News

What went wrong? DA cites gaps in theater case

The Children's Theatre may have warranted an investigation but the case could not be prosecuted because of its complexity and serious gaps and flaws in evidence, according to Steve Lowney, the deputy district attorney closest to the case.

Since November Lowney has met regularly with Palo Alto detectives, he disclosed in an interview with the Weekly.

He said he has reviewed "a good portion" of the investigation and evidence, and outlined to detectives what they needed for formal charges to be filed to take the case to court .

But despite his close familiarity with the case, Lowney said he is still puzzled by it.

"I can't explain what was going on (at the Children's Theatre). I don't know," he said.

The huge practical reason why the investigation had to be dropped was the need to be able to explain it simply to a jury.

"I have to come up with something I can explain to 12 people in five minutes. If I can't do that, there's nothing there," Lowney said. Lowney is the one-person Government Integrity Unit of the Santa Clara County District Attorney's Office.

Police Chief Lynne Johnson Thursday announced via press release that no one would be criminally prosecuted despite there being evidence of "significant instances of serious financial misconduct and other possible criminal activity."

In his meetings with detectives, Lowney said he outlined relevant legal theories and types of evidence needed to further prosecute the case.

The department just doesn't have that essential evidence, he said.

"'This is a real strange case' is not a good theory. It's just not going to fly," he said.

While investigating a June burglary at the theater, Palo Alto police learned that $3,600 in traveler's checks made out to Director Pat Briggs, Assistant Director Michael Litfin and Costume Supervisor Alison Williams had been stolen during the burglary.

Briggs had not reported the checks missing, police say, although her attorney has disputed that.

Additional traveler's checks were found in the theater and in Briggs' cluttered office.

Officers learned about the theater employees' odd accounting system, which involved accepting cash advances from the city for out-of-town trips, using the money to buy traveler's checks, then using the checks to compensate themselves for official purchases charged to their personal credit cards.

This practice continued even after the employees were issued city-approved credit cards for authorized purchases, according to search warrant affidavits unsealed April 29.

The trips are paid for by parents or scholarships from the non-profit Friends of the Palo Alto Children's Theatre, theater supporters say.

But when police began to track the expenditures, they found gaps.

Briggs told them that she had checked with a city employee, who told her the city didn't want any leftover money from the trips back, after the city's advance was reimbursed from funds from parents or the Friends group. .

Briggs' attorney, Jon Parsons, said Briggs could have talked to someone as much as 20 years ago. Briggs has led the theater since 1961.

But when police checked with the Community Services Department and financial staff members, and were told they never said to keep the leftover checks, they believed they had caught Briggs lying.

The presence of thousands of dollars worth of traveler's checks "certainly warranted" a criminal investigation, Lowney said Thursday.

"There's just no doubt about it. It would have been negligent not to pursue it in that way, in my opinion," he said.

But the fact that the checks were still around the office seems to negate an intent to steal them, he noted.

"It was a very, very odd set of facts. I've never heard of anything like it," Lowney said. "It doesn't sound right, so you want to get to the bottom of it and there were conflicting statements" made by theater employees," he said

Lowney has been with the District Attorney's office since 1994 and specialized in fraud until recently.

Lowney said two crimes seemed possible in the Children's Theatre situation: embezzlement or misappropriation of public funds.

Embezzlement requires a public official to use public money for a personal use, "with the specific intend to deprive the public entity of the money." That crime has no statute of limitations and could result in three years in prison on each count.

Misappropriation of public funds is the unauthorized use of the money, without a specific intent to steal. It has a four-year statute of limitations and could result in four years in prison on each count.

In her statement Thursday, Johnson said the investigation would be discontinued because of "the statute of limitations issue together with the reduced likelihood of reaching the high burden of proving criminal activity beyond a reasonable doubt. "

But Lowney said several other factors were the primary reasons the case wouldn't make it in court.

