Can a county attorney's anti-racketeering forfeiture fund pay the outside counsel hired by the board of supervisors to review the county attorney's spending requests?

Plain-English summary

Arizona's racketeering and forfeiture statutes (A.R.S. §§ 13-2301 to -2323 (AZRAC) and §§ 13-4301 to -4316 (AFRA)) give county attorneys the authority to bring civil RICO actions, seek forfeiture of property tied to racketeering, and obtain civil judgments. The proceeds go into a county "anti-racketeering revolving fund" (the Fund) administered by the county attorney, with sub-accounts for each agency that contributed to the seizure. Arpaio v. Maricopa County Bd. of Supervisors, 225 Ariz. 358 (Ct. App. 2010), confirmed that these are public funds, not trust funds.

Historically, the county attorney could spend the money in his own sub-account with relatively little oversight. That changed in 2017 when the Legislature amended A.R.S. § 13-2314.03(E). After August 9, 2017, before a county attorney's office uses its own sub-account funds, it has to submit a written application to the county board of supervisors describing the proposed use. The board "shall approve" the expenditure if it is authorized by the statute, by A.R.S. § 13-4315 (forfeited property), or by federal law. The board "may retain outside counsel, if necessary, to approve, review, or ratify" the county attorney's request.

That left a question Pima County Attorney Barbara LaWall asked: when the board of supervisors hires outside counsel to review her office's spending requests, can the outside counsel be paid out of the same anti-racketeering fund? Or does the county have to find the money somewhere else?

The AG said yes: the Fund pays for it.

The reasoning was a clean piece of statutory linkage. A.R.S. § 13-2314.03(F) lists the permissible Fund expenditures, including "the costs of the reports and application and expenditure reviews and approvals that are required by this section." Section 13-2314.03(E) is the section that requires the board's review and explicitly allows the board to hire outside counsel for it. So the cost of the outside counsel that the board hires under § 13-2314.03(E) is a "cost of the expenditure reviews and approvals required by this section" within § 13-2314.03(F).

Without that linkage, the AG noted, the statutory scheme would not work cleanly: the Legislature mandated board review and authorized outside counsel for it, but if the Fund could not pay for the outside counsel, every review would impose a separate fiscal burden on the county. The AG read the two subsections together as clearly contemplating that the Fund covers the review cost.

A note on the structural shift: the county attorney is normally the legal advisor to the board of supervisors (A.R.S. § 11-532(A)(7), (9)). But when the board is reviewing the county attorney's own spending request, it has an obvious need for independent counsel. The statute's grant of outside-counsel authority recognizes that conflict.

The opinion only addressed county attorney sub-account spending. Other agencies (police departments, sheriff's offices) seeking to use their own sub-account funds go through a different process: they apply to the county attorney, who can deny non-statutory requests. § 13-2314.03(E).

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Arizona's civil forfeiture laws have been amended significantly since 2018, including HB 2810 in 2021 which made major changes to AZRAC and AFRA. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, threshold, or remedy mentioned here.

Historical context: what the opinion meant in 2018

For Arizona county attorneys

The opinion smoothed out a fiscal pain point. After the 2017 reforms, county attorneys faced a new layer of board review on every Fund spending request. If the board hired outside counsel, that lawyer's fee had to come from somewhere; the AG's answer (the Fund itself) meant general-fund counties did not have to absorb the cost.

For boards of supervisors

The opinion confirmed boards' authority to hire outside counsel and to bill it to the Fund. That made independent legal review a practical option, not just a theoretical one. Before this opinion, a board worried about cost might have skipped outside counsel and rubber-stamped county attorney requests. With cost concerns removed, boards could engage outside counsel more readily on close calls.

For independent oversight of forfeiture spending

The opinion's structural takeaway was important for the broader civil-forfeiture-reform conversation. The Legislature in 2017 had moved toward more board-level oversight of county attorney sub-account spending. The AG's reading made that oversight financially sustainable.

For civil forfeiture defendants and their counsel

The opinion was procedural, not substantive: it did not change what the Fund could be spent on, who could be subject to forfeiture, or what defenses worked. But it did entrench the post-2017 oversight structure as the operating reality. That meant defendants challenging forfeiture orders or spending-out decisions had a real board-of-supervisors layer to engage with, not just the county attorney's office.

For prosecutors handling RICO cases

The opinion did not change the substantive mechanics of bringing a RICO action. It dealt only with what happens to the proceeds afterward. But it was a useful clarification that the post-2017 oversight cost was self-funded from the seizure proceeds rather than from the prosecutor's office budget.

Common questions

Q: What is the county anti-racketeering revolving fund?
A: A county-administered fund (one per county) that holds the proceeds of civil racketeering forfeitures under A.R.S. § 13-2314.03. The county attorney administers the Fund, with sub-accounts segregated for each contributing law enforcement agency.

