In coming stories Royal Examiner will explore how the “catastrophic failure” of processes and oversight leading to the EDA financial fraud investigation and its resultant civil and criminal cases developed. Newly-named EDA Board Vice-Chairman Jeff Browne introduced the “catastrophic failure” term in an opening statement on behalf of the EDA to open the August 27 Town-County-EDA discussion of a path forward.
The 16 specific transactions and projects tied to the EDA fraud allegations occurred over the course of years under the supposedly watchful eye of a total of 12 elected officials on two municipal boards – six councilmen and one mayor of the Town of Front Royal and five Warren County Supervisors; not to mention seven more appointed members of the Front Royal-Warren County Economic Development Authority Board of Directors. It is that municipally-appointed EDA board that forms the first line of oversight of EDA business transactions and land investments.
Perhaps reconsideration of EDA board membership as an unpaid, volunteer position should be on the table for change as a potential means of bringing a more conscientious and professional outlook to the job in the future. But let me add that the recent volunteer appointments made to fill vacancies, as well as some sticking it out from year or so tenures, appear to be committed to learning from past board mistakes, even ones they were involved in, and implementing change to prevent a recurrence.
Elected municipal officials, particularly on the Town side, are now asking pointed questions and expressing righteous indignation at past offenses alleged in the conduct of economic development in this community. But one is left to wonder where those questions, or at least attention to them when they were asked by colleagues or the media, were over the past five-plus years.
Those were years that saw myriad projects, proposals and promises generated out of EDA-Town-County discussion of coming economic revitalization and financing for municipal capital improvement projects.
Many of those projects had fundamental factual assertions that should have elicited basic questions seeking verification or explanation before agreeing to:
– A one month $10-million Town bridge loan that was twice-extended with only one month of fee payments equaling lost monthly interest on the investment account withdrawal over the three-month period paid to the Town. That short-term municipal loan enabled the EDA to convince a perhaps skeptical bank to finance the ITFederal project with $10 million issued to ITFederal through the EDA. QUESTION – Where is evidence of a $140-million federal government contract with ITFederal upon which Sixth District Congressman Robert Goodlatte and EDA Executive Director Jennifer McDonald based the promised $40-million ITFederal investment and 600 high-dollar tech jobs here on?;
– a $445,000 “moral obligation” EDA purchase of a property initially presented as a $10 gift from McDonald relatives, followed by the $10 giveaway of that property now written off as a $640,000 EDA loss. QUESTION – What tax credit deal and deadline is that gift to the EDA based on? And why am I being asked to sign and send a deed of sale to Winchester with no price on it, allowing a sales price $444,990 less than our purchase price to be filled in by the buyer?;
– and what might best be described as a collective Front Royal Town Council majority pipe dream that a new $11-million town police station could be financed virtually interest free through a New Market Tax Credit (NMTC) program that a brief phone call would have revealed the project did NOT qualify for.
Some town councilmen now trumpet loudly that they were “misled” by Jennifer McDonald over the availability of the NMTC program for police station or other capital improvement project financing.
But how, one might ask, did not only those seven elected Town officials, but also five elected County officials impacted on other pending capital improvement projects fail to make or initiate staff to make that one phone call? It was a call that would have revealed, as subsequent EDA/municipal discussion has indicated, that the NMTC low-interest loans were available for projects defined as job-creating, economic development stimulating projects.
While a magnificent and long-overdue facility, FRPD’s new headquarters created no new permanent jobs, just housed existing ones in a more professional environment with room for long-term departmental growth.
Perhaps the mayor and town council should have paid more attentions when both their Town Manager and Finance Director, along with the People Inc. regional administrator of the NMTC low-interest loan program, Brian Phipps, told them in December 2017 and January 2018, respectively, that if you’ve got a promised 2.65% interest rate locked in for 30 years through a bank, you MIGHT want to take a serious look at accepting that deal on the loan to construct your new $11 million dollar (non-job creating) police station.
