Citation Numbers: 91 Op. Att'y Gen. 208
Judges: J. JOSEPH CURRAN, JR.
Filed Date: 10/23/2006
Status: Precedential
Modified Date: 7/5/2016
Dear Alan C. Woods
You have requested our opinion on the duties of the Governor's Office of Crime Control and Prevention ("GOCCP") with respect to the State's Victim and Witness Protection and Relocation Program ("Program"). In particular, you ask whether GOCCP is responsible for monitoring the expenditure of Program funds by individual State's Attorneys' offices or may accept a certification from the State's Attorneys' Coordinator ("Coordinator"). You also ask whether the Coordinator may be audited by the Legislative Auditor.
In our opinion, the Coordinator is responsible for approving expenditures of Program funds by the individual State's Attorneys in accordance with the statute governing the Program and GOCCP has no authority to second-guess those decisions. However, because the Program funds appear in GOOCP's budget, GOCCP is responsible for ensuring that the Coordinator has approved the expenditure of funds, that an authorized disbursement of funds appears to be consistent with the purposes of the Program, and that the disbursements do not exceed the amount of the appropriation. GOOCP may fulfill these functions by obtaining documentation from the Coordinator, but need not audit the Coordinator itself. The Coordinator is subject to audit by the Legislative Auditor concerning the use of Program funds, as are the individual State's Attorneys' offices.
GOCCP has also been given several specific assignments. In collaboration with other agencies, it is to prepare the State's crime control plan every three years. COMAR
Pertinent to your questions, GOCCP is specifically charged with coordinating "the application, allocation, and use of designated federal and State funds for services to victims and witnesses of crimes and facilitat[ing] the delivery of such services." COMAR
Finally, GOOCP is to administer "such other funds as the Governor may direct" and perform "such additional duties as may be directed by the Governor." COMAR
The Executive Order governing GOCCP directs other State agencies to cooperate with GOCCP and provide such data and other information, as allowed by law, that GOCCP requires in order to carry out its functions. COMAR
Your inquiry concerns the Victim and Witness Protection and Relocation Program, which was established by statute in 1994. Chapter 474, Laws of Maryland 1994, now codified as amended at CP §
(1) to protect victims and witnesses and the families of victims and witnesses;
(2) to relocate victims and witnesses to protect them or to facilitate their participation in court proceedings; and
(3) to pay the costs of carrying out the Program.
CP §
In 1996, the Legislature created a special fund known as the Victim and Witness Protection and Relocation Fund ("Fund") for State moneys appropriated to the Program, as well as any matching federal funds and any investment earnings. Chapters 587, 588, Laws of Maryland 1996,now codified at CP §§
The General Assembly has directed the State's Attorneys' Coordinator ("Coordinator")7 to administer the Program, "including consideration and approval of the release of any moneys from the Program." Annotated Code of Maryland, Article 10, § 41B(a)(7). The Coordinator is to consult with the Board in connection with the administration of the Program and is to "carry out the Program" in accordance with regulations adopted by the State's Attorneys' Coordination Council ("Council"). Article 10, § 41B(a)(8); CP §
To date, the Council has adopted informal "regulations and guidelines."8 See Witness Protection and Relocation Program Regulations and Guidelines (Revised 1/06). The guidelines provide standards for a State's Attorney's Office that receives an allocation from the Fund to reimburse transportation, meal, and lodging expenses of victims and witnesses. The guidelines also permit a State's Attorney's Office to expend its allocation from the Fund, in certain circumstances, for expert witness fees, drug treatment services, pet boarding, crime scene clean-up, child or family care, and clothing for court. Under the guidelines, each State's Attorney's Office is to make a quarterly report to the Council of its expenditures, which are to be reviewed by the Council. The guidelines provide for site visits by a representative of the Coordinator to offices selected by the Council for the purpose of reviewing expenditures and receipts.
The statute specifies that both the Program and the Fund are subject to audit by the Legislative Auditor. CP §
B. GOCCP's Role
Apart from the Board's consultative role, the statute establishing the Program does not assign any specific function to GOCCP or the Board with respect to the administration of the Fund. However, since the Fund's creation in 1996, appropriations to the Fund have appeared in the annual budget bill as a special fund appropriation under GOCCP. See Chapter 13, Laws of Maryland 1996, Supplemental Budget No. 2 at p. 946 (providing for supplemental special fund appropriation to GOCCP contingent on legislation creating the Fund); see also, e.g., Chapter 216, Laws of Maryland 2006 at p. 992 (GOCCP special fund appropriation for fiscal year 2007); Department of Budget and Management, FY 2007 Budget, Volume 1, p. 199 (identifying the Fund as part of the GOCCP's special fund appropriation).9 In addition, as noted above, the recent revision of the Executive Order establishing GOCCP directs it "to coordinate the application, allocation, and use of designated federal and State funds for services to victims and witnesses of crimes and facilitate the delivery of such services." COMAR
We understand that the Coordinator has relied upon GOCCP for assistance with bookkeeping and administration, in light of its extensive experience with the administration of grant funds, especially federal law enforcement grants. You state that, in practice, GOCCP acts as "fiscal agent" for the Coordinator. GOCCP delivers funds to the Coordinator on a "draw" schedule and, in emergency situations on demand, for distribution from the Coordinator to the State's Attorneys' offices. You state that GOCCP provides an accounting to the Coordinator and to the Board for fund balances and draws. GOCCP has not audited the ultimate use of the funds, but has relied upon the certification of the Coordinator in releasing funds to the Coordinator for the State's Attorneys' offices.
