OpenCDA

December 10, 2014

Special Prosecutor – The Time Has Come

Filed under: Probable Cause — Tags: — Bill @ 7:16 am

Foster parents arrestedCOE-3-RMargin copyOpenCdA believes that it is time for a special prosecuting attorney from far beyond Kootenai County to investigate the administration and management of Coeur d’Alene Airport (COE).  But we also believe that any prosecutor should have the courage and horsepower to go where the evidence leads him (or her), even if it goes beyond the borders of the airport to the County Administration Building or the Public Safety Building.

As we have reported in several preceding OpenCdA posts, the firing of longtime airport manager Greg Delavan prompted an outpouring of support for him from local aircraft owners and operators as well as from local businesses who see COE as playing an important role in the region’s economy.  His loyal supporters were often equally outspoken in opposition to the two Kootenai County Commissioners (Green and Tondee) who decided in an illegal meeting to fire him.

Constrained by several factors, Commissioners Green and Tondee were unable to publicly disclose exactly what led to Delavan’s firing.   Unfortunately, they didn’t help clarify the issue when they admitted making the decision to fire him in an executive session board meeting, a flagrant violation of Idaho’s Open Meeting Law.  As a result, the interested public was left with the impression that there may have been no valid reason for Delavan’s firing.

And then this article headlined Audit reveals bad billing appeared in the local skewspaper, the Coeur d’Alene Press on November 14, 2014.   The article suggested there may have been valid reasons for firing Delavan.  Online comments appended to some of the skewspaper’s articles reporting Delavan’s firing reinforced that suggestion.

Idaho Code §§ 31-802 and 31-809 clearly and unambiguously assign to the County Commissioners the duty and responsibility for completing regular audits of all county officers’ financial records.  To the extent that duty can be delegated or assigned to others such as the County Clerk (ex officio Auditor), it is the duty and responsibility of the County Commissioners to ensure that they “…require [county officers] to make reports, and to present their books and accounts for inspection.”  Idaho Code § 18-315 provides that “Every wilful [sic] omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.”

We recall some conversations we had with former Kootenai County Clerk Cliff Hayes just a few months after he was installed as County Clerk in January 2011.  He and his staff had recognized that the financial records of some county officers were inconsistently kept and incomplete.   Yet efforts to try and get such important and statutorily-required records as monthly financial settlements from them met with resistance.

The embezzlement (grand larceny) conviction in 2011 of former Chief Deputy County Clerk Sandra Kay Martinson who had also been then-County Clerk Dan English’s auditing supervisor contributed to Hayes’ requesting that the Federal Bureau of Investigation (FBI) provide a Special Agent/Forensic Accountant to help him (Hayes) evaluate Kootenai County officers financial records.  The purpose of the request was to get outside objective evaluations of the County’s financial records.  At the time we talked, Hayes was unaware of the connection between Martinson and former Kootenai County Finance Director Angela Spaccia (AKA:  Angela Sheffield), who would later be convicted in California on corruption charges in the Bell, California, scandal.

Hayes was a retired chief executive law enforcement officer and knew the FBI routinely provided specialized technical assistance to local law enforcement agencies.  According to Hayes, the Special Agent supervising the Coeur d’Alene FBI office readily agreed to his request but expressed some surprise that it had not come from the Kootenai County Sheriff or the Prosecutor.  But shortly after the request was approved, it was withdrawn by the FBI.

It took an inquiry from OpenCdA to US Representative Raul Labrador to learn from an FBI Assistant Director that Hayes’ request had been squelched by Idaho’s US Attorney, Wendy Jo Olson.   Given that the US Attorney is a political appointee who serves as the pleasure of the President, OpenCdA wonders who would have sufficient influence to get her to suppress an otherwise very routine request for FBI assistance that could have led investigators beyond Martinson to who knows where?

Although we don’t place much stock in the accuracy or completeness of what is purported to be news reported by the Coeur d’Alene Press, we confess that the report of the recently-completed audit at the airport had some semblance of authenticity to it.

OpenCdA thinks that with a newly-elected County Clerk and Treasurer and two new Commissioners, the County has an opportunity to get its financial record-keeping house in order.  We hope that all our county officers are interested in financial integrity and are aware of their fiduciary responsibilities.

We certainly don’t endorse Commissioners Green and Tondee’s inclination to simply write off the uncollected airport funds and just move on.   We think that the underlying causes of the airport fund discrepancies must be investigated to ensure there were no criminal acts involved,  or if there were, to ensure that the right persons are prosecuted and no one is wrongly accused.  There is entirely too much eagerness and willingness to “just move on” in Kootenai County when what may be incompetence or political cronyism among public officials begins to resemble criminal conduct.

To that end, we believe that if a state-level special prosecutor is to be appointed, he (or she) would have to come from the Idaho Attorney General’s Office.  There are three ways that could happen.  First, Kootenai County Prosecuting Attorney Barry McHugh could make the request to the Attorney General.  Second, the Governor has the authority to direct the Attorney General to step in without an engraved invitation from the Prosecutor.  The third and by far the mostly likely way would be for the Attorney General to assert his authority under Idaho Code § 31-2002.

The 2014 session of the Idaho legislature passed Senate Bill 1369 . It was codified in Idaho Code § 31-2002.  It allows the Attorney General to conduct a preliminary investigation on his own authority when misconduct is alleged to have been committed by county officers.  If the Attorney General’s investigation finds sufficient evidence to warrant criminal prosecution, we hope that he will also find that the Kootenai County Prosecutor’s apparent involvement in the Open Meeting Law issues of the case precludes McHugh from being able to objectively appoint a special prosecutor to prosecute.

In potentially criminal matters involving Kootenai County funds management and mismanagement, OpenCdA absolutely believes that the Kootenai County Prosecuting Attorney and the Kootenai County Sheriff could not be objective and should not have any participating role other than being cooperating witnesses who are asked to provide financial records and sworn statements.  They are, after all, county officers, too.

Because of the limited new legislation enacted in 2014, we have slightly more confidence in the Idaho Attorney General’s Office.  We think that the facts developed by the AG’s preliminary investigation of the airport could lead to criminal prosecutions that go beyond the boundaries of the airport.  We hope if that proves to be the case, that the Idaho Attorney General will retain control over the investigation and prosecution.  We would hate to see yet another significant criminal prosecution handed off to another county’s prosecutor who may have neither the political will nor the skill and investigative resources to pursue an objective investigation to wherever it leads.

 

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