Late yesterday, attorney Tom Mars broke the news on Twitter that Attorney General Tim Griffin had issued an official opinion, at the behest of Gov. Sarah Huckabee Sanders, regarding whether the governor’s office had to follow general state procurement rules. Griffin’s conclusion — that Sanders and other constitutional officers do not have to abide by purchasing and property-disposal rules that state agencies must follow — has some people worried Sanders is trying to avoid accountability for the purchase of a $19,000 lectern from Sanders’ friend, Virginia Beckett.
This concern is understandable. This opinion dropped less than two weeks after Sanders submitted her response to the draft Legislative Audit report and just before the final report is supposed to be released.
While it remains to be seen whether Sanders is ultimately held accountable for anything, the (somewhat) good news is there are at least four reasons why Griffin’s opinion will have little practical bearing on that outcome.
1. Griffin’s opinion is irrelevant to the main issues of the audit.
Sanders asked Griffin to opine on whether “constitutional officers” such as herself are bound by the General Accounting and Budgetary Procedures Law and whether they are subject to the requirements of Ark. Code Ann. § 25-8-106, which governs how the state can market or redistribute state property. Ignoring several flaws with the conclusions prepared by Deputy Attorney General Noah P. Watson (addressed below), Griffin said constitutional officers are not bound by either statute.
It’s easy to guess, based on her request for this opinion, that Sanders’ excuse for whatever damning news is in the audit report will be something along the lines of, “Yes, I purchased a lectern in a way that violates state procurement laws, but those laws don’t apply to me, so it’s fine.”
But here’s the thing: No one disputes this conclusion.
As far back as September, when the #lecterngate story was first starting to unfold, the governor’s office was hiding behind the “procurement rules don’t apply to us” excuse. They were so overt that Sanders’ most vocal supporters were quick to parrot that explanation, prompting this tweet on Sept. 28:
I didn’t think it would have to be said, but “we’re exempt from procurement rules” does not in any way mean that you can pay 4-5x what something should actually costs just because your friends are pretending to be lectern vendors.
— Matt Campbell (@BlueHogReport) September 28, 2023
Griffin’s new opinion just reiterates what we already knew. What it doesn’t do is excuse Sanders from following other laws.
Even if the governor does not have to follow procurement rules for legitimate purchases, it doesn’t mean that she can send $19,029 to a friend for a “podium” that doesn’t exist and was never delivered.
It doesn’t mean that she can falsify purchase records and other public documents to try to cover an illegal expenditure.
It doesn’t mean that she can knowingly overpay for a piece of furniture and allow her friend to pocket the excess. Pretending like $19,000 was fair market value for a lectern that should have cost maybe one-fifth that much still doesn’t exonerate Sanders.
And, for reasons discussed further below, it certainly doesn’t mean that she can buy something using state funds, then sell it to the Arkansas Republican Party for the same price Sanders’ office paid. This is true even if the governor’s office dishonestly calls the payment from the ARGOP a “reimbursement.”
Sanders and Griffin are teeing up a Trump-style argument. They hope to muddy the waters, especially when it comes to what gets reported on TV after the audit report is released.
Getting governor’s office staffers and sycophants to say “the governor is exempt from procurement rules” on social media last September might not have worked, but maybe getting some reporters to act as stenographers and uncritically repeat the same thing will?
2. The timing of the opinion illustrates its irrelevance.
We wouldn’t realize it for another day or two, but #lecterngate officially broke on Sept. 11 with this tweet. Within a couple hours, a source mentioned a rumor that the Beckett expenditure was for a “podium.” By Sept. 15, this was confirmed, and lecterngate smoke quickly turned to fire.
Remember this nearly $20k expenditure to Beckett Events?
Turns out, Sarah Sanders bought an $18,475 custom podium, w/ travel case, just before her European trip.
Even Aaron Schock only spent $5,000 on the pointless lectern that was part of his spending scandal… https://t.co/fHRczik49h pic.twitter.com/C4l7WL6O2Y
— Matt Campbell (@BlueHogReport) September 15, 2023
Two weeks later, Sen. Jimmy Hickey (R-Texarkana) asked the Legislative Joint Auditing Committee to audit Sanders’ office regarding the lectern and other expenditures.
At that time, Sanders’ spokesperson Alexa Henning said the governor “welcomes the audit.”
If Sanders & Co. thought an attorney general’s opinion about procurement laws might exonerate the governor, wouldn’t they have requested that opinion much sooner?
