Are Criminal Charges or a Grand Jury Imminent for Sheriff John Whetsel?
Last week we predicted that Sheriff John Whetsel had a perp walk in his future and indeed that possibility has become quite iminent. Whetsel has retained a very expensive attorney a Crowley and Dunn we are told. And of course Oklahoma State Auditor has released the audit called in March by Oklahoma County D.A. David Prater.
Oklahoma County Jail has long been the one of the most deadly jail in America, topping the list in 2010 with the most inmate homicides per thousand than any other jail in the U.S. The U.S. Department of Justice has been on Sheriff John Whetsel’s case since 2005 when a baby died after the obviously pregnant mother had been chained to a steel hand rail for over ten hours. Witnesses described the mother pulling the infant out of her own womb while lying in a pool of bloody water while jailers did nothing.
This year there have already been 12 deaths in Sheriff John Whetsel’s Oklahoma County jail while historically the entire state usually has only 15 jail deaths per year. Indeed since Sheriff John Whetsel took over leadership Oklahoma County has led the state in jail deaths. One of the deaths this year was a dialysis patient that witnesses said screamed for three days trying to get medical attention. Oklahoma County Jail officials claim they called the prisoner’s dialysis provider four times but other than that did nothing to prevent the man’s death.
Reports from ex detention officers, police, and even bail bondsmen have shown that the jail is largely unsupervised, some say because Sheriff John Whetsel staffs the jail with low paid detention officers working for little over the minimum wage while hundreds of deputies are used for unneeded patrols, highway interdiction, or court house security. The sheriff’s chief job according to the state constitution is to keep the jail, provide security at the court house, and serve warrants and subpoenas and little else.
Despite over a decade of horrendous stories coming out of the Oklahoma County Jail and the 2005 Department of Justice involvement, little has been done by Sheriff John Whetsel to improve conditions at the jail and there have been a string of lawsuits against Oklahoma County for unpaid medical contract costs. Some insiders claim that Whetsel is rarely at the jail, spending most of his time at out of state events or conventions and some claim that he spends much of his time in Florida at a condo.
However, Whetsel’s immunity seems to have ground to a halt this year after other county officials turned on him including Oklahoma County D.A. David Prater who initiated a State Auditor audit of the jail finances. About the same time a local judge severely rebuked Whetsel and his staff over the inflated daily cost of incarceration, rejecting the rate increase that Whetsel asked for and cutting the rate back to $32.00 per day to match the rate that Whetsel had contracted for with the state for holding state prisoners.
The state audit came out on October 20th and was blistering toward Sheriff John Whetsel while pointing out multiple possible criminal acts that may have occurred. According to the State Auditor nine areas of concern were indentified from issues the D.A. office asked to be looked into. Here are the nine major areas of concern that could evolve into charges:
- Oklahoma County Sheriff’s office created debt obligated for payment by the County. These contracts were not fully encumbered and the Sheriff chose not to pay the contracts even though funds were available at the time payment was due.
- Obligations of previous fiscal years were paid with subsequent year funds in violation of law
- It appears unallowable costs may have been charged against the ‘Aggregate Limit’ of the Armor Correctional Health Services, Inc. contract
- Financial data utilized in the calculation of the inmate average daily rate of incarceration included unallowable costs.
- Two outside organizations are managed by Sheriff Office employees during County work hours
- Donations received by the County Sheriff’s Office were not presented and accepted by the Board of County Commissioners.
- Inmate healthcare contracts entered into by the Approximately $900,000 was spent on the purchase of Sheriff vehicles during a time when other obligations of the Sheriff’s Office were not being met.
- For the FY2015, the Oklahoma County Reserve Deputy program cost approximately $263,855.39.
- The Oklahoma County Sheriff’s Office accepted a donation of Sheriff Whetsel’s personal vehicle, after a $28,000 payment
Count one refers to the requirement under state statute Title 62 O.S. § 310.2 to encumber or earmark government funds when a liability or contract is made to prevent the funds from being spent for other purposes. The Armor Correctional Health Services contracts were for around $7,000,000.00 per year and Whetsel never bothered to earmark the money in his accounts and refused to pay the first six months of 2015 despite having the invoices in his possession. Oklahoma County showed concern over this practice in May of 2015 by passing a resolution that called for the contracts to be encumbered when the contracts were let or signed.
At the time the invoices were submitted to Sheriff John Whetsel he had between three and 11 million dollars on hand, enough to pay the $600,000.00 monthly payments for medical care for inmates. By June of 2015 over three million dollars were owed to Armor and Sheriff John Whetsel was asking for supplemental funds from the County Commissioners each month despite the inmate medical costs being included in his budget. The other county officials claim they were unaware of the outstanding debt until June 11th, just a few weeks before the end of the fiscal year.
