BOS Responds to GJ Report
Part IV
Editor’s Note: This is the fourth of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation.
The Modoc County Board of Supervisors responded Sept. 7 to the grand jury’s investigation into the misappropriation of nearly $20 million from the treasury by denying any knowledge of the misuse of public funds.
The official response, approved by the board and signed by Chair Dan Macsay, also denied an accusation of intimidation even though the board was not named as a party to the intimidation in the grand jury’s report.
The board also attempted to pass responsibility for the misappropriation to previous boards and unnamed county officials, arguing that the illegal taking of restricted funds from the treasury actually started 15 years ago -- and not two years ago as alleged by the grand jury.
In an apparent effort to dissuade the grand jury from implicating the current board in the misappropriation, Macsay’s response ignored that he, David Bradshaw and Patricia Cantrall have been board members for at least half of those 15 years, and Cantrall, the senior member on the board, has been a supervisor for the last 13 years.
The grand jury report stated the misappropriations, as they applied to Treasurer Cheryl Knoch and former Auditor Judi Stevens, began in 2003, the year both Bradshaw and Macsay took office, and continued until 2008.
The supervisors agreed with the grand jury’s statement in the report that the “Board of Supervisors stated they were unaware of the use of restricted funds.” In doing so, the supervisors essentially agreed with themselves.
By agreeing with a statement the supervisors made to the grand jury and repeated in the report, they indirectly disputed Stevens' interview with the Modoc Independent News that she and Knoch kept the board regularly informed of its use of restricted funds in the treasury.
“At no time was the Board of Supervisors made aware of the fact by the Modoc County Auditor or Treasurer that restricted funds were being used to conduct county business,” the board argued in its response to the grand jury.
Supervisor Jeff Bullock told the Modoc Independent News that he filed a separate response to the grand jury’s report, but this could not be confirmed by Stephanie Northrup, clerk to the board, who said she was unaware of any filing by Bullock.
When asked for details of his response, Bullock said he could not remember.
-- Ray A. March
Wednesday, September 15, 2010
Tuesday, September 14, 2010
California Grand Jury Assn. Answers
Part III
Editor’s Note: This is the third of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation. The following is reprinted in its entirety from the California Grand Jury Association (CGJA) website by permission. Modoc County is not a member of this statewide association.
“CGJA tries to avoid the use of the term "Civil" Grand Jury because the term is not recognized in California law and CGJA believes the use of the term as a shorthand reference is misleading.”
There is no such thing in California law as a "civil" grand jury. California has historically had only "regular" grand juries and every county is required by the California Constitution to have one every year. The regular grand juries have always had two different functions: criminal and civil.
One function, the criminal one, is to hear evidence to determine whether in the grand jury’s view it is sufficient to warrant making an accused stand trial. Typically the District Attorney’s office decided who to accuse, on what charges and what evidence to bring to the attention of the grand jury. The District Attorney guided and advised the grand jury during its receipt of the evidence. The grand jury determined whether or not to issue an indictment. As discussed below, this indictment function has fallen into disuse in some, but not all, counties. In addition to standard criminal indictment activity, potentially included within the criminal function is the obligation of every regular grand jury to investigate “willful or corrupt misconduct in office of public officers of every description within the county." Whether or not a grand jury’s indictment function has fallen into disuse, this is a mandatory obligation and obviously may uncover criminal activity.
The other function, the civil one, is to investigate local government agencies and officials to form views as to whether they are acting properly. If a grand jury determines they are not, it has various options open to it. The most frequently used option is the presentation of a Report outlining the grand jury’s findings and recommendations in the matter. Such Reports are public and frequently attract media attention. They must be responded to in specific ways by the agencies or elected officials reported upon. Except where an investigation is mandated, the grand jury in its sole discretion decides whether and what to investigate when performing its civil function.
