It's Hard to Steal Trash, Plus Other Reasons Hutchins' Ex-Mayor Isn't a Criminal

This item is in answer to a comment on Unfair Park yesterday that I thought deserved a more detailed response than I could provide in the comments section. Let's see if I can use more words to make things even worse.

This week I have a story in the paper about Artis Johnson, former mayor of Hutchins, a small community in southern Dallas County. He was indicted almost a year ago for criminal conspiracy and abuse of office.

See also: Former Hutchins Mayor Artis Johnson Is Clear of Criminal Charges, but Their Damage Lingers

All charges were dropped at the end of the year. My story is about what it felt like to Johnson to be under that shadow for months until the charges went away. The story ran yesterday on Unfair Park and appears in the newspaper on newsstands this week.

I said in the story that Mayor Johnson was indicted on the basis of a single check he wrote, which I characterized as "sparse evidence." A commenter using the pseudonym, James080, asked for more detail about the check, especially the purpose and amount. It's a good question. Not providing that detail may also have been unfair to former Hutchins Police Chief Frank McElligott, who found the check and won an indictment on the basis of it.

So here is the tick tock. Hutchins is a strong mayor town. The mayor is the top administrative official. He signs the checks.

Almost two years ago, then Mayor Johnson received an allegation that an employee in the municipal court was stealing money and asked then Chief McElligott to investigate. When McElligott questioned the employee, the employee told him that lots of other people broke the rules and described employees in the public works department who sold city scrap for personal gain.

Parallel with McElligott's criminal investigation of the scrap selling allegation, Johnson as mayor was conducting a civil investigation to determine employment matters. On October 24, 2013, Johnson signed a letter of termination for Ronnie O'Brien, who was head of public works. Soon after that event, O'Brien told Chief McElligott that Johnson had known for years that city employees took metal from the city scrap heap and sold it to recycling yards.

McElligott then found a check Johnson had written to O'Brien for $304.39. When McElligott asked Johnson about it, Johnson said O'Brien had come to him with a check for that amount that a recycling yard had written to the city of Hutchins for scrap it had bought from some of O'Brien's employees. Johnson said O'Brien told him that the yard must have assumed the scrap was from the city because the men selling it were wearing shirts with city of Hutchins name patches. He told Johnson it was not a city sale.

Johnson told me he agreed to put the check into the city's bank account and write O'Brien a check for the same amount on the city account. Johnson told me he told O'Brien this was a once-only arrangement and he would not do it again.

Johnson showed me a receipt for $304.39 cents, dated 1/22/2014, for a personal check he says he wrote to the city immediately after learning that McElligott thought there was something improper about the original transaction. Of course, refunding the money to the city would do nothing to erase the criminality of the original act if it was indeed criminal.

I have some sources in this matter I can't name or to whom I cannot attribute specific knowledge because of agreements I made with them in exchange for information. I think it boils down to this: There was a lot more truth-telling and a lot less chicanery here than might meet the eye, and I think that's why the charges went away.

O'Brien probably was telling the truth when he said the scrap harvesting operation was widely known. But rather than working against the people who knew about it, that fact worked in favor of O'Brien and his employees.

Hutchins City Hall, in fact, had signaled in almost every way possible that the scrap was scrap -- trash, refuse, discarded material in which it no longer claimed a pecuniary interest. The city had no formal policy governing the scrap heap. There was nothing posted, nothing in print anywhere in which the city exercised an ownership interest in the scrap.

The issue of tossed out junk is not new to the law. Especially in recent years, a fair amount of case law has developed around scrap and scrap harvesters. Most scrap convictions involve the theft of installed machinery, plumbing or wiring that is either still operating or capable of being operated, not what is commonly viewed as trash or refuse.

There are commonsense ways we distinguish between something the owner wants to keep and trash. When you put something out on the curb, for example -- or in a scrap heap -- you are making a statement. You are saying, "Come and get it. I'm done with it. It's yours."

If the scrap lady takes your discarded 1936 Singer Featherlite sewing machine, spots it for a collectible antique, cleans it up and hawks it for $200, you can't go back and accuse her of stealing $200 from you. You tossed it. Her good luck, your bad.

I have good reason to believe the charges against Johnson and nine other city employees went away because somebody finally took a close look and decided the underlying behavior was not criminal or at least not criminal enough. Neither O'Brien nor his employees ever tried to hide or disguise the practice of selling city scrap.

McElligott estimated the total value of the scrap sold at $25,000 from 2008 to 2012, a claim that would have had to be proven in court. Johnson told me it was his impression that McElligott did not have a way to prove that any of the scrap sold by the employees was city property, although Johnson conceded some of it probably was. The employees, who were out and about in city trucks all day, may also have picked up items they found in their travels.

Johnson never denied anything about the check he wrote. He told that story fully when asked.

McElligott told me he was hopeful the new Dallas County district attorney will reinstate the charges. A person familiar with the investigation told me he thought that was extremely unlikely, because getting a verdict of guilty from a jury would require retroactively criminalizing behavior that probably was not criminal when it took place.

And that is the tick and the tock of it as far as I know.

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