With Moss gone, Beaufort Co. district makes FBI subpoenas on Bluffton schools public
Just two weeks after former superintendent Jeff Moss’ last day on the job, the Beaufort County School District reversed course on a decision made earlier this year not to release to the public two subpoenas it received in an FBI investigation related to the construction of two Bluffton schools.
“I’m very respectful of whatever happened before ... but my view is that this is a public institution and we need to be as forthcoming as we need to be and that I respect the FOIA laws and I want to be responsive in that arena,” said interim superintendent Herbert Berg, who made the final decision to release the documents.
The subpoenas, issued in December to two district employees, were released by the district Tuesday afternoon in response to a second Freedom of Information request from The Island Packet and The Beaufort Gazette, filed Aug. 1, the day after Moss left the district.
The newspapers had first filed their request with the district Feb. 5.
The decision on whether to release the documents, however, was shifted to the Beaufort County Board of Education, which rejected the request Feb. 16, citing a need to maintain the integrity of the investigation and a preference by the U.S. Attorney’s Office for the subpoenas to remain private.
To some board members, Tuesday’s decision represented a new day for the district.
“I think that today was a great victory of the cause of transparency,” said board member John Dowling. “The public will begin to trust us when they think we’re being honest with them and that trust is how at the end of the day the board will best serve the students.”
The subpoenas, which were identical, were issued to chief financial officer Tonya Crosby and facilities, planning and construction officer Robert Oetting.
The district was asked to provide the U.S. Attorney’s Office with “any and all records” pertaining to the construction of May River High School and River Ridge Academy, both of which were built during Moss’ tenure with the district.
More specifically, it asked for electronic communications and all correspondence between the district and architect Jimmy Hite and Hite Associates, a North Carolina-based architect that Moss had worked with in two previous N.C. school districts, as well as copies of checks or wire transfers made to Hite and his company.
Both the May River and River Ridge projects have been criticized for costing tens of millions of dollars more than Moss’ initial estimates. May River went from an estimated cost of $35 million to $40 million to $68 million and River Ridge went from $25 million to nearly $30 million.
Moss repeatedly defended the higher costs for the schools and pointed to inflation, as well as features added after the original plans, unexpected site challenges and expanded school size, as reasons the projects’ budgets grew.
In the subpoenas, investigators also requested “superintendent notes” related to the “solicitation of the contractor and vendor request proposals.”
In a Feb. 3 board work session, when the FBI investigation was first made public, Moss was asked by a reporter with The Island Packet and The Beaufort Gazette whether his name or the position of superintendent appeared on the subpoenas.
“No,” he said.
Moss offered the Beaufort County Board of Education his resignation on May 15, two years before his contract was up and after five controversial years in the district that included two failed referendums, two guilty pleas to state ethics violations over the hiring of his wife in a high-paying district job and the ongoing FBI investigation.
A fourth subpoena was issued to the district on Aug. 2 and the school board was informed about it by the district five days later.
The U.S. Attorney’s Office is now asking the district for Moss’ personnel records, including employment contracts, annual performance reviews and ratings, disciplinary records, outside employment requests and disclosures, travel and entertainment expenses, as well as bonuses, “ethics training received” and “conflict of interest disclosures” from August 2013, when Moss started with the district, through the present.
The latest subpoena also asks for records related to the district’s contracts with more than 30 businesses, including the Education Research and Development Institute.
Moss worked as a paid consultant for ERDI for at least the past two years, according to his Statement of Economic Interests filed with the State Ethics Commission.
ERDI is an organization that pays superintendents and school administrators to attend meetings with educational tech companies and offer feedback about various educational products.
The former superintendent was not required to disclose the amount that he earned from the organization.
Making the investigation public
On Jan. 16, board members were informed of the first two federal subpoenas in a closed-door meeting in which five of the 11 members said threats were made against them to stop them from disclosing the subpoenas to the public.
The board’s attorney at the time, Drew Davis, and other board members denied the claim.
In the weeks prior to that revelation, members of the board’s minority bloc had pressed the district over email to issue a statement, but were met with resistance.
About three weeks later, at a Feb. 3 work session, Dowling forced the issue into the public sphere by motioning for the board to publish a press release about the subpoenas.
The motion passed 6-3, with board members Geri Kinton, Cynthia Gregory-Smalls, Joseph Dunkle, JoAnn Orischak, Christina Gwozdz and Dowling voting in favor of going public. Board chairman Earl Campbell and board members Mary Cordray and Evva Anderson voted against. David Striebinger and Bill Payne were not present for the vote.
Following the meeting, the three board officers released a statement that said the district had been “assured that it is not the target of the investigation, and is only being asked to produce information at this time.”
The district turned over documents to the FBI on Feb. 5, according to an email from Moss to board members.
About two weeks after the public was informed about the investigation, board members learned that a third district employee — district project manager Anthony Pernice — had been served a federal subpoena.
That subpoena was issued to the employee and not the district, so it was not released to the Packet and the Gazette.
Pernice, who retired in August, worked in the district’s facilities department, which is headed by Oetting.
A change of heart
When Dowling first thrust the investigation into the public on Feb. 3, the district denied the Packet and the Gazette’s request to view the subpoenas at the district office, arguing that a state Freedom of Information Act request would be required.
Throughout February, the newspapers, along with nine others, submitted open-records requests for a copy of the subpoenas.
Rhett Dehart, the assistant U.S. attorney general in the Charleston office, told the district that the department preferred it not release the documents.
“Per our phone conversation, we prefer that grand jury subpoenas and the contents therein are not made public. This helps protect an ongoing law enforcement investigation as well as the rights of individual citizens to a fair investigation and/or fail trial,” Dehart wrote in an email to Davis on Feb. 13.
Three days later, the three board officers at the time — chair Campbell, vice chair Kinton and secretary Striebinger — unilaterally decided on behalf of the entire board and school district to deny the record requests.
Board members, rarely, if ever, make determinations about honoring or denying FOIA requests for the school district.
The officers said the decision was made to protect the integrity of the investigation.
“The reason we as officers chose not to release the subpoenas still exists now with this (additional) subpoena — that it could jeopardize the investigation and it could hurt individuals,” Kinton said Tuesday evening.
Yet, experts on South Carolina’s open records law said the public had a right to see the subpoenas.
In similar cases, school districts in other states have released federal subpoenas they’ve received in connection to FBI investigations. State law allows, but does not require, public bodies to withhold information compiled for law enforcement purposes that may interfere with an active investigation.
In another closed-door meeting following the board’s work session on Aug. 11, the board discussed the Packet and the Gazette’s Aug. 1 open records request.
Former U.S. district attorney John Simmons of Columbia gave a presentation to the board on the pros and cons of releasing the subpoenas to the public, according to Berg.
Following the meeting, no official vote was taken by the board to approve of the subpoena’s release. Instead, the board instructed Berg to use the legal advice given during the executive session and make a decision.
Kinton, the board’s vice chair, said Tuesday she was not in support of releasing the subpoenas.
“But it’s a new day and there’s new people involved and it was their decision to release them because while the U.S. Attorney’s Office still says they prefer the information not be released, they cannot compel us not to release them,” she said.
To review the subpoenas click on the below:
• Subpoena issued to Tonya Crosby
• Subpoena issued to Robert Oetting
This story was originally published August 14, 2018 at 9:11 PM.