Nicollet County Health and Human Services Building

Nicollet County Health and Human Services Building.

Attorneys Tracy Bains and Michael Riley won their cases, but they’re still not happy.

The two, who represented former Nicollet County employees Maria Alvarez-Bektar and Dawn Michels in years-long cases of alleged welfare fraud dismissed July 23 for lack of probable cause, say the judge’s ruling won’t change their clients’ struggles, the loss of their careers and the discrimination they faced after being wrongfully accused.

“These false allegations irreparably destroyed two persons’ lives and long careers,” said Bains, who represented Alvarez-Bektar. “False allegations and charges can and do happen to innocent people. Two long-time dedicated public servants suffered needlessly for years and had their lives ripped apart, their names publicly smeared, simply because those entrusted to do their jobs … failed to take the time and effort to understand the details of their own written policies and the administration of those policies. Or they understood it and were too lazy or arrogant to address their mistakes and incompetence.”

The prosecuting attorney in the case, Blue Earth County Assistant Attorney Michael Hanson said of the dismissal, “It’s not the outcome we were hoping for, but we certainly respect the judge’s decision.”

The initial evidence warranted probable cause, says Hanson, noting that it wasn’t until later evidence came out that the judge found reason to dismiss the case.

“I think there was evidence to support probable cause to move forward with (the case),” Hanson said. “The judge agreed with that after the first motion to dismiss (made in 2018). It wasn’t until more evidence was produced that he changed his mind, so I think it was appropriate (for the prosecution) to move forward.”

The case

Alvarez-Bektar, a former eligibility worker in Nicollet County, and Michels, her former supervisor, were charged June 19, 2018 with two felonies: wrongfully obtaining assistance and permitting false claims against the government by a public official.

According to court records, Alvarez-Betkar received $1,500 in emergency county assistance in July 2017 to cover a $1,082 utility bill. The money was paid to the utility company that same month. Part of the emergency assistance need was related to a child in the household.

The investigator and prosecution claimed Alvarez-Betkar was not eligible for the assistance, as her household took in more than 200% of the federal poverty level. The prosecution also claimed that Alvarez-Bektar provided “inaccurate, incomplete and misleading information” in her assistance request.

The assistance was approved by Michels, who issued a supervisor override needed to authorize an amount beyond the stated need. Michels was charged based on a failure to verify the application and information, and issuing an override while knowing the application was inaccurate.

In court, Alvarez-Bektar and Michels’ attorneys poked holes in the prosecution’s claims.

First, Alvarez-Bektar admitted on her emergency assistance application that she made too much money to meet the 200% federal poverty guideline. The prosecution had also indicated that Alvarez-Bektar misrepresented her family by only identifying her husband and child, because her parents also lived in the home, and her sister’s family lived in the basement. But Maria-Bektar noted on the application that her parents lived there, too, and she noted that her sister paid her rent.

The defense also pointed to Nicollet County’s policy regarding emergency assistance which clearly gives supervisors authority to override certain guidelines when clients don’t meet the criteria but great need is still shown.

According to the policy, “County discretion is available to override exceptions to eligibility based on availability of funding and approval of the financial assistance supervisor.”

In questioning the two primary witnesses in the case — the Nicollet County employee who filed the fraud report against Alvarez-Bektar and the investigator — the defense found contradictions.

The employee indicated that they used information they knew about Alvarez-Bektar from conversations between the two to infer that Alvarez-Bektar had put inaccurate information on the application; however, that person admitted they never spoke to Alvarez-Bektar about their suspicions before filing the fraud report. The employee also admitted that they had also used the supervisor override ability to approve different clients in the past, though they hadn’t done so for many years.

The investigator, who worked for Blue Earth County, testified that the information they compiled indicated Alvarez-Bektar did not meet eligibility requirements. But according to the defense, “(the investigator) apparently did not fully appreciate the fact that Nicollet County’s emergency assistance policy allowed for (a supervisor) override.”

Finally, the defense showed evidence of previous Nicollet County Human Services cases, which demonstrated a precedent of using the supervisor override when appropriate. There were 18 cases shared where an applicant who didn’t meet the 200% or lower federal poverty threshold were still approved. And in 125 of the 281 emergency assistance cases reviewed, the client received an amount greater than what was initially requested, similar to Alvarez-Bektar’s case.

