Restitution decision will be made prior

Stacks of documents lined the Pierce County courtroom rail Wednesday, Feb. 1 at the restitution hearing for former Ellsworth Baseball Softball Association President Whitney O’Neil. Eight hours after the hearing began, attorneys still hadn’t made their closing arguments and O’Neil’s sentencing hearing had to be rescheduled.

On Sept. 2, 2022, O’Neil pleaded guilty to one count of felony theft – business setting > $5,000 to $10,000. As part of a plea deal reached between O’Neil’s attorney, Aaron Nelson, and the Pierce County District Attorney’s office, four felony theft – business setting charges were dismissed but will be read-in for sentencing and restitution.

The sentencing hearing, which had been scheduled for March 1, was moved to 1 p.m. March 23 so attorneys could have time to submit written briefs for the court’s review. At the Sept. 2 plea hearing, Nelson asked the court to consider a three-year probation sentence with no more than 60 days of conditional jail time (with work release allowed) as a probation condition. The state will be asking for no more than $130,167.82 in restitution, which the defense said “is not nearly that amount.”

Five felony theft – business setting charges were filed against O’Neil Oct. 5, 2021 after a months-long investigation by Pierce County investigators and EBSA board members that revealed O’Neil, 45, was spending EBSA funds on personal expenses such as shopping, hotels, air fares, family vacations, parking fees and personal bills. The total listed in the Oct. 5 criminal complaint was $111,714.82, taken from EBSA bank accounts. At the time, O’Neil told investigators she was “struggling to make ends meet.” On average, she spent about $20,000 per year from the EBSA accounts.

EBSA is a non-profit organization that operates the summer baseball and softball events and travelling leagues for kids 8-15 in the Ellsworth Community School District, until high school baseball and softball begin.

O’Neil, who became the EBSA treasurer in 2015 and president in 2017, said in an email to EBSA board members in 2021 that she wanted to pay the money back.

“I wanted to make the best I could for my family during a time where we couldn’t provide the best,” she wrote. “The greed took over and I couldn’t stop, and that was at the cost of the organization.”

Restitution hearing

Nelson argued that EBSA members, which packed the courtroom on the state’s side, are victims and have rights, but he didn’t want their attorney, Rory O’Sullivan, to be allowed to participate in cross-examination of witnesses.

Judge Elizabeth Rohl said that according to state statute, “any interested person can participate in a restitution hearing in writing or in person, can present evidence and can cross-examine the witness.”

O’Sullivan argued that EBSA is not acting as a party to the case.

“All parties interested in the matter, not parties to the litigation,” he said. “Anyone who has potentially suffered a loss can participate in a restitution hearing.”

Although Nelson protested, Rohl stood firm that at restitution hearings, procedural adherence is relaxed and not subject to rigid rules that are applied in an evidentiary hearing or civil case.

The state’s first witness was Pierce County Sheriff’s Office Investigator Collin Gilles, who said in June 2021, three EBSA board members provided him with a binder of bank records and list of transactions they found to be suspicious. O’Neil was the only one who held the EBSA’s debit card. Also, numerous checks totaling about $53,000 were written out to Jason O’Neil, Whitney O’Neil’s husband, marked as “deposit only” (not requiring a signature) and deposited into the couple’s account. When questioned, he told Gilles he didn’t know about any of the checks and the EBSA would not owe him money for anything. Gilles said Whitney O’Neil told him the checks were for fictitious reimbursements, with inaccurate memos, to hide them.

Nelson went through a list of debit card transactions that he said his client agreed to be responsible for. However, he disputed many of the cash withdrawals and checks written to Jason O’Neil, saying Gilles did not determine the amount of revenue that came into the organization, the amount of league fees paid out, the cost of field maintenance expenses, how much it cost to stock concessions, if uniforms and equipment were bought, or if the umpires were paid. He argued that many people involved in small town sports organizations spend their own money for supplies and equipment and are reimbursed by check or cash later and that Gilles had no way of knowing if Whitney O’Neil actually stole money by writing checks to her husband or if she was reimbursing their family for things they had bought for the EBSA.