Depending on the nature and severity of any wrongdoing a grand jury finds in its investigations it can, in addition to releasing a Report, request the District Attorney to pursue the matter criminally, issue its own Accusation to start a court action to remove a wrongdoing official from office, order the District Attorney to sue to recover monies the grand jury has determined are due to the county, and order the commencement of escheat proceedings to recover land. Collectively the preparation of Reports and these additional powers are frequently referred to as the civil function of a regular grand jury.
For historical and logistical reasons many District Attorneys do not seek indictments from their regular grand jury. In some counties District Attorneys always elect to proceed without indictment. In other counties limited purpose “additional” grand juries are impaneled to handle criminal matters. Where an additional grand jury has been impaneled it has, with one exception, the exclusive power to indict. It does not, however, have an exclusive power to investigate and the regular grand jury retains the power to investigate crimes. If a regular grand jury found an indictable offense during one of its investigations and an additional grand jury was sitting, the regular grand jury would turn the results of its investigation over to the additional grand jury to issue the indictment. Whether or not a regular grand jury sits in a county whose District Attorney simply chooses not to make use of its indictment function, or in a county with an additional grand jury sitting, the regular grand jury possesses all of the criminal and civil investigatory powers of any regular grand jury.
The term “civil grand jury” is frequently used as a shorthand way to refer to a regular grand jury that sits in a county where the regular grand jury’s indictment powers are not called upon. It is a convenient, but unfortunate, shorthand term that makes it easy to refer to such a regular grand jury. The CGJA tries to avoid the term, however, and encourages grand jurors to do the same. The reason is that the term conveys the impression to the public, the media, the government officials over whom you have oversight jurisdiction, and perhaps worst of all, to grand jurors themselves, that regular grand jurors do not have the strong powers that in fact they do have.
It can lead to a diminishing awareness of and commitment to your powers to investigate public official misconduct in office, to issue accusations, to direct the District Attorney to recover monies and to investigate criminal matters even if you will not be asked to issue an indictment. In short, it can lead to a mentality that, in counties where they are not asked to issue indictments, all that regular grand juries do, or even all they are required to do, is to issue Reports. That is wrong and such an attitude can severely weaken a grand jury and, indeed, the strength of all of California’s regular grand juries in the future. It is also possible that if enough grand jurors think of themselves as possessing only reporting powers for a long enough period of time, the legislature may agree and significantly change the historic role of the regular grand jury.
The CGJA encourages regular grand juries to refer to themselves simply as “[County name] Grand Jury.” If an additional grand jury is impaneled let it refer to itself as an “additional,” “special” or “criminal” grand jury but reserve the unrestricted term “grand jury” for the regular grand jury.
Tomorrow: Part IV -- The Modoc County Board of Supervisors Responds to GJ Report
Part III
Editor’s Note: This is the third of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation. The following is reprinted in its entirety from the California Grand Jury Association (CGJA) website by permission. Modoc County is not a member of this statewide association.
“CGJA tries to avoid the use of the term "Civil" Grand Jury because the term is not recognized in California law and CGJA believes the use of the term as a shorthand reference is misleading.”
Why the CGJA Avoids the Term “Civil” Grand Jury
There is no such thing in California law as a "civil" grand jury. California has historically had only "regular" grand juries and every county is required by the California Constitution to have one every year. The regular grand juries have always had two different functions: criminal and civil.
One function, the criminal one, is to hear evidence to determine whether in the grand jury’s view it is sufficient to warrant making an accused stand trial. Typically the District Attorney’s office decided who to accuse, on what charges and what evidence to bring to the attention of the grand jury. The District Attorney guided and advised the grand jury during its receipt of the evidence. The grand jury determined whether or not to issue an indictment. As discussed below, this indictment function has fallen into disuse in some, but not all, counties. In addition to standard criminal indictment activity, potentially included within the criminal function is the obligation of every regular grand jury to investigate “willful or corrupt misconduct in office of public officers of every description within the county." Whether or not a grand jury’s indictment function has fallen into disuse, this is a mandatory obligation and obviously may uncover criminal activity.
