Commissioners Eye Sheriff's Slush Fund

You might expect a sheriff to say, "Get your hands up!" However, these days, Guilford County Sheriff BJ Barnes is saying, "Get your hands off of my federal forfeiture fund!"

The Sheriff's Department's federal forfeiture fund contains over $669,000, and that amount is expected to grow in the coming months after new seizures by the Sheriff's Department are processed by federal authorities.

After a drug bust where cash or other property is seized, the bounty goes to the federal government, which gives 80 percent of the take back to the local law enforcement agency that confiscated the money, or other items often sold at auction. The deal is sweet for the feds because they get a cut without doing anything.

In the past, Barnes has enjoyed nearly free rein over the money in the fund. He's almost always gotten approval from the Board of Commissioners for everything he's wanted to use the fund for – but now he's sensing a shift in the winds.

Guilford County has a new Board of Commissioners that's facing record debt service and anemic revenues in the upcoming 2013-2014 budget. The commissioners are looking everywhere to find extra funds, and the forfeiture fund money is starting to look like a small pot of unused gold to some of them.

Over the years, Barnes has gotten the board's approval for many special programs, capital projects and equipment purchases not covered in the Sheriff's Department budget.

However, Barnes got a rude wake-up call recently: At the Thursday, Jan. 17 Board of Commissioners meeting, the commissioners voted down Barnes' request to use $49,655 from the fund to buy seven Segways.

Barnes said he believes he should have a wide degree of latitude over how the fund is used since it's not taxpayer money, so he was noticeably ticked off by the 5-to-4 bipartisan vote last month that prevented him from purchasing the gyroscope-aided, single-rider vehicles with a top speed of about 12 mph.

Worse for the sheriff is that his Segway request seems to have backfired. In the wake of that vote, the commissioners are eyeing the fund and wondering if they can use it to offset costs for the Sheriff's Department budget – and therefore for the county budget as a whole.

Commissioner Bill Bencini said of the Segway request that Barnes simply wanted more "toys," and, after the discussion at the Jan. 17 meeting when Barnes request was voted down, Chairman of the Board of Commissioners Linda Shaw requested that Barnes give a presentation to the board on the specifics of how the county can and can't use the fund.

The Board of Commissioners has scheduled a discussion on the use of the federal forfeiture fund for a Thursday, Feb. 7 work session.

The board's four new commissioners – Jeff Phillips, Alan Branson Hank Henning and Ray Trapp – have said they want to put everything on the table when it comes to closing a supposed $41 million gap between expected revenues and projected costs in the next budget. Henning and Branson voted against the sheriff getting the Segways, as did Commissioners Carolyn Coleman, Bruce Davis and Bencini.

Davis said this week that Barnes has often used the fund as a "slush fund." Davis added that the sheriff's request for something as extraneous as Segways put the fund "on the radar" for the commissioners.

Davis also said he and other commissioners want to explore possible ways the fund can be used to reduce the cost of running the Sheriff's Department.

Davis said this week that Guilford County Attorney Mark Payne, in response to inquiries from several commissioners, had sent out information that outlined the legitimate uses of the fund. Davis said that he's eager to study the list and ask questions about the fund.

The nine-page document that summarizes the proper uses of the fund, sent from Sheriff's Department Attorney Matt Mason to Payne, is an excerpt from the "Guide to Equitable Sharing for State and Local Law Enforcement Agencies."

The guide states that the fund "shall be used by law enforcement for law enforcement purposes only."

There are certainly some allowable uses of the fund that the commissioners ordinarily include in the Sheriff's Department's budget. Legitimate uses of federal forfeiture funds include overtime pay for officers; law enforcement investigations; training cost directly associated with law enforcement duties; purchasing guns, ammunition and other law enforcement equipment; paying travel and transportation expenses for officers; as well as funding awards and memorials for law enforcement.

The money can also go toward drug and gang awareness programs, or to fund any non-profits that "support a law enforcement policy."

The county has seen growing costs created by the giant new jail in downtown Greensboro that Barnes pushed so hard to see built. With jail costs rising dramatically, the commissioners have been attempting to find ways to offset those costs.

One of the permissible uses of the money in the federal forfeiture fund is to pay "costs associated with the purchase, lease, construction, expansion, improvement, or operation of law enforcement or detention facilities used or managed by the recipient agency."

The money can also be used to offset the Sheriff's Department's portion of a project that enhances county government as a whole.

"For example," the guide states, "if a town purchases a new computerized payroll system, and the police department represents 20 percent of the total use of the payroll system, then the police department may use shared money to fund its pro rata share."

