Legislative Audit holds itself above the law; defense lawyer sees problems | Arkansas Blog

Sunday, September 29, 2013

Legislative Audit holds itself above the law; defense lawyer sees problems

Posted By on Sun, Sep 29, 2013 at 7:41 AM

CHUCK BANKS: Sees overreach by Legislative Audit.
  • CHUCK BANKS: Sees overreach by Legislative Audit.
In Fayetteville Saturday, I ran into Chuck Banks,  criminal defense attorney for former Treasurer Martha Shoffner, and congratulated him on a victory for the Freedom of Information Act in successfully suing Legislative Audit to give up some of the working papers on its special investigation of Shoffner's investment practices.

Banks sees what's at work at Legislative Audit as I do. In a break from years of tradition, evidence grows that Audit is going to be used, not merely as a reviewing agency of government practices, but as a political tool by controlling legislators, currently both Republicans. Banks, by the way, is a Republican of long standing.

It's impossible to look at the manner in which the Shoffner investigation was undertaken and staged by the Republican committee chairs — with unprecedented leaks of the expected results — and not conclude that a political agenda was at work. I'll remind you again that, bad as the facts appear on Shoffner's taking money from a favored bond salesman, the audit itself turned up no such dirt.  But  Republican legislators were convinced even after the extensive audit that if they could just keep investigating they surely could find SOMETHING.

When an investigative agency becomes an agency in search of a crime — particularly when it is not a law enforcement agency — it becomes a threat to our system of government. Probable cause is a good place to begin a look for wrongdoing, not dislike of a particular politician. I mentioned Kenneth Starr and Banks nodded his head in agreement. 

In that vein, I also learned this weekend a bit more about the arguments made by Frank Arey, Legislative Audit's chief counsel and a dedicated Republican, in his unsuccessful effort to get Judge Mackie Pierce last week to grant official secrecy to audit records.

I've learned that Arey argued, in addition to the bogus "ongoing investigation" defense (audit has no ongoing investigation and is not a law enforcement agency), that Legislative Audit is exempt from the Freedom of Information Act. He argued that decisions to withhold information are not subject to judicial review.

It is too bad the Democrat-Gazette report on the case didn't mention this particular argument from Counselor Arey. It might have prompted the editorialists to action. Remember the alarum that arose (justifiably) in those quarters when the Game and Fish Commission attempted to unilaterally declare its own independent vision of freedom of information? 

Again: An attorney for Legislative Audit, presumably with the blessing of the director of the agency and the Republican co-chairs, has argued that a court didn't have the right to question the agency on FOIA matters?

Where's the outrage?

Perhaps future "special investigations"  by Audit might interest the editorial writers more than the Shoffner case.

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