Charlottesville Mayor under fire for gift card giving
According to a local criminal defense attorney, Mayor Walker's gift card giving "looks like embezzlement."
By her own admission, Charlottesville Mayor Nikuyah Walker says she "paid" community members, who she says were speaking on important public issues, with $25 gift cards "for every hour that they spend and devote to helping us heal this community.”
However, despite her good intentions, she could be in some hot water.
According to a February 3 memo from Acting City Attorney Lisa Robertson, after an individual made a presentation to City Council in October 2020, a donation was given to "her" non-profit using an individual City Councilor's government-issued credit card. Robertson was also contacted, we know not by whom, and asked if it was lawful for an individual City Councilor to purchase gifts cards, effectively using tax-payer funds, with their government-issued credit cards to be distributed to individuals who participated in group meetings convened by an individual City Councilor, and/or to direct staff to compensate a local attorney who participated in that group meeting because they did not want a gift card. Robertson then explained that all these purchases presented a "potential civil or criminal liability for individual counselors."
While Robertson's memo was addressed to all City Councilors, effectively giving them a heads up that her office was reviewing possible unauthorized purchases by City Council members, Mayor Walker posted the memo on her Facebook page and admitted to purchasing gift cards for individuals with her government-issued credit card, basically attempting to defend her actions in the court of public opinion, though she is not named specially in the memo and Robertson has not said if she has referred the case to the City Prosecutor, Joe Platania, or not.
However, according to Walker, "they," assuming she means the City Prosecutor's office, has been "investigating her for two months," although it's unclear if that means Platania's office has notified her about being a possible target of an investigation. Typically, a prosecutor will inform a person, or a person's attorney, if they are a target of an investigation, unless doing so would compromise the investigation. However, as Platania Told NBC29 in a statement, his office does not publicly confirm or deny the existence of criminal investigations.
"Based on what's been reported, there can’t be a “petty cash” city fund for an individual Councilor to give citizens gifts that are not appropriated by a City Council vote and administered by City staff," says David Heilberg, a long-time criminal defense attorney in Charlottesville. "Absent such an ordinance, this looks like an embezzlement."
Indeed, another recent embezzlement case involving a city employee shows just how little it takes to run afoul of the law. After former Charlottesville Clerk of Council Page Rice left her job she neglected to return an Apple Watch and iPhone X [total value $766} that had been purchased while she was employed. Rice was eventually charged with felony embezzlement, despite having been in communication with city staff about returning the devices, and ended up pleading guilty to a lesser charge of misdemeanor embezzlement. Her plea was accepted and Rice was given a six-month suspended sentence, two years probation, and had to perform 200 hours of community service.
"Embezzlements are measured in six months increments, but punished like larceny," explains Heilberg. "If more than $1000 worth of gift cards were individually distributed within six months, this is technically a felony. Even a single $25 gift made this way is a misdemeanor."
Giving away gifts paid for personally might be something that could be reimbursed, Heilberg explains, but even that would need to be approved after the fact from a fund authorized for this purpose.
"Simply paying with funds available by reason of someone’s public servant position likely is embezzlement," he says.
Ironically, former City Manager Tarron Richardson once proposed a change in the city's credit card and employee expenditure policies "designed to increase accountability and plug holes in the existing system that could allow misuse to slip through," reported the Daily Progress.
Richardson said at the time that his new policies would have prevented Charlottesville Clerk of Council Rice from buying an Apple Watch and iPhone X with city funds without anyone’s knowledge.
According to the DP, Richardson said the city's current policy didn't have enough "accountability measures or consequences" and that it was also vague in the examples of misuse.
“It’s of paramount importance [to accountability]. It holds folks accountable for the use of taxpayer dollars,” he said of his proposed policy changes. “There were so many different levels of checks and balances that it’s hard to do it. You wouldn’t be able to do it.”
Unfortunately, perhaps for Mayor Walker as well, Richardson never got the chance to implement those policy changes.
What's unusual here, of course, is that Mayor Walker is saying publicly that she is the target of an investigation [indeed, the reporting on this story has relied mainly on her own statements]. Or, rather, as Walker has framed it, the "victim" of an investigation:
“Instead of expressing their concerns to me, the acting city attorney went to the prosecutor,” Walker said in a Facebook post. “The most problematic part of this ordeal is that staff has stated several times that they were attempting to be helpful and all of my colleagues have stated that they believed that staff was attempting to be helpful. White people, please don’t try to help me in the future. Please don’t! And what is the solution to ensure that when people help us solve issues in the community that we’re able to give them stipends for their time.”
How might Mayor Walker speaking publicly about being the target of an investigation, when Platania has said his office does not publicly confirm or deny the existence of criminal investigations, affect a possible investigation?
"Many defense attorneys, like me, don’t want clients to say anything to anybody," says Heilberg. "Prosecutors have an ethical obligation to not seek publicity that could sway juries. Mayor Walker doesn’t have this obligation and, presumably, has counsel to advise her."
One approach Walker could have taken, says Heiberg, would have been to pay back what was appropriated without admitting criminal liability.
"It’s easier to believe that an honest mistake was made if she reimburses the fund that paid for the gift cards," he says. "Refunding to the city with assistance of counsel is not an admission of criminal liability or wrongdoing if you claim ignorance although, of course, not knowing the law alone is no excuse."
It will depend on how close a relationship Commonwealth Attorney Joe Platania has with Mayor Walker and the City government, but Heilberg thinks Platania's office would probably ask for a special prosecutor from a nearby locality if charges are pursued.
"While something like this would almost never be an issue in someplace like New York City," he says, " we are still small enough where the players are more than just acquainted with each other."