An exclusive analysis, only from Miss Fortune!
If you need a poster child for the failure of Michigan's charter school oversight, look no further than Steven Ingersoll.
Convicted in March on three counts of tax evasion and conspiracy, Ingersoll own and formerly managed the Bay City Academy and managed the Grand Traverse Academy until days before his April 10, 2014 indictment.
Between 2007-2012, Ingersoll misappropriated an estimated $3.5 million dollars from the Traverse City charter school — but has never been investigated or charged with embezzlement.
And what about the Grand Traverse Academy's Board of Directors? After much public posturing, it opted not to pursue any legal remedy to recover the money, and apparently that's where it stands.
However, until just days ago, I had not read the stinging May 30, 2013 legal analysis delivered to Mark Noss at the Grand Traverse Academy by Margaret Hackett of the Thrun Law Firm. The letter is detailed examination of Steven Ingersoll's financial maneuvering, acts of self-dealing proving he took advantage of his position as the Traverse City charter school's Chief Administrative Officer.
The once confidential 15-page legal analysis, released publicly by government prosecutors as an exhibit in Steven Ingersoll's ongoing sentencing hearing, was delivered to the Grand Traverse Academy Board 13 months before Ingersoll was indicted.
The letter reveals that Ingersoll had secretly opened a second general fund bank account, manipulated financial records (with a series of furtive bank transfers) to make it appear he had repaid his massive debt in 2011, and asked the board to characterize his $3.5 million dollar debt as a "loan" because he “needed” it.
Like a black bra under a sheer white blouse, the Thrun letter reveals just enough to make you crazy for more.
The Thrun excerpts are italicized, with significant information underlined, and commentary from Miss Fortune in bold:
The issue before the Board relates to funds withdrawn from the Academy’s general fund by Steven Ingersoll and/or representatives of SSM, which exceed the amount appropriated or authorized by the Board to be paid to SSM for either management fees or the reimbursement of Academy expenses.
Specifically, the Notes to Financial Statements which accompanied the Academy’s 2011-2012 financial audit reflect a “receivable” in the amount of $3.5 million as of June 30, 2012.
It should be observed that while reflected in the Academy’s audited financials as a “receivable” and we have confirmed that this amount is a receivable or debt owed to the Academy, in the financial books and records prepared by Steve Ingersoll, this amount is reported as both a “prepaid expense” and as a “receivable”.
A "pre-paid expense" and a "receivable" are not equivalent designations for either tax or accounting purposes.
We address this point due to the fact that it may cause confusion; however, please keep in mind that regardless of the characterization of this $3.5 million for accounting purposes it has been confirmed that this sum represents funds withdrawn from the Academy’s general fund accounts by Steven Ingersoll/SSM in excess of any management fees and expenditures authorized by the Board and now represents a substantial debt owed to the Academy.
Note this: "a substantial debt owed to the Academy". The letter reveals discussions with the Steven Ingersoll's handpicked auditor, CPA Tony Henning of Midwest Professionals of Gaylord. Henning, who described himself to federal investigators as feeling like a "dumbass", later claimed he was so beguiled and bedazzled by Steven Ingersoll that he was unconcerned Ingersoll was not consistently providing invoices and other documentation with his billings:
During a lengthy discussion with Mr. Henning a number of concerns were raised. By way of example and not limitation, Mr. Henning confirmed that Steven Ingersoll and/or SSM owed the Academy over $3.5 million as of June 30, 2012 and stated that he had advised Steven Ingersoll that this “receivable” must be repaid to the Academy.
Mr. Henning also stated that Steven Ingersoll had to be “reminded” over the last several audit periods to provide supporting documents. While Mr. Henning indicated that he thought this issue was corrected, it appears that Steven Ingersoll has not consistently provided invoices or other documentation which would support transfers from the Academy’s accounts.