As for impermissible uses, money from the fund "may not be used to pay the salaries and benefits of current, permanent law enforcement personnel, except in limited circumstances – such as pay for overtime and for new positions that do not extend beyond one year. "

After one year, any new positions would have to be put in the budget and they could no longer be funded through the federal forfeiture fund.

Money from the fund also can't be used for "extravagant expenditures." The guidelines state that law enforcement agencies must use the money "prudently and in such manner as to avoid any appearance of extravagance, waste, or impropriety. For example, tickets to social events, hospitality suites at conferences, or meals outside of the per diem are impermissible uses."

The money is also not supposed to be hoarded, though the Sheriff's Department seems to keep a good deal of money in the fund at all times.

The guide states the funds should be spent for permissible uses "as they are received." However, it adds that they can be retained in a holding account for up to three years for a department to save up for large long-term projects such as capital improvements.

Davis said that, the more he hears about allowable expenditures, the more he wonders why Barnes isn't using that money to help keep the cost of his budget down rather than using it to purchase extraneous items.

Davis said that was what rubbed him the wrong way when Barnes requested to purchase the Segways.

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"That just did not jive with me," Davis said.

Davis said Barnes points out frequently that the Sheriff's Department controls that fund, but Davis added that, when it comes to spending money from the fund, it takes two to tango – the sheriff and the Board of Commissioners.

"He can make an appeal to the commissioners, but we have rights also when it comes to that fund," Davis said.

Davis added that, even though the money doesn't come from tax revenues, it could lessen the tax burden on county citizens.

Barnes said he already frequently uses the fund to help keep the cost of his department's budget down. For instance, the sheriff said, he used money from the fund to pay for a district office, and he said this week that the Segways, too, were a legitimate use of the fund and the purchase of the Segways would have meant a real increase in school safety.

Barnes added that any request to use the fund must come from the Sheriff's Department; it cannot come from the Board of Commissioners.

Payne concurred. "The sheriff must bring the request forward and the Board of Commissioners must approve it before the funds may be used," he said.

The new debate over the forfeiture fund has some interesting parallels with a similar debate that raged nearly a decade ago. At that time, the dispute was over the county's inmate welfare fund – another fund Barnes used for a wide variety of non-budgeted items.

Money for that fund comes from charging inmates' friends and families for collect phone calls that inmates make from jail, as well as from money the inmates spend on buying toiletries, candy and other items for sale in the jails.

The inmate welfare fund was set up by the previous sheriff, Democrat Walter "Sticky" Burch, with the intention that the money be used to enhance the lives of county inmates – for instance, to purchase books for the jail libraries, bring speakers to the jail, or for other things that would enhance inmate welfare.

However, over the years, Barnes got more and more creative with that fund. He used the money to buy everything from drug-sniffing dogs for the jail to shock belts for the inmates.

Barnes argued that inmates benefited from a drug-free jail and, he said at the time, if jail guards had the belts to shock inmates into submission those guards would have less need to beat the inmates.

Barnes even attempted to use money in the fund to build a golf course and a driving range at the Guilford County Prison Farm near Gibsonville, using the argument that the golf course and range could be used to teach the inmates grounds keeping skills, which could help make them more likely to get a job when they got out.

Due to the debate over such unusual uses of the inmate welfare fund, the commissioners began to look into exactly what that fund could and couldn't be used for – and they were delighted to learn from The Rhino Times that the money was part of the county's general fund and the board could therefore use that money for any county purpose.

Ever since then, the commissioners have periodically raided the inmate welfare fund to pay for a wide variety of things – though the board's use of the fund has almost always been tied somewhat to law enforcement purposes. Now some commissioners want to know if they can put the federal forfeiture funds to use to offset budget costs.

Barnes said that, when it comes to the federal forfeiture fund, there won't be a repeat of what happened with the inmate welfare fund.

"The difference between the inmate welfare fund and the federal forfeiture fund is that the federal forfeiture fund is not part of the general fund," Barnes said.

Barnes also said the commissioners need to be aware that, if federal authorities determine that Guilford County has spent any money from the fund on unacceptable purposes, the feds have the right to demand repayment from the county – retroactive all the way back to the start of the federal forfeiture program.

"They can make the county pay every bit back going back to 1985," Barnes said.

Barnes said he doesn't know exactly how large that amount would be, but he said he's currently researching that number so that the commissioners will understand what kind of penalty they're facing if they spend the money improperly.

Barnes said that, since 1985, many millions of dollars have been spent from the fund.

Of course, the chances of that happening are probably much less than the chances of the commissioners being struck by lightening on the way home from a meeting on a cloudless night.

When Barnes was asked in an email if he knew of any instance where the federal authorities had taken back funds from a law enforcement agency going back to 1985 he responded, "No, not from us, but they have cautioned us on some uses which we did not do because of their warning."