The collective failure to ask, listen or verify by a great majority of public officials and employees when it mattered over the course of years leads us to an exploration of terms used to legally describe failings of people in public office. There are three such terms describing various degrees of abuse or failures of public officials – malfeasance, misfeasance and nonfeasance. They are terms now increasingly heard in the public conversation in Front Royal and Warren County.
While some examples of failures in public office may be a consequence of ignorance of some statute or regulation or even intellectual laziness, other acts may be intentionally carried out for personal gain.
Malfeasance is defined as intentional conduct that is wrongful or unlawful, especially by officials or public employees. Malfeasance is at a higher level of wrongdoing than nonfeasance (failure to act where there was a duty to act) or misfeasance (conduct that is lawful but inappropriate).
Public malfeasance can be prosecuted as a crime in Virginia, though the act of malfeasance itself is a misdemeanor offense. However criminal acts tied to such malfeasance could result in more serious criminal charges.
Malfeasance is usually used to refer to deliberate misuses of power or violations of trust for gain. Any criminal act by public officials would be considered malfeasance, as could other actions that are reckless but not actually illegal.
That latter category could include inappropriately high-risk investing of managed funds leading to lost public resources; the use of business expense accounts for non-business purchases; and even nepotism in using one’s public office to enrich relatives by means outside the normal conduct of public business; as the enrichment of one’s self in a similar manner would be.
An act defined as malfeasance must be found to be contrary to the public good; must have been performed in the individual’s official capacity; and interfere with the individual’s performance of his official duties or with the official duties of another public official.
In committing an act of malfeasance the official may have either committed an affirmative act or an act of omission. In the latter case it would be a purposeful decision not to act in order to further an unethical or criminal end.
Misfeasance is the wrongful execution of an appropriate act or carrying out a proper act in a wrongful, harmful or improper way. In other words, misfeasance is a harmful act that is legal but improperly performed.
Misfeasance includes irresponsibility in performing tasks or failing to act with diligence that is due and appropriate for the situation.
Misfeasance is accidental rather than intentional, but still blameworthy as falling short of fulfilling an official responsibility.
Nonfeasance is the omission of an act that should be done; it is the neglect or refusal to perform an act that is a legal duty to perform. Nonfeasance is the failure to act according to one’s responsibility; it is when operational procedures of an organization are circumvented for a direct or an implied assurance of personal profit.
An example of nonfeasance: an administrator willing to hide transgressions – his own or others’ – for fear of retaliation and/or public outcry.
So now readers are armed with defined parameters for their future discussion of perceived liability of public officials in the development of what is alleged to have happened within the financial world of economic development in this community – and we are confident you will use them appropriately.
County Supervisors change November meeting date – stay mum on Closed Session EDA litigation discussion
The only open session action taking by the Warren County Board of Supervisors at a Special Meeting of Tuesday, October 26, was authorization to change the date of a November Supervisors meeting from the 16th to the 18th. That item was a late addition to the agenda made and acted on prior to a scheduled closed session.
The bulk of the 5 p.m. meeting, about an hour-and-a-quarter, was taken up by a Closed/Executive Session to discuss Economic Development Authority litigation. As Royal Examiner readers know, that is an oft-behind closed doors topic over the last two-plus years in the wake of the $26-million to $62 million FR-WC EDA financial scandal that began unravelling in mid-2018. No announcement or action regarding that litigation was offered during the brief open session to adjournment shortly after 6:20 p.m.
As has been previously reported, the EDA financial scandal involves civil and criminal cases, the latter now handled at the federal level by the U.S. Attorney’s Office in the Western District of Virginia headquartered in Harrisonburg. Before criminal indictments were dropped by the Special Prosecutor at the state level due to speedy trial concerns surrounding the mountain of documented evidence, estimated at over a million pages, there were as many as 23 co-defendants alleged as co-conspirators of former EDA Executive Director Jennifer McDonald. The federal prosecutor launched action on August 31, filing a 34-count indictment against McDonald, including 16 counts of money laundering, 10 for bank fraud, 7 for wire fraud, and 1 count of aggravated identity theft regarding someone identified as “T.T.” (ITFederal principal Truc Tran perhaps?)