Q: What does the 2017 amendment to § 13-2314.03(E) actually require?
A: Before the county attorney's office spends from its own sub-account, it must submit an application to the board of supervisors describing the proposed use. The board "shall approve" the expenditure if it is authorized by AZRAC, § 13-4315, or federal law. The board can hire outside counsel for the review.

Q: Why does the board need outside counsel? Isn't the county attorney its lawyer?
A: The county attorney is normally the board's legal advisor (A.R.S. § 11-532(A)(7), (9)). But when the board is reviewing the county attorney's own spending request, the county attorney has a conflict. The statute resolves that by allowing outside counsel.

Q: What does "if necessary" mean for hiring outside counsel?
A: The statute does not define it. The opinion did not resolve when outside counsel is required versus optional. It assumed the board had already made the necessity determination and hired outside counsel.

Q: Can the Fund pay for outside counsel reviewing other agencies' sub-account requests too?
A: The opinion only addressed county attorney sub-account spending and the board of supervisors' review of it. Other agency sub-accounts go through a different process: the agency applies to the county attorney, who can deny applications that lack statutory authorization. Whether outside counsel costs in that posture would also be Fund-eligible was not addressed.

Q: Are the Fund monies public funds?
A: Yes, per Arpaio v. Maricopa Cty Bd. of Supervisors, 225 Ariz. 358 (Ct. App. 2010). They are "designated statutory funds" held for the benefit of the responsible agencies, but they are not held in trust by the county.

Q: Does the AG also have an anti-racketeering fund?
A: Yes, under A.R.S. § 13-2314.01. This opinion only addresses the county fund.

Q: What if the board denies a county attorney's spending request?
A: The statute requires the board to approve if the use is authorized by law. If the board denies a request, the county attorney can presumably challenge that decision in court. The opinion did not address the dispute resolution mechanics.

Background and statutory framework

Arizona's racketeering and forfeiture framework

A.R.S. §§ 13-2301 to 13-2323 is the Arizona Racketeering Act (AZRAC). A.R.S. §§ 13-4301 to 13-4316 is the Arizona Forfeiture Reform Act (AFRA). Together they let the AG and each county attorney bring civil actions to prevent or remedy racketeering, seek forfeiture of property, and obtain civil judgments. A.R.S. § 13-2312 is the substantive prohibition on illegally controlling or conducting an enterprise.

A.R.S. § 13-2314.03 establishes a county anti-racketeering revolving fund in each county. The county attorney administers the Fund. Per § 13-2314.03(D), monies are "held for the benefit of the agency or agencies responsible for the seizure or forfeiture to the extent of their contribution," with practical accounting through "sub-accounts" for each agency.

The 2017 oversight reforms

In 2017, the Legislature amended § 13-2314.03(E) to require board of supervisors review of county attorney sub-account spending requests. The new text requires the county attorney to submit a written application before using sub-account funds (or within a reasonable time in an emergency). The board "shall approve" the use if it is authorized by AZRAC, § 13-4315, or federal law. The board "may retain outside counsel, if necessary."

§ 13-2314.03(F) lists permissible Fund expenditures. The list includes "the costs of the reports and application and expenditure reviews and approvals that are required by this section." That language is the textual hook for using Fund money to pay outside counsel hired under § 13-2314.03(E).

Statutory interpretation

The opinion applies standard plain-language interpretation: per Janson on Behalf of Janson v. Christensen, 167 Ariz. 470 (1991), and Mid Kansas Fed. Sav. & Loan Ass'n, 167 Ariz. 122 (1991), the statute's language is the best index of meaning, and courts follow plain text as written. The AG also cites Cont'l Bank v. Arizona Dep't of Revenue, 131 Ariz. 6 (Ct. App. 1981), for the principle that statutes should be interpreted so that no clause is rendered superfluous, supporting the conclusion that the outside-counsel authority and the Fund-expenditure authority must work together.

County attorney's normal advisory role

A.R.S. § 11-532(A)(9) makes the county attorney the legal advisor to the board of supervisors. Section 11-532(A)(7) requires the county attorney to provide written opinions to county officers on official duty matters when required. The 2017 amendment's outside-counsel provision is a structural exception to this normal arrangement, recognizing the county attorney's conflict when the spending under review is the county attorney's own.

