Blogs : SANDY BLUNT CHARGES DISMISSED
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Get ready for the coming left-wing-socialist-Democrat howl at the announcement that both counts of “Misappropriation of Entrusted Property” against Work Force Safety and Insurance CEO Sandy Blunt have been dismissed. The loudest line of crap that will come spewing from their fetid little minds will be that there is some Republican conspiracy to protect Blunt. Word from the delusional fever swamp will be that Judge Wefald is an idiot and willing tool of the Republican machine and/or is a stooge for N.D.’s evil business men who have supported Sandy Blunt and the work that he has done. Read the following opinion and smile as Chad Nodland, Ryan Gustafson, Rick Gion, Joel Heitkamp and the entire pantheon of ND leftists go collectively, frothing at the mouth, nuts!
STATE OF NORTH DAKOTA
COUNTY OF BURLEIGH IN DISTRICT COURT
SOUTH CENTRAL JUDICIAL DISTRICT
State of North Dakota,
Plaintiff,
v.
Charles Blunt,
Defendant. )))))))))
Criminal No. 08-07-K-0789
ORDER FINDING NO PROBABLE CAUSE
AND DISMISSING AMENDED
COMPLAINT
The defendant Charles Blunt (Blunt), is charged in an Amended Complaint with two counts of Misapplication of Entrusted Property. In Count I he is charged with a Class B Felony involving more than $10,000 and in Count II he is charged with a Class C Felony involving more than $500. A Preliminary Hearing was held on Tuesday, August 7, 2007, to determine whether there was probable cause to bind Blunt over to stand trial. The state was represented by Assistant State’s Attorney Cynthia Feland and Assistant State’s Attorney Lloyd Suhr. Blunt was present and was represented by his attorney Michael Hoffman. Agent Mike Quinn of the Bureau of Criminal Investigation was the only witness to testify and both the state and Blunt introduced exhibits. Counsel for Blunt asked to submit briefs and the Court granted that request. The briefs have now been received and read and the arguments and law cited have been considered.
A Preliminary Hearing is the stage in the proceedings in a felony case where the state has to present enough evidence to convince a Court that a defendant should be made to stand trial for the offense charged. Rule 5.1 of the North Dakota Rules of Criminal Procedure provides as follows:
RULE 5.1 PRELIMINARY EXAMINATION
(a) Probable Cause Finding. If the magistrate finds probable cause to believe an offense has been committed and the defendant committed the offense, an arraignment must be scheduled. The finding of probable cause may be based on hearsay evidence in whole or in part. The defendant may cross-examine adverse witnesses and may introduce evidence. The magistrate may receive evidence that would be inadmissible at the trial.
(b) Discharge of the Defendant. If the magistrate hears evidence on behalf of the respective parties in a preliminary examination, and finds either a public offense has not been committed or there is not sufficient cause to believe the defendant guilty of the offense, the magistrate must discharge the defendant.
Both felony counts are charged as a violation of the same statute, the only legal difference being that Count I is a Class B Felony, punishable by up to ten years in prison and a fine of $10,000 or both, while Count II is a Class C Felony, punishable by up to five years in prison and a fine of $5,000 or both. There is no mandatory minimum punishment. NDCC 12.1-23-07 provides:
1. A person is guilty of misapplication of entrusted property if the person disposes of, uses, or transfers any interest in property that has been entrusted to the person as a fiduciary, or in the person's capacity as a public servant or an officer, director, agent, employee of, or a person controlling a financial institution, in a manner that the person knows is not authorized and that the person knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted. (Emphasis on the principal language involved has been made by this Court through bold print and underlining).
The most recent criminal case this Court could find involving this statute is State v. Jelliff, 251 N.W.2d 1, 7 (N.D. 1977), in which the Grand Forks County state’s attorney was charged with misapplication of public funds for overdrawing for his own use a checking account he had set up in which he would deposit restitution payments. The lower court dismissed the complaint, but our Supreme Court reinstated the complaint.
We have held repeatedly that statutes must be construed to avoid ludicrous and absurd results, Pollock v. McKenzie County Public School Dist. # 1, 221 N.W.2d 521 (N.D.1974), and that courts endeavor to construe statutes so as to effectuate the legislative purposes which prompted their enactment. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870 (N.D.1975). Certainly a construction of a criminal statute which nullifies its punitive provisions contravenes the purpose of the enactment and leads to illogical and absurd results.