In related civil litigation, McDonald and the EDA reached an agreement in which $9-million-dollars of assets were ruled out of McDonald’s bankruptcy court filing as owed to the EDA, though without any admission of fault by McDonald. As part of that agreement the EDA recently announced assumption of ownership of McDonald Real Estate LLC MoveOn8’s undeveloped 41-acre Happy Creek parcel valued at over a million dollars.
The EDA and Town of Front Royal are also engaged in dueling civil countersuits initiated by the Town, claiming disputed lost assets related to the financial scandal. During the tenure of Interim Town Manager Matt Tederick, other than then-Mayor Eugene Tewalt, the town council chose to ignore EDA offers to sit down in a non-litigious, good faith effort to determine exactly what was owed to the Town related to the alleged misdirected EDA assets involved in Town and County capital improvement and economic development projects financed through the EDA. The Town has since initiated an effort to create its own unilateral Front Royal EDA (FREDA) operating independently of the over half-century-old Town-County EDA, which technically the Town is still a legal, if now silent, partner in.
That independent EDA effort has become a political hot potato in the coming Town Special Election to fill resigned member Jacob Meza’s seat. In recent years the County had fully funded EDA operational costs, with each municipality covering its own debt service related to EDA financing of projects. Independent conservative council candidate Bruce Rappaport has made the unilateral Front Royal EDA a major target of his campaign, citing it as a waste of town taxpayer money and destructive wrench in the cog of Town-County relations.
‘Ghosts of EDA Loans Past’ come back to haunt county supervisors
The most interesting part of Tuesday evening’s Warren County Board of Supervisors meeting was likely behind closed doors after the board adjourned to Closed/Executive Session for a legal-based answer to North River Supervisor Delores Oates question as to what benefit to the County and its taxpayers there was in approval of a Resolution admitting a “moral obligation” to continue to pay the debt service on bank loans made by the EDA during its developing financial scandal, circa 2016 or so. There was one of three loans at issue of particular interest – the $10-million-dollar loan to Truc “Curt” Tran’s ITFederal company poised to jumpstart commercial redevelopment at the 149-acre portion of the former Avtex Superfund site known as the Royal Phoenix Business Park.
Of particular interest, because the “moral obligation” for that loan was initially believed covered by the Town of Front Royal, whose elected officials agreed to provide a $10-million-dollar “bridge loan” requested by then EDA Executive Director Jennifer McDonald to indicate to First Bank and Trust that “the community” stood behind the loan and proposed project it supported. That request for and Town show of financial support for the ITFed project came despite the fact the company showed virtually no assets other than the three acres at the Royal Phoenix/Avtex site valued at slightly over $2-million-dollars that was “gifted” to the company by the EDA behind closed doors for one dollar.
A clue to what the county supervisors heard over about 15 minutes in Closed Session may have been offered by the board’s action out of it. After some hesitancy in response to the Chair’s call for a motion on the Resolution, Oates’ motion for approval of the “EDA First Bank and Trust Support Agreement”, seconded by Walt Mabe, passed by a unanimous roll call vote. The vote commits the County to continue to absorb those “moral obligation” payments through the Fiscal Year 2021-22 at an estimated cost of $214,000.
In open session, responding to questions about the Resolution in support of the “EDA First Bank and Trust Support Agreement”, County Administrator Ed Daley mentioned consolidation of three loans, including the above-mentioned ITFederal loan (at $9,551,500), as well as a First Bank and Trust Line of Credit ($8,691,600), and a First Bank of Strasburg loan ($3,450,000). Contacted later, Daley cited one condition that would bring the EDA’s payments to the bank on the ITFederal loan in line with what ITFederal pays the EDA monthly at about $42,000. Before the EDA payments fluctuated to more or less than the ITFed payments, sometimes as much as $7,000 a month more.
