(1) GTA's Request for Restitution (Victim? Who's A Victim? Maybe Just An Unindicted Co-Conspirator!):
According to a supplemental sentencing briefing filed February 11 on behalf of Steven Ingersoll by his remaining defense attorney, Jan Geht, the Grand Traverse Academy "has submitted to the Court what appears to be a request for restitution. However, it is likely the oddest request ever received by the Court."
Wait, the “oddest” request ever received?
In the filing, Ingersoll's attorney maintains that the Grand Traverse Academy was not a victim, citing Brad Habermehl's October 21, 2015 sentencing hearing testimony to make his case!
(If Ingersoll held Habermehl any closer, they'd have to share a cigarette!)
"As explained by GTA Board’s President in court, GTA does not believe it is a victim but if the Court disagrees with that belief, GTA would like to be paid. Defendant Ingersoll agrees that GTA is not a victim in this case and, accordingly, requests that the Court does not order any restitution to GTA for the reasons explained below.
“[T]he term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.”
In the brief, Ingersoll maintains the "GTA does not qualify as a “victim” for two independent reasons. First, by its own repeated admissions, GTA was not “harmed” by Defendant Ingersoll.
In fact, GTA has continued to thank Defendant Ingersoll unequivocally for keeping the school afloat and takes the position that it is possible that were this matter to be litigated, it may be found liable to SSM for the difference between $2.8 million in foregone legitimate management fees and the remaining $1.6 million in unpaid cumulative rebate.
Even if the Court accepts GTA’s argument that some of the $2.8 million claim would otherwise be barred by the six-year statute of limitations, there is no dispute that Defendant Ingersoll continued to perform services and continued to promise rebates in reliance on GTA’s continued promises to at some point make him whole."
Promises, promises, promises?
In an exclusive, Miss Fortune has Habermehl's entire October 21, 2015 sentencing hearing testimony, where it appears he (wittingly or unwittingly) gives Ingersoll a charter school hall pass on the whole twisted mess.
Now, why would he do that roughly one month before the GTA board voted to authorize its attorney, Kerry Morgan, to make a claim for entitlement to restitution in Steven Ingersoll's federal fraud case? Could it have something to do with the covert business deal between Habermehl, Ingersoll and former Lake Superior State University Charter Office head Bruce Harger, a revelation Habermehl made during his December 8, 2015 testimony?
Here is Habermehl's entire testimony, brought to you exclusively by Miss Fortune.
Read it, and tell me if you think something is "rotten in Denmark"!
BY MR. GEHT:
Q: Good afternoon at this point, Dr. Habermehl.
Q: Could you please state and spell your name for the record.
A: Yes, I’m Bradley Habermehl, H-A-B, as in boy, E-R-M as in Mary, E-H-L.
Q: What is your current position.
A: I’m currently the president of the Grand Traverse Academy Board of Directors.
Q: When did you become president of the GTA Board?
A: It was March 2013.
Q: At the risk of inviting another objection, are you sure it wasn’t ’14?
A: Maybe it’s ’14. March of 2014. I apologize. [NOTE: Habermehl was named president on March 19, 2014 during an early morning board meeting that also awarded a two-year management contract to former president, Mark Noss. Noss continued to serve on the board for nearly two months after being awarded the management contract.]
MS. PARKER: Well, Your Honor. I’m going to object to the leading ---
MR. GEHT: That’s fine. Okay. March of 2013, we’ll go with that.
MS. PARKER: I’m sure the Court can assess the weight.
THE COURT: It can.
MR. GEHT: Thank you, Your Honor.
BY MR. GEHT:
Q: How long – how long before you were president were you a member of the board?
A: I joined the board October, 2012.
Q: So were you on the board for five months before you became president?
Q: Do you recall how long you were on the board before you became president?
A: Well, it was – I guess it was five months. I was thinking it was six months, but you are correct. It was five months.
Q: Okay. Why did you join the board of Grand Traverse Academy?