In fact, Kaye Mentley has conveyed to us that, to date, she has been unable to locate any invoices for the current fiscal year. Mr. Henning also indicated that this “receivable” or “prepaid expense” has been in existence for a number of years and has a fluctuating balance. At the conclusion of this call we requested copies of Mr. Henning’s audit work papers for the prior three fiscal year, much of which he promptly provided to our office.
The letter continues, describing the preparation leading up to the May 20, 2013 meeting with Kaye Mentley, Mark Noss and Steven Ingersoll:
Immediately following our conversation with Mr. Henning on May 6th, we again contacted Kaye Mentley and recommended a special board meeting be scheduled immediately to (1) update the Board in closed session, (2) authorize a forensic audit by an independent third party, and (3) put controls into place that would, in part, suspend Steven Ingersoll’s access to the Academy’s general fund accounts pending an investigation.
With respect to the recommended temporary suspension of Steven Ingersoll’s account access, while we realize that this would represent a significant change to the current procedures and certainly would be an inconvenience, this was in part due to certain information that Kaye Mentley had reportedly received from Steven Ingersoll. In particular, according to Kaye, Steven Ingersoll indicated that the current balance of this receivable was approximately $2.2 million but that it would increase by approximately $800,000 prior to year end.
Having only a very limited understanding of the facts and seeing no justification for permitting the balance of this receivable to increase by any amount, we suggested these immediate measures be implemented as a necessary precaution. Certainly, any indication that this “debt” will knowingly increase within the next month is cause for immediate action.
Kaye Mentley, angling for a private, preview meeting with Ingersoll and the Thrun attorney, pitches her request during a phone call:
During this follow up phone discussion with Ms. Mentley on May 6th, she suggested a meeting between our firm, herself and Steve Ingersoll prior to scheduling a meeting with the Board.
While we understand the risk in misinterpreting statements or explanations if they are relayed by Steven Ingersoll through a third party as opposed to being directly explained by Steven Ingersoll, we expressed several concerns with respect to participating in such a meeting.
In particular, we expressed concerns about the delay, and the cost to the Academy of our participation in two meetings (one with Steven Ingersoll and a second with the Board). We explained to Kaye Mentley that our office represents the interests of the Academy and the Board, not Ingersoll of SSM, and that under the circumstances as explained to us thus far, the interests of the Academy and Ingersoll are not aligned and arguably not best served by a pre-meeting with Ingersoll.
On Thursday, May 9, 2013, we were contacted by Kaye Mentley who expressed that it would be difficult to convene a board meeting prior to the week of May 20th.
Ms. Mentley informed us that she had scheduled a meeting for us with Steven Ingersoll, herself and Mark Noss. We agreed to attend such a meeting, but again expressed that it was our preference and recommendation that we meet with the Board. Further, we advised Ms. Mentley that since Steven Ingersoll was represented by legal counsel and in light of certain ethical obligations that we are under, his legal counsel should be present during any such meeting.
With regard to the $3.5 million, during our discussions with both Kaye Mentley and Tony Henning on May 6th it was represented to us that the balance owed by Steven Ingersoll was in part a result of or could be “explained by” unpaid management fees or other amounts owed to SSM.
Specifically, both Ms. Mentley and Mr. Henning indicated that SSM had not received its full management fee as provided for under the Management Agreement dated July 1, 2009.
In order to address these statements as well as other potential concerns that would impact our legal analysis we request the general fund bank statements for the current and prior fiscal year, invoices from SSM and the cash flow statement from the August 2012 and August 2011 state aid note borrowings.
In subsequent telephone conversations and emails, we conveyed to Kaye Mentley that we had not received the requested bank statements, and would require such documentation prior to any meeting in order to be prepared to address our questions and concerns with Steven Ingersoll.
On May 20, 2013, Margaret Hackett meets with Kaye Mentley, Mark Noss and Steven Ingersoll in Traverse City:
Tony Henning of Midwest Professionals participated in the meeting by way of conference call. That morning we again contacted Kaye Mentley via email to advise that we still had only received bank statements for a portion of the 2011-2012 fiscal year and had not received any statements for the current fiscal year and then requested that this documentation be brought to the meeting.