Despite the commitment to an estimated $214,000 in payments through this fiscal year, the board’s unanimous vote in support of its moral obligation payments likely reflects negative consequences were the County to bail on covering an EDA debt mid-fiscal year. But again, the agreement is only to the end of the current fiscal year, June 30, 2022. What might the future of “moral obligations” related to the “Ghost of EDA Loans Past” bring in FY-2022-23? – Stay tuned for another seasonal episode of “A Front Royal-Warren County EDA Carol”.
Thermal Shelter bathrooms
County Administrator Daley was also prominent in responding to another matter raised by three speakers during Public Comments about things, not on the meeting agenda. That was the elimination of two bathrooms in the Health and Human Services Complex at the old 15th Street middle school utilized by the County and involved churches and civic organizations to house the community’s homeless indoors at night during the winter. Opening that discussion was First Baptist Church Pastor Christy McMillin-Goodwin, followed by Aneita Bryant and Jim Bunce.
That trio said an alternate plan for mobile outdoor restrooms was unadvisable due to security and additional personnel to monitor out-of-building night trips, as well as potential severe weather issues. Noting a replacement plan that would not have new indoor facilities in place in time for this winter’s thermal shelter setup, these speakers wondered how the removal plan had been initiated without notice to those involved in helping the County operate the thermal shelter. Bryant suggested allowing access to the next closest indoor facilities.
In responding, Daley said he had been at point for the County in initiating the bathroom removal due to failing pipes that caused toilet backup issues. He said he had envisioned a much quicker turnaround in replacing the removed indoor facilities in that section of the building than ended up being the case. He promised to work proactively with those involved to see that an adequate alternate overnight option was available when the thermal shelter opens as winter arrives.
Also Tuesday following public hearings, the board unanimously approved three Conditional Use Permit applications, two for short-term tourist rentals and one for a private use campground. Following application summaries by Planning Department Deputy Director Matt Wendling the first two CUP applications, Charles and Lou Ann Dotson’s for the Private Use Campground on their property on Burma Road in the Man-Da-Lay Subdivision; and Jacob W. Lott Jr. and Sandra J. Kiepfer for a short-term tourist rental on their 1.6-acre lot on Little Indian Road in the Blue Mountain Subdivision in Linden went to a vote with no public hearing speakers. Wendling did note that a letter from the chairman of the Blue Mountain Property Owners Association had been received, expressing “no problem” with Lott and Kiepfer’s short-term tourist rental application.
Up last were Nicole and Sean McMinn with a short-term tourist rental permit application for their 2.42-acre property on Sagar Drive in the Highland Estates Subdivision in the Fork District. Again, there were no public speakers after the applicants responded to the board chair’s offer to summarize their request. The D.C.-based couple told the board they had run into little opposition from neighbors, and what opposition there had been from neighbors was not from those closest, but with property over a thousand feet from theirs.
And while there were no public speakers, the McMinns noted a number of letters to the board from supporters of their short-term tourist rental CUP application, which they asked to be read into the meeting record. Board Clerk Emily Ciarrocchi then read nine letters of support, including one with “25 to 30” signatures. Several of the letters, including one from the owner of the Downriver Canoe Company, noted positive impacts on tourism-related businesses from short-term renters. One letter noted, “They come; they spend; they leave”.
The board then made its final unanimous vote of approval on a motion by Archie Fox in whose district the applicant’s property lies, seconded by Walt Mabe.
Following that vote, Happy Creek Supervisor Tony Carter noted a “Bless you” included in one of the letters read by the clerk that was well-timed to a sneeze by someone present in the government center meeting room.
