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Monday, December 28, 2020

Who Keeps an Eye on Drug Seizure Accounts in Ohio? Lots of Forfeiture Money Goes to Associations Outside of Public Purview

Posted By on Mon, Dec 28, 2020 at 6:00 AM

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  • Eye on Ohio

This article is from Eye on Ohio, the nonprofit, nonpartisan Ohio Center for Journalism. Please join their free mailing list, as this helps provide more public service reporting.

When the Vinton County Fair was canceled because of the pandemic, outgoing County Prosecutor Trecia Kimes-Brown wrote $100 checks to every child who completed a 4-H project this year. She did so in the name of anti-drug education through her Law Enforcement Trust Fund (LETF) account.



The move stoked the ire of Vinton County Auditor Cindy Waugh, who did not like the fact that Kimes-Brown gave cash directly to people right before her reelection campaign. (Though Kimes-Brown eventually lost anyway.)

The death of Breonna Taylor renewed interest in police forfeiture raids, and Eye on Ohio asked every prosecutor about their LETF accounts, the fund that benefits from seized cash. Eye on Ohio found:

  • A lot of money goes to anti-drug education. But the definition of “anti-drug education” varies enormously between counties.
  • Some accounts are (legally) held outside of the county’s treasury. Unlike most accounts that are approved by the county Auditor, these are only reported once a year, to the state auditor and county treasurer.
  • A lot of LETF money goes to the Ohio Prosecuting Attorneys Association. They will not (and don’t have to) disclose where that money goes.
  • Unlike some states that have changed their procedures, Ohio still has no-knock warrants, though Ohio Attorney General David Yost has called for stricter guidelines.

In Ohio, property seized from suspected crime scenes (for example, purported drug money) can be used to benefit the prosecutor’s office and the law enforcement agency that conducted the investigation. Most Ohio Prosecutors and Sheriffs have LETF accounts, established to accept these funds. Also, many have established them as “outside” accounts, meaning it was established as a personal checking account that does not require expenses to cross the county auditor’s desk for approval and payment.

click to enlarge a_publicly_funded_association_but_not_subject_to_open_records_laws.jpg

Outside Accounts

Elected officials in law enforcement holding outside accounts is nothing new. Another account is also historically held outside - the Furtherance of Justice Account (FOJ). The statute for this account was established in 1967 and allowed county sheriffs and prosecutors money “in addition to all salary and allowances otherwise provided by law, an amount equal to one half of the official salary... for the expenses which may be incurred by him in the performance of his official duties and in the furtherance of justice.”

The intention of this account is to pay informants, or to provide undercover resources such as money for purchasing drugs for a sting. Since such operations can occur after business hours, law enforcement then has access to money when it’s needed. However, the FOJ fund is a “use-it-or-lose-it” fund that’s replenished annually. Elected officials must pay unused amounts into the county treasury at the end of the year and submit receipts for what was spent.

Waugh, a prominent Republican in Vinton County, said she was not happy when Kimes-Brown, then the County’s most prominent Democrat, moved her LETF fund to an account outside county control last year.

Kimes-Brown said she moved her LETF account outside after she received a March 15, 2019 memo from the Ohio Prosecuting Attorneys Association (OPAA). The memo recommends, based on a discussion of the OPAA Executive Committee, that LETF funds should be outside accounts.

Eye on Ohio sought further clarification. Officials declined to comment. Eye on Ohio filed a public records act request for correspondence preceding the meeting. The OPAA said as a private, nonprofit membership organization, they were not a government entity subject to the Public Records Act.

Several prosecutors, a year later, said they still keep their LETF funds as inside accounts.

Until this memo, Kimes-Brown kept her LETF account as an “inside account” with the oversight from Vinton county auditor, Cindy Waugh.

Waugh did not approve of moving the account outside of her purview but could not stop the move. “The County Auditor approves expenditures before they go through to ensure there’s proper public purpose.” Moving any account outside the county removes that layer of accountability, she said.

Many county officials pay for OPAA membership dues from the FOJ account. Kimes-Brown paid her OPAA dues of $3,489 from her FOJ account along with other OPAA training which is a common use of the FOJ fund.

A History of misuse and abuse.