At the commencement of the May 20th meeting, Steve Ingersoll distributed a set of spreadsheets which essentially confirmed that the Academy is owed the approximate amount of $3.5 million and set forth a proposal for repaying the balance over a five year period.
This was the only documentation provided during the meeting, thus we were not provided the remaining bank statements, invoices and cash flow statements that we had requested. However, while we did not have the requested bank statements or invoices, we did have a substantial amount of audit work papers from Tony Henning, which we reviewed in the alternative in an attempt to understand the transactions that were expected to be discussed at the meeting.
No matter the stated purpose of the meeting, Steven Ingersoll used the time (on the Academy's dime) to make his case — having the Academy Board agreed to characterize his massive debt as a loan:
With regard to the May 20th meeting, it was made clear by Steve Ingersoll at the outset of the meeting that he wanted the focus of the meeting to be on the handouts that he prepared.
The spreadsheet that Ingersoll wanted to focus on, which primarily outlined his proposed repayment plan, would not only memorialize $3.5 million as being the amount owed to the Academy, which we strongly recommended be verified by an independent third party, it would also require that the Academy agree to characterize this amount as a “loan” from the Academy to Ingersoll. In fact, towards the conclusion of the meeting Steve Ingersoll candidly stated that he “needed” his indebtedness to the Academy to be characterized as a loan for reasons related to his investigation and/or audit by the IRS.
Mischaracterizing this transaction as a loan would subject the Academy and potentially Board members individually, to liability on a number of levels.
Steven Ingersoll openly admitted, when asked by us during the May 20th meeting, that a conflict exists between his personal interests and the interests of the Academy.
And yet, the Academy was paying the bill for the Thrun Law Firm's services!
In short, while we were not able to make certain inquiries during the May 20th meeting, it is our opinion that we were not provided with a meaningful opportunity to explore the areas of concern that our office has with respect to this matter.
Instead, the meeting appeared to be centered on providing Steve Ingersoll with an opportunity to present his proposal for repayment of the funds owed to the Academy.
While we understand that Ingersoll is sensitive to the subject at hand and to the criminal investigation that he is under with respect to the IRS, it is these very circumstances and the inherent conflict between Steve Ingersoll and the Academy with respect to this debt that led us to initially advise Kaye Mentley that we did not recommend expending district funds (by way of legal fees) on a meeting with Steve Ingersoll and instead, recommend a meeting of the Board to authorize certain measures be undertaken.
At the conclusion of the May 20th meeting Steve Ingersoll agreed to provide the invoices, remaining bank statements and cash flow statements that we had previously requested. Following out meeting on May 20th, we also scheduled a conference call with Mark Noss which took place on Friday, May 24, 2013. During this call we conveyed a number of preliminary concerns to Noss, including that we were concerned that a substantial portion of the documentation requested, which we believe was fairly limited in scope, still had not been provided.
Following this call we received a portion of the bank statements requested, however several months were still absent. Kaye Mentley also expressed that she had been unable to obtain the requested documentation from Steve Ingersoll, specifically the SSM invoices and cash flow statements. On Tuesday of this week (May 28th) we contacted Ms. Mentley again for bank statements related to the general fund and received what we thought were the remaining statements for the current and prior fiscal year.
Repayments? Secret bank accounts? Zeroed out?
Importantly, while it has never been our intent, nor is it within our area of expertise to complete what would be considered an “audit” of the financial transactions, the requested bank statements and invoices from SSM were necessary to address critical assertions made by Tony Henning and Steve Ingersoll.
By way of example, Tony Henning represented that SSM had repaid the "receivable" or "prepaid expense" in full during the 2011-2012 fiscal year and that this account or journal entry was "zeroed out".