In fact, facing a future out of the public eye politically – Carter did not file to be on the ballot for reelection to his Happy Creek seat in November – Carter appeared at times Tuesday to be auditioning for Comedy Club spots during his member report and at various other times during the meeting. In fact, his coming local election, Halloween costume advice during his member report led three of his four colleagues to decline to try and “follow that act”.
See all the fun, business, and other public perspectives, including opening Public Comments speaker Michael Williams question as to whether a recent church-sponsored candidates forum in which the moderator was shown prior to the forum to have contributed to one church-associated candidate’s campaign could threaten that church’s tax-exempt status on U.S. Constitutional separation of church and state guidelines, in the County video:
EDA gets McDonald company property as part of settlement agreement
On Wednesday, October 20, Warren County Economic Development Authority Board of Directors Chairman Jeff Browne verified the EDA’s acquisition of the 41-acre “Happy Creek Road” parcel owned by former EDA Executive Director Jennifer McDonald’s Moveon8 real estate LLC. Acquisition of the undeveloped property assessed at just over a million dollars according to county court records is part of the $9-million-dollar no-fault settlement agreement reached between the EDA, McDonald, and the Harrisonburg Bankruptcy Court handling McDonald’s 2020 bankruptcy filing. The EDA will now be able to market the property as a developable EDA asset. It is located near the intersection of Happy Creek Road and Leach Run Parkway.
Browne said that in addition to receiving full value on the Happy Creek parcel, the EDA was in line to receive a percentage of the sale price of other McDonald assets distributed through the bankruptcy court proceeding. Exactly how close those percentages might get the EDA to the $9-million-dollar settlement figure remains to be seen. It was not immediately clear as to whether the EDA will have an outright full value claim to any other McDonald-held properties or assets.
McDonald is the central figure in the EDA financial scandal that began unravelling in mid-to-late 2018. She resigned in December 2018 under mounting pressure from her board of directors. She has been accused in civil and criminal court of utilizing her EDA position to misdirect EDA assets to her and others personal benefit. Western District of Virginia federal authorities have taken over the criminal side of the EDA case after a state special prosecutor’s office in Harrisonburg dropped criminal charges against McDonald and as many as 23 co-defendants due to speedy trial concerns as it wrestled with the volume of evidentiary material – estimated at 800,000 to over a million pages at the time. With charges against some defendants originating with the county commonwealth attorney’s office that initially handled the criminal investigation during Brian Madden’s tenure heading the department, failure to meet speedy trial timelines could have led to defense motions for dismissal of criminal charges against the defendants.
On August 31, 2021, federal prosecutors made their initial move, handing down a 34-count indictment against McDonald. Of those 34 counts, 16 were for money laundering, 10 for bank fraud, 7 for wire fraud, and 1 count of aggravated identity theft regarding someone identified as “T.T.” – ITFederal principal Truc Tran perhaps?
EDA completes audits for 2018 and 2019; 2020 audit is next
The Board of Directors of the Front Royal and Warren County Economic Development Authority accepted its audited financial statements for fiscal years 2018 and 2019, today, October 5, 2021. The audit of the financial statements was conducted by the firm of Brown Edwards, CPAs of Harrisonburg, VA.
“We have received the final outside audits conducted for 2018 and 2019,” said EDA Board Chairman Jeff Browne. “This was a huge effort on the part of Brown Edwards, and they have done very good work in challenging circumstances. Getting these two financial audits completed is a major step forward in putting the EDA’s past difficulties behind us. Now we can better focus on economic development issues to benefit the community.”
“The auditors’ letter points to three areas for improvement of internal controls,” Browne said. “It was important to make each improvement recommended by the CPAs, and we have done just that. The Warren County staff now administer the check-writing duties, collection of rents, and have layers of approvals for expenses within EDA and the County administration that were not there three years ago.”
