By Sunana Batra

Auditors have red-flagged a state tobacco-prevention program for indirectly using tax dollars to help enact ever-more-stringent anti-smoking laws by local governments.

Findings released this week by the Office of the State Auditor—which also casts doubt on the program’s oversight and accountability—questioned the legality of grants doled out by the Colorado Department of Public Health and Environment to local agencies that help pass local ordinances prohibiting smoking above and beyond what is barred by state law. The auditors said it’s unclear whether state law allows tax dollars to be used on such policy initiatives.

Yet, health department officials waved off advice by the Legislative Audit Committee on Monday to get a an opinion on the matter from Attorney General John Suthers—as recommended by the auditors—stymying attempts to ascertain whether the allocation is legal. An attorney on the legislature’s nonpartisan legal staff told audit committee members that if the department chose to not seek such an opinion, the committee couldn’t compel it to do so.

“Aren’t you concerned about the appearance it may look like lobbying?” the audit committee’s Rep. Cindy Acree, R-Aurora, said to department officials. “What does it hurt to ask the attorney general for an opinion?”

The program, administered by the state health department, uses tax revenue from tobacco taxes raised under Amendment 35, enacted by voters in 2004. The ballot issue set aside the revenue for use on education about tobacco’s hazards as well as for addressing health issues arising from tobacco use.

Health department officials maintained they were in compliance with the law in granting $5.2 million last year to local agencies that helped enact smoking bans on restaurant patios, in cigar bars and even in housing complexes where low-income people live.  A spokesman said the department does not prescribe how local agencies choose to educate decision-makers in their community and doesn’t provide guidance to them about talking to local officials on behalf of local-ordinance issues or state-policy issues.

Sen. Steve King, R-Grand Junction, wasn’t persuaded and said he saw “equal-protection issues” for the taxpaying public.

“For those men and women who are interested in smoking a cigar on the patio of a bar they go to, (they are now) on the opposite side of a law that CDPHE has put in place using tobacco funds,” King said. “Those people did not have access to those funds to fight such an initiative.”

Earlier this month the U.S. House Energy and Commerce Committee sent a letterseeking clarifications on a similar federal grant program of the Centers for Disease Control designed to assist local governments adopt policies and laws to place restrictions on tobacco products. Under the federal statute, education programsthat inform the public about the health impact of tobacco use are acceptable use under the law, however, actually encouraging the adoption of specific taxes, policies and zoning ordinances is an illegal use of federal funds.

Meanwhile, the audit of the state program also found lapses in the administration of the program, including how it awarded grants without sufficient consideration of applicants’ past performance; its lack of basic oversight of reimbursements paid out to program grantees, and its lack of any tracking mechanism on grants.

In one example, auditors cited a grantee that was approved for continued grant funding even though it had been issued an order to stop work due to performance problems.

Read original story here.

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