*** MEDIA ADVISORY ***March 9, 2006                                                               FOR IMMEDIATE RELEASEMEDIA CONTACT:  Curtis T. Hill, Jr. 296-1888NOTICE             Please find below a letter from Elkhart County Prosecutor Curtis T. Hill Jr., to the Honorable David L. Miller regarding  Raymond Balogh and the City’s investigation into Balogh’s conduct.*****    March 9, 2006   The Hon. David L. MillerMayor, City of ElkhartMunicipal Building229 S. Second StreetElkhart, Indiana 46516             RE:      Ray Balogh Investigation Matter Dear Dave:             On February 14, 2006, I received a letter from you along with case report number 06-0102 which same was an investigation conducted by Lieutenant Paul W. Converse of the Elkhart Police Department.  The subject matter of your letter and Lt. Converse’s investigation was Raymond Balogh, and your letter was a request that my office review the investigative materials submitted for “whatever level of review [I] deem appropriate.”  As a courtesy to you, I have done so.             Any conclusions that I have made are based solely upon the investigative materials supplied to me by your office and are not reflective of any independent investigation authorized by my office in this matter.             Raymond Balogh served as Director of Emergency Support Services from January 2004 until December 2005.  Lt. Converse’s case report identifies eleven (11) administrative violations but does not recommend a criminal charge of theft.  Although Lt. Converse makes no recommendation specifically addressing any other possible charges, it appears from his investigation that he may have considered other additional charges as possibilities.  A further note from your letter of February 14, 2006 that along with Lt. Converse, Chief Westlake, and Public Safety Director Chipman have apparently opined that Mr. Balogh’s conduct “does not rise to the level of a criminal offense,” which suggests that the City of Elkhart and your administration are not issuing a criminal complaint to me citing specific allegations that you believe should be pursued.              As Director of Emergency Support Services, Balogh was authorized to perform an official function and was paid by a governmental entity.  Accordingly, Balogh was a public servant as defined by Indiana Code 35-41-1-24 (1).  Indiana Code 35-44-1-2 prohibits public servants from knowingly or intentionally performing acts that the public servant is forbidden by law to perform.              As identified by Lt. Converse, Balogh admits to the following actions in violation of City of Elkhart Policy: (1) Using the City car and City gas for personal use in both 2004 and 2005.  (2)  Allowing Emergency Support Services volunteers to use City gas for personal use.  (3)  Allowing Emergency Support Services volunteers to keep City cars at their private homes.  (4)  Maintaining a Petty Cash Fund that was used inappropriately and against the rules of the Indiana State Board of Accounts.  (5)  Selling City owned generators and City owned raincoats in violation of City Policy, and (6) Engaging in a personal relationship on City property after an Emergency Support Services event.               The other violations noted in Lt. Converse’s case report, while contradictory to the City of Elkhart Policy, do not appear to warrant any level of review for conduct prohibited by law.   Use of City car and City gas for personal use in both 2004 and 2005             As previously stated, Lt. Converse’s case report indicates Balogh’s admission to the improper use of City vehicle and City gas as violations of City Policy.  Theft requires proof of intent to permanently deprive as an essential element to the offense.  There are difficulties in establishing Balogh’s intentions with regard to permanent deprivation to the City of Elkhart for the value or use of the City car or City gas.  The primary difficulty is that Balogh has provided an accounting of his personal miles for 2004 and 2005.  Balogh reimbursed the City of Elkhart two-thousand one-hundred eighteen dollars and thirty-four cents ($2,118.34) for personal miles driven in 2005.  (Although the same was not paid to the Office of the City Controller until January 11, 2006 and apparently subsequent to these allegations being raised).  Balogh acknowledged still having to reimburse the City of Elkhart approximately six-hundred seventy-three dollars ($673.00) for personal miles driven in 2004.  As Balogh is accounting for these figures for himself, and as there is clearly an absence of measurable accountability over his activities, the accuracy of the figures cannot be determined.               Balogh acknowledges that as of Lt. Converse’s investigation he still owed the City of Elkhart five-hundred forty-six dollars ($546.38) for personal miles traveled in 2004.  Again, the accuracy of this balance is questionable and given the lack of administrative controls, impossible to disprove.  