A: I am a specialist in the branch of optometry that has to do with vision therapy and working with children that struggle with reading and comprehension, and Dr. Ingersoll and I have met each other. We’ve lectured on different occasions on the subjects, and we know each other as colleagues, professionals in this field. And Dr. Ingersoll, know that that is a passion of mine, approached me and asked if I would be interested in being a member of the board and to use my expertise to help the school. [NOTE: Ingersoll and Habermehl's connection goes back many years; in 1985, Ingersoll wrote a letter in support of Habermehl's application for admission to Ferris State University's School of Optometry.]
Q: And were you interested in that invitation?
A: Very much so. Dr. Ingersoll is an icon in the optometry field. He’s known throughout the world. It was an honor to be asked to be on the board.
Q: And do you know who you replaced on the board?
A: I do not.
Q: Were you interviewed by the board before your appointment?
Q: And were you interviewed by anyone from Lake Superior?
Q: Okay. Could you describe for the Court the interview process by Lake Superior?
A: Yes. A gentleman from Lake Superior State came to my office. He spent approximately two and a half hours in discussions with me and what my background was and, of course, asked if there was any reason that I shouldn’t be on the board criminally or otherwise.
Q: Okay. Let me show you a certain document. Dr. Habermehl, do you recognize what I’ve just handed to you?
A: Yes, I do.
Q: Okay. And what is the document marked as Exhibit 13?
A: So this is the history of Grand Traverse Academy. This was put together with quite a few hours of not only myself but other board members and the management team to be placed on the Grand Traverse Academy website.
Q: And it was placed on the Grand Traverse Academy’s website?
Q: Okay. Do you recall whether or not there was any opposition among board members to posting this narrative on the GTA’s website?
Q: So the vote was unanimous?
Q: Do you recall when that took place?
A: It was soon – it was – it was – I’m trying to think, March of 2013 is when that took place, I believe. March or April. It was soon after the resignation of – the resignation of Smart Schools. [NOTE: The "history" document was posted on the Grand Traverse Academy's website September 13, 2014.]
Q: Okay. Do you recall what events precipitated the resignation of Smart Schools Management?
A: Yes, I do. Because of the indictment of the IRS of Steven Ingersoll, his passion for the school, he approached the board and said it’s in the best interest of the school that he step down, that it was not in the best interest of the school that he remain as the management team.
Q: Okay. And so to help potentially clean up some earlier testimony, is that the point at which you became president of the GTA board?
Q: Shortly after the indictment was unveiled?
Q: And is it still your testimony that you joined the board roughly five or six months before you became the president?
A: Correct. [Habermehl joined the board in October 2012.]
Q: Okay. Can you describe the – what efforts went into creating Exhibit 13.
A: A lot of the efforts was going back to the year – back in the years on even how the school was thought to be even – to happen or become and, again, that – the big thing, too, is that we wanted to let the parents of our students know more about the history and why the school was special and why the school was even developed.
Q: And what efforts went into – well, at this point, I’d like to move into evidence Exhibit 12.
MS. PARKER: Your Honor, I’d like to object.
THE COURT: Is this 13?
MR. GEHT: Yes, Your Honor. It should have on the first pages –
MS. PARKER: Your Honor, I may want to do some additional voir dire here, but I object on the grounds of relevance and lack of foundation, and I think there’s a lack of clarity of the source of data used to compile this, and I would want to – if the Court were inclined –
MR. GEHT: Your Honor –
MS. PARKER: -- so at this point I think I would – should be entitled to inquire who was the source of the information and the date of that source. I don’t think it’s relevant, and rather than waste time on that inquiry, I would ask the Court to do that now.
THE COURT: It could be quite relevant, particularly the section on page 3.
MR. GEHT: And, Your Honor, I wanted to introduce it before I got too far into the weeds. I have no problem establishing foundation.