First, in order to show wrongdoing, investigators would need proof that the theater employees used the traveler's checks for personal purposes, Lowney said.

"They weren't used, period. That was odd. There's no doubt that was odd and certainly warranted an investigation," he said.

In addition, the thousands of dollars worth of traveler's checks were found at the theater.

"That's city property. It never left city property. That's very unusual," Lowney said.

"You have to get up in court and say 'This woman stole money from the city,'" Lowney said. "Well, they actually were never cashed. When you hear that somebody stole money from the city that never left the theater.

"By that time, it's apparent you don't have a case beyond a reasonable doubt."

Briggs' and the other theater employees' stellar reputations would only be relevant if prosecutors were trying to demonstrate "intent," Lowney said.

If the proof was weak, it would be much easier to convince a jury that someone with three prior convictions for theft was guilty rather than a "person (that) has an entire life of no record for theft and for all intents and purposes has been an upstanding member of the community," Lowney said.

In fact, Briggs' reputation would even help her out of another potential charge, Lowney said.

On Thursday, Johnson said she has proof that on 150 occasions Briggs received money from both the non-profit Friends group and the city for the same purchases.

"There's no doubt that that occurred," Lowney said.

But the Friends would likely say that Briggs made a mistake and ask her to pay back the money, Lowney said.

"So you have no victim," he said. "That's what I found was difficult."

But the discovery of the double payments provided additional motivation to continue the case.

"You see that conduct and it can't be ignored because it did in fact occur," Lowney said.

During the investigation, police had focused on the theater employee's spending and trips between 2000 and 2004 because there were no records during that period, Lowney said.

"After 2004 (Briggs) turns in receipts, before 2000 she turns in receipts," Lowney said. "It's a huge gap."

An individual can't be convicted of misappropriation if he or she had permission or authorization to use the money, Lowney said.

And Lowney said he has "pretty good proof" the city never asked for any receipts or other documentation from theater staff during that period.

"For example, if (Briggs) says, 'I thought I did turn in receipts' or 'I was told I didn't have to turn in receipts,' how can I disprove that?" Lowney said. "There are no receipts and no demand for follow-up."

The city is "not denying that either," Lowney said.

To prosecute, Lowney said he would have to prove the employees used city money for their own personal purposes.

"You have to come up with a real, provable theory as to why the checks were sitting there," he said.

He doesn't have a theory and even after reading all the materials, Lowney admitted he "can't explain what was going on. I don't know."

Reached Thursday, City Manager Frank Benest admitted the city had erred.

"There should obviously have been stronger efforts to ensure that they turned in receipts and that was not done. That's quite clear," Benest said.

Benest said he doesn't think the accounting gaps extend beyond the Children's Theatre, however.

"No, I do not believe so. I cannot comment further than that."

Related material:

Children's Theatre's Alison Williams can return to

work, Richard Curtis is recommended for termination

ARCHIVE: Children's Theatre investigation stories

Comments

 +   Like this comment
Posted by A disappointed Resident
a resident of Midtown
on May 18, 2008 at 2:35 pm

Saved by the Statute of Limitations.


 +   Like this comment
Posted by Tim#2
a resident of Crescent Park
on May 18, 2008 at 5:01 pm

So ...is anyone in the Accounting Office being 'terminated'. Benest has children in school - and this is not a school vacation two weeks. Strange that suddenly he's gone on a two week vacation when things are 'heating up'.


 +   Like this comment
Posted by VERY UNFAIR
a resident of South of Midtown
on May 18, 2008 at 6:41 pm

Strange that a young man who was nothing but friendly and often worked weekends insuring that the public had tickets to matinee productions is recommened to be terminated. Yet the City Manager, who heads up the entire department, is rewarded with a nice home paid for by taxpayers and no questions asked why he did not investigate the processes of direct reports under his watch.