FOJ accounts with little oversight have had a checkered past in Ohio. For example:

  • The 2002 case of former Fairfield County Sheriff Gary DeMastry who was sentenced to six years in prison for misspending more than $300,000 in FOJ money. State Law changed in 2005 due to the DeMastry case. Now, if a prosecutor or public official is charged with a felony in state or federal court they can be placed on paid suspension if the charges relate to their job.
  • In 2010, former Ottawa County Sheriff Robert Bratton used approximately $5,000 in FOJ Funds and also used a credit card linked to his FOJ account for personal use. He bought several items including Cedar Point tickets, medicine prescriptions, and clothing. Bratton was sentenced to one year probation and had to pay a $1,000 fine. Bratton had stepped down as sheriff in 2011 to become the Village of Genoa’s police chief, resigned.
  • In April 2012, former Delaware County Sheriff Walter L. “Magnum” Davis III resigned and agreed to repay $1,331 he spent from his FOJ account and agreed to never serve in office again.
  • Knox County Sheriff David Barber pleaded no contest in April 2009 to the misdemeanor charge of dereliction of duty for illegally borrowing $1,042 from his office’s Law Enforcement Trust Fund account. Barber spent the money on signs and radio commercials for his 2004 re-election campaign. Though he apologized and repaid what he borrowed, Barber was fined $500 for mishandling the account. He was able to keep his job and was praised for his handling of a gruesome triple homicide that gained national attention in 2010. Barber retired in 2012 and died by suicide April 2, 2017.
  • Athens County Prosecutor Keller Blackburn fell under investigation in 2016 for frequently indulging in high price $90 dinners while attending his training sessions - all paid with his FOJ account.

Many times expenditures are not illegal but they stretch the definition of what it means to act in the spirit of “furtherance of justice.”

“Law and common sense are not always the same,” said Waugh.

The spending of these funds is left to the discretion of the account holders. The FOJ account has to be spent in the “performance of official duties” and in “the furtherance of justice.”

The LETF account, on the other hand, has one clear stipulation for spending: ten percent of the funds must be used for drug use prevention education. The rest can be used to pay the costs of investigations and prosecutions, provide training or expertise, and to provide matching funds to obtain federal grants that aid law enforcement. Funds from this account cannot be used to meet the operating costs of the Prosecuting Attorney's Office that are unrelated to law enforcement. But it is unclear as to what expenses would be considered unrelated to law enforcement in a prosecutor or law enforcement officer’s job.

Robert Johnson, Senior Attorney at the Institute for Justice said, “Civil forfeiture creates perverse incentives to take property from people who have done nothing wrong, and the same law enforcement entities that seize property also benefit financially. And those incentives are even more troubling when funds are spent without any oversight or public scrutiny.”

Stephen Haller, Greene County Prosecutor, said he’s an advocate for discretion because, “that’s what I’m elected to do is to make those kinds of decisions. I think that is my responsibility to my electorate, to make those kinds of calls.”

The law states elected officials should make decisions, “after receiving and considering advice on appropriate community preventive education programs from the county’s board of alcohol, drug addiction, and mental health services; from the county’s alcohol and drug addiction services board; or through appropriate community dialogue.”

Haller agrees prosecutors should rely on experts available to them. “I don’t necessarily believe that I know the best programs,” he said. “I reach out to my partners in the Mental Health and Recovery Board and try to get some ideas from them.”

He also said that every county should have a written policy on how their LETF account is used. Haller said, “I know that policy can be as broad as repeating the statute or it could be a little more specific but I think that’s the place to start.”

Giving Checks to Children

On the surface, Kimes-Brown’s decision to donate money directly to children looks careless to some. Even politically motivated maybe. Kimes-Brown was up for reelection this year. Vinton County Auditor Cindy Waugh said, “People read headlines like ‘County Prosecutor donates $12,000’ and think ‘that’s very sweet of her,’” but Waugh believes, “that’s not her money to do that with.”

But when you ask the prosecutor about these creative ways she’s spending money. She’ll tell you she’s trying to save the community she’s worked in for the past 20 years. “I don’t see how we change the world but through children,” she said.

So how can two elected officials in the same county have such a different perspective on how money for drug education should be spent?

Donating Drug Forfeiture Funds to Children

The donation to 4-H was not this prosecutor's first creative program. In 2019, right after she moved her LETF account to an outside account, she gave a car to a high school senior in an anti-drug program contest.

Seniors were eligible after completing a year-long drug program based on a similar program out of neighboring Ross County. Butler County also had a giveaway- they purchased bicycles for kids who completed their DARE project. Kimes-Brown organized her program “Driven to Succeed” through the school. So, when Covid-19 hit and schools shut down, so did the in-school 2020 drug program that the prosecutor had planned.

What also shut down was the county fair. Kimes-Brown understood what a devastating hit this was to her community. She was a 4-H kid. “The benefit in 4-H is that you are in a drug free education program,” Kimes-Brown said, “I pledge my head to clearer thinking, right?”

The 4-H pledge is said at every 4-H meeting and it goes like this:
“I pledge ... My Head to clearer thinking, My Heart to greater loyalty, My Hands to larger service and My Health to better living for my club, my community, my country, and my world.”