THE COURT: So I think that we can accept it for the limited proposition that it is a history compiled at this time by unknown folks, other than the witness, that has been placed on the website, but it is not substantive proof of any of the factual materials that are contained in it, so –
MR. GEHT: That’s fair, Your Honor. I was going to ask him all those questions. I wanted to introduce it first, but I can ask those questions, the more substantive questions. That’s where I was going.
THE COURT: We’ll admit it for that limited purpose at this point until there’s any further foundation.
Q: Turning your attention now to the specific discussion on page 3, which contains a table of earnings rebate with titles earnings, rebate, lease contribution, totals, Smart Schools Management support, do you see that?
A: Correct, I see it.
Q: Can you describe the process by which Grand Traverse Academy board concluded that that is an accurate factual statement?
A: Well, a couple of ways: The first thing is because of the recommendation of Ms. Hackett, she had written a letter to the board of directors and she was very specific about having a forensic audit done, and so we did. We hired a forensic auditor and they came in and verified these particular numbers. We also, about six months later, hired another auditor to look at these numbers as well, because we wanted to do our due diligence and double-check. These numbers were important to a lot of people, and wanted to make sure that they were correct, and they were looked at again by an auditor that we paid for and also confirmed. [NOTE: Although attorney Hackett recommended the board conduct an extensive, formal forensic audit to determine exactly how much Steven Ingersoll owed the school, the board instead opted to commission a much more narrowly-defined verification of only "the amount recorded as accounts receivable" on the Academy's financial statements between July 2011-June 2013.]
Q: Okay. So the record is clear, what was the name of the first forensic auditor?
A: Dennis Gartland. [NOTE: Dennis, Gartland & Niergarth of Traverse City.]
Q: And what was the second forensic auditor? [NOTE: Neither firm was engaged to conduct a "forensic" audit.]
A: Patrick Sweeney.
Q: I’m sorry, first name?
A: Patrick Sweeney.
THE COURT: If I can interrupt to ask a question of you, just so I can place this in context, the – it reflects the rebate and a lease contribution, which would have effectively been funds flowing from SSM back to GT, probably at the end of the fiscal year, fair?
MR. GEHT: It was support pledged. The distinction I’m drawing is between cash flowing and that’s – as you will notice, the total is 5 million. That’s the number I referred to, so out of the 5 million, by the time I think the IRS arrived, that number was down to 2.9 million and is now down to 1.6, so not all of this money physically flowed, but the money was pledged as part of the budget resolutions passed by – contemporaneously from 2005 to 2012 by the respective boards.
THE COURT: And that could have been accomplished in a number of ways, including SSM continuing to furnish services without future compensation?
MR. GEHT: And, in fact, that is one of the things – that is what happened after Dennis Gartland audit is the decision was made that the way to reduce it was for SSM to effectively work without retaining its management fee, which had, as the Court would appreciate, the consequence of SSM in 2012 having a high tax liability with no income; but, yes, that is in fact – when the ’12 return was prepared, that obligation was recognized as taxable income with no funds received. [NOTE: Contrary to Geht's assertion, the Grand Traverse Academy board did pay Ingersoll nearly $332,000 during the fiscal year ending June 30, 2013. The board authorized the cash payment for "pre-obligated, annual debt service of SSM with regard to GTA has agreed to pay to SSM".]
THE COURT: What is not included here, and was relevant to me at the time, was a – this show – or demonstrates the rebate. What it doesn’t demonstrate is the actual cash expenditure in these time periods between – paid by GTA to SSM from which this is ultimately reduced.
MR. GEHT: That’s another exhibit, Your Honor. I’d be happy to – yes.
THE COURT: Is it one that’s been furnished to the Government?
MR. GEHT: Yes, it has. In fact, I believe Government has furnished it to us as well. And the answer is that over the – I believe the question was earlier on whether of not there’s any litigation between GTA and SSM, and so originally the spreadsheet was furnished by me, as Dr. Ingersoll’s counsel, to GTA’s counsel, and then GTA’s counsel retained a forensic auditor to verify the spreadsheet and that spreadsheet reflects I believe what the numbers –the numbers you’re asking about. And that’s why, you know, I – I’m trying to work sort of from the conclusion to the foundation so that there’s the forest and the trees.