The other function, the civil one, is to investigate local government agencies and officials to form views as to whether they are acting properly. If a grand jury determines they are not, it has various options open to it. The most frequently used option is the presentation of a Report outlining the grand jury’s findings and recommendations in the matter. Such Reports are public and frequently attract media attention. They must be responded to in specific ways by the agencies or elected officials reported upon. Except where an investigation is mandated, the grand jury in its sole discretion decides whether and what to investigate when performing its civil function.
Depending on the nature and severity of any wrongdoing a grand jury finds in its investigations it can, in addition to releasing a Report, request the District Attorney to pursue the matter criminally, issue its own Accusation to start a court action to remove a wrongdoing official from office, order the District Attorney to sue to recover monies the grand jury has determined are due to the county, and order the commencement of escheat proceedings to recover land. Collectively the preparation of Reports and these additional powers are frequently referred to as the civil function of a regular grand jury.
For historical and logistical reasons many District Attorneys do not seek indictments from their regular grand jury. In some counties District Attorneys always elect to proceed without indictment. In other counties limited purpose “additional” grand juries are impaneled to handle criminal matters. Where an additional grand jury has been impaneled it has, with one exception, the exclusive power to indict. It does not, however, have an exclusive power to investigate and the regular grand jury retains the power to investigate crimes. If a regular grand jury found an indictable offense during one of its investigations and an additional grand jury was sitting, the regular grand jury would turn the results of its investigation over to the additional grand jury to issue the indictment. Whether or not a regular grand jury sits in a county whose District Attorney simply chooses not to make use of its indictment function, or in a county with an additional grand jury sitting, the regular grand jury possesses all of the criminal and civil investigatory powers of any regular grand jury.
The term “civil grand jury” is frequently used as a shorthand way to refer to a regular grand jury that sits in a county where the regular grand jury’s indictment powers are not called upon. It is a convenient, but unfortunate, shorthand term that makes it easy to refer to such a regular grand jury. The CGJA tries to avoid the term, however, and encourages grand jurors to do the same. The reason is that the term conveys the impression to the public, the media, the government officials over whom you have oversight jurisdiction, and perhaps worst of all, to grand jurors themselves, that regular grand jurors do not have the strong powers that in fact they do have.
It can lead to a diminishing awareness of and commitment to your powers to investigate public official misconduct in office, to issue accusations, to direct the District Attorney to recover monies and to investigate criminal matters even if you will not be asked to issue an indictment. In short, it can lead to a mentality that, in counties where they are not asked to issue indictments, all that regular grand juries do, or even all they are required to do, is to issue Reports. That is wrong and such an attitude can severely weaken a grand jury and, indeed, the strength of all of California’s regular grand juries in the future. It is also possible that if enough grand jurors think of themselves as possessing only reporting powers for a long enough period of time, the legislature may agree and significantly change the historic role of the regular grand jury.
The CGJA encourages regular grand juries to refer to themselves simply as “[County name] Grand Jury.” If an additional grand jury is impaneled let it refer to itself as an “additional,” “special” or “criminal” grand jury but reserve the unrestricted term “grand jury” for the regular grand jury.
Tomorrow: Part IV -- The Modoc County Board of Supervisors Responds to GJ Report
Monday, September 13, 2010
Judge Barclay States His Case
Part II
Editor’s Note: This is the second of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation
Judge Francis Barclay is the presiding judge of Modoc County Superior Court. In that capacity he impanels and instructs the Modoc County Grand Jury.
Because of the apparent confusion as to the duties of the grand jury, Judge Barclay consented to this interview. We present it here in a Question & Answer format.
Modoc Daily Blog: What are your typical instructions to the jury when you swear it in as to its authorities?
Judge Barclay: Modoc County is required to impanel a civil grand jury each year. The grand jury's basic function is to serve as a watchdog for county government. Their investigations are based on what they determine to look into, including various aspects of county government, and previous year’s investigations and citizen complaints. Their function is primarily civil. They can generate interim reports, but their ultimate duty is to provide a final report to the judge to review and approve. The grand jury report requires responses from various departments within 90 days.