Gilles admitted that some umpires told him they were paid either in cash or check, while current EBSA President Lisa Acker, who testified later in the hearing, said umps are never paid with cash.

Nelson also pointed out that in the past, multiple checks were written out to former EBSA President Tom Diercks without receipts attached or anything in the memo lines and no one questioned those transactions. Some checks to Diercks had memo lines that read “concessions,” or “Sam’s Club,” Nelson said. Why when Whitney O’Neil wrote a check that said “concessions” did it get questioned, he wanted to know.

In cross examination, O’Sullivan asked Gilles to confirm that 215 suspicious transactions had been noted between May 23, 2015 and Dec. 14, 2019. Gilles also confirmed that Whitney O’Neil had told him that she stole money by writing checks and withdrawing cash.

O’Sullivan also pointed out that Jason O’Neil made many statements to Gilles, including: “I never knew a thing about any of them.”

“I don’t even know why she would do this.”

“I’ll be honest, I’ve never gotten paid for anything that I’m aware of.”

Gilles also confirmed that Whitney O’Neil said that any checks written for even amounts (with no cents) were fraudulent and that she wrote them to her husband to conceal the theft. “She took active steps to obfuscate any potential investigation,” O’Sullivan said.

Nelson came back and asked Gilles why he didn’t obtain a search warrant for receipts EBSA members told him were at O’Neil’s house.

Lisa Acker

The next witness to testify was current EBSA President Lisa Acker, who said umpire payment checks would never be written out of the association’s general account, but rather, out of the either the baseball account or the softball account.

Acker and O’Neil were on the board together for five months before O’Neil resigned. Acker, who sat through meetings for years, said O’Neil had always provided vague financial reports. Acker joined the board because she wanted to help regularize the EBSA’s operations. O’Neil resigned a few months after new processes were put into place, Acker said.

Acker said treasurer’s reports were not given at every meeting and if there was one, it was simply a checkbook balance. No receipts from expenses were submitted, even when board members asked O’Neil about them.

Acker also said O’Neil had reduced insurance coverage without telling anyone on the Brown’s Field Complex. When a storm hit, the EBSA could not replace the fence, the roof or dugout because they were no longer covered. The association had to pay for those repairs through grants, donations and volunteer time.

Many maintenance items have been delayed due to the theft, Acker said. It’s taken a lot of fundraising to bring the fields and equipment back up to par, not to mention rebuilding trust with parents. “We’ve spent the past two years doing a lot of rebuilding in the eyes of our parents and players,” Acker said.

Other witnesses Current EBSA board member Julie Stoltenburg and Wipfli forensic accountant Drew Carney were also on the witness list.

Stoltenburg testified that EBSA’s revenue went up substantially in 2021 and 2022, after O’Neil resigned. Income from 2015 to 2020 was anywhere from $57,000 to $99,000 per year, she said. In 2021, income totaled $120,000, while in 2022 it was $133,000.

Nelson argued that the number of program registrants varies year to year, but Stoltenburg said that number varies little. He also argued that fundraiser and grant totals vary, which could account for the differences.

Carney provided the district attorney’s office with a 1,500-page report concerning its findings in the case. He said paying for things in cash was also identified as a poor and unsafe accounting practice.

“When you start seeing multiple transactions in even dollar amounts, it’s an indication of the possibility of misappropriation of funds,” Carney said.

Carney found that $60,923.25 in cash withdrawals didn’t appear to serve a legitimate business purpose. He also found $9,300 in unauthorized debit transactions and $53,530.97 in checks written out to Jason O’Neil.

Nelson said even though those transactions didn’t have documents supporting them as legitimate business, that doesn’t mean they weren’t, considering the accounting practices that appeared to have been in place for years.

Carney said he was not asked by the D.A. to analyze any checks written to others to see if they were legitimate. Nelson said two cash transactions on the list were marked by EBSA board members as “not Whitney,” proving that at least one other person had the ability to withdraw cash.

After the witnesses were finished, Rohl and the attorneys conferred and decided to move the sentencing hearing to March 23, in order to give them time to submit written arguments. The amount of restitution, which Rohl will decide prior to the sentencing hearing, could factor into sentencing arguments, Nelson said.