THE COURT: Now, just so that I’ve go – I understand the context before we go a little bit further with the witness. Of the total amount of the payments were made by S – excuse me, GTA to SSM, in each of these time periods, will those equate to the 12 percent management fee or more than 12 percent –
MR. GEHT: I believe—
THE COURT: -- from which these rebates will be – will reduce those – that figure?
MR. GEHT: My recollection is it would be less than 12 percent. I believe our forensic accountant, Mr. Hammel, who is also going to be testifying, did an analysis showing that the fee received was about 7.5 percent for all years in question.
THE COURT: After the rebate or before?
MR. GEHT: That I can’t remember, Your Honor, but we do have a schedule that may or may not answer your question. I just don’t know the answer to that right now without look at this schedule.
THE COURT: Okay. Helpful to me, thank you. You may continue with the witness.
BY MR. GEHT:
Q: Okay. So you first hired Dennis Gartland. When did – do you recall when you hired Dennis Gartland to perform the forensic audit?
A: I don’t recall the exact date but it was – it was soon after we received the Meg Hackett letter. In that letter she suggested a forensic audit, and so we took that advice to hear and we – and we hired Dennis Gartland to do that, to perform that audit.
Q: Could you briefly discuss the circumstances surrounding Ms. Hackett’s involvement at the Grand Traverse Academy.
A: Ms. Hackett was a surprise to us. Of course we had Doug Bishop as our counsel, and Kaye Mentley, the superintendent at the time, had called Meg Hackett on her own, without approval of the board to bring Meg in. She never met with the board. I’ve never met with her personally, and there was some discussion with the board president, with Steve Ingersoll and Kaye Mentley, and then that’s when the letter was then – was sent to all the board members from Meg Hackett. [NOTE: In a February 23, 2015 affidavit, Hackett stated the "Thrun Law Firm, P. C. was first retained as legal counsel for the Grand Traverse Academy in September of 2009 and the Academy's Board of Directors has retained that attorney-client relationship from year-to-year to date." In addition, Hackett testified under direct and cross-examination during Steven Ingersoll's trial, repeatedly stating Mark Noss was her client, and not Kaye Mentley.]
Q: So before you received that letter, did the board actually hire Ms. Hackett?
A: No, the board never authorized hiring Meg. Hackett. Kaye Mentley did that on her own, but essentially Grand Traverse Academy did pay Meg Hackett for her advice.
Q: Essentially ratifying it after the fact?
Q: Did Ms. – did Ms. Hackett ever attend any board meetings at GTA?
A: No, Meg Hackett never attended any of the board meetings. We only heard from her by that particular closed letter to the board members. [NOTE: Hackett attended a meeting at the Grand Traverse Academy on May 20, 2013, with Steven Ingersoll, Mark Noss and Kaye Mentley.]
MR. GEHT: Would the Court like me to continue?
THE COURT: Let’s go for, as long as it’s agreeable, another 15, 20 minutes. We might as well accomplish as much as we can today.
MR. GEHT: That’s fine, Your Honor.
THE COURT: We’ve got a busy afternoon.
BY MR. GEHT:
Q: Dr. Habermehl, I just handed you what’s been marked as Exhibit 8. Do you recognize this document?
A: Yes. This is the forensic report from Dennis Gartland that we authorized after receiving that – that suggestion from Meg Hackett.
MR. GEHT: Okay. Move that Exhibit 8 be admitted into evidence.
MS. PARKER: No objection.
THE COURT: Received.
BY MR. GEHT:
Q: May I ask you to turn to page 4 of the forensic report under cash transactions. Are you there?
Q: All right. The second paragraph states, “We traced the cash transactions to the accounting records in all instances. There were no cash withdrawals or transfers unaccounted for in the accounting system.” Do you see that?