Count 2 was using subsequent year funds to pay obligations of previous fiscal years which is in violation of Oklahoma law. Article 10 § 26 of the Oklahoma Constitution and 62 O.S. § 310.4 mandates that prior year expenses cannot be paid with current year funds yet the Armor contract allowed up to 270 days late payment after the close of the fiscal year. The State Audit showed six different examples over a period of five years where previous obligations were paid using money from the next year’s funds. The purpose of the law is to make sure that local governments don’t pile up unpaid debt and rob Peter to pay Paul. A court judgment was obtained by Armor for unpaid medical bills and the Oklahoma County Retirement Fund purchased the judgment so that Oklahoma County taxpayers could pay off the bill over the next three years at 5.5% interest.
Count 3 was that Sheriff John Whetsel had created debt by spending money on other things after entering into a contract with Armor and refusing to pay the contract invoices. It was also determined that Sheriff John Whetsel had allowed unallowable charges to be placed on the aggregate limit, basically increasing the amount and scope of the contract in an illegal manner and also refused to forward invoices on the contract to the County Purchasing Agent as required by the Armor contract.
The first part is clear, it is illegal to create a debt for county government as they are required to pay as they go. Whetsel’s refusal to pay ongoing and ordinary expenses constituted creating unpaid debt for the county, an illegal act.
The aggregate limit issue covers the invoicing of onsite services that are already paid for under the basic Armor contract, shifting already paid for services onto the separate aggregate budget for off site medical expense. Tens of thousands of dollars were illegally double charged in this manner.
The failure to provide invoices to the Oklahoma County Purchasing Agent allowed Sheriff John Whetsel to hide the financial mismanagement from other county officers. The Armor contract states that the invoices are not considered delivered unless both the Sheriff and the County Purchasing Agent receive invoices.
Count 4 involves Sheriff John Whetsel adding unallowable costs to the expenses used to calculate the Daily Incarceration Rate. Whetsel used the U.S. Department of Justice Cost Sheet for Detention Services (Cost Sheet) to calculate their average daily rate of incarceration. The Cost Sheet includes detailed instructions for completion, and defines actual, allowable, and allocable direct and indirect costs to be used in the calculation. Whetsel included Public Defender salaries and other elected official’s salaries into the Daily Rate, increasing the amount of money that prisoners must pay once they are released from jail and it appears that Whetsel has been doing this for some years.
Whetsel also neglected to include income produced by the jail in the Daily Incarceration Rate as required by law. Two income streams, from the Inmate Phone System sales and from the Commissary sales to inmates were not used to offset some of the expenses as required by law.
Whetsel was also caught having two Daily Incarceration Rates. In February Whetsel asked the court that sets the rate to approve a rate of $45.05, which was lowered to $41.48 and again lowered to $40.04 as the judge conducting the hearing found problems with the expenses used in setting the rate. However, at the last hearing the judge set the Daily Incarceration Rate at $32.00 because Whetsel had contracted with the state prison system to warehouse excess prisoners at that rate so Whetsel was admitting that he could keep a prisoner at that rate or he was selling a service to the state prison system at a financial loss.
In fact Whetsel was contracting with the state to keep hundreds of prisoners to fill his sheriff accounts with cash while subsidizing the loss by charging the released inmates a higher Daily Incarceration Rate which is illegal and unconscionable. The state audit also found that Sheriff John Whetsel was potentially embezzling Daily Incarceration Fees paid by prisoners after their release from jail. Title 22 O.S. § 979a states that the Court Clerk should assess the Daily Incarceration Rate fees and collect them to be put back into the county general fund but Whetsel has been giving the released prisoners an invoice upon release and ordering the released prisoners to make payment arrangements with a third party pay system that funnels the cash back to the Sheriff’s bank account. The Sheriff is allowed to give notice of the fees and debts but has no power to actually collect the money as they have been doing.
Count 5 is about two private charities operating out of the Jail during business hours and using county tax dollars. HOPE, a support group for officers, and FOP #155 have been run using paid supporters. The HOPE organization is funded by a voluntary check off in the Sheriff’s payroll system and was supposed to be set up as a nonprofit organization, 501-C7 and obtain a tax number. Despite having over 21 million dollars collected so far the organization still has no tax ID number and is not registered as a nonprofit. County employees of the Sheriff’s office managed the organization despite Article 10 Section 17 of the Oklahoma Constitution stating that a government entity cannot raise money for a private organization or loan its credit or assets.
The second private charity or organization is the FOP #155, organized for the deputies. The organization is funded by another voluntary check off on employee paychecks, a check generated by county employees (which is okay) but the check is accepted and deposited in an outside account by another sheriff department employee. Merchandise is available for sale in the Sheriff’s office, benefitting the FOP and those transactions are conducted by sheriff department employees.
