Attorney: No crime in schools deficit

Commonwealth’s Attorney Michael Doucette said Friday he does not believe the city school system’s $440,000 deficit constitutes a crime and he will not open an investigation into the matter.

Statement by Commonwealth’s Attorney Michael Doucette:
At his request, Mr. Weigand and I met today in my office. Because Mr. Weigand told me at the conclusion of our conversation that he intended to talk to the press about the contents of our discussion, I will confirm that I told him that I am not requesting a State Police investigation of the Lynchburg City School FY 2008 budget shortfall.

The code section in question, VA Code Section 2.2-91, makes overspending a school budget by a school board or school administrator the crime of malfeasance, punishable by a jail sentence of up to twelve months and/or a fine of up to $2500.00. Malfeasance is not a statutory crime but a common law crime; its elements are not contained anywhere within the Code of Virginia but are in cases going back to our English heritage. From that heritage we know that the difference between the common law definition of malfeasance and the definition of the common law offense of malfeasance is that malfeasance requires criminal intent.

I have heard no report that any member of the Lynchburg School Board or school administration profited one dime by the school budget shortfall. Therefore I have heard of no evidence supporting the proposition that these individuals had any criminal intent. Without criminal intent, malfeasance cannot exist. If there was evidence of criminal intent, my conclusions on a State Police investigation would most likely be different.

While I have no hard facts on the cost to the taxpayers of such an investigation, I would estimate its costs to be in the thousands of dollars. Additionally, I estimate that a prosecution of the school board and administration would cost the criminal justice system several thousands more. Should that prosecution result in acquittals, the school board would be required by statute to reimburse each person’s legal fees, a figure that could easily reach six figures. In my opinion, authorizing an investigation or prosecution is both unwarranted by the law and an unwise allocation of public dollars.

As I have said earlier, I assume last year’s budget deficit is being adequately addressed by City Council and the School Board. Therefore, I choose to exercise the discretion inherent in this office to leave this matter to their corrective measures without the intervention of the criminal justice system.

“I’ve heard nothing to warrant that at this particular point in time,” he said, noting there is no evidence any school officer acted with criminal intent.

“If someone comes to me tomorrow and says, we have evidence, I’ll be happy to reconsider,” he said. “You always have to keep that open ear.”

He added, though, “If there was any additional stuff out there, I think I would have heard about it.”

The prosecutor made his announcement after meeting with Jim Weigand, a Lynchburg resident who was the first to directly call for a criminal investigation into the school district’s budget problems.

Section 22.1-91 of the state code says that any school officer who spends more than they have, without the consent of the appropriating body, is guilty of malfeasance in office.

Weigand, a self-described fiscal conservative, approached City Council last week and urged officials to bring the commonwealth’s attorney into the issue. A motion was made to that effect, but voted down 6-1.

A majority of council deemed the move unnecessary, noting in part that any private citizen could approach Doucette if they wished.

Weigand met with the Lynchburg prosecutor Friday morning. He said afterward he did not expressly request an investigation, but rather sought Doucette’s opinion as to whether one was needed.

Doucette, in both a written statement released that day and an interview by phone, noted there’s been no allegation of deliberate misconduct on the part of school officials.

Both the school board and its top administrators have said they were unaware of the deficit until an auditor discovered it in late 2008. The shortfall has been attributed to overly optimistic revenue projections and a failure to monitor income levels throughout the year. No embezzlement or other such criminal activity is suspected.

The state code does not explicitly address the role of intent on this point. The code appears to lack a clear definition of malfeasance in office, though.

Doucette said the offense was a Class 1 misdemeanor, punishable by a fine of $2,500 and a year in jail.

Earlier interviews with the city attorney and a lawyer for the Virginia School Board Association — as well as past newspaper articles on a prior case in Virginia Beach — suggested malfeasance could be a lower level offense with no risk of jail time.

Those sources did not wholly agree on what the penalty for malfeasance might be, though.

Doucette, who drew his conclusion from a section of code that says all undefined offenses will be Class 1 misdemeanors, acknowledged the law was perplexing.

“This is the most confusing statutory scheme I’ve ever seen,” he said.

For greater guidance, he said one has to look to common law, the basis for the modern legal system.

Common law defines misfeasance as an act carried out with criminal intent, he said.

“I have heard no report that any member of the Lynchburg School Board or school administration profited one dime by the school budget shortfall,” he wrote in his formal statement. “Therefore I have heard no evidence supporting the proposition that these individuals had any criminal intent. Without criminal intent, malfeasance cannot exist.”

Doucette also said it would cost several thousands of dollars to investigate and prosecute such a case. “That’s something we’ve got to be mindful of, especially in these budgetary times,” he said, calling it an “unwise” use of public money.

In Virginia, prosecution of misdemeanors is solely within the discretion of the commonwealth’s attorney.

Weigand, after speaking with Doucette, said he disagreed with the prosecutor’s decision but did not plan to pursue it further.

“We probably have different philosophies in life,” he said. “… If I’m in the minority, that’s fine.”