Q: Okay. As you sit here today, is it still your understanding that no one has ever uncovered any cash withdrawals or transfers that were unaccounted for in the accounting system?
A: That is correct. There’s no unauthorized withdrawals ever taken out of or transferred out of the accounting system. [NOTE: However, the report noted there were "several cash transactions between SSM and GTA" during these periods that did not correlate with specific accounting transactions; the method of recording cash transfers, withdrawals and expenses was inconsistent for the two fiscal years.]
Q: If we go to the bottom of the forensic – of page 4 of the forensic report in the summary it states, “It appears SSM” – in the second sentence, “It appears that SSM takes cash advances for their management fee each year in the beginning of the school year based on the budgeted figure. At the time it is realized GTA cannot afford the management fee, the fee is adjusted downward in the school’s budget, but the advances are not repaid at that time.” Do you see that?
Q: Is that consistent with the – as you sit here today, is that still your understanding of the management fee rebate process?
A: That is correct.
Q: Okay. And were you aware of this process before receiving this October 13 forensic report.
Q: And were you aware of that process before Meg Hackett’s letter?
Q: And what was – by – in what way did you acquire that knowledge?
A: That was discussed at each board meeting. Of course, we were very aware of it. The big excitement part is that we had a management team that when we were short at the end of the year, and were looking like we were going to have a deficit, that Steve, in is passion for the school, would step forward and offer a rebate on his 12 percent that we were contract – in contract with him with. So he – he then would pledge the money back; and, of course, he would wait for the funds to come from the state of the following year to be able to make that pledge good.
Q: And in terms of the board discussions, and I want to stress this point, this was discussed at the board meetings you were present at?
A: It was discussed at every board meeting. It was very transparent.
Q: From the time you started to now?
A: That is correct.
Q: Okay. Let me show you the next document. Dr. Habermehl, do you recognize what I’ve handed you as Exhibit 67?
A: I do.
Q: And what is Exhibit 6?
A: Exhibit 6 is a letter from our legal counsel, Doug Bishop at the time, writing a letter to the department of Education.
Q: And would it be accurate that he’s also forwarding it to Dr. Noss, among others, and Mr. Dobias?
A: Correct. And Mr. Dobias, of course, is legal counsel for Lake Superior State University at the time Dr. Noss was the president of the board.
Q: Thank you because his name has not come up before. And do you know what prompted the writing of the letter on October 29th by Mr. Bishop?
A: Yes. We as a board wanted to make sure that the Board of Education knew we were doing our due diligence and that no unauthorized draws were being – were found taken out of GTA by the forensic audit that Dennis Gartland had done.
Q: And, to your knowledge, did the forensic audit uncover any payments to SSM not authorized by the board of directors and the GTA budget?
A: It was just the opposite, that the audit showed that there was no unauthorized funds that come from Grand Traverse Academy. Every dime was accounted for.
Q: And did Mr. Bishop give his opinion as to – to the GTA Board, whether or not there was any actual violation of the Uniform Budgeting Accounting Act or the Michigan Constitution?
A: Yeah his feeling that we had not – we had not had any problems with either one of those, that we were squeaky clean.
MR. GEHT: Your Honor, at this point we’d like to move Exhibit 6 into evidence.
MS. PARKER: I have no objection. We’ve already covered its contents anyway.
MR. GEHT: I was just laying foundation since last time I –
MS. PARKER: That’s not a foundation.
THE COURT: It’s received.
BY MR. GEHT:
Q: Has – have you received any documentation from the state advising you that the state was aware of these events.
Q: And what correspondence did you receive from the state?
A: I’ve got to recall that it was a letter from the head of the Department of Education saying they reviewed everything and that there was no wrongdoing found.
Q: To your knowledge, has the Department of Education initiated any criminal proceedings out of the GTA/SSM relationship?
