The costumes-sales aspect of the Children's Theatre financial-irregularities investigation will not result in any charges being filed against anyone, Police Chief Lynne Johnson confirmed to the Weekly Monday.
The rest of the investigation is continuing and involves all three suspended staff members, "but at various levels depending on our information," she said in an e-mail exchange.
"Yes, I will confirm that," Johnson wrote in response to a question if she could confirm "that you aren't planning to recommend charging anyone for the costume portion of the case?"
"Surplus" costumes for years have been sold in an annual fundraising drive for the Friends of the Children's Theatre nonprofit organization, with proceeds going back to theater-related operations or equipment. The Friends group had hired its own attorney due to concerns about possible prosecution.
The primary criminal investigation is going to continue for at least a few more days, Johnson said Monday.
Johnson said she believes she will know by Wednesday whether she plans to announce something this week, 15 weeks after the temporary closure of the theater and 10 months into the probe of potential financial wrongdoing by the theater's top staff members.
The Weekly reported Friday that Johnson was expected to announce early this week that the investigation was being curtailed or dropped, following reports from unnamed sources that criminal charges would not be filed against the suspended staff members: theater Director Pat Briggs, Costume Supervisor Alison Williams or Program Assistant Rich Curtis.
But on Thursday Johnson flatly denied that the Santa Clara County District Attorney's office has decided not to prosecute the case and said her department had not yet formally presented its case.
On Monday, Johnson said she did not have any new information relating to the delay of the announcement about the case's future.
"We're still wrapping up some loose ends," she said.
She said she hopes to make an announcement this week.
"I still don't know yet. It's possible, but I'm not positive. There's just a lot of different things to consider," Johnson said Monday.
Briggs, Williams and Curtis have been on paid, administrative leave since Jan. 24. Even if the police announce the conclusion of all or part of the criminal case, the three employees still face potential penalties from a separate, administrative investigation overseen by City Manager Frank Benest.
The police are investigating theater employees' practice of depositing city money into their personal accounts, using that money to purchase traveler's checks and then recompensating themselves using the traveler's checks for official purchases, among other financial irregularities uncovered at the theater.
If Johnson does submit a criminal case, and it is pursued by the District Attorney's office, the employees could be charged with either misappropriation of public funds or embezzlement.
Misappropriation is the "unauthorized use of public money by a public official. There is no specific intent to steal or deprive," according to Deputy District Attorney Steve Lowney, with the office's Government Integrity Unit. He has been discussing the Children's Theatre case with the police since November.
Embezzlement involves "the specific intent to deprive the public entity of the money," Lowney wrote in an e-mail.
Embezzlement has a maximum sentence of three years in prison per count charged and misappropriation of public funds has a maximum sentence of four years in prison per count, according to District Attorney's spokeswoman Amy Cornell.