Overland Park officers’ ‘shadowy behavior’ with charity wasn’t criminal offense, DA says
Four Overland Park police officers accused of misusing funds from a charity meant to support those injured or killed in the line of duty will not face criminal charges in Johnson County, the district attorney said Tuesday.
Despite clear evidence the officers violated charity bylaws concerning “self-dealing and self-enrichment,” District Attorney Steve Howe said his office could not prove the officers knowingly collected money for unauthorized expenses or misused funds on purpose.
He largely attributed that conclusion, which comes nearly 18 months after the officers were put on paid leave, to a major lack of record-keeping by charity leadership and its vague governing document.
The police officers — Brandon Faber, Brad Heater, Rachel Scattergood and Tim Tinnin — are accused of misusing funds while serving on the board of the Overland Park Police Officers Foundation.
An example of the alleged misconduct included granting scholarships to board members in violation of the foundation’s bylaws. Scholarship funds were put directly in two board members’ pockets.
In addition, board members were given financial assistance for expenses like veterinarian bills, despite the charity’s specific mission of helping officers and their families following “catastrophic injury or death,” according to the district attorney’s office.
In total, the investigation found the four officers, all leaders of the charity, directly received around $15,540 from the Overland Park Police Officers Foundation.
Howe said during a press conference Tuesday afternoon that the Kansas Attorney General’s Office is looking into whether the foundation’s actions violate the Kansas Charitable Organizations and Solicitations Act, in which case a civil action may still be brought against the four officers. The district attorney’s office will cooperate with the attorney general’s investigation and provide information from their investigation.
“We don’t like the result,” Howe said. “We don’t like how the foundation conducted themselves... That doesn’t close all the doors, but it does close the door on criminal charges.”
Howe began investigating allegations of misconduct last spring, a process he said was greatly hampered by a lack of documents and meeting minutes that should have been recorded per the foundation’s bylaws. The officers wiped their electronic devices clean of any data, according to the district attorney’s office. The four officers’ lawyers also prevented them from being interviewed by the district attorney’s office, Howe said.
As Howe determined whether criminal charges were appropriate, he said that “the lack of these records makes analysis of motivation and intent difficult, if not impossible, to ascertain.”
“The lack of any formal meeting minutes or records of the Foundation posed a significant, if not insurmountable, hindrance to this criminal investigation,” Howe said in a news release. “We were left to determine whether the lack of records, in conjunction with potential violations of the bylaws by these Board members, were efforts to hide criminal conduct or, instead, amount to gross incompetence and ineptness that may equate to civil violations.”
Rather than trying to hide how they spent funds, Howe said the board was “blatant” about how they used money for purposes outside the bylaws throughout their tenure.
Howe ultimately determined that, “Although these previous Board members repeatedly disregarded the Foundation’s bylaws,” that his office could not charge them with a crime.
“To charge the Board members with theft, this office would have to prove, by the standard of beyond a reasonable doubt, that the past Board members either knowingly obtained the money by deceptive means, or knowingly exerted unauthorized control over Foundation funds,” Howe said. “As a result of this investigation, my office has concluded that we cannot charge the four Board members in question under either theory.”
At the news conference, Howe said board members seemed to change or ignore the charity’s bylaws from the foundation’s onset. The board used its authority to informally approve spending outside the purposes laid out in the bylaws.
“We didn’t say there wasn’t shadowy behavior, because there was,” Howe said. “There was behavior that, as we indicated in our conclusion, really does not hold those officers of the foundation in a good light.”
In a statement, city spokeswoman Meg Ralph said Overland Park “is awaiting the district attorney’s investigation materials to determine whether any violations of City policy occurred. We will complete this investigation as expediently as possible.”
She said the officers remain on paid administrative leave.
While Howe said the public may be unhappy with his office’s conclusion, he said investigators couldn’t find a legal path to charge the officers.
“People are not going to be happy that they donated money thinking that it was for one intended purpose and instead it was for a much broader purpose that it was used for,” Howe said.
Wiped data, missing records
The Overland Park Police Officers Foundation was established as a charitable nonprofit in 2016, with the mission of helping officers and their families facing financial issues after injury or death and to fund educational opportunities.
Officer Mike Mosher was the foundation’s president until he was killed in the line of duty in May 2020. Faber, Heater, Scattergood and Tinnin served in various positions of authority overseeing the charity, including as president, secretary, and treasurer.
In January 2022, Fraternal Order of Police members questioned the charity’s spending and disbursement of funds. Following allegations of misconduct, a new board took over last year and organized a forensic audit of the charity’s books.