Balogh believes he is entitled to a three-hundred dollar ($300) credit, which represents an accumulation of alleged periodic payments of twenty dollars ($20) he claims to have made to the “Petty Cash Fund.”  Elkhart City Controller Steve Malone, appears to accept Balogh’s accounting by letter under date of January 11, 2006 which same is a part of the investigative materials.  Balogh admits that he actually owes approximately six-hundred seventy-three dollars ($673.00) because the previous calculation was made through November 10, 2004 and he had additional personal miles subsequent to that date.               It would appear that Balogh has reimbursed the City of Elkhart for personal miles traveled in 2005, and it further appears that he is being candid as to the balance owed in 2004.  If Balogh is in fact underestimating his figures, there is no information provided to me in the investigative materials that would be able to establish that fact. Allowing Emergency Support Services volunteers to use City gas for personal use and allowing Emergency Support Services volunteers to keep City cars at their private homes             Balogh explained that on a couple of occasions, he allowed volunteers to use City gas for their personal vehicles when those volunteers responded to emergency situations in their personal vehicles.  Balogh “estimated” that approximately twenty (20) gallons total were used in this fashion.  In a subsequent statement, Balogh remembers that he allowed three (3) individuals to gas up their vehicles with City gas: Bill Muncie, Sherry Lester, and Don Morrey.  Balogh explained that Muncie and Lester were great volunteers who used their personal vehicles often for City business, and that it was within his discretion to compensate them from time to time with gas.  Balogh states that he instructed these individuals to enter “zero” at the beginning odometer when fueling for personal uses.  A review of the invoices provided shows that the total expenditure to the City of Elkhart was approximately four-hundred dollars ($400).             Balogh also explains that he allowed Lester to take a City vehicle home during the time when she was working the Air Show.  Balogh explained that because Lester was purchasing the refreshments for the Air Show, he allowed her to take the City vehicle home for her convenience.  Similarly, Balogh admitted to a few other occasions where he allowed volunteers to take City vehicles home for convenience.               While the spirit of the law is to prohibit individuals from appropriating public resources for their personal gain, Balogh’s explanation is that these individuals were volunteers who provided the City with service.  The investigation presents no information to the contrary.  On balance, the gain given to the volunteers appears to be outweighed by the benefits provided to the City.  While Balogh may have exceeded his authority, it does not appear that he did so with intent for personal gain or any other requisite criminal intent pertaining to the volunteers. Selling City owned generators and City owned raincoats in violation of City Policy; maintaining a Petty Cash Fund that was used inappropriately and against the rules of the Indiana State Board of Accounts              Balogh admitted to purchasing twenty (20) raincoats, each costing forty dollars ($40), with City funding (specifically, the Department Clothing Budget).  Balogh admitted to selling two (2) or three (3) of those raincoats to members of Emergency Support Services, and four (4) raincoats to members of the Edwardsburg Fire Department.  Balogh stated he placed the money collected from the sale into the “Petty Cash Fund.”  Balogh provided a copy of a check number 1329, dated December 22, 2004 from the Edwardsburg Fire Department for one-hundred sixty dollars ($160) relating to the sale of those raincoats.  The check was made payable to “Raymond Balogh.”  However, the one-hundred sixty dollar ($160) amount does appear in the 2005 Petty Cash Log.  There does not appear to be any evidence in the investigative report provided to me relating to the sale of the two (2) or three (3) raincoats to members of the Emergency Support Services.               Balogh also admitted to selling three (3) generators in May 2004 that belonged to the City of Elkhart for two-hundred dollars ($200).  Again, Balogh claims that he deposited the money collected from the sale into the “Petty Cash Fund.”  According to the materials submitted to me for review, Steve Malone, City Controller has provided information that the normal procedure for this type of sale would first require the Board of Works to declare the generators as surplus property.  The property should have been sold at auction, and the money deposited in the General Fund.  Therefore, both the sale and disposition of the money was improper.  Balogh explained to Lt. Converse that the generators were “just scrap.”                The “Petty Cash Fund” is very problematic.  Balogh provided a two (2) page accounting of the “Petty Cash Fund” for the period January 3, 2005 through September 17, 2005.  