By MATT CHITTUM
THE ROANOKE TIMES

Virginia Military Institute Superintendent Josiah Bunting's use of state-paid staff, long-distance phone service and postage services to help him write and publish books is not a crime, a prosecutor has determined.

Lexington/Rockbridge County Commonwealth's Attorney Gordon Saunders found that while Bunting used publicly funded staff and resources to write books for which he profited, the practice did not violate Virginia law or VMI's patent and copyright policy.

Saunders' finding ends a lengthy, two-pronged investigation of Bunting that found no criminal wrongdoing. In September, Saunders cleared Bunting of misusing VMI funds after his spending practices were investigated by the state auditor of public accounts.

"There are those who have attempted to mischaracterize General Bunting's endeavors on behalf of VMI," said VMI Board of Visitors President Bruce Gottwald in a written statement. "Their attempts have been fruitless, detrimental to VMI, and have come at great cost to the Commonwealth of Virginia and the institute in terms of time, effort and resources, to say nothing of the personal burden on General Bunting and his family."

Bunting was out of town but issued a written statement.

"These allegations resulted in enormous suffering for my two greatest loves — my family and this institute," he said. "Thank God for the support of the people who know that my efforts — in this situation wantonly mischaracterized — have always been and are only to urge and advance the cause of VMI."

A state police investigation into the books, launched by an anonymous tip, found that Bunting used VMI staff to type and edit the two books he's written while superintendent at a cost of $8,000 to $10,000.

Bunting also made long-distance calls and used express mail services at a total cost of less than $250 to help publish the books.

Bunting was paid a $50,000 advance against royalties for "An Education for Our Time," and expects a $5,000 advance for his latest novel, "All Loves Excelling." VMI has received none of the royalties.

Under Virginia law, Saunders said in a Thursday news release, patentable or copyrightable works produced by state employees within the scope of their employment belong to the state. But the state code provides for state institutions of higher learning to set their own patent and copyright policies.

VMI's policy provides that the copyrights generally belong to the author, and VMI will not assert any financial interest in faculty and staff publications.

Based on that, Saunders cleared Bunting, but suggested he should have handled the books differently.

"While it could be argued that General Bunting should have formally advised the Board of Visitors of the subject matter of his books and the anticipated cost to the state . . . prior to undertaking these projects, his failure to do so does not constitute a violation of any state criminal law," Saunders said in the release.

VMI's faculty and staff handbook says "research for pecuniary return should be based upon an understanding with the authorities of the institution," he said in an interview Thursday evening.

Saunders' interest in the books encountered opposition from the start.

On the day he announced he was looking into the books, Gottwald said the board expected Bunting to write books when they hired him four years ago.

Gottwald also elicited an informal opinion from Assistant Attorney General Ashley Taylor, a VMI graduate, who said the law clearly allows and Virginia's colleges encourage faculty and staff use of resources to help them research and publish books as a means of staying on top of their fields.

Ten days later, the State Council of Higher Education passed a resolution reaffirming its support of the practice. University of Virginia political scientist Larry Sabato expressed fear that prosecuting Bunting would have a chilling effect on scholarship in Virginia and might drive important scholars away to other states.

Saunders investigated anyway.

Saunders remains critical of VMI's policy.

"This policy, when looking at other state policies, is lacking," he said.

It lacks guidelines for determining when "significant use" of state resources has occurred in writing a book, he said. "Such guidelines would clarify whether VMI would be entitled to any reimbursement or share of the royalties resulting from a significant use of its facilities."

Gottwald defended the policy, saying it was clear, promoted scholarship, and was approved by the attorney general's office when it was adopted in 1989.

Saunders suggested the attorney general should review the policy, but Gottwald again sought the opinion of Taylor, who said he saw no need for revision.

"I'm kind of shocked," Saunders said on hearing that Thursday.

He said Taylor stood in his office several weeks ago and admitted VMI's policy was inadequate. "I felt some changes would be made, and from what I'm hearing that's not going to happen."

Gottwald rejoiced that this "curious chapter" in VMI's history is closed, and said the board fully supported Bunting's writing.

"The books themselves continue to bring great credit to VMI," he said.