Homeless in Arizona

AG backpedals on support for Polk's anti-pot funding

By Scott Orr

Contributing Reporter

PRESCOTT - Arizona's Attorney General has withdrawn a legal opinion that allowed Arizona officials to use public money to take a position on issues that will appear on the ballot.

The question arose as a result of a request by Yavapai County Attorney Sheila Polk, along with Maricopa County Attorney Bill Montgomery, asking AG Mark Brnovich "what constitutes the use of public resources to influence the outcomes of elections."

Brnovich initially ruled, on May 4, that using public funds to "educate" people on the issue ahead of the vote was legal.

State law says, "A county shall not spend or use its resources, including the use or expenditure of monies... for the purpose of influencing the outcomes of elections."

Brnovich's opinion concluded that, "To the extent you use public resources to communicate, your efforts may lawfully continue ... throughout the election, so long as they do not unambiguously urge the electorate to cast a vote for or against the measure."

The decision was unpopular among advocacy groups, notably the Washington, D.C.-based Marijuana Policy Project (MPP), which is planning a 2016 ballot initiative to legalize recreational use of marijuana in Arizona.

The original opinion was "careless, it wasn't thought out," MPP Arizona's political director, Carlos Alfaro, said. "It could be open to a lot of abuse, and it is clear that Bill Montgomery and Sheila Polk wanted that abuse, wanted to use it by using taxpayers' money against the citizens' initiative.

"That shouldn't happen," he said.

After Brnovich withdrew the opinion, his office issued a statement that said, "Attorney General Brnovich takes the allegations that the previously issued opinion may have provided an opportunity for potential government abuse very seriously.

"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," he stated.

Polk said she was looking at a similar ballot issue that would have legalized marijuana in Oregon in November when she decided to ask for an opinion.

"Part of the (advocates') playbook was to go after elected officials who tried to educate the public about the harms of marijuana," she said, "and so my request of the AG is simply proactive.

"I don't really spend public funds on drug education," she said, noting that the majority of her efforts were as co-chair of MATForce, the area non-profit that fights substance abuse in Yavapai County.

Addressing a $50,000 donation of funds collected by Racketeer Influenced and Corrupt Organizations (RICO) convictions to MATForce, Polk said,

"That is absolutely allowed by law. The statute specifically says the RICO funds can be used for drug education and prevention."

She called allegations that the funds had been used to try to influence the election "ridiculous," and said, "MATForce has been educating on the harms of marijuana long before (MPP) came into Arizona to get this initiative on our ballot."

She also said the donation had been made in December 2013 - "a full 15 months before April 17, 2015, the date the Marijuana Policy Project filed their initiative."

Polk said the existence of a ballot measure doesn't mean MATForce "suddenly has to go silent."

But Alfaro said what MATForce does should not qualify as "public education," arguing that, "If it were public education, (Polk) would be talking about the studies that show marijuana is safer - objectively safer - than alcohol."

Polk and Montgomery, he said, "are using their official capacity to advocate directly against this initiative."

"I absolutely, in my role as County Attorney, get to advocate against the initiative," Polk said, "What I cannot do is use public resources to do that.

"Nothing in the law says I lose my First Amendment right to speak out."