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Wednesday, 08 July 2009 18:25

Family, social worker had to push to get embezzlement, elder exploitation case moving

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By May 2008, members of Earla Mae Cowan’s family had begun to suspect a trusted nephew was stealing from her.

And, in the first few months when they were most anxious to see the matter taken seriously and looked into by law enforcement, it appeared the case was languishing in the District Attorney’s Office.

Jackson County Sheriff Jimmy Ashe formally referred the family’s allegation to the district attorney, according to a notation on an incident report dated June 9, 2008, asking that the investigation be handled by the State Bureau of Investigation in Asheville. The suspect was a county employee, and Ashe said he feared an investigation by his department into a county employee potentially raised a conflict of interest.

“We all work in the same building,” Ashe said. “He was the housekeeping supervisor, and he was also responsible for maintaining the cleanliness of my office.” Ashe said referrals to outside agencies often occur in cases of investigation of a county employee.

But for about two months — from early June to early August 2008 — the SBI repeatedly told Cowan’s family they never received that request. Meanwhile, the sheriff and the DA’s office kept telling the family it had been forwarded.

District Attorney Mike Bonfoey doesn’t dispute that the case may have gathered a bit of dust in his office over the summer of 2008, but said it is proceeding now just as it would have been if run with sooner.

Marc Hawk, a longtime Jackson County employee, has now been charged with several felony counts of embezzlement from Cowan, his aunt, along with related indictments for elder abuse. Those charges are not for physical abuse, but under state statutes covering exploitation of a disabled or older adult.

It was not until after a county social worker with Adult Protective Services independently referred the matter to the district attorney, on July 29, 2008, that the case was indeed brought to the attention of the SBI. Ultimately, the backlogged SBI wouldn’t take the case and it ended up being investigated by the Jackson Sheriff’s Department anyway.

 

Power of Attorney

Hawk was indicted in June 2009 on 10 criminal charges: five each for embezzlement and abuse. From October 2006 to May 2008, Hawk held power of attorney as granted by Cowan, which meant he was legally authorized to handle various affairs on her behalf. But the time frame for the charges dates back to March 2006, prior to when Hawk held power of attorney.

The embezzlement indictments acknowledge the power of attorney, but charge that it was illegally misused. The charges state that Hawk “abused a position of trust and a fiduciary duty by writing checks to himself via the power of attorney [Cowan] had given him and using said moneys for his own interest. As a result, Earla May Cowan lost possession and control of money in the amount of [x]”

The sums allegedly embezzled are $11,060; $22,390; $17,840; $4,355; and $4,325 — a total of $59,970.

That’s one of the things that still concerns Cowan’s niece, Kay Clemmons: she’s not sure the charges reflect the full amount of money allegedly taken, which she estimates could be upward of $100,000 based on sums they think were missing from accounts.

Hawk does not agree with the criminal charges.

“This is money my aunt had given me. Apparently there was a misunderstanding on my part with the way things were arranged,” Hawk said.

 

Inordinate delays?

Apart from the amount of time it took to get the matter looked into and nearly fell through the cracks altogether, Clemmons and other relatives have been frustrated with the pace of the prosecution.

The initial delay was from May to late August of 2008. That’s the period from initial contact by the family with the DA — before they went to the sheriff — until the case was finally referred to the SBI and eventually handed back to the Sheriff’s Office.

The case was presented to a grand jury in December 2008. There were initial arrest warrants issued for forgery in January, Clemmons said. Indictments on further charges were issued in June.

From her point of view, Hawk was treated with kid gloves — allowed to turn himself in for both arrests and released each time on unsecured bond. And several court appearances — all those scheduled before this month — were continued, she noted.

According to the Jackson County Clerk of Court’s Office, new dates for Hawk to appear in District and Superior Court were set for July 7 and July 13, respectively. The District Court date was for a probable cause hearing, while the Superior Court date would be for the commencement of trial, according to Sheriff Ashe.

Clemmons said she and other family recognize the matter may be a difficult one to build a provable case out of.