Modoc Daily Blog: We see in the grand jury report for this last year the use of the word “civil” as a description of the type of grand jury Modoc County has. Is this becoming a common reference? We ask this because our understanding is there is no such thing as a civil grand jury. Isn’t it a “regular” grand jury?”
Judge Barclay: It’s always been a civil grand jury in Modoc County. I get my direction from the Grand Jury Manual put out by the Administrative Office of Courts, a state administrative agency. These are bench guides, manuals put together with recitations of law, model guides for training civil and criminal grand juries -- a resource manual, a primer on grand juries in California. I also consult with other judges in northeastern California. I guess you could call a civil grand jury a regular grand jury.
The civil grand jury may come across something criminal in nature, in their watchdog function, and report their findings to the DA to be handled. It would be up to DA to investigate. I would not necessarily be privy to that. They (the grand jury) are free to choose what they investigate, aside from departments such as the sheriff’s office, which are required to be investigated on a yearly basis. Any finding has to be supported with documented evidence. I recommend that all grand jury interviews include two jurors to be present. My direction to the grand jury would be if you come across something that suggests felony criminal conduct you have the authority to refer it to the DA. He has resources at his disposal, such as investigators. The DA is elected to determine if any charges should be filed.
The superior court judge could appoint a criminal grand jury to serve at the request of DA for purposes of prosecuting and indictment, because of a unique situation that did not lend itself to the preliminary hearing process.
Modoc County Daily Blog: Has there ever been a “criminal” grand jury in Modoc?
Judge Barclay: Back in 1961 or 62 when my dad Robert Barclay was DA there was a criminal Grand Jury impaneled. I can’t remember for sure, I’ve heard a rumor.
Modoc County Daily Blog: What can the grand jury do when it has a reluctant witness? Can it subpoena that person to testify under oath?
Judge Barclay: They can issue a subpoena to conduct a civil investigation by authority of the superior court. It doesn’t necessarily have to be criminal, it can be civil or criminal. By statute they can bring an accusation for malfeasance in office, which is really a civil process. They can have the DA file a formal accusation for malfeasance in office, which may not necessarily be a crime, but they have this potential function, they can request an accusation process. The only remedy this would achieve if the accusation were prosecuted and found to be true is that the accused person forfeits their office. But as a practical matter if you can prove malfeasance then that person would typically already be under investigation on a felony criminal charge.
Modoc County Daily Blog: Can a so-called “civil” grand jury indict? Issue subpoenas? Can they be sued?
Judge Barclay: They can do an accusation, but a indictment is criminal in nature and is brought by a constitutionally impaneled criminal grand jury. The request for the indictment process would be initiated by the DA and the superior court judge would impanel a constitutionally-chosen criminal grand jury.
Yes, I think the grand jury can be sued. The primary area would be libel or defamation of character. I guess an individual can be sued. But the law is very clear. The grand jury can only act as a body. If it's sued for an unsupported finding then I think the whole body would be potentially libel. They know they have that potential liability.
Modoc County Daily Blog: Does the grand jury have investigative “oversight” over the board of supervisors? Are they the only ones?
Judge Barclay: Yes, they have watchdog oversight over the Board of Supervisors. It’s not their job to question day to day operations of the board or disagree with its policy decisions. But they could investigate a significant insufficiency. The Board of Supervisors falls under grand jury jurisdiction.
Modoc County Daily Blog: Did you tell the 2009 - 2010 grand jury that unless it could prove personal gain it couldn’t proceed with the investigation of the misappropriation?
Judge Barclay: I’m not aware of anyone advising them of that. I wouldn’t know as the superior court judge. All grand jury meetings are confidential. If I were to attend their meetings the only thing I would advise them on is procedural. I would not be aware if that (advising about personal gain) were the case. The law allows the grand jury to consult outside sources on various matters about their duties, to seek advise from the DA, county counsel, the Attorney General. We could also hire special legal council, but right now that’s not fiscally possible. This is not an appropriate subject. Whether the grand jury was advised about this or not advised, would fall into the realm of confidentiality.