We specifically asked Steve Ingersoll if this was the case during the May 20th meeting and Steven Ingersoll confirmed that SSM had repaid the amount in full. (The amount owed at the end of 2011-2012 fiscal year as reported by Steve Ingersoll and reflected in Note 4 of Notes To Financial Statements was $2,500,000.).
Based on these representations made by Tony Henning and Steve Ingersoll, we reviewed the bank statements, in part, to determine how a debt of $3.5 million accumulated within the same fiscal year following repayment.
Had these representations proven to be accurate, this would directly impact the magnitude and extent to which Steven Ingersoll and/or SSM had deviated from the Board approved budget and appropriations made for the 2011-2012 fiscal year and thereby violated certain governing statutes.
An additional purpose of requesting and analyzing the general fund bank statements was to address assertions made by Tony Henning, Kaye Mentley and Steve Ingersoll that SSM was entitled to unpaid management fees which would presumably shed light on the accumulation of this debt.
To be clear on this point, we found no support in the Management Agreement dated July 1, 2009, annual budgets adopted and approved by the Board, or within the financial records to suggest that the Academy owes any additional management fees to SSM.
To the contrary, the documentation we have reviewed reflects that SSM was paid the full management fee approved by the Board in the annual budgets. In addition to this fee, Steve Ingersoll and/or SSM then withdrew a sum exceeding $3.5 million from the Academy’s general fund account(s) as of June 30, 2012.
A secret bank account...and Steven Ingersoll's bogus "repayment shell game:
Upon receiving what we thought were the remaining general fund statements from Kaye Mentley on Tuesday morning of this week, we analyzed those statements for the purpose of preparing this opinion letter. We then scheduled a conference call with Tony Henning to address several remaining inconsistencies and related concerns. During this call on Tuesday afternoon we again inquired as to the repayment of the “receivable” by SSM in 2011, noting that we could not find evidence of a repayment in any of the bank statements we had received.
At this point, Tony Henning alerted us to the fact that a second general fund depository account had been opened for the Academy, of which we had not been informed, nor had we been provided with any statements related to this account. Specifically, our office had only been provided with bank statements for the Academy’s depository account with Traverse City State Bank. A second general fund account for the Academy with Fifth Third Bank is actively used by Steve Ingersoll/SSM and reflects a substantial number of draws and other transactions related to SSM. Unfortunately, this substantially compromised a number of initial conclusions we had reached based on what we were told represented all general fund bank statements. In addition, during this call Mr. Henning initially confirmed that a repayment of the outstanding receivable had occurred in July of 2011 in the approximate amount of $2.5 million and that this transaction was through the (secret) Fifth Third account, which would explain why we could not find evidence of such repayment. As for support of this claimed repayment, Mr. Henning directed our attention to certain general ledger entries that reflected a repayment to the “receivable” account.
However, upon further analysis of the general fund ledger entries it became evident that a corresponding transfer was made out of the Academy’s accounts on June 30, 2011, which essentially offset this “repayment”.
In effect, the ledger shows that Steve Ingersoll had simply transferred funds between the existing “prepaid expenses” and “receivables” accounts and, as such, there was no actual repayment in 2011, contrary to what we were initially advised.
Legal implications for the Grand Traverse Academy:
The legal implications of an unauthorized transfer of approximately $3.5 million in public funds from the Academy to SSM are widespread and include but are not limited to violations or potential violations of the following: 1) the Michigan Constitution; 2) basic statutory and common law principles surrounding fiduciary duties; 3) the Revised School Code and related statutes; 4) the Uniform Budgeting and Accounting Act; and 5) state and federal criminal statutes.
We have formed no opinion with respect to whether Steve Ingersoll’s actions in transferring funds in excess of the amount appropriated by the Board were intentional or inadvertent. In the even there was any intent to convert or misappropriate public funds, which would imply elements of fraud or embezzlement, this would trigger additional concerns and recommendations under state criminal law not addressed in this correspondence.
The Michigan Constitution of 1963 strictly prohibits the lending of credit or public funds to a private entity or individual.
