Committee seeks possible reprimand of sheriff for misuse of funds to pay jail staff bonuses

Those investigations did not result in criminal charges or misconduct findings against Sheriff David Beth.

Corporation Counsel Joe Cardamone is expected to present the Finance and Administration Committee with a list of legal options at its Nov. 10 meeting.

At its Oct. 6 meeting, the committee voted unanimously to ask that Cardamone produce a list of “legally available” alternatives to address Beth’s behaviors that are “outside of our ethical standards,” said Supervisor Brian Bashaw.

That list includes a letter of reprimand, according to Bashaw. The committee will also review the county ethics code as it pertains to elected officials.

The committee’s action comes after a Milwaukee County District Attorney’s Office investigation on Sept. 21 determined there was insufficient evidence for criminal wrongdoing. Beth unilaterally authorized the $21,736.95 in bonuses, which were coded in an overtime format, to 18 admissions and release specialists at the county jail earlier this year.

In addition to the specialists, a support operations manager also received extra pay.

None of the employees had worked the overtime in question; the payments were intended as bonuses.

The district attorney’s investigation came about after an independent investigation by attorney Joseph Russell of von Briesen & Roper, who was retained by Kenosha County.

His investigation found that while Beth had not violated statutes pertaining to misconduct in office, the sheriff “misused or misappropriated” the funds because he had not worked within proper county channels to grant the bonuses.

Specifically, Beth had not sought approval from the county executive, finance director and the human services director.

Because the funds in question exceeded $500, per county policy, the matter was referred to the Milwaukee County District Attorney’s Office.

The sheriff said it was “critical” that the department retain the booking clerks and the support operations manager “at least until the 2023 budget could address their pay raise,” Russell said at his presentation to the committee.

Those positions had been overlooked for pay increases a year ago when correctional officer pay was addressed during the county budget process.

“The rationale that was provided by the sheriff was that ‘we needed to do something to retain these critical people.’ He thought he had the money in his budget because the department is significantly understaffed,” Russell said.

Sheriff Department personnel created a new pay code — similar to one the department already had — for field training officers, who would “traditionally get overtime payments whenever they trained these trainees, even though they weren’t technically working overtime,” Russell said.

According to the attorney, the sheriff took matters into his own hands, ordering his staff to coordinate with county payroll staff and establish a new code for specialists so the bonuses could be paid.

Beth reasoned he could give the staff members extra pay in the short term until the election of new County Board members and a new county executive in the spring. He planned to present the matter to the officials during budget work later in the year, Russell said.

Russell told the committee he found Beth’s rationale “unsatisfactory” but that nothing he learned through staff interviews or documentation of the bonuses caused him to suspect there was a pattern of misappropriation of funds.

“I didn’t think there was any coverup, but at the same time, the Sheriff’s Department, I mean, it was well known within the Sheriff’s Department this was happening,” he said. “But nobody outside the Sheriff’s Department knew until the anonymous complaint.

“It came as somewhat of a surprise to everyone.”

Finance Committee Chairman Terry Rose asked Russell whether the funds had been repaid, given that they were authorized inappropriately.

“As far as I know, he has not voluntarily repaid,” Russell said. “I think if there were criminal charges, restitution could have been sought.”

“Why shouldn’t it be repaid to the county?” Rose asked.

Russell said from Beth’s standpoint, it was because the sheriff had money in the budget due to understaffing.

The scope of his investigation, Russell said, did not include “how that money could be clawed back.”

Supervisor Erin Decker asked for an explanation for why criminal charges were not issued.

She read from the district attorney’s report, noting the sheriff was “attempting to exercise his statutory and constitutional duty to maintain and operate the jail” and that his actions “lacked knowledge” that those actions went beyond his authority or that he intended to exceed that authority.

“So, because he didn’t know that what he was doing was not within his authority, that’s OK?” Decker asked. “It kinda sounds like, well, ‘he didn’t know what he was doing was wrong, so let’s give him a pass.’”

Cardamone replied: “I think what they’re saying from a prosecutor’s standpoint is they do not believe that they would be able to prove beyond reasonable doubt that (Beth) was aware that he was doing something wrong. And that is an element of a criminal charge.”

Because the sheriff is an elected official, Cardamone said, seeking to discipline him is more complicated than if a non-elected supervisor had unilaterally authorized additional pay to someone he supervises.

As an example, Cardamone said if he issued an additional $100 an hour to his second in command without proper approval, the County Board could discipline or even fire him. “You don’t have that luxury with the sheriff,” he added.

Decker said the County Board and corporation counsel need to re-evaluate the county’s ethics policies.

“Because when we have a sheriff who through roundabout ways takes $21,000 — and it would have been a lot more if it had not been caught — and gives that out without authority, yet, we have a supervisor who wins a television in a raffle at a conference, and he is not allowed to keep it or donate it somewhere else … we definitely need to re-look at our policies.”

Supervisors Bashaw and Decker wondered whether the investigations are closed or if there are other aspects — other than ethical or criminal — yet to be reviewed in the case.

“Because of the unique situation, I am hard-pressed to say what else we might be able to do,” Cardamone said. “I think there’s been a sense already from this committee that there’s not an interest to claw back (funds) from the employees.”

Cardamone said the board also has no authority “to dock the sheriff’s pay.”

“Theoretically, this board or this committee could take the money back from his budget, but, again, it’d be generally taking it from the department,” he said. “I don’t know that that serves a purpose.”

Cardamone said he was also asked about the possibility of the board taking legal action against Beth.

“It’s not something I’d recommend for a number of reasons, not the least of which is, I don’t know that it would be successful,” he said, adding he was unaware of a good legal theory to do it. “I think it has the potential for doing more damage than good.”

According to the independent counsel’s findings, because Beth is not seeking re-election, sanctions may have “little practical effect and may cause lasting damage” to the department’s work culture and morale amid the election of a new sheriff.

The report recommends the county avoid action that “may increase attrition among its correctional staff, or deter future qualified applicants who are interested in becoming employees.”

Cardamone said asking for reimbursement from Beth may be an option but that he was “hard-pressed to see, under these very unusual circumstances, what further action we can take.”

Bashaw said the committee is “between a rock and a hard place.”

“It’s done. Technically, the investigation portion is closed. We’re not going to do harm to our employees, who are already strained, so that avenue is clearly closed,” he said.

Administration, including the heads of the county’s human resources and finance departments, have also ensured that steps for proper authorization — including no time codes created without “explicit approval” from human resources — will be taken so the situation won’t be repeated, Cardamone said.

Beth, who has been sheriff since 2002, was not at the meeting. He said his only comment is he was “trying to help our employees to keep them from leaving during a very stressful time.”

His last day in office is Jan. 3.