During the time covered by the indictments, Hawk did have power of attorney, and the family recognizes that complicates the prosecution, Clemmons said. In addition, Cowan and Hawk did have a genuinely close and loving relationship, she said — so that may be clouding Cowan’s willingness to be a witness against her nephew in the case.

“Some of that applies, there’s some reluctance” on Cowan’s part, Clemmons admitted.

 

Issues of aging

Cowan is in her 90s, and she recognized a few years ago she was getting to where she needed help with her affairs.

Clemmons guesses Cowan lost her husband in the late ’80s or early ’90s. He had handled financial matters; she was a homemaker. They had no children. The funds from which Hawks is accused of embezzling “was money she had saved for 30 years, her Social Security checks; and her husband had a small retirement,” Clemmons said. “She owned her home and property.”

She’s in a nursing home now, and a different family member holds power of attorney for her, Clemmons said. She’s not “all there” all the time, but mostly is: “Sometimes she’s fine, sometimes not,” Clemmons said, adding that Cowan is lucid more often than not; she remembers events and family members and generally recognizes visitors.

“She recognizes that her money’s gone, but doesn’t understand the implications of that,” Clemmons said. As for Hawk, “She’s forgiving or ambivalent toward him, because she doesn’t understand.”

Clemmons said the family currently isn’t burdened financially by Cowan’s care and needs, “since Medicaid set in. But for three months through the end of August 2008, we did have financial burden” caring for her and addressing her expenses after initially discovering money was missing, she said.

 

County’s judgment calls

Clemmons said the slow pace of the case — and especially the initial difficulty verifying whether it was even going to be investigated — led to the family to wonder if the county was closing ranks around one of its own. She said they wondered what county policy was regarding possible firing or at least suspension of an employee charged with felonies and whether he was close enough to retirement that he was being allowed to hang on until that milestone.

County Manager Ken Westmoreland said those issues required some judgment calls on his part, as well as fairness to Hawk, against whom nothing is proven yet.

Hawk, who has worked for the county all his adult life, is housekeeping supervisor and reports to Westmoreland.

“Basically his responsibility is supervising the housekeeping crews at the various buildings,” Westmoreland explained. “Until he’s proven guilty before a court, our policy is to let him continue to work. It may be a whole different matter if he was in a different department, such as finance, tax collection. Where he’s located, out of the public eye, having no financial responsibility per se, I saw no need to remove him or put him on administrative leave until a decision is rendered.”

Asked how close Hawk is to retirement, “We probably are stepping over the bounds of discussing him as a personnel matter,” Westmoreland said.

He added he had no first-hand knowledge of family speculation on the retirement question, but said he thought such concerns had been among the things expressed in front of the grand jury. In any case, “They’ve produced a true bill on several indictments; they’ll just have to go forward. Mr. Hawk’s defense is that this has just been a family squabble,” Westmoreland said. “But criminal charges have been filed and they’ll just have to work their way through the system.”

 

Wheels of Justice

The charges are working their way through the system now, and family members acknowledge that is a slow process — though one whose delays still sometimes confound them.

One speed bump that may have arisen was the appearance of attorney Graham Duls in the case as Hawk’s court-appointed defense counsel. In April, Duls filed a motion for “voluntary discovery,” a routine move phrased in boilerplate language that basically asks the prosecution to turn over all its evidence and files. The response to the motion and time needed for the defense’s evaluation of what was provided would certainly slow down the proceedings.

Clemmons said family wondered why Hawk was deemed eligible for a public defender at taxpayer expense, since he has his county salary and his wife works as a respiratory therapist. Information provided by Hawk in his affidavit of indigency shows substantially more monthly expenses than income — roughly $5,000 coming in against more than $9,000 going out.

Even so, Hawk has begun making restitution to his aunt.

“As I wait for my court date, I’m putting money in her account out of every paycheck,” he said.

Clemmons said the family was aware of an interim repayment plan, but they consider it a slow drip given what was allegedly taken, she said.

 

Complex investigation

Once it became clear the case would fall to the Sheriff’s Office, the time it took to conduct the investigation and bring it to the grand jury — less than four months — is a reasonable one. Sheriff Ashe wasn’t shy about detailing the intensive and complex investigative work that was done in that timeframe.

