A recent Herald Editorial was written in regards to myself, Mayor Brunst, with the use of an investigative letter written by Kristin VanOrman to the city of Orem.
This report contains results of her investigation and a legal analysis of the issues involved.
“Because of its flaws, both factually and legally, it is unfair to the Mayor not to clarify its inaccuracie,” writes Peter Stirba of Stirba Law. I retained his law firm to do a review of VanOrman’s letter written to the city council.
VanOrman in her report states: “Considering the undisputed facts in this matter, Mayor Brunst made clear violations of the Utah Criminal Code and that there is enough evidence to charge Mayor Brunst with forgery and malfeasance from which appropriate discipline should follow.”
“Ms VanOrman’s investigative report is filled with contradictions and does not establish the sufficient evidentiary basis she claims supports her legal conclusion,” states Stirba in his review. “In order to establish the crime of forgery, there must be an alteration of writing with the purpose to defraud. There is no evidence from the factual record Ms. VanOrman can point to that would establish a “purpose to defraud,” which is statutorily required for the crime of forgery. The withdrawals were of Mayor Brunst’s own money, he filled out forms innocently out of convenience.
True, dates were altered but those alterations did not result in any fraud. The Mayor withdrew his own retirement money, which he was entitled to do. While there may have been a misunderstanding, there is no financial loss or improper control over someone else’s money.
“Forgery is a legal term, conclusory and defined by statute. The mere fact of amending dates on an informational form is not a forgery. Absent the statutory elements, including “purpose to defraud”, amending dates on a form is just that, amending dates on a form.”
While I withdrew more than two disbursements per year, there is no direct evidence that shows that I was on notice regarding any city limitations. In her report, Van Orman states that city management put forth that it was known throughout the city that an employee could only make two withdrawals per year. Interestingly, I brought up to her that two other council members were also unaware of the city limitation. She failed to interview them or report their comments. And in fact, the IRS carries no such annual limitation on 401K withdrawals.
“Ms. VanOrman then claims that there is enough evidence to support a charge for malfeasance in office,” Stirba states. He goes on to say, “Since she concedes that he was acting in his private capacity, contending there is enough evidence to charge malfeasance makes absolutely no sense. Malfeasance requires action by a public official concerning his or her official duties, and cannot be predicated on private conduct.”
Ms VanOrman’s report lacks legal objectivity. Much of her report does not contain valid or supported legal conclusions, She also puts forth many of her own personal opinions which should not be a part of a legal analysis report.
In her report she states that I went back to the HR office requesting to fill out new forms that were to be backdated. In fact I requested to send in new amended forms with the current date on them to be attached to and not in place of the original forms. The IRS, Utah Retirement Systems and many retirement service firms allow for such corrected and amended forms to be sent to them. I never requested to send in forms that were backdated.
The Utah County Attorney’s office looked at the matter and said, “After careful review of the evidence provided in this matter, we are respectfully declining prosecution of this case. The alteration of the dates by Mayor Brunst on the disbursement documents on several occasions is clearly an alteration of the writing of another without their authority. ... There is no direct evidence to ... show fraudulent intent. There is a reasonable, innocent explanation that the changes were made simply for convenience. ... There is not sufficient evidence to show any intent to commit a crime either personally or in his capacity as mayor beyond a reasonable doubt.”
Lastly I would like to say I believe that if you make a mistake that you should admit it and take responsibility for it. You should apologize to those affected by it and try to correct it if possible. I made a mistake in this matter to which I admit and for which I have apologized for and for which I am truly sorry.