In Jelliff the state’s attorney had personally taken funds for himself. Indeed, the Court is not aware of any case in North Dakota involving misapplication of public funds by a government employee or officer in which the defendant or the defendant’s family did not benefit from such misapplication of funds, although it is conceivable some such person could develop a “Robin Hood” personality, but the Court is not aware of any such North Dakota case. The state’s argument in this case has to be that Blunt gave away funds he was entrusted to manage as there is no evidence he used any of the funds for himself, although he could easily have had a cup of coffee or slice of cake at one of the events which led to these charges. Any funds he gave away were for the benefit of state employees and for the benefit of Workforce Safety and Insurance (WSI).
The evidence offered to support Count I is $4,331 in Gift Certificates given to employees of WSI [State’s Exhibit 3], and $7,053.29 in WSI meeting expenses for such things as coffee, cake, snacks, meeting rooms, and trinkets for the benefit of the WSI employees who attended such meetings [State’s Exhibit 4]. The evidence to support Count II is that in addition to upward pay adjustments as the result of the implementation of a new pay scale and merit increases, Blunt awarded to three employees “bonuses” which total more than $1,000 when added together, said “bonuses” having been paid each month over four to seven months [State’s Exhibit 5]. There is no evidence that Blunt awarded himself any such “bonus.” It is clear these “bonuses” are in fact additions to the monthly salaries of these state employees as they are apparently still being paid every month where as a bonus is a one-time payment.
Without any evidence of self dealing in these public funds, there is no evidence that Blunt knew these meeting expenses and “bonuses” “involve a risk of loss or detriment … to the government.” Neither is there any evidence that the WSI board of directors did not authorize these expenses.
WSI was created by the Legislature in NDCC Title 65. In many respects it is unique as a rather independent state agency. For instance, NDCC 65-02-01.2 allows WSI to create its own personnel and pay system:
The organization shall establish a system of personnel administration for its employees based upon principles and methods to be determined by the organization and governing position classification, pay administration, transfer of employees, discipline of employees, and removal of employees.
Additionally, the WSI board of directors under NDCC 65-02-03.3 has certain powers and duties, including in section 3, the duty to “[e]nsure a proper response to any audit recommendations.” In this case it appears the charges stem largely from audits done by the State Auditor. This statute gives to the WSI board of directors, and not the state’s attorney, the duty to ensure a proper response to any audit recommendations. Absent any evidence the WSI board of directors is trying to violate the law or commit any criminal act, the Court sees no reason the WSI board of directors should not be left to resolve these issues. Without evidence of any such action, there is no evidence Blunt knew he was not authorized to do what he did. If the WSI board of directors, when made aware of these expenses, did not give Blunt any instructions to the contrary, it is not inconceivable Blunt understood he was authorized to make these compensation, meeting expense and incentive expenditures.
With respect to the question of whether Blunt’s actions with respect to gift certificate incentives, meeting expenses and “bonuses” constituted “a loss to the government,” there is no evidence the government lost anything as all of these expenditures appear to benefit the government since arguably such expenditures would make employees happy and thus better state workers, and would also benefit the government by assisting in the retention of good employees. Perhaps it can be argued that WSI employees who did not receive these benefits would be unhappy and thus less productive, but there is no evidence of any loss of production. Nor is there any evidence that such expenditures were in excess of WSI’s budget. The Court finds no loss to the government.
The Court is satisfied that to expose Blunt to the possibility of ten to five years in prison and fines of $10,000 to $5,000 for doing his job as he apparently thought it should be done without any contrary indication from the WSI board of directors, and without any hint of gain to himself, is unwarranted. The Court finds that no crime of misapplication of entrusted funds has been committed by Blunt. The Court finds this construction of the statute and the facts of this case will “avoid ludicrous and absurd results” and the Court finds its decision does “effectuate the legislative purposes which prompted [this statute’s] enactment.” The Court is satisfied its construction of this statute under the facts of this case does not “nullif[y] [this statute’s] punitive provisions [nor does it] contravene... the purpose of the enactment [nor does it] lead... to illogical and absurd results.”
The state cites the opinion of the Attorney General, but it is not a crime for a state official to not follow such an opinion. Having served as Attorney General, the Court believes every state official is well advised to follow the guidance of the Attorney General, but it is not a criminal act to fail to follow that advice.
The Court is satisfied that these expenditures are the proper concern of the WSI board of directors, and ultimately the Legislature which created WSI in its present form.
The Amended Complaint is DISMISSED, the bond is exonerated, and the defendant is discharged.
IT IS SO ORDERED.
Dated this 23rd day of August, 2007.
____________________________
Robert O. Wefald, District Judge
c: Cynthia Feland
Lloyd Suhr
Michael Hoffman
| Comments Posted: 14008 | |
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