Modoc County Daily Blog: Typically the outgoing grand jury recommends that an investigation be continued by the new grand jury. Is the incoming grand jury bound by that request to continue the investigation? Can you say the current grand jury is going to continue the investigation of the misappropriation? Or are you satisfied that the investigation is complete and doesn’t need to be continued?
Judge Barclay: Certainly they have that option to recommend further investigation. They did recommend further investigation of the complaint (see grand jury report page 10). But that’s completely up to next year’s grand jury. They decide as a body. Things came to a head this year and it was a particularly difficult year for the grand jury on that subject (misappropriation).
My speculation would be that what they did or didn’t do is in relation to a situation that’s as factually and legally complex as you would find. I know that fiscal folks at the state level are on top of this. The grand jury needs to do what it thinks it needs to do. I don’t know what the grand jury can do that’s not already being done at a much higher level.
-- Barbara March
Tomorrow: Part III -- The California Grand Jury Association Responds
Part II
Editor’s Note: This is the second of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation
Judge Francis Barclay is the presiding judge of Modoc County Superior Court. In that capacity he impanels and instructs the Modoc County Grand Jury.
Because of the apparent confusion as to the duties of the grand jury, Judge Barclay consented to this interview. We present it here in a Question & Answer format.
Modoc Daily Blog: What are your typical instructions to the jury when you swear it in as to its authorities?
Judge Barclay: Modoc County is required to impanel a civil grand jury each year. The grand jury's basic function is to serve as a watchdog for county government. Their investigations are based on what they determine to look into, including various aspects of county government, and previous year’s investigations and citizen complaints. Their function is primarily civil. They can generate interim reports, but their ultimate duty is to provide a final report to the judge to review and approve. The grand jury report requires responses from various departments within 90 days.
Modoc Daily Blog: We see in the grand jury report for this last year the use of the word “civil” as a description of the type of grand jury Modoc County has. Is this becoming a common reference? We ask this because our understanding is there is no such thing as a civil grand jury. Isn’t it a “regular” grand jury?”
Judge Barclay: It’s always been a civil grand jury in Modoc County. I get my direction from the Grand Jury Manual put out by the Administrative Office of Courts, a state administrative agency. These are bench guides, manuals put together with recitations of law, model guides for training civil and criminal grand juries -- a resource manual, a primer on grand juries in California. I also consult with other judges in northeastern California. I guess you could call a civil grand jury a regular grand jury.
The civil grand jury may come across something criminal in nature, in their watchdog function, and report their findings to the DA to be handled. It would be up to DA to investigate. I would not necessarily be privy to that. They (the grand jury) are free to choose what they investigate, aside from departments such as the sheriff’s office, which are required to be investigated on a yearly basis. Any finding has to be supported with documented evidence. I recommend that all grand jury interviews include two jurors to be present. My direction to the grand jury would be if you come across something that suggests felony criminal conduct you have the authority to refer it to the DA. He has resources at his disposal, such as investigators. The DA is elected to determine if any charges should be filed.
The superior court judge could appoint a criminal grand jury to serve at the request of DA for purposes of prosecuting and indictment, because of a unique situation that did not lend itself to the preliminary hearing process.
Modoc County Daily Blog: Has there ever been a “criminal” grand jury in Modoc?
Judge Barclay: Back in 1961 or 62 when my dad Robert Barclay was DA there was a criminal Grand Jury impaneled. I can’t remember for sure, I’ve heard a rumor.
Modoc County Daily Blog: What can the grand jury do when it has a reluctant witness? Can it subpoena that person to testify under oath?
Judge Barclay: They can issue a subpoena to conduct a civil investigation by authority of the superior court. It doesn’t necessarily have to be criminal, it can be civil or criminal. By statute they can bring an accusation for malfeasance in office, which is really a civil process. They can have the DA file a formal accusation for malfeasance in office, which may not necessarily be a crime, but they have this potential function, they can request an accusation process. The only remedy this would achieve if the accusation were prosecuted and found to be true is that the accused person forfeits their office. But as a practical matter if you can prove malfeasance then that person would typically already be under investigation on a felony criminal charge.