While we realized that both the Academy may be well apprised that it is not authorized to loan public funds, in discussions with both Tony Henning and Steve Ingersoll each indicated (in our view, stunningly, given that Steve is the Academy’s Chief Financial Officer and Tony is an independent auditor) that they were not aware of the prohibition or lack of authority to loan public funds.
The Uniform Budgeting and Accounting Act (“UBAA”) establishes budgeting and accounting requirements applicable to local units of government, including public school academies. Without the benefit of having complete information related to some of the transactions that occurred in this case, it is not possible for our office to enumerate every potential violation of the UBAA. However, based on the information that we have obtained and reviewed this far, certain actions taken by Steve Ingersoll and/or SSM represent a clear violation of various provisions of the UBAA.
The UBAA provides that no expenditure may be made without the authority of an appropriation.
Sections 18 and 19 prohibit district staff, or in this case a contracted professional, from expending funds that are not authorized in the district’s approved budget. Based on our review it is safe to conclude that the $3.5 million in payments to SSM by Steven Ingersoll were not authorized by the Board and not appropriated in the adopted budget, regardless of whether Steven Ingersoll identifies this sum as a prepaid expense or a receivable.
Of particular concern, Section 20 of the UBAA provides that if the chief administrative officer, an administrative officer, employee or Board member violates the prohibitions under Sections 18 and 19, the violation is disclosed in the audit, and there is an “absence of reasonable procedures in use by the local unit to detect violations” the violation shall be reported to the state superintendent of public education. Section 20 of the UBAA further provides that the State Superintendent of Public instruction shall report the matter to the Attorney General (AG) and allow the AG’s office to opportunity to review the matter and to initiate appropriate action against the administrative officer, including a plan “for the recovery of public property disclosed to have been converted or misappropriated.”
What is clear is that during the meeting on May 20th Steve Ingersoll specifically proposed that the Board agree to characterize this as a loan and candidly stated that he “needed” the $3.5 million to be designated a loan in order to avoid the tax liability that the IRS is threatening to attach to these funds. During the meeting we indicated that the Academy does not have the requisite authority to enter into a loan or repayment plan which would document this transaction as a loan. He then stated that he did not have sufficient money to immediately repay the $3.5 million that he and/or SSM owes to the Academy and repay his tax liability at the same time. While this statement was perplexing (in that if the Academy had agreed to characterize this as a loan, it would not be taxable income) regardless, Steve Ingersoll’s inability to repay the amounts transferred to SSM due to his tax obligations does not justify the Board’s entering into a repayment plan.
Steve Ingersoll also confirmed that the amount previously owed to the Academy was “repaid” in July 2011, which could be relied upon by Ingersoll to support a claim on his part that the funds were a loan. Our concern with this is that the Academy’s general ledger, as prepared by Steven Ingersoll, does not reflect a loan, rather reflects a series of fund transfers by Steven Ingersoll between accounts designated as “prepaid expense” and “receivable” which occurred on June 30, 2012 and in July 2012. We have confirmed that Steve Ingersoll’s assertion that the receivable balance was “repaid” in July 2011 is not accurate. While the Board did not prepare these financial records or journal entries, it is nonetheless concerning that the Academy’s general ledger would contain entries that are potentially misleading to the IRS in this respect.
Finally, our primary concern as it relates to the impact of the IRS investigation on the Academy is that any attempt to re-characterize the funds owed by Steve Ingersoll/SSM to the Academy as a loan, as specifically proposed by Steve Ingersoll, could be deemed an agreement to the Academy to either impede an IRS investigation and/or a tacit agreement to “conspire” with Steve Ingersoll/SSM in an effort to assist Steve Ingersoll in the avoidance of tax liability.
A number of willful actions which are deemed to be criminal in nature, including but not limited to;
1) making false entries, alterations, invoices, or documents;
2) structuring transactions that would evade reporting or to attempt to evade tax
3) any conduct, the likely effect of which would be to mislead or to conceal sources of income
4) willfully making a false declaration or statement, including those that would mischaracterize income
5) willfully assisting in the preparation of false documents related to tax reporting.
