Monday, October 16, 2006

Special Prosecutor's Decision On Bolejack Makes No Sense

Special Prosecutor Barry Brown announced today he will not file criminal charges against Heather Bolejack. AI readers will recall that Inspector General David Thomas released a report last May following the firing of former ICJI executive director Heather Bolejack in which he said he believed several criminal laws may have been committed, including, official misconduct, forgery, obstruction of justice, deception, theft and bribery, in an effort to steer a $417,000 contract to a friend of Bolejack's, Michael McKenna.

At the center of the controversy was a claim that minutes from a board meeting had been altered to make it appear that a contract for McKenna's newly-formed company had been approved by the board. Brown’s report says the agency’s board of trustees did not approve the program grant, “notwithstanding board minutes to the contrary.” Although Brown concluded Bolejack's firing was appropriate, he said the criminal justice system “may be inadequate to offer sufficient accountability for misconduct and irregularities noted in this report.”

Brown's conclusion makes absolutely no sense. If none of these actions outlined in Thomas' report rise to the level of a criminal violation, then when would a public official's misconduct in office ever rise to a criminal level? It is simply inconceivable that he could conclude that the board had not approved the grant, notwithstanding minutes to the contrary, taxpayer money flows out the door to Bolejack's friend and, yet, he concludes no crime had been committed. This is precisely why this matter should have been taken up by the U.S. Attorney's office, which has better resources to conduct this type of an investigation with the assistance of the FBI. One has to wonder if Brown's conclusions will hamper recovery of funds improperly paid out to McKenna's company.

Taking Down Words has posted a copy of the special prosecutor's report here. I've read it, and I can't believe it. Brown report reveals very little in the way of any findings. Brown says, "An extended discussion of the facts developed by this investigation is not appropriate given the potential for future action that may be pursued by the OIG in an ethics investigation and will not be included in this report." On the question of the SKIP grant she awarded to her friend Michael McKenna, Brown writes, "While offering a compelling ratification of her adherence to the established protocol, Heather Bolejack’s attestation, in response to the Agents’ questions, was nonetheless inaccurate and misleading." "Indeed, the SKIP grant by-passed significant and crucial procedural intersections of review that had pre-existed the introduction of the SKIP grant and her conduct appears to have violated IC 5-2-6-8(2)." As to the findings which led him to conclude a prosecution was not appropriate, Brown writes:

The evidence gathered in this investigation reveals irregularities in the conduct of both Heather Bolejack and Katalina Gullans, operating in their respective capacities as Executive Director and Deputy Director of Programs at the ICJI.

The evidence also revealed systemic deficiencies in the management of the ICJI which were prominently manifested in the manner in which the SKIP grant was forced through the grant approval process often bypassing the established review
bodies created to provide advice and oversight on grants advancing through the system.

Both Heather Bolejack and Katalina Gullans were implicated in the personal use of public funds for out-of-state conferences and in questionable reimbursement practices involving travel-related expenses.

After a comprehensive review of all the facts and circumstances, it is clear that the decision by the ICJI Board of Trustees to terminate the employment of both Heather Bolejack and Katalina Gullans on or about May 12, 2006, was appropriate and necessary.

However, to deny that Heather Bolejack made positive contributions to the enhancement of the ICJI during her tenure would be inaccurate. She developed improvements which were recognized as helpful and aided in correcting certain past inadequacies at the ICJI. Katalina Gullans was ultimately cooperative and provided information which advanced the inquiry and resolved unconfirmed details which surfaced during the investigation.

The IG’s written report to the Governor, dated May 26, 2006, accurately chronicles the status of affairs existing prior to my investigation and with some factual updates retains its validity in most respects.

The newly appointed Executive Director of the ICJI has demonstrated that he is a competent, skilled and effective manager who, in a brief span of time, has reestablished priorities consistent with the mandate of the original enabling legislation and with the relevant federal law and guidelines affecting the ICJI.