The findings of the audit were forwarded to Howe’s office, kick-starting the criminal investigation, as the police charity temporarily shuttered. Howe said the investigation focused on payments of scholarships and other assistance to active board members, as well as participation in out-of-state trips.
Although the foundation’s bylaws state the organization must maintain meeting minutes, recordings of meetings and other documents, new board members could not find such records, making it difficult to ascertain how the previous board distributed funds, Howe said.
The bylaws required an annual audit of the foundation’s finances by the board’s trustee. But prior to December 2021, the board never provided the trustee with the required records or informed the trustee of the audit requirement.
The four officers connected to the organization were placed on paid leave May 6, 2022. In February, The Star reported the four officers had been paid a total of about $250,000 while on administrative leave.
Officer Dianna Johnson, president of Overland Park’s Fraternal Order of Police, said in a statement last month that the charity would resume operations after a charging decision is made.
Howe’s office conducted a lengthy investigation, but a lack of financial records, “was a substantial hindrance,” he said.
The district attorney’s office obtained search warrants for electronic devices assigned to past board members to handle the charity’s business. Current board members told the office their predecessors had wiped the devices’ data.
Several devices were sent to the FBI in July 2022 in an attempt to recover any wiped information. Almost a year later, federal investigators confirmed the data couldn’t be recovered.
Despite search warrants and an investigation of 14 iCloud accounts, investigators couldn’t find documentation of board meeting minutes or the decision-making process for the distribution of foundation funds between the charity’s inception and December 2021.
Scholarships, other financial assistance
Howe’s investigation determined that board members violated the foundation’s bylaws that prohibit self-dealing and self-enrichment. However, Howe decided those violations of the foundation’s bylaws, which were largely ignored since its inception, did not amount to any criminal offense.
One issue was the disbursement of scholarship funds.
The foundation began awarding scholarships in 2017, initially aimed to help children of FOP members with their undergraduate education. But it was later expanded to include scholarships for FOP members in graduate programs.
The foundation’s bylaws prohibited the distribution of scholarship funds to members of the board. The committee overseeing the program, however, awarded scholarships in 2021 to Faber and Scattergood while they were board members.
Howe also said the scholarships awarded that year did not match the actual amount of funds distributed. That discrepancy is not documented in any business records.
The scholarships were typically paid directly to the educational institution, Howe said, but both Faber and Scattergood were “paid directly” by the foundation.
“Through our investigation, we determined that Scholarship Committee members were not aware of this Section of the bylaws and thus were not aware they were committing any violations,” Howe wrote in a news release.
Another issue was the offering of financial assistance to board members.
The foundation’s stated purpose is to assist families in financial distress following “catastrophic injury or death,” but the organization began granted officers money for other situations, such as medical, dental and veterinarian bills.
Howe found that board members received such financial assistance on multiple occasions, violating the bylaws.
Faber received $3,000 in “officer assistance, while Scattergood received more than $4,500, including more than $1,000 for a veterinarian bill. Heater received $4,000. Tinnin was awarded $1,000.
Howe said that since the foundation’s inception, members “normalized the behavior of awarding ‘officer assistance’ for something less than death or catastrophic injury, as the bylaws required,” as well as granting funds to board members. The practice was authorized from the “top-down,” he said.
“This behavior by the Board, in conjunction with the lack of further definitions and clarity in the Foundation bylaws, inhibits our ability to prove the past Board members knowingly exerted unauthorized control over the foundation monies, a necessary element in proving theft under this theory,” Howe wrote.
Complaints were also made by FOP members regarding board members using funds for out-of-state trips. One concern involved the board working with the organization Surf Waves Enjoy Life, or SWEL, which provides first responders with meditation and yoga trips. Scattergood is listed as SWEL’s treasurer on its website.
Howe found that board members attended functions that were paid for by SWEL, “but it is unclear from the records reviewed in this investigation if Foundation funds were used for the SWEL trips. Ultimately, the Foundation made three $1,000 contributions to SWEL and conducted some joint fundraisers, for which they split the receipts equally.”
Howe said the trips made by board members, including to a charity golf tournament and to Washington, D.C., could have fallen under the foundation’s business. And he could not determine that the trips fell outside the scope of allowed expenses.
“There can be little argument that the actions the former Board members took were questionable and breached the trust of both the public and the patrons they solicited from. The available evidence, however, does not support prosecution for theft beyond a reasonable doubt,” Howe wrote.
Includes reporting by The Star’s Katie Moore.
This story was originally published October 17, 2023 at 3:53 PM.