A: Absolutely not. From that letter, when they reviewed everything, they put a silver stamp on it, in our opinion, that we were squeaky clean. We had done our due diligence and – through our own reviews and found no ill will.
Q: Okay. So you hire Dennis Gartland, Dennis Gartland did the forensic work. Did – was Dennis Gartland hired to also perform auditing services to the academy?
A: That is correct.
A: For the – for the following year.
Q: Okay. And did Dennis Gartland complete its responsibilities as an auditor for that first year?
Q: And did Dennis Gartland issue an unqualified opinion or a qualified opinion or something with respect to the financial statements for the first year they audited?
A: Oh, I don’t know the answer to that. I don’t know the difference between the two.
Q: Did Dennis – okay. Is Dennis Gartland still the auditors for Grand Traverse Academy?
A: They are not.
Q: Okay. And what led to the change from Dennis Gartland – what let to the board’s decision not to utilize Dennis Gartland as its auditor?
A: It was no – no real decision as far as just opening up and trying to get another set of eyes on the books again. So, again, trying to think of due diligence. We’ve had Dennis Gartland do the forensic audit. They were the auditor. For the following year, we wanted to open it up and do due diligence and come up with another CPA firm to get fresh eyes on it and fresh opinions, so –
Q: Do you recall how many audits Dennis Gartland did for the school?
Q: Two. So not just that first one but also the second?
Q: And was – I’m sorry, is there an objection?
MS. PARKER: Yeah, I think we’re getting beyond the time frame that’s relevant.
MR. GEHT: Well, Your Honor, we – these are opinions, and my next question was going to be whether or not Dr. Ingersoll played any role in the selection of Dennis Gartland and the subsequent auditor since one of the Government’s theories here is that he handpicked his accountants and only the ones he personally seduced who would issue unqualified opinions on the audits.
MS. PARKER: The time frame of this would not make that inquiry relevant.
MR. GEHT: Actually it would because as an auditor, opining on the financial statements would present comparative information, as Mr. Camiller testified yesterday, an auditor is issuing an opinion as to the prior statements.
THE COURT: Yeah. I would agree and would overrule the objection.
MR. GEHT: Thank you, Your Honor.
BY MR. GEHT:
Q: Did Mr. Ingersoll play a role in the selection of the Dennis Gartland as an auditor?
A: Not at all.
Q: Do you recall whether or not the GTA Board actually put in place some procedures to make sure that Dr. Ingersoll did not have a lot of interactions with Dennis Gartland?
A: Yes, we did.
Q: And why did you do that?
A: We wanted an independent audit. Again, the recommendation came from legal counsel Meg Hackett to do the forensic audit and we wanted to follow through with that opinion.
Q: Okay. The second – the last – the auditor you hired to replace Dennis Gartland, who was that?
A: That was Patrick Sweeney.
Q: And who recommended Mr. Sweeney as an accountant?
A: Our legal counsel, Kerry Morgan.
Q: Did Dr. Ingersoll play any role in the selection of either Mr. Morgan or Mr. Sweeney?
A: Absolutely not.
Q: How did Mr. Morgan come about being retained as counsel for GTA?
A: At the time I was board president, Doug Bishop had been the legal counsel since the inception of the school, the year 2000. I thought it was important that we got separate eyes on this because I didn’t know Mr. Bishop well, and I personally had my own personal attorney who I went to for suggestions, and he recommended Kerry Morgan.
Q: Okay. And how was Mr. Sweeney chosen to be the auditor?
A: Because of his experience and expertise in charter schools, he was picked.
Q: Okay. And has Mr. Sweeney completed an audit yet of GTA or is he still in the process of finalizing it –
A: Just this –
Q: -- as we sit here?
A: No, just this month, this last Friday, Patrick Sweeney has completed his audit and did that presentation with our board.
Q: Okay. Did he –well, do you know if he issued an unqualified opinion?
A: Well, I don’t know the difference – I’m sorry, I don’t know the difference between those two.
Q: That’s okay.