The criminal justice system may be inadequate to offer sufficient accountability for misconduct and irregularities noted in this report and another venue may provide a more immediate and comprehensive resolution of the issues identified in this report.

To propose the initiation of an original action by the OIG is outside the purview of the special prosecuting attorney. IC 4-2-7-5 specifically provides for the filing of an ethics complaint if the IG determines the existence of specific and credible evidence of a violation by former employees of the ICJI. Such an action would be compatible with the context of the special prosecutor’s investigation.

The Indiana State Board of Accounts may also exercise its authority in identifying conduct which requires monetary reimbursement to the State of Indiana. The United States Department of Justice maintains jurisdiction over any misconduct which impacts adversely on the distribution and expenditure of federal funds earmarked for the ICJI.

The only compelling part of Brown's report is that last sentence, noting that DOJ "maintains jurisdiction over any misconduct." Hopefully, the U.S. Attorney's office will start taking an interest in how the agency misspent our federal tax dollars. Also implicit in Brown's report is that the IG should have referred this matter to the State Ethics Commission when these issues first arose. I remain extremely bothered that Brown could state in his report that findings in the IG's report were validated by his own investigation, but that he would conclude no criminal laws were broken. It just doesn't add up.


Anonymous said...

Just for the record what political persuasion is Mr. Brown?

Gary R. Welsh said...

My understanding is he is a former Democratic Monroe Co. prosecutor.

Anonymous said...

At the risk of sounding smug, I went back and checked my Indiana Barrister blog, and lo and behold, we reported back in May that Heather's deal was likely more mismanagement than misdeeds. It will be interesting to see what the reaction is in the Black community. So much for conspiracies.

Anonymous said...

I have known Barry Brown since undergraduate days. He is a former Monroe County prosecutor. His record and his professionalism are unquestioned. His best friend is a Republican Superior Court judge down there. He won re-election by huge margins and has the admiration of both sides of the aisle.

The problem here may be the evidence, but I don't know.

I believe he may be the same special prosecutor who indicted Ron Gibson, but I could be wrong.

He's forgotten more about criminal law than most of us will ever know.

I have no dog in this hunt, but don't go doggin' Barry Brown. He's a good man.

Gary R. Welsh said...

Here's what the criminal statute for official misconduct says:

35-44-1-2 Sec. 2. A public servant who:
(1) knowingly or intentionally performs an act that the public servant is forbidden by law to perform;
(2) performs an act the public servant is not authorized by law to perform, with intent to obtain any property for himself or herself;
(3) knowingly or intentionally solicits, accepts, or agrees to accept from an appointee or employee any property other than what the public servant is authorized by law to accept as a condition of continued employment;
(4) knowingly or intentionally acquires or divests himself or herself of a pecuniary interest in any property, transaction, or enterprise or aids another person to do so based on information obtained by virtue of the public servant's office that official action that has not been made public is contemplated;
(5) knowingly or intentionally fails to deliver public records and property in the public servant's custody to the public servant's successor in office when that successor qualifies; or
(6) knowingly or intentionally violates IC 36-6-4-17(b);
commits official misconduct, a Class D felony.

I guess Brown concluded it's not illegal to give a $414,000 grant to your best friend, who has no demonstrated experience to carry out the purpose for which you gave him the grant, provide misleading and inaccurate information about how you went about awarding that grant, not obtain board approval for the grant, and someone prepared minutes to give the appearance the board had approved the grant. The statute creating the ICJI, specifically says the Board's powers, among other, include:

(5) receive, expend, and account for state funds made available for the purposes of this chapter;
(6) apply for and accept gifts and grants (which must be administered as public funds) made for the purposes of this chapter;
(7) enter into lawful agreements as required as a condition for receiving gifts, grants, or other funds for the purposes of this chapter.

Doesn't appear to me that the law was followed if the Board didn't authorize the grant.