizona political co-director for the Marijuana Policy Project, said the law is "legally ambiguous" and said he thinks Polk and Maricopa County Attorney Bill Montgomery — who regularly speaks out against marijuana legalization — want to "abuse" public funds to oppose the initiative. Montgomery and Polk dispute the assertion.

"It's just ambiguous and ready for abuse at any time," Alfaro said. "Instead of being for public education, they're really just offering a one-sided argument against the ballot initiative. This is not about educating the public, it's about campaigning."

At the request of Polk and Montgomery, Arizona Attorney General Mark Brnovich this month issued a legal opinion that concluded public officials could use public resources to educate the public about why they think marijuana should not be legalized. Polk and Montgomery told The Republic that they wanted to ensure they were abiding by the law.

In his opinion, Brnovich wrote that laws ban the use of public funds to influence electoral outcomes. But, he continued, nothing prevents public officials from taking part in campaigns to "educate" the public as long as "they do not unambiguously urge the electorate to cast a vote for or against" the marijuana ballot measure.

Brnovich withdrew the opinion last week, after critics said it could lead to the abuse of government resources.

In a statement, Brnovich's press secretary Kristen Keogh wrote that Brnovich takes seriously allegations that the opinion could lead abuse of public money. The attorney general plans to issue a new opinion.

"The original opinion offered by this office was intended to preserve the First Amendment right of elected officials who educate the public on ballot measures," she wrote. "This office remains committed to defending their right to free speech."