It is meant to help in prosecutions or criminal investigations when quick cash is needed for something such as an undercover drug buy, supplies for a case or other incidental expenses.
Unlike other funds, it does not require approval from county commissioners or auditors, which allows sheriffs and prosecutors to cut a check on the spot.
The law that created the FOJ account was written to give sheriffs and prosecutors discretion to cut a check quickly and relatively confidentially as unpredictable expenses come up. The law gives sheriffs and prosecutors wide latitude on how they spend funds, as long as they are “in the furtherance of justice.”
Sometimes, elected officials in Ohio abuse this flexibility. Most notably, disgraced former Fairfield County Sheriff Gary DeMastry in 2002 was sentenced to six years in prison for misspending more than $300,000 in FOJ money. He was found guilty of instructing his top staffers to falsify records showing payments to nonexistent confidential informants after state auditors questioned his spending.
Funds that give Ohio county sheriffs and prosecutors the freedom to quickly and easily spend money to pursue and prosecute criminals have become a go-to source to pay for office parties, $40 entrees, employee gift cards and gas for one official’s daily commute.
And because of how the Furtherance of Justice funds are designed, sheriffs and prosecutors are encouraged to “use it or lose it,” meaning they must return all unspent money to county general operating funds at the end of each year. This means officials in some counties embark on spending sprees in December, buying tens of thousands of dollars in items such as office furniture, employee meals, computers and car wash tokens.
These are the findings of a Dayton Daily News investigation, reviewing three years of expenditures from the Furtherance of Justice funds in a seven-county area. Reporters also interviewed sheriffs, prosecutors and representatives of their statewide professional associations.
Guidelines for how sheriffs and prosecutors spend the money are intentionally vague.
Over the years, state officials have issued a patchwork of legal opinions as guidance. Now, the state auditor’s office is looking at peeling back some of the loose spending practices.
“There are instances where the expenditures appear to be outside the lines of the original intent of the statute, which is to identify, investigate and prosecute criminals,” said Bill Owen, the Ohio Auditor’s Office’s chief legal counsel, of expenditures auditors have found out in the field.
The FOJ funds are distributed annually from each county’s general fund, equal to one half of each sheriff’s or prosecutor’s salary. It is spent without the approval from commissioners and auditors required of other funds. This has made it a honey trap for some officials.
In the past year, two Ohio sheriffs have stepped down amid allegations they misspent FOJ funds. In March, state auditors ordered former Ottawa County Sheriff Robert Bratton to repay about $7,200 to the county after he used FOJ money to buy things like Cedar Point passes, belt buckles and cigars. In April, Delaware County Sheriff Walter Davis resigned from office amid allegations that he used FOJ money to pay for a hotel breakfast buffet with a female subordinate while at an out-of-state training event. In exchange for Davis’ resignation, a special prosecutor agreed to end a criminal investigation into the spending.
“Normally to spend any money, I have to go through the commissioners and auditor’s office,” said Greene County Prosecutor Stephen Haller. “But with the FOJ, I just write a check, like you would with your personal checkbook. I could see it could be tempting to someone who could want to misappropriate funds. It’s really not that difficult to do.”
“There’s multiple and good reasons to have this,” said Ohio Auditor Dave Yost. “But like any time you build flexibility into the system, there’s potential for abuse.”
The gas pump
When asked why the funds are needed, local sheriffs and prosecutors cite examples of imminent need in the midst of important cases: Detectives working late into the night need a bite to eat; investigators need money for an undercover drug buy; or a suspect or witness needs to be quickly transported from another state.
But the way the accounts are used is often different, the Daily News found.
Montgomery County Prosecutor Mat Heck between 2009 and 2011 billed taxpayers for about $4,000 in gas via FOJ to fill up his take-home, county-owned 2005 Dodge Durango. Receipts submitted to the county show Heck bought gas at filling stations near his Clayton home about two to three times a month.
Heck said in addition to driving to and from his home, he drives the SUV to meetings and crime scenes. Other staff members have access to it, too, he said. He said buying gas is cheaper than driving his personal car because of his office’s policy of reimbursing staff for 55 cents a mile.