The Thrun firm made a series of recommendations for immediate action. However, the Board did not engage the services of a forensic auditor, opting instead to accept the debt ($3,548,319) as claimed by Steven Ingersoll's handpicked CPA, Tony Henning.
Make an immediate demand for payment. The Board should also consider putting Steve Ingersoll and SSM on notice that the management fee currently authorized will be offset against sums due. The full sum due to the Academy should be determined by way of an independent third party.
At a minimum, a forensic audit is necessary in order to accurately establish the amount owed to the Academy by Steve Ingersoll. We confirmed with Tony Henning that the amount of $3,548,319 which was due to the Academy as of June 30, 2012 is a sum calculated by Steve Ingersoll, thus a clear conflict exists in this regard. Our concern also relates to several statements made by Tony Henning during our discussions to the effect that he also relied on the financial reports and representations of Steve Ingersoll. Thus, Mr. Henning made no independent investigation into the accuracy of those reports, the general ledger, bank statement reconciliations, etc. A more detailed review of this financial information is clearly warranted.
Disclosure of issues to LSSU: recommendation that the Academy Board notify the authorizer, Lake Superior State University, of the concerns raised by the IRS’ investigation of Steve Ingersoll, the Academy board’s consultation with legal counsel, and the steps authorized by the Academy Board to be taken to protect the interests of the Academy. Such disclosure is likely required by the Academy’s Charter Contract and, in any event, is recommended to position LSSU to respond to any questions or concerns that it may receive the MDE, the media, and/or the general public. The Board should also report all violations to State Superintendent of Public Instruction.
As we have conveyed to both Kaye Mentley and Mark Noss, it is our recommendation that immediate controls be put into place to safeguard funds within the Academy accounts. As the Board is likely aware, Steve Ingersoll has had full and complete authority to transfer funds to SSM without providing the necessary supporting documentation and without the typical “checks and balances” that we routinely see employed by Michigan public school districts. By way of example only, in our analysis of the Traverse City State Bank account statements, while the monthly transfers from this particular account in 2011-2012 average approximately $468,760, certain monthly statement reflect transfers to SSM exceeding $800,00.
For example, in July 2011 it appears that the transfers to SSM total $818,518 and in April 2012 the transfers appear to total $864,518. This only reflects transfers from the Traverse City State Bank account. There are a substantial number of monthly transfers from the formerly secret Fifth Third Bank account, including for these particular months, which were not analyzed.
Following out meeting on May 20th, Kaye Mentley indicated that more appropriate procedures were being put into place, including designation of a required second signatory on all general fund account transactions going forward, We would strongly advised that the second signatory to any such transfers proceed with extreme caution in authorizing any transfer not accompanied by sufficient supporting documentation to support the expenditure. In addition, we recommend that the Board consider suspending Dr. Ingersoll’s account access entirely pending further investigation of this matter.
Finally, in addition to the fiduciary responsibilities that are placed on the Board with respect to safeguarding Academy funds, as noted in our discussion related to Section 20 of the UBAA which requires that violations be reported to the AG’s office for investigation, the UBAA specifically speaks to “the absence of reasonable procedures in use by the local unit to detect such violations.” Thus, we feel that it is imperative that immediate controls be put into place so that such corrective measures can be demonstrated to any agencies that complete a review of this matter, including the AG’s office.
Knowing finally what the Board knew (and when they knew it!), can anyone explain the Board's actions after receiving this letter, leaving Ingersoll in charge for nearly a year. And the actions the Board took even after Steven Ingersoll's April 2014 indictment? If the Board members were truly stunned and betrayed by Ingersoll, what reason would they have for collectively creating and maintaining the fiction Ingersoll was a philanthropist... and not a thief?
Miss Fortune will examine those issues in Part 2 of my exclusive analysis, coming Wednesday!