Citations and references

Statutes:
- A.R.S. §§ 13-2301 to 13-2323 (Arizona Racketeering Act)
- A.R.S. §§ 13-4301 to 13-4316 (Arizona Forfeiture Reform Act)
- A.R.S. § 13-2312 (illegal control or conduct of an enterprise)
- A.R.S. § 13-2314.01 (AG's anti-racketeering revolving fund)
- A.R.S. § 13-2314.03 (county anti-racketeering revolving fund)
- A.R.S. § 13-4315 (forfeited property)
- A.R.S. § 11-532(A)(7), (9) (county attorney's advisory duty)

Cases:
- Arpaio v. Maricopa Cty Bd. of Supervisors, 225 Ariz. 358 (Ct. App. 2010) (Fund monies are public funds, not trust funds)
- Janson on Behalf of Janson v. Christensen, 167 Ariz. 470 (1991) (statute's language as best index)
- Mid Kansas Fed. Sav. & Loan Ass'n of Wichita v. Dynamic Dev. Corp., 167 Ariz. 122 (1991) (follow plain text)
- Balestrieri v. Hartford Acc. & Indem. Ins. Co., 112 Ariz. 160 (1975) (same)
- Cont'l Bank v. Arizona Dep't of Revenue, 131 Ariz. 6 (Ct. App. 1981) (no statutory clause superfluous)
- State v. Deddens, 112 Ariz. 425 (1975) (same)

Source

• Landing page: https://www.azag.gov/opinions/i18-005-r18-005
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I18-005.pdf

Original opinion text

To:

Barbara LaWall

Pima County Attorney

Question Presented

You have requested an opinion concerning the following question:

When a board of supervisors, in its discretion, hires outside counsel as permitted under A.R.S. § 13-2314.03(E), may funds in the county attorney's anti-racketeering revolving fund ("ARRF") sub-account be expended to pay that lawyer's fees incurred in reviewing whether a county attorney's proposed use of ARRF funds, requested on or after August 9, 2017, is authorized by law?

Summary Answer

Yes. Arizona Revised Statutes ("A.R.S.") § 13-2314.03(F) provides that monies in the county anti-racketeering revolving fund established by A.R.S. § 13-2314.03 ("Fund")[1] may be used to fund "the costs of the reports and application and expenditure reviews and approvals required by this section." Section 13-2314.03(E) provides that a county attorney's own use of his own sub-account monies is subject to review and approval by the county board of supervisors and permits the board of supervisors to retain outside counsel to assist it with review and approval of the county attorney's request to spend his own sub-account monies.

Where the necessity arises to employ outside counsel for this purpose, it is an expense that is attendant to the board of supervisors' mandated review and determination. Therefore, it is a "cost[] of the . . . expenditure reviews and approvals . . . required by this section." A.R.S. § 13 2314.03(F). Accordingly, funds held in the sub-account may be used to pay for outside counsel services incurred in connection with a board of supervisors' review of county attorney expenditure requests.[2]

Background

The Arizona Racketeering Act, A.R.S. §§ 13-2301 to -2323 ("AZRAC"), and the Arizona Forfeiture Reform Act, A.R.S. §§ 13-4301 to -4316 ("AFRA"), empower both the Attorney General and each county attorney to: bring civil actions to prevent, restrain or remedy racketeering or a violation of A.R.S. § 13-2312 (discussing illegal control and conduct of an enterprise); seek forfeitures of property; and obtain civil judgments on behalf of the State and other persons injured by racketeering.

Each county has established a Fund, pursuant to the authority of A.R.S. § 13-2314.03(A), which the county attorney administers. Monies obtained as a result of a forfeiture or civil racketeering action and deposited in the Fund[3] are held for the benefit of the responsible agencies. Monies held in the Fund and its sub-accounts are "designated statutory funds" and are public funds—not funds held in trust by the county. Arpaio v. Maricopa Cty Bd. of Supervisors, 225 Ariz. 358, 363, ¶ 16 (Ct. App. 2010).

In 2017, the Legislature amended certain provisions of AZRAC and AFRA, including A.R.S. § 13-2314.03(E), to require that before a county attorney's office uses its own sub account funds, or within a reasonable time in the case of an emergency, the county attorney's office "shall submit an application that includes a description of what the requested monies will be used for to the board of supervisors."[4] Section 13-2314.03(E) provides the following instructions concerning the board of supervisors' mandated review process:

The board of supervisors shall approve the county attorney's use of the monies if the purpose is authorized by this section, section 13-4315 or federal law.

. . .

The board of supervisors may retain outside counsel, if necessary, to approve, review or ratify the county attorney's use of the monies.

Section 13-2314.03(F) lists permissible Fund expenditures, which include explicit authorization that monies in the Fund "may be used for . . . the costs of the reports and application and expenditure reviews and approvals that are required by this section." A.R.S. § 13-2314.03(F).

