Commonwealth’s Attorneys’ Services Council
Henrico Sheriff’s Office
September 25, 2013
Council Members Present
Raymond F. Morrogh (Fairfax County), Chairman
LaBravia J. Jenkins (Fredericksburg), Second Vice Chairman
Eric Olsen (Stafford County), Secretary
Michael R. Doucette (Lynchburg), Past Chairman
Council District Representatives:
1. LaBravia J. Jenkins (Fredericksburg)
3. Cassandra S. Conover (Petersburg)
5. Denise Lunsford (Albemarle County)
6. Donald S. Caldwell (Roanoke City)
9. Christian E. Rehak (Radford)
10. Alexander R. Iden (Winchester)
11. Raymond F. Morrogh (Fairfax County)
Other Commonwealth’s Attorney’s Present
Paul B. Ebert (Prince William County)
Robert B. Beasley (Powhatan County)
Nathan R. Green (Williamsburg/James City County)
Eric L. Olsen (Stafford County)
Gregory D. Underwood (Norfolk)
C. Phillips Ferguson (Suffolk)
Patricia T. Watson (Greensville/Emporia)
Jeffrey W. Haislip (Fluvanna County)
James R. Ennis (Prince Edward County)
William F. Neely (Spotsylvania County)
Theo K. Stamos (Arlington/Falls Church)
James E. Plowman (Loudoun County)
Ross P. Spicer (Frederick County)
David Grimes (Pittsylvania County)
Terry Royal (Nottoway County)
Shannon Taylor (Henrico County)
CASC Staff Present
Robert Q. Harris
Jane Sherman Chambers
Call to Order
Mr. Morrogh called the meeting to order at 11:39 a.m.
The draft minutes from the August 1, 2013, and August 4, 2013, meetings previously were posted and circulated to Council. The minutes were approved as submitted.
Mr. Harris reviewed the agenda items:
CASC Curriculum Retreat Update
Mr. Harris reported that the Curriculum Committee met in Charlottesville on September 5 – 6, 2013. The committee focused on CASC’s “big three” programs – Spring Institute, the Annual Summer Conference and the Executive Program. The 2013 Executive Program will be held at the Hotel Roanoke from December 5 – 7, 2013. The 2014 Spring Institute will be held at the Norfolk Waterside Marriott from March 30 – April 2, 2014. The 2014 Annual Summer Conference will be held at the Sheraton Virginia Beach (overflow at the Hilton Garden Inn) from Sunday, August 3 – Wednesday, August 6, 2014. In 2015 the Annual Summer Conference will return to its normal Thursday through Sunday programming.
2014 Executive Program site to be determined
Mr. Harris updated Council on the investigation of sites for the 2014 Executive Program scheduled for December 4 – 6, 2014. A motion was made to hold the 2014 Executive Program in Staunton. The motion was seconded and passed unanimously.
CASC Fall 2013 Training Programs (iPad for Prosecutors, Ethics webinar, Trauma to Trial, Red Flag Insurance Fraud Program, Asset Forfeiture)
Mr. Harris reported that the iPad for Prosecutors was held in Lynchburg. Mr. Harris thanked Mr. Doucette for the contribution of every attorney in his office as faculty. Mr. Harris announced that Trauma to Trial starts next week, to be closely followed by Red Flag. Both of those programs are full.
Mr. Harris explained that a “pilot” asset forfeiture training program is scheduled for October 24, 2013, and was organized at the request of the Secretary of Public Safety. Invitees include prosecutors and law enforcement officers from jurisdictions that currently do not do a lot of asset forfeiture work. If anyone else is interested in attending, please notify Mr. Harris. DCJS will contribute to the funding. There will be a large number of regional “faculty” from around the state attending the pilot program so that faculty will be prepared to hold smaller regional trainings across the state. The location of the pilot program is to be determined, but CASC is looking for a central location such as Charlottesville or Staunton. Mr. Harris commended Ed Hibbard, CASC staff attorney, for putting together the asset forfeiture program on short notice.
2013 Executive Program – Hotel Roanoke – Dec. 5 – 7, 2013
Mr. Harris reported that the Curriculum Committee has come up with a good agenda for the 2013 Executive Program. It will start with Rod Leffler talking about the VSB disciplinary procedures, followed by Kris Hamann from New York who will discuss developing prosecutor best practices. Other topics will include police shootings & death in custody cases, the ABA report on capital punishment in Virginia, the use of VDEM in multi-jurisdictional missing persons investigations and the investigation of “no body homicides.”
CASC staff has submitted a proposed budget for the next biennium that maintains Council funding at current levels and does not require any new budget items.
Mr. Harris distributed a draft Memorandum of Understanding (MOU) between CASC and the Office of the Attorney General that outlines an award of federal asset forfeiture funds from the OAG for the benefit of prosecutor training and other approved federal asset forfeiture uses. Mr. Caldwell described the process that led to the drafting of the MOU. The proposal to Council is to get this signed and back to the AG.
