June 18 • 09:28 AM

Charges dismissed

Judge Byron Konschuh poised to retake the bench in Lapeer County

March 16, 2016
LAPEER COUNTY — After almost two years in limbo, Circuit Court Judge Byron Konschuh is poised to retake the bench he was appointed to in 2013 by Governor Rick Snyder.

A settlement agreement reached last week between Konschuh and special prosecutor Deana Finnegan resulted in the felony charges, levied against the popular jurist in July of 2014, being dismissed. He has been on paid administrative leave since then.

Konschuh had been facing five counts of embezzlement by a public official of more than $50 when Lapeer County Prosecutor Tim Turkelson could find no protocol for handling a check from BounceBack, a bad check collection agency, that crossed his desk. Turkelson—who was appointed by Circuit Court Judge Nick Holowka to replace Konschuh when he was appointed to the bench— contacted the state attorney general's office, which assigned Finnegan, of Shiawassee County, to the case.

Konschuh contracted with BounceBack in 2009 while serving as Lapeer County Prosecutor to relieve pressure and costs involved in prosecuting writers of bad checks. The company remits a small percentage of each collection made to the Lapeer County Prosecutor's office.

Teaching fees from the Law Enforcement Officer's Regional Training Commission were also called into question after an investigation by Michigan State Police (MSP). Though Konschuh provided receipts for most of the expenditures—which were used to buy coffee, donuts, lunches and the like for office staff and visitors, Finnegan chose to charge Konschuh after reviewing the MSP file.

Judge Byron Konschuh
The five embezzlement charges were dismissed as a result of the settlement agreement, reached on March 8th before Genesee County Circuit Court Judge Geoffrey Neithercutt. In exchange for the dismissal "with prejudice"—which means the charges can never be brought again—Konschuh pleaded "no contest" to a 90-day misdemeanor accounting statute offense. The misdemeanor calls for a delayed sentence, which according to Konschuh's attorneys means that charge will also be dismissed after a period of time determined by Neithercutt.

The agreement ends an 18 month-long, emotionally trying ordeal for Konschuh and his family, says his attorney Michael Sharkey in a press release.

"Finally, this travesty of justice is over for the Konschuh family and the taxpayers of Lapeer County," Sharkey says. "Judge Konschuh and his wife, Lorraine, are well known and loved in our community for their tireless dedication to many charitable causes. They are among the very few who can recover from this terrible injustice and betrayal to again serve the people to their full potential."

Sharkey says the dismissal of the felony charges was based on the fact that the BounceBack fees Konschuh raised and spent on his office while serving as prosecutor from 2008-2013 were not "public moneys" and he had no criminal intent to break the law.

"Accordingly, Judge Konschuh will not be sentenced nor will Judge Konschuh have a criminal conviction of any kind whatsoever on his record," Sharkey says. "This negotiated resolution resulting in the dismissal of all criminal charges, clears the way for Judge Konschuh to resume his duties as judge."

The parties will be back in Neithercutt's courtroom on March 31st, at which time Sharkey says he and associate attorney Tom Pabst will ask the judge to dismiss the misdemeanor accounting statute offense.

"Typically, a delayed sentence is negotiated so that the probation department can obtain background information about the accused or to provide time for the accused to participate in some sort of alcohol or drug treatment program," Sharkey says. "But here, Judge Konschuh was recently thoroughly vetted by the Governor's office prior to his appointment."

Though other news outlets have reported that Konschuh will have to pay some $1,800 in restitution, that is not part of the actual agreement signed by all parties, and Sharkey says the matter is in dispute.

"Since there is a delay of sentence, which ultimately will result in no sentence, nor will Judge Konschuh have a conviction of any kind, there are no fines or costs to be imposed (against Konschuh)," he says. "As the matter relates to restitution, that is disputed and is not agreed upon and will be argued in front of the judge on March 31."

At the March 31 court appearance, Finnegan says along with seeking restitution, she'll ask the judge to require Konschuh to write letters of apology to Turkelson, Lapeer County Controller John Biscoe and Lapeer County Assistant Prosecutor Cailin Wilson for allegations made in a motion Sharkey and Pabst filed seeking electronic communications and other items relating to those individuals.

"The motion will be withdrawn from the file," Finnegan says. "I am going to ask that the judge require the apology letters. Whether or not he does remains to be seen."

The agreement, signed by Finnegan, Pabst, Sharkey and Konschuh, reads as follows:

As an elected official and then department head, then Prosecutor Konschuh raised funds from a bad check diversion program and funds from the LEORTC program (teaching fees) from approximately 2009 to 2013 totalling approximately $1,802. These monies were deposited into Prosector Konschuh's personal banking account.

Prosecutor Konschuh contends that all the stipends and fees were spent to support the operation of his office. MCL 21.44 requires each department and County office to make an annual financial report involving public monies. While it is still not clear that the stipends or fees fall into the definition of public monies, the parties agree that the monies raised could be interpreted as public monies that would require financial reporting. Such report did not occur here.

In order to prevent further tax payer (sic) expense of a trial in this matter, the parties have agreed that Judge Konschuh will plead "no contest" that there could be an interpretation of MCL 21.44 that supports the argument that he should have reported the collection of these funds to the State or other appropriate entity for accounting purposes. After a delay of sentence to be determined by the Court, the matter will be dismissed with prejudice.

Prosecutor Konschuh maintains his intentions were genuine and that he had no criminal intent at any time.

Further, Prosector Konschuh's pending Motion for Discovery will be withdrawn forthwith.

Judge Nick Holowka, who placed Konschuh on paid administrative leave when the charges were filed, will ultimately decide when Konschuh will return to the bench.

Catherine Minolli is Managing Editor of the Tri-City Times. She began as a freelance writer with the Times in 1994. She enjoys the country life, including raising ducks and chickens.
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