“The most practical way to pay for it is out of the FOJ, and it’s also a legally appropriate way to do it,” Heck said.
Several counties use the fund to hand out employee perks, such as gifts or meals.
Butler County Prosecutor Michael Gmoser in December handed out $12,663 in Bridgewater Falls gift cards to his employees and two $100 performance bonuses to interns. Former Warren County Prosecutor Rachel Hutzel frequently dipped into the account for $25 gift cards to Target or restaurants such as Olive Garden or O’Charleys.
Gift cards can catch the attention of state auditors because there’s no way to track what they’re being spent on. It’s also illegal to spend public money on alcohol.
Gmoser defended the purchase: “Because of budget constraints we do not have the ability to give salary increases to my staff, but there are other mechanisms by which I can award their service, and that is what I did.”
The Warren County Prosecutor’s Office gave out $550 in $25 gift cards to employees over three years.
Prosecutor David Fornshell cut back on the practice substantially when he took office, but saw nothing wrong with it.
“Anytime that you recognize employees who work for a prosecutor for going above and beyond in a particular case, that increases the morale of an office,” he said.
Steaks and buffets
One of the most common uses of the fund is to pay for travel and training. While on the road, reimbursed meals can get pricey. Two prosecuting attorneys in Warren County attending a conference in Law Vegas charged for $41 seafood buffets. Steaks for $26 or more were purchased by officials in several offices.
An assistant prosecutor in Greene County in April 2010 charged taxpayers for a $36 ribeye steak and a $7 baked potato at a Mitchell’s Steakhouse in Columbus, where he was attending a training session.
Greene County’s Haller said that since the meal fell under his office’s per diem, he had no problem with the expense.
“If that’s his per diem and he wants to spend it on one meal,” then that’s his prerogative, said Jeannette Adkins, who oversees the FOJ fund for the Greene County Prosecutor’s Office.
Warren County Sheriff Larry Sims established a limit in 2009, capping dinners at $20 for his employees’ meals while traveling. He said it wasn’t to curb any specific abuses. Still, before he instituted the meal cap, members of his staff charged taxpayers for steaks costing $21 or more four times in a four-month period.
“If you were having to travel at the agency’s expense you should be reimbursed for your meals if you so choose, but at a reasonable amount,” Sims said.
Yost said using FOJ money to buy some meals is fine. But if it’s the same people eating out again and again, that raises questions.
“This is not a diners’ club,” he said. “And we’re going to look at a prosecutor or a sheriff that is regularly dining out on the FOJ account.”
One of the few clear restrictions on FOJ funds is that they can’t be used to buy alcohol.
The newspaper found no examples of taxpayer-funded alcohol. But the Warren County Sheriff’s Office used FOJ money to pay a pair of $75 bartending fees, once in 2009 and again in 2011. Both were part of about $1,200 the sheriff’s office spent to send staff to state association meetings in Warren County.
Sims said the money paid for the bartenders, not for what they were serving.
“Nobody’s buying alcohol on county dollars,” he said. “It’s for that person to be there at the hotel. I do see that as a little different. I can also see someone trying to twist that around, but no one was trying to buy alcohol on tax dollars.”
Other common uses for the funds were self-promotional materials, such as $1,425 in nail files or $3,850 on ads and event sponsorships for groups such as the Springfield Arts Council and symphony orchestra, all sporting the name and/or face and contact information for Clark County Sheriff Gene Kelly.
“We want to promote our web page and phone numbers,” Kelly said. “We’re trying to reach out again to the public and support our local community.”
Charitable contributions have also been a common use of FOJ funds. Between 2009 and 2011, Montgomery County Sheriff Phil Plummer donated about $25,000, about one-fifth of his office’s FOJ money, toward various charitable causes or for seats at fundraising dinners, including the Boy Scouts and the NAACP.
Plummer said these types of events are valuable networking opportunities.
“As you probably can see, there is some tension between police and segments of the community, so this allows us to talk to people and interact with people,” Plummer said. “I get a lot of people come to me because they trust me because of stuff like this. It’s tremendous, believe me.”