Mr. Caldwell reminded Council that since 2008 VACA had increased its efforts to secure stable and predictable funding for prosecutor training because of periodic threats to CASC as an agency and inconsistencies in state funding for CASC program funding. Using the example of the state Literary Fund, prosecutors created the Virginia Criminal Justice Foundation as a vehicle for prosecutors to accumulate funds and, over time, produce an income stream that could provide additional funding support for prosecutor training. The Attorney General was involved with the discussions leading to the creation of VCJF and supported the concept of a fund to support prosecutor training.
In 2012 prosecutors learned of the United States v. Abbott Labs criminal case plea agreement and the prospect of a substantial award of federal drug asset forfeiture funds to the OAG due to the work of the AG’s Medicaid Fraud Control Unit. A group of prosecutors met with the Attorney General during the 2012 Spring Institute and asked that prosecutors and the Foundation be considered in the distribution of those funds. Ultimately the case was concluded and the Attorney General decided that $20 million of the settlement should go to provide additional support for prosecutor training. The complications have been in working out the details. An ad hoc committee of prosecutors worked on this matter: Donald Caldwell, Joel Branscom, Mike Doucette, E.M. Wright, and Thad Cox.
Initially the discussions concerned awarding the funds to the Foundation which already was in existence and had the express purpose of accumulating funds for prosecutor training. However, based on recent Attorney General Opinions concluding that state funds could not be transferred to charitable institutions, the Attorney General eliminated VCJF as the recipient of this money. The alternative became what is now set out in the MOU.
Mr. Caldwell explained the terms of the MOU: the Attorney General will transfer $20 million of federal drug asset forfeiture monies to Council; Council will then distribute $2 million of the monies among Commonwealth’s Attorneys offices - divided among 120 offices pro rata based upon number of Compensation Board funded positions; $18 million will be placed in an interest bearing account for federal asset forfeiture funds maintained by the State Treasurer; CASC will be responsible for control of the $18 million account; the MOU contemplates Council following the Literary Fund/ Foundation model and preserving the corpus while using earned interest as a sustainable funding stream.
Mr. Caldwell credited Mr. Wright for the idea that some of the funds be made immediately available for local offices to address immediate funding needs that are permissible expenditures of federal asset forfeiture funds. Funding a case management system noted as such an example.
Discussion concerned possible threats to the fund that could frustrate the purpose of the MOU and the restrictions of the uses of the monies. Mr. Doucette pointed out that one of the prosecutors’ priorities was to take steps to assure that CASC would remain in existence and in a position to be able to carry out the training function made possible by the funding assistance. Some prosecutors were concerned that the General Assembly might see the federal asset forfeiture fund award as funding that could be substituted for existing general fund appropriations to the agency, or localities might use the distribution of funds to supplant local appropriations.
Mr. Caldwell explained that the Attorney General and the U.S. Treasury Department have stressed that Council must be accountable for the appropriate use of the monies. It is federal asset forfeiture money and the MOU stresses that the funds can be used only for permissible purposes as set out in federal guidelines or the use of all asset forfeiture funds may be stopped. The DCJS state guidelines are essentially the same as the federal rules. Specifically, the MOU expressly points out that federal asset forfeiture funds cannot be used to supplant state or local funding, but are supplemental funds only. Members suggested that the MOU should be modified to expressly note also that federal supplanting rules prohibit using the asset forfeiture funds to supplant local funding and that the federal restrictions on the permissible uses of the funds continues to restrict uses of the funds that are distributed to local CA offices.
The MOU provides that Council may be able to protect the funds from abuse or reversion to the federal government in the event that budgetary or other actions are taken that leave Council unable to carry out the responsibilities of the MOU. Council would have the authority to transfer the responsibilities under the MOU to another appropriate entity. If CASC is unable to satisfy its duties, the last remedy is to divide up the remaining and distribute it directly to CA’s asset forfeiture funds.
Mr. Caldwell reminded people that $20 million is a big number, but the annual interest on that amount (at 2% interest) comes down to about $500 per prosecutor annually. He made clear that this award is not a backdoor attempt to help VCJF. It is not a part of VCJF. That fund will continue to grow and be another sword in our arsenal. Discussion continued about needing to vote on this – with the recommendation to make the discussed additions/corrections to stress limits also applicable on funds distributed to local offices. Ms. Conover moved that Council accept the MOU as drafted with the corrections discussed. Motion seconded. Council members present only voted by roll call vote: Ray Morrogh, LaBravia Jenkins, Eric Olsen, Mike Doucette, Cassandra Conover, Denise Lunsford, Donald Caldwell, Chris Rehak, Alex Iden. All ayes.
Impact of Potential Government Shutdown
Mr. Doucette asked about the effect of a federal government shutdown on CASC. Mr. Harris reported that DMV money already is here so DUI programs will not be affected. Trauma to Trial is based on V-STOP money. That money is reimbursed, as requested. We have gotten authority to advance state funds for Trauma to Trial, if necessary. CASC has funds available to cover salaries, if necessary.
There being no further business before Council, the meeting adjourned at 12:32 p.m. The next regularly scheduled meeting is November 6, 2013, 11:30 a.m., at the Henrico County Sheriff’s Office Conference Room.