 +   Like this comment
Posted by pat
a resident of Midtown
on May 18, 2008 at 8:57 pm

Chief Johnson doesn't know how much the investigation cost. Does Benest not have quarterly or semi-annual budget reviews for all departments?

Wouldn't Benest be just the tiniest bit interested in how much this very visible investigation was costing over 11 months? Wouldn't the city council, in it's oversight position, be at all interested? Apparently not.


 +   Like this comment
Posted by Bill
a resident of College Terrace
on May 18, 2008 at 9:35 pm

I really think trying to lay all this at the feet of Frank Benest is unfair. And it's particularly wrong to discuss his vacation. Can we not stick to the issues raised by the investigation, and the subsequent actions by the police and the DA? The city manager has nothing to do with the progress of any police investigation, and if he did, everyone would be screaming that he was interfering! Let's just try to turn down the volume on the hysterics over this now that it appears to be winding down.


 +   Like this comment
Posted by Ferdinand II
a resident of another community
on May 18, 2008 at 10:26 pm

Bill,

Sorry, but Benest has been a big part of this since 1/24 when he closed down the Children's theater and put staff on administrative leave.

He does have the authority to do that in the context of an internal City investigation, but by Benest's own admission, he hadn't started an administrative investigation when he shut down the Children's theater, and took his actions based on non-public information provided by the police.

In a private company, would the police have the authority to shut it down through an internal administrative process?

No, of course not, nor would they have any authority to place staff of any organization on "Administrative Leave", and that includes the City.

Benest has intentionally crossed the line between police activities and administrative rules within the City, providing the police with things that are not within their power. Specifically, a gag order on staff, and forced administrative leave, which in practice, is the same as "house arrest"

Do you work in Palo Alto Bill? Hope you will consider the precedent Benest has set here if you or co-workers are ever a little behind in "child support" or have an unpaid parking ticket.





 +   Like this comment
Posted by CH Insider
a resident of another community
on May 18, 2008 at 10:55 pm

This doesn't make sense to most people because most people care about money and nothing else. Ms. Briggs is actually losing money by continuing to work for the City. If she retired she would be making MORE money than she does while working. She is entitled to over 2.7% for every year she worked times her highest year's salary. According to the article above, she started in 1961. That is 47 years of service. 47x2.7=127% of her highest annual income for retirement pay.

She is actually GIVING UP money by continuing to work. She is either crazy or dedicated depending on your point of view. What motive does she have for these crimes that have been suggested? If the police had just looked at that fact and the realization that the person she spoke with in accounting has long since retired, we would never have been in this mess. Ms. Briggs cares only for the children and PACT. Money is not even a close second. God bless her.





 +   Like this comment
Posted by Howard
a resident of Crescent Park
on May 19, 2008 at 12:25 am

I can't beleive people are still defending these weird antics that escape criminality by a hair's breadth.


 +   Like this comment
Posted by Time#2
a resident of Crescent Park
on May 19, 2008 at 3:51 am

Howard, THERE WAS NO criminal behavior. Get over it. The DA knew it. People connected with PACT knew it from Day# 1. NONE, ZILCH, NADA. Benest beat it to Australia and is away from the uproar. The employees involved in the "Utilites Scandal" - which really was illegal, had and still have their identities protected - and most are still working for the city.
It is Johnson AND Benest who handled this so poorly, ruined reputations, closed down the theater during a rehearsal and frightened the chlidren - bad top management all around. And how much does Benest get when he retires at the end of June? More than most of us can even dream of - and how long has he been here - ten years? THe Children Theater was Pat Brigg's life. It will be a long time before this City recovers from the Benest-Johnson-Yore debacle- and evidently Yore is retiring too. How convenient.


 +   Like this comment
Posted by daniel
a resident of Adobe-Meadows
on May 19, 2008 at 6:06 am

Earlier articles stated that Benest approves Johnson's press releases. Did he approve the most recent one in which Johnson defamed the staff by accusing them of criminal acts?