Public records include many examples of FOJ funds being used for the purposes sheriffs and prosecutors commonly mention, such as buying drugs as part of undercover investigations. Every county spent tens of thousands combined sending deputies or attorneys to shepherd suspects or witnesses back to their counties.
But some uses simply defy categorization.
Miami County Sheriff Charles Cox spent $1,342.61 to pay for, among other things, a $15 Hank Williams Jr. CD and $15 in wintergreen chewing tobacco. Those items were in a car owned by the victim of a fatal crash that the sheriff’s office towed. Cox reimbursed the victim’s family for the costs.
The Warren County Prosecutor’s Office spent $344 for a bathtub as part of the trial of Ryan Widmer, who was found guilty of drowning his wife in a bathtub, as well as tens of thousands of dollars on expert witness fees in the case.
Sheriff Sims also spent FOJ money to pay for his office’s honor guard. That includes about $1,000 in bagpipe and drum lessons, and another $6,000 for coats and other clothing for the guard.
Champaign County spent $3,157 on coloring books, fake tattoos, squiggle bracelets and other items to hand out to kids at the county fair. Sheriff’s Lt. Chris Copeland said this is a perfect example of how to use FOJ dollars.
“Everything else is earmarked by line item, and obviously we can’t use that money for these types of things,” he said. “(This) enables us to do something like communicate with the kids, have some things for the kids, get them involved with us.”
Use it or lose it
Sheriffs and prosecutors must return unused money to the county at the end of each year. Combined with directions to not spend FOJ money unless other money runs out first, this means many counties scramble to tap the account dry at the end of the year. Some counties spend nearly every last penny — in Warren County at the end of 2010 the sheriff’s office returned one cent to the general fund.
Last year, Montgomery prosecutor Heck spent about $32,000 of FOJ money during the last three days of the year, or about half that was spent in all of 2011. These purchases included $920 for an iPad 2 and wireless keyboard on Dec. 30. A few days later, prosecutors returned $8.39 to the county.
One of the last purchases made every year by the Champaign County Sheriff’s Office has been up to $1,638 in car wash tokens to Urbana Super Wash, buying several hundred tokens for its 15 cars and depleting the account.
“It’s not burning a hole in our pocket at the end of the year,” Lt. Copeland said. He said the office has black cars that are hard to keep clean.
Miami County Prosecutor Gary Nasal returned roughly $10,000 at the end of each year.
Nasal said his office avoids “spending money for the sake of spending money,” and that he doesn’t use FOJ money to spend on gifts or charitable donations, although he knows that’s something that’s been allowed. “We don’t engage in last-minute spending,” he said. “I don’t think that’s responsible.”
As sheriffs and prosecutors see their budgets increasingly pinched, more are turning to the FOJ to cover general office expenditures.
“They have cut us so drastically, it makes sense to shift costs toward the FOJ fund, and it conforms to the law,” Heck said. “So that’s what we do.”
The FOJ accounts are audited by the state roughly every three years, and in none of the counties reviewed by the Daily News did the state challenge any expenses. State auditor’s office officials say that could change in the future.
“I think there’s a general agreement by the (Ohio Prosecuting Attorneys Association) and the (Buckeye State Sheriffs’ Association) leadership that the FOJ fund is not an entertainment or a promotional fund, and that it’s not to be used to supplement the income of elected officials and their employees,” said Owen, of the state auditor’s office.
Buckeye State Sheriffs’ Association Executive Director Bob Cornwell said his organization provides county sheriffs with training each year so they don’t trip up by spending FOJ money wrongly. He calls it “channeling their discretionary thoughts in a certain way that the state auditor has found is a legitimate use of money.”
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said his organization doesn’t tell prosecutors what to do with the money. “It’s obviously a little bit open. They have to use their judgment as to what is in the furtherance of justice. We don’t attempt to define that for them,” Murphy said.
“It is broad,” said Greene County Prosecutor Haller, “But I think those of us who have done this for a while know what it’s supposed to be used for. It’s almost a smell test.”
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