City Attorney Kit Williams says he believes the Fayetteville Advertising and Promotion Commission should seek the opinion of Arkansas Attorney General Dustin McDaniel before moving forward with a $1 million request from the University of Arkansas.
UA Chancellor G. David Gearhart has requested the A&P funds to be put toward construction costs of an estimated $17 million, 700-seat performing arts hall planned on the university campus.
In a memo sent to commissioners on Friday, Williams praised Gearhart’s plan to convert the university’s old Field House building into a state-of-the-art venue for musical and theatrical performances, but urged the group to obtain a formal Arkansas Attorney General Opinion on the legality of the expenditure.
Marilyn Heifner, executive director of the commission, told commissioners during their July meeting she had called the Arkansas Attorney General’s office and was assured a contribution to the university was allowed by law.
Williams said he’d prefer to see it in writing.
“A casual telephone conversation between the executive director and an unnamed assistant attorney general is not due diligence,” Williams said, adding that he’d also like to see the commission hire its own attorney just as it did when considering a purchase of the Old Post Office building earlier this year.
“Again you are faced with a million dollar decision with complicated legal issues of your authority and power to spend current revenue or to issue bonds to assist the university in a worthy endeavor,” said Williams. “Please consult with your attorneys for their analysis and recommendation. Their counsel is like a legal insurance policy. It is better to pay a premium than to stand unguarded against real litigation dangers.”
Williams said he was concerned with the language in the state law which permits the use of A&P funds. Title 26, Chapter 75 of the Arkansas Constitution states that A&P funds may be used for the reconstruction of public recreation facilities “if the city owns an interest in the center or facility.”
The difficulty in determining exactly what that sentence means, Williams says, is his main concern.
“The last thing anyone would want is litigation or even the threat of litigation over this possible million dollar expenditure,” said Williams. The unclear statute, he says, might be too tempting to escape litigation, adding that a taxpayer attorney would likely be entitled to receive a $300,000 attorney’s fee if a court determined the expenditure to be illegal.
During the initial hearing of the request, commissioner Bob Davis said he supported the proposal, but with several commission members absent from the discussion, the group decided to delay further action until its next regular meeting in August.
Heifner said today she’d be glad to comply with Williams’ request if the commissioners wanted further assurance on the matter.
“If it is the pleasure of the commission to seek a written attorney general opinion, I’ll be happy to do that,” Heifner wrote in an email to commissioners on Wednesday. “Please let me know if you would like me to proceed with that effort. A request for an attorney general’s opinion must come from a state official, therefore, I’ll have to ask a legislator to request that opinion.”
Kit Williams’ letter to A&P Commissioners