C. Legislative Audit of GOCCP Concerning the Program
In November 2005, the Legislative Auditor completed an audit of the Executive Department. In the audit report, the Auditor faulted GOCCP for not executing grant agreements with the Coordinator or obtaining expenditure reports describing the use of moneys disbursed from the Fund. Office of Legislative Audits, Audit Report — Executive Department (November 2005) at pp. 12-13. According to the audit report, the Coordinator submitted letters to GOCCP stating in general terms how the requested funds were to be used, but did not specify how much funding each jurisdiction would receive. Id.
The Auditor recommended that GOCCP enter into written grant agreements with the Coordinator, which would address the intended purposes and uses of the funds, the responsibilities of the parties, expenditure reporting requirements, and verification procedures. Id. The audit report also recommended that GOCCP obtain expenditure reports and monitor the use of the funds. Id.
In its response, GOCCP disputed the Auditor's characterization of its role, noting that the statute directs the Coordinator to administer the Program, and argued that it functions merely as a conduit for the disbursement of Program funds in accordance with the directions of the Coordinator. Audit Report, Appendix, pp. 1-2. GOCCP also argued that the limitations on its role help preserve the confidentiality of the beneficiaries of the Fund. Id. GOCCP indicated that it would require the chairman or vice-chairman of the Council to co-sign all disbursement requests with the Coordinator. Id.
On GOCCP's behalf, you requested our opinion "as to whether it is appropriate for the . . . Coordinator . . . to be responsible for monitoring the individual State's Attorneys' Offices, with certification to GOCCP." You also asked whether the Coordinator should be audited directly by the Auditor rather than by GOCCP.
The statute does not assign any role to GOCCP. However, for many years, the annual budget bill has appropriated funds for the Program as part of GOCCP's budget.10 Moreover, the Executive Order governing GOCCP directs it "to coordinate the application, allocation, and use of designated federal and State funds for services to victims and witnesses of crimes and facilitate the delivery of such services" — which clearly gives it a role with respect to the Program and the Fund. COMAR
Thus, the Coordinator, not GOCCP, is responsible for determining whether a proposed expenditure from the Fund satisfies the statutory purpose in accordance with regulations adopted by the Council. The Coordinator also has the responsibility, in accordance with the Council's guidelines, to conduct site visits to verify the proper use of the funds. What responsibilities does GOCCP have as a result of the appropriation of funds in its budget and its mandate to "coordinate the application, allocation, and use" of those funds?
The Executive Order does not purport to — as it could not — substitute GOCCP for the Coordinator as the administrator of the Program and the Fund. COMAR
As the agency authorizing disbursement of moneys from the Fund appropriated in its budget, GOCCP has a threshold responsibility to ensure that the appropriation is spent only upon the approval of the State official charged with approving expenditures from the Fund —i.e., the Coordinator.
Moreover, although GOOCP has no authority to second-guess the Coordinator's exercise of discretion accorded by statute11, it must be reasonably confident that the funds disbursed from its appropriation are directed to the purpose for which the funds were appropriated. To fulfill this responsibility as well as its obligation to "coordinate the . . . allocation and use" of the Fund, it may require the Coordinator to provide documentation that the disbursements have been ultimately directed to the individual State's Attorneys offices for the statutory purposes.12 Such documentation need not amount to an "audit," but could simply specify the cumulative amounts expended by various individual State's Attorneys offices for the various categories allowed under the Program guidelines without revealing the personal information of the victims and witnesses aided by the expenditures.13 Under the Executive Order, the Coordinator, as well as the local State's Attorneys' offices, are obligated to cooperate with, and provide data and other information, consistent with the law, to GOCCP. COMAR
Finally, GOCCP must also ensure that the amounts disbursed remain within the amount of funds appropriated for the Program in the particular fiscal year. See Annotated Code of Maryland, State Finance Procurement Article, §
In addition, the Coordinator and Council might reasonably enlist the expertise of GOCCP, consistent with GOOCP's functions under the Executive Order, to assist in their own oversight obligations. As noted above, the Council's guidelines require that the State's Attorneys offices make quarterly reports concerning their expenditures of Program funds, presumably to carry out the Coordinator's responsibility to ensure that the funds are spent for the intended purposes. GOOCP could be asked to assist in the review of those reports and other documentation the Coordinator or Council require of the State's Attorney's offices.
J. Joseph Curran, Jr. Attorney General
Robert N. McDonald Chief Counsel Opinions and Advice
The ultimate authority to audit the Program and the Fund, including the decisions of the Coordinator and the expenditures of the State's Attorneys offices, reposes in the Legisaltive Auditor. See CP §