The Beaufort County Board of Education’s officers insist that the school district is not the target of an FBI investigation related to the construction of two Bluffton schools built during superintendent Jeff Moss’ tenure and using an architect Moss had worked with in two North Carolina districts, but experts on federal subpoenas and investigations say that while U.S. Attorney’s Offices do offer such assurances to the recipients of subpoenas — in this case, district chief financial officer Tonya Crosby and district facilities, planning and construction officer Robert Oetting — those assurances don’t always extend to the public body as a whole — in this case, the district.
On Friday, the school board’s officers unilaterally decided to deny Freedom of Information Act requests to make the subpoenas public, citing an “unambiguous preference” from the U.S. Attorney’s Office to withhold the subpoenas.
Four former U.S. attorneys, who have worked for the District of South Carolina, recently spoke about the federal investigative process in general and not the Beaufort County School District case specifically.
All four said that assumptions — good or bad — cannot and should not be made about why two employees of the school district were subpoenaed in early January for documents related to the building of May River High School and River Ridge Academy, the district’s procurement process and Hite Associates, the architect used in both projects.
But the process itself is knowable.
“They’re not sending out grand jury subpoenas for no good reason,” said former U.S. Attorney Greg Harris. “Someone or something is being investigated.”
The district has declined further comment on the subpoenas.
Below, the former U.S. attorneys provide insight into some of the unanswered questions.
Q: How common are federal investigations and how often do they lead to prosecution?
A: U.S. attorneys investigated roughly 170,000 federal cases in 2014, the most recent year in which U.S. Department of Justice data is available.
Attorneys declined to prosecute about 28,000 of them for reasons including insufficient evidence and prioritization of federal interests. The report cites just 575 cases “opened in error.”
Grand juries returned an indictment in all but 14 of the remaining cases.
Q: Is this federal investigation criminal or civil?
A: When asked whether the subpoena that the Beaufort County School District received was for a criminal or civil investigation, school district spokesman Jim Foster would not say.
The U.S. Attorney’s Office also would not comment.
“Pursuant to Justice Department policy, we cannot confirm or deny the existence of any investigation,” spokesman Lance Crick wrote in an email.
Q: Is a subpoena for records production less worrisome than a subpoena to appear before a federal grand jury?
As a public body, the Beaufort County School District is required to retain hundreds of thousands of records.
All that can be extrapolated from this subpoena for records is that “they have got some information the government wants,” said Bill Nettles, who served as a U.S. attorney from 2010 to 2016.
Mark Buyck, who served as a U.S. attorney from 1975 to 1977, said the subpoena for records is just one of many steps in the investigation.
“The government wants to look at the records and see if they are involved in any way,” he said. “It doesn’t necessarily mean the individuals or the (public body) itself is off the hook. It depends on what the records show.”
Q: Does the U.S. Attorney’s Office offer assurances that a person or entity is not the target of an investigation?
A lawyer representing a person or an entity that has been served a federal subpoena can ask whether their client is the target.
In the case of Beaufort County School District, the assurance would apply to the two district employees served the subpoenas — Crosby and Oetting. Both head the departments in which records are being requested.
“(The U.S. Attorney’s Office) will give you an honest appraisal of your client’s status,” Harris said.
Less clear is whether U.S. attorneys offer a general assurance to an entire institution that none of its employees are a target of an investigation. It can be offered in some cases, according to Harris, but may not be offered in others.
When a U.S. attorney describes a person’s status to their defense lawyer, the language is often couched with phrases to indicate the tentative direction of the ongoing investigation, said John Simmons, who served as a U.S. Attorney in 1992 and 1993.
For example, a U.S. attorney may tell a lawyer, “Right now, your client is a witness,” and “This is subject to change.”
Q: What’s a ‘target’?
A: There are three types of people involved in a federal investigation: witness, target and subject.
▪ A witness has no culpability in the alleged crime and is merely providing records or testimony to the federal government.
▪ A target is a suspect of a crime.
▪ A subject is the least definitive and, during the course of an investigation, attorneys work to determine if a subject is a target or a witness.
Defense lawyers typically ask the U.S. Attorney’s Office which of the three categories their client falls into.
The Beaufort County Board of Education officers released a statement about the investigation: “The District has been assured that it is not the target of the investigation, and is only being asked to produce information at this time.”
However, the officers’ statement did not specify whether the district fell into the witness or subject category.
Asked if the district is a witness or subject in this investigation, spokesman Foster again declined to comment.
Q: Has the school district retained outside counsel regarding this issue?
A: It’s unclear.
According to an email sent the day after the Jan. 16 meeting, board member John Dowling requested school district lawyer Drew Davis provide him with the name of the lawyer Davis had talked to about this case.
Davis replied that he consulted with Bart Daniel, a former U.S. Attorney who co-heads the white collar criminal defense and government investigations team for Nelson Mullins, a law firm with an office in Charleston.
Daniel did not return a call for comment last week.
It appears Beaufort County School District has not retained Daniel based on a response to an open-records request for any invoices or retainer agreements the school district received from Nelson Mullins since Jan. 1.
Q: Has Hite Associates been served subpoenas?
Hite Associates, a North Carolina-based firm, did the design work for both May River High School and River Ridge Academy. The firm had never done design work for any South Carolina school district prior to the Bluffton projects, but had previously worked with Moss when he was superintendent in two North Carolina school districts, according to previous reporting by The Island Packet.
Jimmy Hite, president of Hite Associates, said in early February that he has not been served a subpoena by the federal government.
Q: Have other school districts that used Hite Associates been subpoenaed?
A: Four of the five districts said no. One did not return calls for comment.
Before coming to Beaufort County School District, Moss served as superintendent of two North Carolina school districts in which Hite Associates was used for at least one project during his tenure.
As of last week, Lee County School District, where Moss served as superintendent from 2009 to 2013, has not been served a federal subpoena, according to district spokeswoman Sharon Spence.
Beaufort County Schools (N.C.) assistant superintendent Mark Doane said he was unaware of the district being served any federal subpoena related to Hite Associates. Moss served as superintendent of Beaufort County (N.C.) schools from 2004 to 2008.
Three other N.C. school districts — Johnston County School District, Craven County School District and Pitt County School District — have used Hite Associates for construction or renovation projects, according to the company’s website.
Representatives for Johnston County schools and Pitt County schools said they were unaware of the district receiving a federal subpoena for records related to Hite.
Asked the same question, Craven County School District spokeswoman Jennifer Wagner said she would respond, but did not supply an answer as of press time.
Q: Is there a typical range of time between when documents are produced and when an indictment may be issued?
Timelines are case specific and subpoenas for records production could be served at any stage in the investigation.