The Honorable Harmon Seawel State Representative 5761 Highway 328 West Pocahontas, Arkansas 72455-8661
Dear Representative Seawel:
I am writing in response to your request for an opinion on the following question:
The Hardy Volunteer Fire Department has a bank account for funds received from contributions and fundraisers. These funds are used to purchase items which cannot or will not be purchased by the city with city funds. Are these funds to be controlled by the city or are they private funds? Also, are they subject to audit? The funds in question are those raised by contributions and fundraisers.
RESPONSE
The answer to this question will depend upon the facts surrounding the solicitation, maintenance, control and disbursement of the funds in question. My predecessor addressed similar questions in Ops. Att'y. Gen.2000-063 and 2000-167. I have enclosed those opinions for your review. Each opinion discusses the public nature of similar funds and the authority of the Division of Legislative Audit to audit the funds.
In the first opinion, Op. Att'y. Gen. 2000-063, it was concluded that "if the funds arise from private sources and are privately maintained, the City . . . has no authority over the funds." Because of the "intermingling of the public and private nature of the fund," however, it was noted that a fact question may arise as to whether the funds were truly private. In the second opinion, Op. Att'y. Gen. 2000-167, a number of factors were restated as being important in the determination of whether these type of funds are public or private in nature and thus subject to control by the city and audit by the Division of Legislative Audit, as follows:
Who is soliciting the funds? Public or private employees?
When are the funds being solicited? During normal work hours or after hours?
At what location is the money being solicited? Are donations being taken at buildings owned by the political subdivision?
Are public facilities, vehicles, or assets being used in soliciting or collecting the funds? Are public employees utilizing public vehicles, buildings, equipment or other assets in the solicitation of the funds?
Is there a separate legal entity soliciting the funds, and does it have a separate tax ID number?
In what name are the funds being solicited? Are the funds being solicited in the name of a public entity, or the name of an association, foundation, etc.?
Are receipts being issued, and if so, in what name?
Who has control of the funds? A separate board, one public official, etc.?
How are disbursements made?
Are records being kept and by whom?
Where is the money being deposited?
What type of accounting is required and by whom?
Each of these factors would have to be evaluated to determine the public nature of the funds about which you inquire and to determine whether the funds are subject to audit under applicable statutes. I am not empowered as a fact-finder in the issuance of official Attorney General Opinions. I hope that the foregoing is helpful in addressing the issue, however.
Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:ECW/cyh
Enclosures