Sanders’ response to the audit report was due Mar. 29. If she thought Griffin’s opinion could explain away the report’s findings, wouldn’t she want to cite that opinion in her response? Why wait until after that response was filed to request an opinion? What good does that do her?
None, at least from a legal standpoint. But potentially a lot in the court of public opinion, if she can get enough people to chant Griffin’s (legally irrelevant) opinion as an incantation against accountability.
3. An attorney general’s opinion is just that – an opinion – and this one has holes.
It would be incorrect to suggest that AG opinions carry no weight. They are frequently treated as “persuasive authority” in Arkansas courts, especially on Freedom of Information Act issues.
That said, they are still only opinions. They are not binding on any Arkansas court, state or federal. More than once, an Arkansas court has found that an AG opinion was incorrect and ruled in favor of the party that the AG’s opinion would have gone against.
For instance, in 2015, then-Attorney General Leslie Rutledge opined that the Arkansas State Police employee file for Boyce Hamlet, who was then Alcoholic Beverage Control enforcement director, was exempt from release. Russ Racop sued, and the circuit court agreed with him that the records were not exempt and must be released.
So, even in the best-case scenario, an attorney general’s opinion is merely an additional argument in someone’s favor.
Even if you accept that a governor (or any other constitutional officer) can purchase something without going through the usual procurement rules, it does not logically follow that she can dispose of purchased items however she chooses. To hold otherwise would mean that a governor could, for example, use state funds to buy a new Rolls-Royce Spectre (MSRP $420,000) then sell it to a third party for $500, and there would be nothing citizens, legislators, or anyone else could do about it. Obviously, this is a ridiculous interpretation of the law.
In fact, a 1991 opinion from then-Attorney General Winston Bryant addressing a question about disposal of forfeited property from criminal cases noted in passing that the rules for disposal of state property do apply to constitutional officers. He wrote:
For example, if a prosecuting attorney is permitted to retain the property, it should be characterized as state property, because prosecuting attorneys are state constitutional officers. See Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976). Accordingly, any sale of the property should be in compliance with the procedures set out for the sale of personal property of the state. See A.C.A. §§ 19-4-1503 and 25-8-106 (1987).
Watson and Griffin try to get around this by saying the 1991 opinion devoted only “two sentences in a 23-page Attorney General opinion from 1992 [sic]” to the issue and arguing that requiring the governor to follow rules for disposal of property would unconstitutionally place the governor’s office below the Office of State Procurement.
In reality, the fact Bryant did not feel the need to explain at length why constitutional officers were subject to property-disposal strongly suggests that this conclusion was so obvious to everyone that no further explanation was needed. Because of course a constitutional officer can’t dispose of state-owned property however he or she wishes.
More importantly — and contrary to the assumptions in Griffin’s opinion — requiring the governor’s office to follow property-disposal rules does not make the governor subservient to another agency. The governor is still free to purchase items as she wishes, and she can keep those items for her official use for as long as she and any subsequent governors see fit. Applying disposal rules to constitutional officers simply means that, once a piece of personal property is purchased, it belongs to the state.
This is such an obvious conclusion, it’s kind of nuts that Griffin would pretend otherwise. Or it would be nuts, if Griffin hadn’t spent the last year carrying water for Sanders at every possible turn.
4. This opinion has no impact on any potential criminal charges.
There has been no leak to this point suggesting that Legislative Audit referred any of their findings to the proper law enforcement agencies, though that is certainly within their statutory power. Attorney Mars, however, mentioned on Twitter that he made a referral to federal law enforcement last year regarding the lectern purchase.
While the state’s track record of elected officials getting away with blatant wrongdoing is long enough that any expectations about a criminal investigation should stay tempered, it is worth noting that Griffin’s opinion about Arkansas’s procurement rules has no bearing on whether Sanders or anyone else might have violated federal laws regarding wire fraud, theft or anything else.
If the FBI determines that Sanders’ actions violate federal law, they can bring charges without ever giving a moment’s thought to Griffin’s opinions about anything.
Conclusion
Griffin’s opinion, coming when it did and being requested directly by Sanders, understandably raised eyebrows. At the end of the day, however, Griffin’s opinion seems little more than an attempt to create a smokescreen that Sanders can hide behind when the report is released.
His opinion simply reiterates what everyone already knew about procurement rules. The extent to which this subterfuge is successful depends largely on whether reporters push back against a misleading narrative and provide the necessary context once the report is released.