Modoc County Daily Blog: Can a so-called “civil” grand jury indict? Issue subpoenas? Can they be sued?
Judge Barclay: They can do an accusation, but a indictment is criminal in nature and is brought by a constitutionally impaneled criminal grand jury. The request for the indictment process would be initiated by the DA and the superior court judge would impanel a constitutionally-chosen criminal grand jury.
Yes, I think the grand jury can be sued. The primary area would be libel or defamation of character. I guess an individual can be sued. But the law is very clear. The grand jury can only act as a body. If it's sued for an unsupported finding then I think the whole body would be potentially libel. They know they have that potential liability.
Modoc County Daily Blog: Does the grand jury have investigative “oversight” over the board of supervisors? Are they the only ones?
Judge Barclay: Yes, they have watchdog oversight over the Board of Supervisors. It’s not their job to question day to day operations of the board or disagree with its policy decisions. But they could investigate a significant insufficiency. The Board of Supervisors falls under grand jury jurisdiction.
Modoc County Daily Blog: Did you tell the 2009 - 2010 grand jury that unless it could prove personal gain it couldn’t proceed with the investigation of the misappropriation?
Judge Barclay: I’m not aware of anyone advising them of that. I wouldn’t know as the superior court judge. All grand jury meetings are confidential. If I were to attend their meetings the only thing I would advise them on is procedural. I would not be aware if that (advising about personal gain) were the case. The law allows the grand jury to consult outside sources on various matters about their duties, to seek advise from the DA, county counsel, the Attorney General. We could also hire special legal council, but right now that’s not fiscally possible. This is not an appropriate subject. Whether the grand jury was advised about this or not advised, would fall into the realm of confidentiality.
Modoc County Daily Blog: Typically the outgoing grand jury recommends that an investigation be continued by the new grand jury. Is the incoming grand jury bound by that request to continue the investigation? Can you say the current grand jury is going to continue the investigation of the misappropriation? Or are you satisfied that the investigation is complete and doesn’t need to be continued?
Judge Barclay: Certainly they have that option to recommend further investigation. They did recommend further investigation of the complaint (see grand jury report page 10). But that’s completely up to next year’s grand jury. They decide as a body. Things came to a head this year and it was a particularly difficult year for the grand jury on that subject (misappropriation).
My speculation would be that what they did or didn’t do is in relation to a situation that’s as factually and legally complex as you would find. I know that fiscal folks at the state level are on top of this. The grand jury needs to do what it thinks it needs to do. I don’t know what the grand jury can do that’s not already being done at a much higher level.
-- Barbara March
Tomorrow: Part III -- The California Grand Jury Association Responds
Sunday, September 12, 2010
Duties of Grand Jury Confusing
Part I
Editor’s Note: This is the first of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation.
Confusion and an apparent ignorance of the law caused a frustrated Modoc County Grand Jury to issue a mild reprimand to the Board of Supervisors for its misappropriation of an estimated $20 million from the treasury.
That is the opinion of former members of the out-going grand jury interviewed by the Modoc Independent News.
“Our hands were tied from day one,” explained Shirley Swallow, foreperson of the 2009-10 grand jury, declining to elaborate.
The grand jury was given confusing instructions that it was a civil grand jury only, suggesting it did not have authority to conduct a criminal investigation, according to sources who spoke on the condition of anonymity because of the sensitive nature of the grand jury’s investigation.
Technically, grand juries in California are “regular” grand juries, not “civil,” and have both civil and criminal investigative authority.
This led to frustration among jurors.
“Year in, year out, the grand jury is misled about the scope of its authority,” said another former juror. “Trainer Bruce Olson refused to answer questions and as a result the grand jury investigation into the misappropriation was a toothless effort.”
One source said Olson told the grand jury it had the authority to indict and subpoena. However, Olson declined to be interviewed for this article when asked for specifics about his view of a grand jury’s dual role.
Olson, hired regularly by the Modoc County Superior Court, is the author of “Grand Juries in California,” which is used as a training reference.