The audited financial statements show that, at the end of the fiscal year 2019, the EDA’s total net assets were $38,036,737, and its net liabilities were $44,575,435, resulting in a deficit net position of $6,538,698. The EDA will work with Warren County’s auditors starting with the fiscal year 2020, which audit can now be undertaken.
The EDA Board of Directors will have their next regular monthly board meeting via Zoom on Friday, October 29, 2021, at 9 a.m.
EDA reminds rental tenants, Small Business Loan Program clients to now send payments to WCGC
Starting October 1, 2021, the Warren County Finance Department will take over and manage payments made to the EDA for rents and the Small Business Loan Program (RBEL and IRP). The EDA will no longer be accepting payments at their office or office address.
Please continue to make your check or money order to the EDA. You must hand-carry or send your payments to:
Warren County Government
ATTN: Finance Department
220 N. Commerce Ave.
Front Royal, VA 22630
Any payments sent to the EDA will be returned. As a result, you may incur fees for late payment. We appreciate your cooperation. Thank you for your attention to this matter.
EDA briefed on structural and legal options in closed session; gets open session updates on committee work during transition phases
The EDA Board of Directors met Friday, September 24, for their regular monthly meeting. The Board went into closed session for approximately 90 minutes to discuss transition, personnel, 2018- 2019 draft audits, loan restructuring, and disposition of property. The Board returned to open session at approximately 10:20 a.m. Jeff Browne, EDA Chair, opened the session with an overview of the transition. Browne asked each board member to report on their assigned transition project.
Search Committee-Transition: Dr. Tom Patteson, reported the committee met and reviewed applications. Three applications were submitted to the county administrator. The county and EDA will work together in selecting replacements for the Administrative Assistant and Executive Director.
Finance Committee-Transition: Jim Wolfe reported the “numbers” on the 2108 and 2019 audits are final. Jim Wolfe stated the management letter will be revised and recommended a special meeting for next week to finalize and accept the audits for 2018 and 2019. The Board agreed and the date of the meeting will be announced. Mr. Wolfe will also be meeting with the finance personnel at the county in the next several weeks.
Marketing Committee-Transition: Scott Jenkins, Chair reported the 38-page PowerPoint presentation is complete. The marketing material can be tailored to specific clients. The marketing is targeted on the Core Industries: Advance Manufacturing, Transportation and Logistics, Information Technologies, and Food Processing. Scott reviewed documents and key data. The marketing material is organized and stored on the EDA network. The September Marketing Committee report included other updates and visions including Small Business opportunities, focus on the Strategic Plan, and marketing opportunities with VEDP, Site Selector Guild, and Trade shows in 2022.
Administration Committee-Transition: Jorie Martin reported Gretchen Henderson prepared an Operation Manual for future reference. The manual is detailed in all the operations of the office including resources to use. The new administrative assistant as well as the EDA Board are well prepared to transition smoothly. Mrs. Martin reported The EDA now has the capability to update portions of the website in-house. This week a meeting section was added so the public can go to the site and see upcoming meetings.
Asset Committee: Greg Harold reported the transition and updates on the assets of the EDA were complete. Doug Parsons worked closely to make sure all projects are up to date.
Greg Harold presented the Project Management – Stage-Gate: The Stage-Gate is a comprehensive document standardizing the process for disposition of property. The document will be reviewed and discussed at length at the October board meeting.
Motions coming out of Closed Session: The Board approved the technical revisions to the EDA By-Laws adopted at the August meeting. The Board approved the Board Chair, and Secretary to sign documents for the restructuring of the EDA debt with First Bank and Trust. All documents will be reviewed by legal counsel.
Other items that the Board of Directors addressed included an expression of gratitude for all the work done by Executive Director, Doug Parsons. Jeff Browne expressed and the boards’ appreciation for all the hard work and effort to bring the EDA where it is today. Through Doug’s efforts, the EDA has sold property, expanded business, and brought new business to the town and county.
The next monthly EDA Board Meeting is scheduled for October 22, 2021.