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Drains And Pains

Just a few more thoughts on the drain office situation …

So Bernie Butcher goes to work for Drain Commissioner Gary Bendall in the spring of 1991, tasked with developing the soil erosion program so that it complies with MDEQ requirements. Taking the position of Deputy Drain Commissioner would require a significant decrease in salary for Bernie; as such, Gary secured approval for additional compensation. Since the soil erosion responsibilities were outside of the specific job descriptions of the drain office, this additional compensation for Bernie was tied to the soil erosion program.

At this time, Judith Kingsbury was the elected County Treasurer. She created a new account for the purposes of receiving and paying soil erosion fees. This account was 347 Soil Erosion. If I recall correctly, it has recently been changed to 547 Soil Erosion.

Since this account was created, both Judith Kingsbury and her successor (the current Treasurer) Tom Dwyer have been aware of this program and have cut checks for soil erosion reimbursements. Eight separate Finance Committees, comprised of County Commissioners, have been aware of this program and have approved the vouchers. County Clerks John Pajtas and his successor Lauri Braid have both been aware of this program and processed reimbursement vouchers.

After Gary Holzhausen took office in 2005, Bernie continued to perform soil erosion inspections and still received payments out of the account. This continued until Gary took over these duties.

So a few questions:

Why did Judy Kingsbury create the soil erosion account, if the board hadn’t approved soil erosion fund disbursements? Did Judy Kingsbury do this without approval? Will she also be charged with a crime? Conspiracy, perhaps?

According to the Argus Press, “Detective Sgt. Mark Pendergraff of the Michigan State Police said the charge involves Butcher’s collection of soil erosion fees while serving as drain commissioner between January 1993 and December 2004.”

Why is Bernie only charged with collecting fees during his time as the elected Drain Commissioner? He collected fees prior to 1993, while serving as Deputy Drain Commissioner, and he collected fees after 2004, as a private citizen assisting the current Drain Commissioner.

Is it possible that, in 1991 when Gary went to the Board, he secured compensation specifically for the position of Deputy Drain Commissioner? That would explain why Bernie is not being charged for embezzlement for collecting fees prior to taking office in 1993. However, it would also indicate that the investigation has uncovered evidence of Board approval of reimbursement: something the authorities continue to deny.

Does the crime of embezzlement require intent? If so, where is the intent for Bernie or Gary to defraud the county through soil erosion inspection fees? If not, and the county is not intending to demonstrate intent, then isn’t this just an administrative issue?

Will the county also be charging Judy Kingsbury with conspiracy? She’s the one who created the accounting mechanism through which Gary and Bernie allegedly committed fraud.

Will the two elected County Treasurers be held accountable for making payments that had no legal basis?

Will the two elected County Clerks be held accountable for processing vouchers that had no legal basis?

Will the eight separate Finance Committees that approved the vouchers be held accountable for approving payments that had no legal basis?

Since account 347 was created and used for over a decade, the county should either prosecute the treasurer who created the account for fraudulent purposes, or admit that there must have been some Board discussion regarding soil erosion fees and reimbursements. If the treasurer is not prosecuted, will the elected County Clerks be held responsible for not properly safe-guarding the documents which recorded these discussions?

Nah. Of course not. No one will be prosecuted, other than Bernie Butcher, because this is a political issue, and Randy Colbry knows enough legal trickery to avoid having to deal with any consequences of this politically motivated arrest.

It’s possible that Colbry is making an honest mistake, and he just doesn’t understand the evidence. But I think it’s more likely that Colbry is prosecuting Bernie just to make himself look good, and he weaseled his way out of the situation with Holzhausen to avoid making himself look bad.

update: The prosecutor has said that intent to commit fraud is not required.

(The facts presented in this post are based on statements of current and former county employees, and on county documents)