Balogh claims a similar accounting for 2004 exists but was apparently unable to provide the same to Lt. Converse during his investigation.  The sale of three (3) City owned generators occurred in May 2004 and the proceeds were allegedly deposited to the “Petty Cash Fund” in 2004.  Balogh also admits to “borrowing” approximately twenty dollars ($20) from the “Petty Cash Fund” once, but that he claims to have signed an IOU and paid it by the next pay day.    Balogh stated that Al Machin, Director of Emergency Management at that time and Tony Johnson, Fire Chief at that time, told him that he was not to do that again and he claims that he never did thereafter.             There exists insufficient evidence to adequately address Balogh’s conduct with respect to the petty cash transactions.  While the paper trail on the petty cash account is suspiciously lacking, Balogh is able to account for at least the one hundred sixty dollar ($160) check issued by the Edwardsburg Fire Department made payable to him.  The lack of appropriate administrative controls in this regard make it quite impossible to accurately consider whether Balogh’s conduct relative to the “Petty Cash Fund” rises to the level of criminal offense.   Engaging in a personal relationship on City property after an Emergency Support Services event             Balogh admits to hugging and kissing a volunteer on City property after a department sponsored cookout.  While this conduct may or may not violate City Policy, there is insufficient evidence provided in the investigative materials provided to me to give any further consideration to Criminal Conduct of this admitted activity. Impersonation of a Police Officer             Balogh admits to at least four (4) instances where he activated the four (4) corner strobe lights of his vehicle.  Balogh claims that he saw a vehicle pull out of Taco Bell in Goshen and miss a driveway, “plunk[ing]” her car over a curb.  Balogh claims he activated the lights to keep traffic away while assisting the woman with her vehicle.  Balogh also admits to following drivers he suspected were drunk on “three (3) or four (4) occasions.”  Balogh describes two (2) other occasions where he followed drivers who appeared to be intoxicated.  Balogh also describes another occasion where he helped a motorist with a flat tire.              Indiana Code 35-44-2-3 requires the intent to mislead and induce another person to submit to false official authority or otherwise act to the other person’s detriment in reliance on the false representation.  Balogh states that he expressly told one (1) of the alleged drunk drivers that he was not a police officer, but couldn’t remember what he told the other alleged drunk driver.  There is insufficient evidence that any motorist either submitted or acted to his/her detriment in reliance on Balogh’s appearance of authority.  None of the motorists are named in the investigative materials supplied to me, therefore it would be impossible for me to render a decision on what they may have believed with regard to Balogh’s representations. Summary             While my review of Lt. Converse’s investigation into Raymond Balogh’s conduct will not result in the imposition in criminal charges against Raymond Balogh, I am unable to make that statement on the basis of Raymond Balogh engaging in no wrongful conduct.  To the contrary, the investigation does not provide sufficient information in which to make an accurate judgment regarding Mr. Balogh’s conduct in many regards and the primary reason is the lack of administrative controls over Mr. Balogh and/or the Emergency Management Department.  The investigation does in fact reveal a serious lack of financial accountability within the Emergency Management Department notwithstanding policies and procedures in place to prevent the same.  It is unclear from my review of this investigation whether the insufficient administrative control over City policy and procedures is isolated to the Emergency Management Department or is endemic within the rest of City Government.  I trust you will be addressing that issue.             As to the nature of the investigation itself, it is unclear from my review as to whether this matter was intended to be an internal investigation by the City Administration, a criminal investigation requested by the City Administration, or both.  As best I can tell, your administration requested the Elkhart Police Department to conduct an internal investigation for review by the City Attorney’s Office.  You apparently forwarded the case to me following your review.               While I have every confidence in the Elkhart Police Department’s ability to conduct a thorough criminal investigation, the integrity of an apparent criminal investigation is best served when not commingled with non-criminally related investigations as standards for review and accountability may not be consistent.   There will be no further action taken by my office in this matter.               Warm regards.               Very truly yours,    Curtis T. Hill, Jr.CTH/lepcc: Media