Kimes-Brown believes the drug-free mindset is embedded in everything 4-H does. “There are good things that come to kids who are drug free. There are good things that come to kids who participate in prosocial programs.” Kimes-Brown said she wants to encourage prosocial activities that help kids navigate through adolescence, especially in the time of COVID-19 and a drug epidemic. “The idea of these programs is to get kids to turn to something other than drugs. 4-H is one of them.”

Kimes-Brown reached out to Travis West at Ohio State University’s Vinton County Extension. West was trying to figure things out himself. 4-H programming is strong from March to May and he’s usually in the schools preparing for the fair. He understands what a financial blow losing the fair was to these kids and their families. Projects cost money. Agricultural projects in particular are year-long investments of purchasing and rearing an animal in preparation for the county fair where the animal is sold and some of that money is recovered.

West remembered when he was in 4-H as a kid, his parents told him if he didn't make any money on my project then “there’s no project next year.” He had to have money left over. West said, “The majority of our families are in that situation.”

The money needed to go directly to the kids instead of programming because West said , “we have a pretty healthy budget. We’re funded from the property tax levy.” West felt that because Kimes-Brown was sending a personal letter along with drug-free pamphlets when school was shut down, “it was one way to reach some kids that we would normally reach through in-school programming.“

Variety of Uses for LETF Funds

A wide range of programs receive donations thanks to county prosecutors. In some counties it’s as easy as donating to the Sheriff's DARE program. James Peters, Monroe County’s Prosecutor said, “We are a relatively small rural county and forfeiture actions do not generate a lot of revenue here. For that reason, I have historically elected to allow all such funds received to be deposited in our local Sheriff’s Department’s LETF. Our local Sheriff’s Department does put on our local DARE program.”

Ross County donated to DARE as well, and they also donated to the Chillicothe Paints Baseball Team. Brown County sponsored an event with Sam Quinones, author of the book Dreamland. Butler County purchased merchandise with anti drug messages on them to distribute at the county fair and also bought anti-drug ads for the High School Prom and sports games.

Vinton County does not have a DARE program. It is the smallest county in the state of Ohio. It has no jail and no rehab center, but it has also been hit hard by the opioid and meth crises. “I’ve had more overdose deaths since the coronavirus started than in the last five years put together,” said Kimes-Brown. She’s also lost two young people to suicide this past summer.

Unlike larger counties where many prosecutors exist for different courts, Kimes-Brown sees it all. “The luxury of being me in this job is that I handle every case that comes through the door.” With that, Kimes-Brown said, “there is a great ability here to work with families. We can work with them from all perspectives.”

Should anti-drug education dollars be given directly to children?

Auditor Cindy Waugh said, “These things would have never gotten approved by me,” had they been requested from an inside account. “The prosecutors and the sheriffs outside accounts have very loose guidelines.”

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association disagreed with Waugh. “There is already sufficient transparency and oversight of the use of these accounts,” Tobin said.

In 2018, the OPAA received $408,819 in membership dues and another $281,987 for providing training and meetings. Reports Eye On Ohio obtained show many Ohio counties paid for OPAA workshops and dues from their LETF and FOJ accounts.

Outside Accounts Audits

Prosecutors are required to file a report through the County Treasurer and State Auditor by the end of each January along with receipts of their FOJ and LETF expenditures. The State Auditor has discretion to audit accounts.

Eye On Ohio requested records of any complaints or investigations regarding former Prosecutor Trecia Kimes-Brown and received, “it has been determined that this office has no public records responsive to your request,“ in response.

However, according to Waugh, the Auditor of State assured her that they are looking into prosecutor Kimes-Browns spending of her outside accounts. “I can only hope there will be a finding for recovery in her near future,” said Waugh.

Waugh did not believe Kimes-Brown was acting in the interest of the county. “My prosecutor, in my opinion, is taking the sentence ‘can be used for drug education’ and exploiting it to run her campaign for re-election.”

No democrat won in the November 2020 in Vinton County even as an incumbent.

Trecia Kimes-Brown was defeated by her Republican challenger.

Kimes-Brown reached one important goal this fall in her quest to provide relief for the addiction crisis of her county. With the help of Becky Nesbitt from OSU Extension, they brought together a forum of school officials, law enforcement officers, mental health agencies, health department members, and many others to create an to write an Epidemic Strategic Recovery Plan.

One of the main issues raised was the lack of available bed spaces for those involved in active addiction and recovery. The Phoenix Center stepped up to offer its own financial investors to build a facility in Vinton County. The Phoenix Center serves individuals involved in the criminal justice system who struggle with Substance Abuse and Mental Health Disorders. Ground-breaking took place September 28, 2020.

“I still believe to this day that in a county of roughly 13k people if we can’t fix our problems here with the drug epidemic then there is no hope for the rest of the world. There are 13ish elected officials in this building and if we can’t come together to fix the problems related to the drug epidemic then there's no hope for the 400 people in Washington DC sitting in congress,” said Kimes-Brown.

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