The Berrien County Board of Commissioners has received a report from special counsel John Dewane on an investigation into potential conflicts of interest involving Commissioner Teri Freehling. The investigation stemmed out of a lawsuit against Freehling, the estate of her late husband, and the Berrien County Drain Commissioner. It alleges Freehling voted to approve some drain projects that would be done by a contractor using equipment rented from an LLC owned by the late Patrick Freehling. A review of the case by the Berrien County Prosecutor’s office found no basis for criminal charges, and Judge Dewane’s report, released Thursday at a county board meeting, has found Freehling did not violate disclosure rules. However, the report also says “good policy may suggest [the] Board encourage a higher level of transparency.” Berrien County Board of Commissioners Chair Mac Elliott agrees.
“It’s incumbent upon us to avoid anything that appears improper,” Elliott said. “Even if it may be legal, we want to hit a higher mark, an ethical mark.”
That’s why Elliott has suspended Freehling from the Personnel and Human Services Committee for 60 days.
“One of the few things I have authority to do is the assignments to the standing committees. So Commissioner Freehling is still assigned to PHS, but she will stand down from participating in committee business for the next 60 days, will not attend those meetings.”
Elliott says he took the action to underscore the importance of maintaining fidelity to the board’s bylaws. Additionally, the county commission’s bylaws are being tightened to essentially say, “When in doubt, disclose it.”
“Our bylaws, as written, have some gaps in that section, 4.2. That’ll be fixed next week.”
Elliot says he doesn’t believe anyone wanted to see a commissioner facing charges, and so he’s glad a review by Berrien County Prosecutor Michael Sepic led to none. Dewane’s report says he has “spoken to Assistant Attorney General Michael G. Frezza, who heads the Public Integrity Unit, and who concurred with Prosecuting Attorney Sepic’s decision.” Freehling did not have comment after Thursday’s meeting due to the ongoing civil suit.
Mac Elliot read the below statement during Thursday’s meeting.
“On September 26, 2019, following an investigation by the Michigan State Police and a press release issued by the Berrien County Prosecuting Attorney Michael J. Sepic announcing his decision not to pursue criminal charges against Commissioner Freehling, the Berrien County Board of Commissioners appointed Attorney John E. Dewane as Special Counsel to the Board, to advise and assist the Board with questions concerning disclosure of conflicts of interest by Commissioner Teri Sue Freehling. The issues involved allegations that Commissioner Freehling’s husband, directly or indirectly, received several hundred thousand dollars in payments from Berrien County for drain maintenance and repair work for drainage districts authorized by the Berrien County Drain Commissioner.
Attorney Dewane reviewed the State Police Incident Report, obtained additional documents and interviewed Commissioner Freehling, Commissioner and former Chairperson Jon Hinkelman, County Administrator Bill Wolf, County Corporate Counsel James T. McGovern, County Drain Commissioner Christopher J. Quattrin and Douglas P. Hartzler, the organizer of Hartzler Excavating LLC, one of the contractors awarded work by the Drain Commissioner which in turn made payments to Commissioner Freehling’s husband. Attorney Dewane also spoke with Prosecuting Attorney Sepic and with Assistant Attorney General Michael G. Frezza, who heads the Public Integrity Unit, and who agreed with Prosecuting Attorney Sepic’s decision that it was not appropriate to charge Commissioner Freehling under the applicable statute. Attorney Assistant General Frezza also raised issues in addition to those cited by Prosecuting Attorney Sepic which may have impeded a prosecution of Commissioner Freehling including the focus under Michigan law on “contract” rather than “conflict” and on a husband and wife as legally distinct persons even when they file a joint tax return.
The investigation supported a conclusion that in several discussions and in an email on September 30, 2017, Attorney McGovern advised Commissioner Freehling that, while not required under Michigan law, disclosure and abstention from voting on payments to a contractor who was subcontracting with her husband was an option which would avoid even the appearance of impropriety and would shield her from any claim that she was violating her office. On October 10, 2019, Commissioner Freehling issued an Amendment to her conflict of interest disclosures in which she recognized that with exercise of due diligence she could have obtained information from which she could have concluded “that it would have been best to have simply abstained from all drain requisitions involving Hartzler and REV for transparency”.
Based on the investigation and on Commissioner Freehling’s lack of due diligence under the circumstances, the Board Chairperson has exercised his administrative discretion to suspend Commissioner Freehling for 60 days from today from participation in the business of the Personnel and Human Services Committee.
The Board Personnel and Human Services Committee is currently reviewing the Board Bylaws and will consider recommending an amendment to the Conflict of Interest section to encourage Commissioners to be more transparent than the legal minimum disclosure and abstention requirements under Michigan law to avoid even the appearance of impropriety.”
