D.A. says Routt County commissioners did no wrong in setting up PayPal account

Tom Ross

— District Attorney Brett Barkey has formally rejected a criminal complaint filed against the Routt County Board of Commissioners by County Treasurer Brita Horn over what she alleged to be the illegal creation by the commissioners of a PayPal account intended to allow members of the public to pay building permit fees online.

“Reviewing the law and the facts, I conclude there is no criminal violation of law,” Barkey wrote in a Dec. 17 finding sent to Sheriff Garrett Wiggins. “In my opinion, the use of PayPal or any other vendor contracted by the county to gather receipts before they are forwarded to the treasurer is not practically different from cash receipts being accepted by the clerk and recorder and then walked down to the treasurer’s office.

“The fact that a person or entity other than a member of the treasurer’s office takes first control of the fund on behalf of the county, but then ultimately forwards them to the treasurer is, I believe, the common practice in our counties and complies with the requirements,” Barkey stated.

County Commissioners Cari Hermacinski, Doug Monger and Tim Corrigan termed Horn’s allegations “false, spurious and illegitimate” in a letter to the newspaper on Dec. 20. They believe they were falsely accused of committing wire fraud when they created the PayPal account to facilitate online payment of building permit fees for the convenience of their constituents.

“She’s accusing us of wire fraud. It’s not just criminal conduct, but criminal intent,” Hermacinski said Monday. “Brita believes she is the only one that can be looking at the county accounts, including the accounting department, including $20 million of public money we watch. Right now, there is only one person who can see the county’s accounts, and it isn’t a county commissioner.”

Horn was attending a relative’s memorial service on Monday and attempts to reach her for comment were unsuccessful.

Undersheriff Ray Birch said late Monday afternoon, after reviewing the matter with County Attorney Erick Knaus, that he expected to be able to release Horn’s original complaint by Tuesday afternoon.

Hermacinski said the commissioners directed Horn to sweep the funds from the PayPal merchant account to a Wells Fargo account, which was already set up. When she refused, the commissioners, in writing, instructed her to do it, and she again refused.

At that point, on Nov. 13, the county designated an employee to perform that function. However, County Manager Tom Sullivan said Horn blocked the account she had created for that purpose, and as a result, the funds sent to the bank bounced back to PayPal.

The inference, the commissioners concluded, is that the funds are vulnerable while languishing in the PayPal account, but they pointed out it was never their intent for them to be in limbo there.

As of Monday, about $1,600 was in the account, without the benefit of a FDIC-insured, interest-paying bank account, Sullivan confirmed.

According to Sullivan, Yampa Valley Regional Airport Manager Kevin Booth worked with Horn to set up online payment systems at the airport, using Square for airport parking and a TSYS Merchant Solutions point-of-sale system for airport service. Those systems are in place for the busy winter resort season at the airport and are similar to the PayPal account for building department fees.

Barkey concluded in his “declination of charges” concerning the incident, that not only was there no criminal behavior on the part of the county commissioners but no criminal intent.

“Because the funds were ultimately to pass to the control of the treasurer, there appears to me to be no evidence whatsoever of criminal intent on anyone’s part,” he wrote. “For instance, there is no evidence that any party sought or received an undue personal gain, sought maliciously to cause harm to any person, or acted arbitrarily or capriciously.”

The District Attorney wrote that he reviewed statutes related to the power of boards of commissioners, including contracting authority and the duties of a county treasurer to inform his decision.

“Apparently, the treasurer objected to this (PayPal) procedure, alleged that it amounted to criminal conduct, and asked the Routt County Sheriff’s Office to investigate,” Barkey wrote

In their letter to the newspaper, the commissioners wrote, “As elected county officials, we are entrusted with maintaining civic, legal and ethical integrity in our system of government. It is our hope that this impartial investigation concluding the allegations are totally without merit will allay the inexplicable and unwarranted concerns of Horn and maintain the credibility of our board that is critical to a properly functioning county government.”

To reach Tom Ross, call 970-871-4205, email or follow him on Twitter @ThomasSRoss1

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