“The 2009 - 10 grand jury said it wanted blood, but had the mistaken belief it could only handle civil cases,” said a former juror. “Nobody on the grand jury was gutless, we wanted blood. I was totally disgusted. The world is watching. We should hold someone accountable, we want to do things right.”
“The only thing they felt half-way good about was the fact that three citizen complaints had been filed with the Attorney General,” said another source.
The three complaints against the Board of Supervisors were filed with the AG by the Monday Night Group, the late Don Johnson of Alturas and Jim Halverson of Cedarville. No action other than routine acknowledgement letters has apparently been taken by the AG in response to the complaints.
The Modoc County Board of Supervisors, currently under a 14-month-old mandate from the State Controller’s Office to replace the misappropriated money, was interviewed as a body three times by the grand jury committee assigned to the investigation.
During each interview the supervisors were uncooperative and were described as being rude and bullying.
“We purposely asked different questions each time, but we also asked the same questions the third time that we had asked the first time to see if the answers would be the same and in some cases they were not,” explained another source.
“We knew they were lying through their teeth, that there was mismanagement and malfeasance, but the judge said unless we could prove personal gain we couldn’t proceed with the investigation,” said the source.
By law, actions by the Board of Supervisors, other than routine day-to-day management of the county, is subject to official oversight of the grand jury.
“There should have been a hearing where the District Attorney would question these people starting with Maxwell, even that much would have been good,” said a juror in reference to the county’s former chief administrative officer Mike Maxwell.
“We asked Maxwell to come in to be interviewed and he said, ‘No, you guys want to hang someone out to dry.’ I thought he was supposed to give a deposition to the DA,” the source said, admitting there was confusion or lack of coordinated information.
Maxwell has declined to comment publicly on the misappropriation.
As for the involvement of District Attorney Gary Woolverton, the grand jury was again frustrated.
“We wanted to recommend a criminal investigation,” said a juror.
In February Woolverton told the Modoc Independent News he was required to investigate any complaint filed with him, but he also said he had a conflict of interest in pursuing any action against the Board of Supervisors because it governs his budget.
However, one juror had a conflicting opinion about Woolverton’s involvement.
“We asked the DA to investigate, but he said he didn’t have enough information to go forward,” said the juror.
As for information to press the DA into action, the grand jury report, released July 1, revealed that both former Auditor Judi Stevens and present Treasurer Cheryl Knoch said they were intimidated into making illegal payments although no one was identified in the report.
The grand jury report also stated that Stevens and Knoch had advised the Board of Supervisors that there was a shortage of funds, but the supervisors said they were unaware that restricted funds in the treasury were being used.
On Aug. 18 the Modoc Daily News Blog ran an article in which Stevens implicated both the Board of Supervisors and Maxwell in the misappropriation.
Is there a lesson learned that can be used to its advantage by the 2010-11 grand jury that was sworn in at the beginning of July?
“Whether it’s true or false that we could have indicted or subpoenaed doesn’t matter,” said a juror. “Our instructions were that we were a civil grand jury, not criminal. It was a big let down. We hope the new grand jury doesn’t wait until April to address this issue like we did. We hope they get on it right away.”
-- Barbara March and Ray A. March
Tuesday: Part II -- Judge Francis Barclay States His Case
Part I
Editor’s Note: This is the first of a four-part series covering the Modoc County Board of Supervisors’ misappropriation of an estimated $20 million in treasury funds and the resulting Modoc County Grand Jury investigation.
Confusion and an apparent ignorance of the law caused a frustrated Modoc County Grand Jury to issue a mild reprimand to the Board of Supervisors for its misappropriation of an estimated $20 million from the treasury.
That is the opinion of former members of the out-going grand jury interviewed by the Modoc Independent News.
“Our hands were tied from day one,” explained Shirley Swallow, foreperson of the 2009-10 grand jury, declining to elaborate.
The grand jury was given confusing instructions that it was a civil grand jury only, suggesting it did not have authority to conduct a criminal investigation, according to sources who spoke on the condition of anonymity because of the sensitive nature of the grand jury’s investigation.
