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April 24, 2012

FLEECE: Fee, fine, ho, hum

CLARK COUNTY — At the risk of boring everyone except Debbie Harbeson and myself, I must take issue with some of the comments made in her columns concerning the State Board of Accounts audit of the Clark County Alcohol and Drug Services Program. First of all, however, I wish to thank the News and Tribune for what seemed to me a fair and balanced account of the controversy in the April 5 edition.

 I also want to commend Mrs. Harbeson for taking the time to read my response to the audit. I could do without the sarcasm. But, I suppose when you view the world from her “all government is evil” libertarian perspective, some of what I wrote in my response really does seem “hysterical” to her. Personally, I think it’s hysterical every time she compares any governmental restraint on personal conduct, no matter how reasonable, as the government “holding a gun” to somebody’s head.

 We all value individual liberty and resent unwarranted government intrusion in our lives. But, most of us can distinguish between reasonable exercises of governmental authority, like requiring us to stop at red lights versus the Gestapo coming for us in the middle of the night because we made a disrespectful reference to the Fuhrer. I get the impression from Harbeson’s writing that to her everybody who works in government is pretty much on par with the Gestapo, because all governments make people do some things and refrain from doing other things. To her this is tyranny; to me it is common sense, and nothing to be feared in a democracy.

Mrs. Harbeson and I are destined to disagree. I expect her to carry on trying to discredit all government at all times. It was to be expected that a critical State Board of Accounts audit of the little unit of government for which I was once responsible would offer irresistible grist for her mill.

Here is what Harbeson’s libertarian blinders prevent her from seeing. The service fee I charged in association with traffic tickets was an alternative to a fine. The fee in each case was an amount equivalent to what the fine would have been for each level of traffic offense if I had chosen to continue imposing fines.

People were not charged a service fee on top of a fine. They were charged the fee in place of the fine. The substitution of fee for fine had nothing to do with how much money the government collected. The distinction had everything to do with how the money collected was distributed within government.

Why did I bother to do something so unusual that I knew it might be questioned? I did it because it dawned on me that Clark County, because of its location and strong state police presence processed far more traffic infraction cases than any other county of our size. County government bore almost the entire expense of processing these tens of thousands of cases through my court, but county government received not one penny of the tens and hundreds of thousands of dollars in fine money which we were required to forward to Indianapolis. The division of revenue is set by law. All “fines” must be handed over to the central government. Early in my 24 years as an elected trial court judge, I began looking for ways for the county to keep a greater share of the proceeds from traffic infractions.

That is when I discovered that a court administered Alcohol and Drug Program is authorized by statute to provide “services” to persons charged with an infraction, and the law does not say that the infraction has to be alcohol or drug related. That is when I discovered that the “services” to be provided are not defined by law. The reason I resorted to dictionary definitions of the word “service,” as Mrs. Harbeson noted, is because that is the accepted method of statutory construction when a law uses a word but does not define it. “Service” as the word is defined and commonly used can legitimately refer both to big important services and to small services of minor importance.

 I would never argue that the distribution of anti-drug and alcohol abuse pamphlets was a great benefit to humanity. All that I claim is that the provision of that pamphlet qualified as a small service. Providing even a small service gave me a legal basis for diverting a significant stream of revenue from Indianapolis to Clark County. “Fines” must go up there. “Fees” stay here. It’s that simple.

 Over about 20 years, that change from charging fines to charging service fees produced millions of dollars in additional revenue to the county. I felt when I started this practice that local government needed the money more than Indianapolis. Those local needs only grew more acute as time went on. The various laws allocating revenue between state and local government are unfairly skewed in favor of the state. Local government gets too small a share of total government revenue. Recently, we even saw how state government somehow “misplaced” hundreds of millions of dollars that should have been forwarded to the counties long ago.

Now the State Board of Accounts has asked the attorney general to consider suing me personally to recover the Alcohol and Drug fees that were used to help support the Clark County Drug Treatment Court, the Clark County Prosecutor, drug detecting police dogs, state police and conservation officer equipment, sheriff’s patrol cars, our local halfway houses and needed vehicles for the Clark County Health Department. They want the attorney general to consider suing me personally to pay back all the grants county government made to local youth groups that promote healthful drug free activities from Borden football to Charlestown Little League to New Washington Band and Clark County 4H.

Mrs. Harbeson may find this amusing. Some of those in local politics with whom I have butted heads may take pleasure in the prospect of my possible financial ruin. If they cared more about Clark County and less about settling old scores, they would realize the loss of this revenue to local government hurts us all.

I believe our attorney general is a fair man. I do not believe he will file such a lawsuit, although if he does I will defend myself with a clear conscience and faith in a fair jury. I do believe that the mere possibility of such a lawsuit against me personally is intended to have a chilling effect upon other local elected officials.

With all due respect to the State Board of Accounts, I am convinced they are wrong. This is not a matter of conventional bean-counting but of the interpretation of complex laws. They may have some of the best accountants; they may not have the best lawyers.

I do not expect this explanation to change Mrs. Harbeson’s mind. But, to the majority of citizens who accept the validity of traffic laws and consequences for breaking them, I hope that my reasons for designating those consequences as “fees” instead of “fines” will be clear.

For those with continuing responsibility for providing local government services with less revenue to help, I wish you success in your important and ever more challenging task. To those responsible for organizing and funding drug free youth programs, I am glad I could help as much as I did for as long as I could.

— Steven M. Fleece, Former Judge of Clark Superior Court No. 3

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