I appreciate what a difficult position that the City Manager must be in - and am reluctant to throw this at his feet. However, if it is true he approved that release, he's placing the City at risk. I'd think he would want to do the correct thing by the staff - if only to separate himself from an out-of-control police chief and her loyal henchman.


 +   Like this comment
Posted by Disbeliever
a resident of Old Palo Alto
on May 19, 2008 at 9:17 am

Quite honestly I did not follow local politics until this issue blew up. Now for some reason when I see Palo Alto I associate Benest or Yore with the words. They are as ubiquitous here as Emperor Palpatine or Darth Vader.


 +   Like this comment
Posted by C Munson
a resident of Another Palo Alto neighborhood
on May 19, 2008 at 11:14 am

Wow!! after reading the article there are so many questions.
First when will the city accounting systems and Frank Benest be reviewed/investigated? Second...Why are the city records from 2000 to 2004 missing? Third...Why were the costume sales investigated when they were signed off and approved by the city before the costume sales?
Lastly, What does this say about the whole thing ...
based on the previous posting Benest has slinked off out of the country!!!!!


 +   Like this comment
Posted by anon.
a resident of South of Midtown
on May 20, 2008 at 8:47 am

how come the city is not looking into the auditing practices? Who is in charge of the Auditor? That person should be fired!


 +   Like this comment
Posted by Wilson
a resident of another community
on May 20, 2008 at 10:20 am

I am a complete outsider fascinated by this and who is writing a screenplay based upon these events.

Let me know if this is what has happened in a nutshell:

Four people running a public children's theatre did well by the children from all accounts, but were sloppy with the accounting
to the point that people suspected theft.

There was an actual theft, but the thieves were not employees and the quartet running the theatre were not suspects but it triggered a manhunt of sorts.

The sloppy accounting was in effect a large partial result of City Hall not instituting any sort of GAAP checks or balances, perhaps because they were seen as a formality given the nature and size
of the expenditures.

Through everything, Patricia Briggs seems to have displayed
behavior that placed the intent of the theatre first and the
seemingly impossible task of keeping pace with the ever changing bureaucracy requested of her from the city second.

A large criminal investigation took place which showed no sign that money left the theatre into anyone's personal account or possession.

The investigation ended up costing vastly more than whatever the amount of the suspected missing funds ended up being and apparently, scapegoats are now potentially being sought to justify the investigation.

Is this basically accurate?

Other questions (to hopefully impartial people)

Is this an attack on someone because they are past a retirement age? (ageism?)

Is there some sort of vendetta against the theatre?

Are there people potentially plotting to remove Patricia Briggs in favor of having their people placed in charge?

Is there a group of angry people or parents who always wanted to run the theatre?

Sounds like there was some casual sloppyness that was wildly overreacted to and then positioned so as not to embarass the few who didn't uncover what they had hoped to uncover.

Have I missed any main points?

Are there any specifically dramatic moments in time that could potentially be covered other than the sad timing of the man's death and the closing of the theatre in the middle of a rehearsal which, wuite dramatically, postponed a play rehearsal?

What is the other side of the story?

(if it is transparent and not cloaked in some sort of secrecy.)







 +   Like this comment
Posted by narnia
a resident of Midtown
on May 23, 2008 at 11:53 am

Police investigation: On may 17 2008 this newspaper reported:
"Lowney has been with the District Attorney's office since 1994 and specialized in fraud until recently......

On Thursday, Johnson said she has proof that on 150 occasions Briggs received money from both the non-profit Friends group and the city for the same purchases.

"There's no doubt that that occurred," Lowney said.

..........But the discovery of the double payments provided additional motivation to continue the case.

"You see that conduct and it can't be ignored because it did in fact occur," Lowney said.


 +   Like this comment
Posted by JFP
a resident of Midtown
on May 23, 2008 at 12:18 pm

What I want to know is how much of the town is being run like this? No receipts, no tracking of expenditures. It is crazy.


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