Technically, grand juries in California are “regular” grand juries, not “civil,” and have both civil and criminal investigative authority.
This led to frustration among jurors.
“Year in, year out, the grand jury is misled about the scope of its authority,” said another former juror. “Trainer Bruce Olson refused to answer questions and as a result the grand jury investigation into the misappropriation was a toothless effort.”
One source said Olson told the grand jury it had the authority to indict and subpoena. However, Olson declined to be interviewed for this article when asked for specifics about his view of a grand jury’s dual role.
Olson, hired regularly by the Modoc County Superior Court, is the author of “Grand Juries in California,” which is used as a training reference.
“The 2009 - 10 grand jury said it wanted blood, but had the mistaken belief it could only handle civil cases,” said a former juror. “Nobody on the grand jury was gutless, we wanted blood. I was totally disgusted. The world is watching. We should hold someone accountable, we want to do things right.”
“The only thing they felt half-way good about was the fact that three citizen complaints had been filed with the Attorney General,” said another source.
The three complaints against the Board of Supervisors were filed with the AG by the Monday Night Group, the late Don Johnson of Alturas and Jim Halverson of Cedarville. No action other than routine acknowledgement letters has apparently been taken by the AG in response to the complaints.
The Modoc County Board of Supervisors, currently under a 14-month-old mandate from the State Controller’s Office to replace the misappropriated money, was interviewed as a body three times by the grand jury committee assigned to the investigation.
During each interview the supervisors were uncooperative and were described as being rude and bullying.
“We purposely asked different questions each time, but we also asked the same questions the third time that we had asked the first time to see if the answers would be the same and in some cases they were not,” explained another source.
“We knew they were lying through their teeth, that there was mismanagement and malfeasance, but the judge said unless we could prove personal gain we couldn’t proceed with the investigation,” said the source.
By law, actions by the Board of Supervisors, other than routine day-to-day management of the county, is subject to official oversight of the grand jury.
“There should have been a hearing where the District Attorney would question these people starting with Maxwell, even that much would have been good,” said a juror in reference to the county’s former chief administrative officer Mike Maxwell.
“We asked Maxwell to come in to be interviewed and he said, ‘No, you guys want to hang someone out to dry.’ I thought he was supposed to give a deposition to the DA,” the source said, admitting there was confusion or lack of coordinated information.
Maxwell has declined to comment publicly on the misappropriation.
As for the involvement of District Attorney Gary Woolverton, the grand jury was again frustrated.
“We wanted to recommend a criminal investigation,” said a juror.
In February Woolverton told the Modoc Independent News he was required to investigate any complaint filed with him, but he also said he had a conflict of interest in pursuing any action against the Board of Supervisors because it governs his budget.
However, one juror had a conflicting opinion about Woolverton’s involvement.
“We asked the DA to investigate, but he said he didn’t have enough information to go forward,” said the juror.
As for information to press the DA into action, the grand jury report, released July 1, revealed that both former Auditor Judi Stevens and present Treasurer Cheryl Knoch said they were intimidated into making illegal payments although no one was identified in the report.
The grand jury report also stated that Stevens and Knoch had advised the Board of Supervisors that there was a shortage of funds, but the supervisors said they were unaware that restricted funds in the treasury were being used.
On Aug. 18 the Modoc Daily News Blog ran an article in which Stevens implicated both the Board of Supervisors and Maxwell in the misappropriation.
Is there a lesson learned that can be used to its advantage by the 2010-11 grand jury that was sworn in at the beginning of July?
“Whether it’s true or false that we could have indicted or subpoenaed doesn’t matter,” said a juror. “Our instructions were that we were a civil grand jury, not criminal. It was a big let down. We hope the new grand jury doesn’t wait until April to address this issue like we did. We hope they get on it right away.”
-- Barbara March and Ray A. March
Tuesday: Part II -- Judge Francis Barclay States His Case
Subscribe to:
Posts (Atom)