In Judge Todd Wesphal’s 2018 decision to reject the dismissal, he noted the state provided a “paltry amount” of evidence to suggest probable cause. But since the case was allowed to continue, both sides had more time to gather evidence, and a second motion to dismiss was filed by the defense in 2019. Following a series of hearings and briefs , the order for dismissal came July 23, more than three years after the case was filed in June 2018.

Concerns in process

Both defense attorneys say they’re disturbed with how the investigation and prosecution were handled. Riley, who spent 30 years in the Nicollet County Attorney’s Office — 18 as county attorney — noted that the dismissal indicates the case had no merit.

“It’s one thing for you to defend somebody and have them found ‘Not guilty,’” Riley said. “It’s a totally different situation where you get a dismissal for lack of probable cause, because that says the person should not be put through a trial like this, because there was nothing there.”

Bains calls the whole thing “rotten to the core.”

She noted, and Riley agreed, that there was an apparent dislike for Michels by some Nicollet County staff, and an effort to oust her.

Michels was disciplined in 2016, confirmed by the county board in 2017, for resisting an expanded fraud investigator program. The program began in 2014, but she and former Social Services Director Joan Tesdahl were uncooperative and pushed back against the changes, former County Administrator Ryan Krosch reported to commissioners in January 2017. The two department leaders were given verbal and written warnings.

In supporting documents, Riley filed two letters, from September 2017 and August 2018. The first said Nicollet County had failed to investigate whistleblower claims and retaliated against Michels and Tesdahl.

“The more I have reviewed the actions by the Personnel Department and Human Services Department with respect to Ms. Michels’ situation, the more it becomes apparent that it has been others rather than Ms. Michels who has violated the law with respect to (public records laws) and perhaps criminal defamation,” Riley wrote at the time.

Westphal, in his order to dismiss, made note of these claims from the defense, “including the claim that the charges are the product of a former Nicollet County administrator’s ‘plan’ to oust defendant, and a claim that discovery violations by this individual, and others affiliated with Nicollet County, constitute egregious conduct by the county and give rise to a violation of due process rights.” The judge noted that given the court’s decision to dismiss, it is not necessary to determine whether those claims had merit.

Riley also expressed concern about the difficulty the defense had in obtaining requested evidence from Nicollet County. In December 2019, the judge issued an order ensuring the defense had access to government communication related to the case.

“(The cases) took so long, because of the state’s aggressive prosecution and resisting our requests for information,” Riley said.

In an interview with the Herald, prosecutor Hanson stated he still believes there are questions to be asked about the actions of the defendants. Asked if he felt the information provided to him by the investigator and by the county was lacking or inaccurate, he would not comment.

“Sometimes there are cases where you charge with the information you initially have, and then additional information impacts the case,” Hanson said. “This was one of those cases.”

Painful circumstances

The truth as to why these cases were ever charged may never be fully revealed, but the impact on the defendants is clear. The defense attorneys say both Alvarez-Bektar and Michels, who chose not to comment for this story, have struggled to find work since being charged. And that won’t necessarily change, even with the dismissal.

“She’s sitting there with felony charges over her head for over three years. Can you imagine what that did to her ability to work or just live? It was terrible,” Riley said of his client, Dawn Michels. “There are further complications. I think there are some people that will still think she’s a lesser person, because she was charged. She’s been discriminated against in the community, at large — even after she was exonerated fully.”

Bains expressed similar sentiments for her client.

“It was basically three years of hell for Ms. Alvarez-Bektar and Ms. Michels, along with the lawyers,” she said. “I think the complications from this will impact (Alvarez-Bektar) for years to come, and that is because she was wrongfully charged with felony-level offenses, and that never goes away when you do a search.”

While those who submitted the original fraud report, investigated it and prosecuted it all say they were doing their jobs, Bains isn’t buying it.

“I would go as far as to say they damn well shouldn’t have been charged, and if anyone had done their job, you and I would not be having this conversation,” she said.

Reach Editor Philip Weyhe at 507-931-8579 or follow him on Twitter @EditorPhilipWeyhe. ©Copyright 2021 APG Media of Southern Minnesota. All rights reserved.

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