Analysis

Arizona Revised Statutes § 11–532(A)(9) provides that the county attorney of each county shall "[a]ct as the legal advisor to the board of supervisors[.]" The county attorney shall also, "[w]hen required, give a written opinion to county officers on matters relating to the duties of their offices." A.R.S. § 11–532(A)(7).

With respect to the county attorney's use of his own sub-account funds, however, A.R.S. § 13-2314.03(E) provides that the "board of supervisors may retain outside counsel, if necessary, to approve, review or ratify the county attorney's use of the monies." (Emphasis added.) The question presented here contemplates the situation where the board of supervisors has determined the necessity threshold was met and has hired outside counsel for legal advice in reviewing the county attorney's request to expend its sub-account monies. Therefore, the sole question to be answered is whether the cost of outside legal counsel services retained at a board's discretion pursuant to A.R.S. § 13-2314.03(E) is properly considered within "the costs of the reports and application and expenditure reviews and approvals that are required" and, consequently, is eligible to be funded through the sub-account of the Fund pursuant to A.R.S. § 13-2314.03(F). For the reasons discussed below, the answer is yes.

The "best and most reliable index of a statute's meaning is its language," Janson on Behalf of Janson v. Christensen, 167 Ariz. 470, 471 (1991), and where the language is plain and unambiguous, courts must follow the text as written. Mid Kansas Fed. Sav. & Loan Ass'n of Wichita v. Dynamic Dev. Corp., 167 Ariz. 122, 128 (1991); see also Balestrieri v. Hartford Acc. & Indem. Ins. Co., 112 Ariz. 160, 163 (1975).

Here, the statutory language is unambiguous. Under the 2017 amendments to the statute, the board of supervisors is required to review and approve the county attorney's own sub account expenditure requests. Fund monies "may be used for . . . the costs of the reports and application and expenditure reviews and approvals that are required by this section" and A.R.S. § 13-2314.03(E), (F). Section 13-2314.03(E) provides express authority for the board of supervisors to retain outside counsel, when necessary, to perform these functions. These provisions then work together in situations where the board of supervisors determines it is necessary to retain outside counsel and to allow Fund monies to be used to pay for outside counsel.

In other words, the 2017 statutory amendments require board of supervisors' review of sub-account expenditure requests. Concomitantly, the Legislature expanded the eligible expenses that may be paid from the Fund to include the expenses associated with the performance of the mandate.

Considering the plain statutory language requiring the board of supervisors to conduct eligibility review of county attorney applications and the Legislature's explicit grant of authority to hire outside counsel as necessary for this purpose, this language unambiguously provides that sub-account monies, as monies within the Fund, may be used for this purpose. "Statutes should be interpreted, whenever possible, so that no clause, sentence, or word is rendered superfluous, void, contradictory, or insignificant." Cont'l Bank v. Arizona Dep't of Revenue, 131 Ariz. 6, 8 (Ct. App. 1981) (citing State v. Deddens, 112 Ariz. 425 (1975)). It would be far too tortured a reading to separate the authority to retain, as necessary, outside counsel to review sub-account expenditure applications from the authority to use the Fund to pay outside counsel for those legal services.

Therefore, A.R.S. § 13-2314.03(F), as amended, authorizes the use of monies in the Fund, and therefore the sub-account monies therein, to be used to pay outside counsel fees arising from the board of supervisors' review of county attorney expenditure requests. This conclusion is supported by the clear, unambiguous text of the statute.

Conclusion

Funds in the county attorney's sub-account may be expended to pay the fees of outside counsel retained to perform the review required by A.R.S. § 13-2314.03(E).

Mark Brnovich

Attorney General

[1] For the purposes of this Opinion, the term "Fund" is used to refer to the entirety of the revolving fund established by A.R.S. § 13-2314.03, comprised of all agency sub-accounts therein. The term "sub-account" is used to refer to those monies in the Fund held for the benefit of the County Attorney's Office. "Sub-account" is not a statutory term, but derives from the administrative and accounting practice of segregating monies in the Fund on a per agency basis. A.R.S. § 13-2314.03(D) (stating that monies in the Fund are "held for the benefit of the agency or agencies responsible for the seizure or forfeiture to the extent of their contribution.").

[2] The question presented here deals only with the use of a county attorney's sub-account funds. No opinion is given concerning the funds in other agencies' sub-accounts within the Fund.

[3] The Attorney General also administers an anti-racketeering revolving fund, established by A.R.S. § 13-2314.01.

[4] The board of supervisors only reviews the county attorney's proposed use of its own sub-account funds. An agency other than the county attorney seeking to utilize its monies in the Fund "must submit an application in writing to the county attorney that includes a description of what the requested monies will be used for. The county attorney may deny an application that requests monies for a purpose that is not authorized by this section, section 13-4315 or federal law." A.R.S. § 13-2314.03(E).