The next part of Count 5 concerns donations
received by the Sheriff’s office were deposited into the Sheriff’s Special Revenue Fund, but were not presented and accepted in a County Commissioners meeting as required by law. Over $80,000.00 in donations was accepted by Sheriff John Whetsel in 2014 and 2015 but none of the donations were run through the proper process.
Title 60 O.S. § 390 requires the screening donations to prevent patronage and good old boy corruption and provides some transparency.
The final part of County 5 was the invoices and deposits covering the transactions between the Department of Corrections and the Oklahoma County Sheriff’s Department were not matching. In auditing, anytime the invoices going out and the money coming in don’t match it might be a sign of embezzlement.
As an inmate is booked into the jail a software system records the date and time and when the inmate is released or transferred out of the jail the software matches that to the inmate and bills the responsible agency if needed. The Department of Corrections, the DOC, was billed monthly for inmates that were being warehoused at the jail while waiting for a state prison cell to open up. Monthly invoices were generated and mailed to the DOC. Almost $54,000.00 was missing over three years which might have been caused by sloppy record keeping but the matter should be looked into.
Count 6 involved determining if Sheriff John Whetsel expended all funds in a lawful manner. In fact the law was not followed and criminal statutes appear to have been broken. Prior year expenses were paid with following year funds, contracts and expenses were not encumbered in a timely fashion to prevent over spending, the amounts paid on contracts were in question, and previous year’s debts remained unpaid.
Massive amounts of unneeded spending occurred while actual obligations went unpaid. In 2014 and 2015 nearly $900,000.00 in new vehicles was bought despite the unpaid debt piling up. Under the Oklahoma Constitution and buttressed by 2007 OK AG 35, Sheriff John Whetsel has a constitutional duty to operate the jail and that is a priority above all other things so jail related expenses ought to be paid before splurging on new cars. Over $49 million dollars were budgeted and available in 2014 and $46.6 million dollars was available in 2015 yet millions of dollars in unpaid medical expenses went unpaid.
Count 7 of the audit delved into the cost of the Reserve Deputy Program, if vehicle repair work had been done by the in-house repair shop for outside agencies, and if training facilities were illegally used by outside groups. Three other concerns will be covered in a different article; if a $28,000.00 deposit into Sheriff John Whetsel’s personal trust fund account for a high mileage used car donation was improper and if other donations facilitated by the same Reserve Deputy Officer were illegal, and if Sheriff John Whetsel had been paying a Capitol lobbyist out of Department funds.
The cost of the Reserve Deputy program turned out to be huge. Almost $264,000 was spent, for fuel, vehicle repair and maintenance, and wages for work past the mandated 16 volunteer hours per month. Most of these Reserve Deputies sign on so that they can obtain a CLEET card in order to do private security work. You will see Oklahoma County Sheriff vehicles parked outside businesses, bars, and events or just sitting at homes for days at a time. County funds are spent to drive to work at the jail, during private security gigs, cars have even been seen at shopping malls, strip centers, and taking kids to school. Some of these private security gigs are run through the Sheriff Office and Workers Comp is paid on the deputy as well as any Workers Comp claims. The ability to do security work while wearing an Oklahoma County Deputy uniform is a valuable commodity. Imagine if they decided to expand into bill collection or repossessions.
Another part of count 7 was if auto repair work had been done for other agencies. The Department has a Fleet Center where cars are repaired, maintained, or modified and has been doing work for outside agencies with the work being invoiced and paid and the deposits going to the Sheriff Department accounts. Title 74 O.S. § 1008 allows this sort of arrangement if the deals and payments are ran though the County Commissioners board and properly set up with inter-local agreements with the other agency. Of course the cost of his work, salaries, taxes, Workers Comp, supplies, and parts were all paid for from the Sheriff’s budget allocated from the County Commissioners, which drove up the cost of the Fleet Center work and the cost to the county while filling Sheriff Whetsel’s Special Reserve Fund with huge amounts of cash to purchase unneeded equipment and pay costs for out of state travel. This slush fund basically expands the Sheriff’s budget while costing the county large amounts of cash for the needed costs for repairing the other agency vehicles.
The next part of count 7 was determining if training facilities had been illegally used by outside groups. In 2011 the Department had entered into a contract with OKC to use a facility down by the river and part of that agreement was to maintain the property and supervise when the site was used. The Sheriff Department then began allowing other law enforcement agencies and a local car club to use the facilities without supervision and without cost, leading to liability concerns as well as wear and tear on the facility that the county must cover and the county commissioners are unaware of the entire arrangement and county taxpayers are funding all the fun and games.