“After receiving the financial documents, we had to spend painstaking time with bank officials,” Ashe said. “And we did, and it was very painstaking to determine what the forgery was, and what the embezzlement was. We had to determine dollar amounts, determine periods of time these monies were allegedly taken.

“The banks actually sent representatives to my office with their computers, with information the banks had, via a court order,” Ashe recounted. “To go through the information, that did take a significant amount of time.”

The frustration for Cowan’s family, however, was during the three-month limbo over who, if anyone, would be taking on the case.

Ashe elaborated on how his referral of the case was supposed to be handled, and what he did and did not know about what actually happened. Ashe said he referred it to the DA’s office to ensure an objective investigation, in hopes it would be referred to the SBI. Ashe both sent the DA a letter and met with them.

“Once they received that request, they had to make a determination if they would or should or could investigate that case,” Ashe said. “After it was referred to DA, we waited for the response from SBI. The SBI told the DA they didn’t have manpower to investigate it. From then on we were tasked with doing the investigation. And we assumed that task.”

The Sheriff’s Department’s incident report indicating that the matter was being referred to the DA for possible investigation by the SBI was dated June 9. Ashe said he had no way of knowing how promptly the DA’s office made the referral to the SBI.

“The time we made the referral to the DA was immediate. Now where the referral stood from the DA [to the SBI], I can’t say. The DA said, ‘I will do that,’” Ashe said. “The DA’s office played an integral part from the beginning and they knew this was a reasonable request by me. I don’t know how much timeframe came between the DA getting it from us and their referring it to the SBI.”

As it turns out, District Attorney Mike Bonfoey disputes that, saying he didn’t really see a conflict.

Ashe acknowledged the actual event lighting a fire under the DA to make the SBI referral “may have been correspondence between social services and the DA’s office; I don’t know.” The letter from the Adult Protective Services caseworker indicating the referral to the DA had been made was dated July 29.

Noelle Talley, public information officer for the state Department of Justice in Raleigh, confirmed that no referral was received by Toby Hayes, agent in charge of the Western Region Office of the SBI in Asheville, during the months of May, June and July 2008 when the Sheriff’s Department and DA’s office were telling Cowan’s relatives the case had been handed off.

 

Got going on it. But when?

District Attorney Mike Bonfoey said he didn’t specifically recall that referral, but “in almost any case that DSS refers something to us that may be criminal, what we do is get the appropriate law enforcement agency involved. If that came in, if it came across my desk, I probably told an assistant to get going on the case.”

Why not earlier? Bonfoey had several answers.

He acknowledged the family first came to his office in May 2008.

“Jackson County is within the jurisdiction of the Jackson County Sheriff’s Office. We don’t investigate, we prosecute after investigation by law enforcement,” Bonfoey said. “The sheriff did say he felt uncomfortable because it was a Jackson County employee, with his agency doing the investigation. When he told me this, we had a conversation about the SBI looking into it.”

For his part, Bonfoey said, “I never understood what the conflict was, why it was a conflict. They investigate crimes against county employees all the time,” he said. “I don’t think it was in my letter to the SBI that I thought it was a conflict, I think I said the sheriff thought there was a conflict.”

And, in addition to that disagreement, there apparently was a misunderstanding and some confusion about who would actually make the request to the SBI, Bonfoey said.

“At first I thought (Ashe) was going to ask SBI to come in. Eventually, I had one of my assistants call to make a request,” he said. “There’s no formal letter from my office to the SBI until afterwards. They did an initial opening investigation, and it came back to Jackson County anyhow.”

It’s that “eventually” that spotlights the apparent couple-month-plus delay in the referral to SBI. And that it may indeed have been the referral from the DSS caseworker that finally got the ball rolling raises the question: What if DSS had never stepped in?

“In June 2008 there was the Wong case” — in which an out-of-state visitor shot and killed a state trooper — occupying his attention, said Bonfoey.

“Then the double homicide in Swain County in July or August,” he said.

In the end, Bonfoey said, he didn’t think that delay was an issue.

“We’re talking about a case where whatever was done was done, nothing was going to be changed about that. I can’t see that two days or two weeks makes any difference to the investigation,” he said.

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