STATE OF KANSAS

Tenth Judicial District

FROM: District Attorney Steve Howe

RE: Overland Park Police Officers Foundation Investigation

DATE: October 17, 2023

On May 6, 2022, the Overland Park Police Department requested assistance from the

Johnson County District Attorney's Office to investigate allegations of potential criminal conduct

related to the Overland Park Police Officers Foundation (Foundation), a 501(c)(3) Kansas

nonprofit corporation.

The allegations included that Overland Park Police Officers Brandon Faber, Brad Heater,

Rachel Scattergood, and Tim Tinnin misused funds while acting as Foundation Board members.

The allegations primarily focused on these officers’ receipt of funds related to scholarships, out-

of-state travel and “officer assistance” disbursements.

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 After a complex and multi-faceted investigation, my office is declining to file criminal

charges in this matter. Although these previous Board members repeatedly disregarded the

Foundation’s bylaws, a violation of bylaws does not necessarily equate to a violation of criminal

laws.

My office’s investigatory process and findings are set forth in-depth below.

Overland Park Police Officers Foundation Formation and Bylaws

Following the deaths of two Topeka police officers, the Kansas State Fraternal Order of

Police Lodge recommended local Fraternal Order of Police (FOP) lodges establish a charitable

foundation to enable local FOP lodges to accept contributions.

In May of 2016, the Overland Park Police Officers Foundation was established as a

charitable organization in Kansas. At that time, Officer Mike Mosher was President of the

Overland Park Police Fraternal Order of Police Lodge 21. The Foundation is a separate entity

from the Overland Park Fraternal Order of Police. The Foundation and the FOP are separate

entities from the City of Overland Park or the Overland Park Police Department. Members of the

FOP act as the Board for the Foundation, which was created as a means of assisting FOP

members in need.

The Foundation’s first Board of Directors consisted of Officer Mosher, president; Officer

Brandon Faber, treasurer; and Officer Tim Tinnin, secretary. Officer Mosher remained

Foundation president until his tragic death on May 3, 2020. Officer Faber served on the Board

as treasurer from the Foundation’s inception in 2016 through January 26, 2021, when he was

elected president. He remained president until stepping down on January 18, 2022. Officer

Tinnin served as Board secretary from January 13, 2015, until September 27, 2018.

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 Officer Rachel Scattergood followed Officer Tinnin as the Foundation Board secretary

from September 27, 2018, until December 14, 2021. Officer Brad Heater initially served as

president after Officer Mosher’s death and then later as treasurer from May 4, 2020, until

December 14, 2021.

Bylaws for the Foundation were adopted the same day the articles of incorporation were

filed. The Foundation’s bylaws specify the purposes of the Foundation, which include, “without

limitation, those purposes necessary to assist law enforcement officers and their families in

financial distress following catastrophic injury or death and pursuing educational opportunities.”

Foundation bylaws Section 3.01 (emphasis added). The bylaws further define that the

Foundation’s only members will be the self-perpetuating Board of Directors (Board).

Foundation bylaws Section 4.01. The Foundation’s Board is composed of the duly elected

president, secretary, and treasurer of the FOP. Foundation bylaws Section 5.01.

The Foundation Board engaged Outreach Marketing of Tempe, Arizona, in July of 2016,

to provide fundraising services. The Foundation received approximately $2.1 million in

charitable donations from 2016 through the end of 2021 through local fundraising and

solicitations, and as the result of Outreach Marketing’s services.

Following the allegations of misconduct by the Board, a new Board assumed office in

January of 2022. Although the Foundation’s bylaws dictate that records of the Foundation are to

be maintained at the location registered with the Secretary of State, and maintain minutes and

records of meetings, the new Board could find no minutes of any business meetings of the

Foundation. The lack of minutes leads to the presumption that they do not exist. The absence of

minutes or any other similar business records made it difficult for the new Board to ascertain

how the previous Board made decisions relating to the expenditure of Foundation funds.

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 The bylaws also required an annual audit of the Foundation’s finances by the FOP

Trustee, but prior to December 2021, the Foundation’s Board had never provided the FOP

Trustee with the required records or even informed the FOP Trustee of this requirement. The

FOP Trustee had never been provided a copy of the Foundation bylaws or records. The current

Trustee contacted the attorney for the FOP in December 2021, who provided him with a copy of

the Foundation’s bylaws, making him aware that he should have been conducting an annual audit

of the Foundation’s finances. Foundation bylaws Section 5.14.

Following the installation of new officers on the FOP Board of Directors in January

2022, the Foundation’s Board also changed according to the self-perpetuating guidelines of the

Foundation bylaws. Aware of the actions of the previous Board and possible inconsistencies

with the Foundation bylaws, the new Board engaged the services of Financial Forensics on

January 27, 2022, to conduct an audit of the Foundation’s finances.

District Attorney’s Investigation

The new FOP Board notified the Overland Park Police Department of their concerns and

provided a copy of the audit report and Foundation bylaws. Because of the obvious conflict of

interest for the Overland Park Police Department, my office accepted their request to handle the

investigation. In May of 2022, the Overland Park Police Department provided this office a copy

of the articles of incorporation of the Foundation as well as a copy of the forensic audit ordered

by the new Foundation Board. The audit covered a period of time from May of 2016 through

January 2022.

Over the course of my office’s investigation, 53 interviews were conducted, 26 of which

were with police personnel. Thirty-two subpoenas were issued, including 15 to banking

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institutions which covered multiple years of financial records for numerous bank accounts.

Additionally, several search warrants for electronic data were executed.

Through our investigation, we learned that the past Board members each had electronic

devices issued to them to manage the affairs of the Foundation. The past Board members turned

over those devices to current Foundation Board members in January of 2022. Those devices

were turned over to my office in May of 2022, and a consent to search was obtained for those

devices on July 26, 2022. During our interviews with current Board members, we were told that

past Board members had wiped their electronic devices clean of any data. The current Board

president was told that this wiping was done because of the presence of personal information on

the electronic devices.

On July 29, 2022, four laptops, three cell phones, and one iPad were provided to the

Federal Bureau of Investigation (FBI) for transfer to the Regional Computer Forensic Laboratory

(RCFL) for examination. On some occasions wiped data can be recovered. It was the hope that

some, if not all, of the data could be recovered. The RCFL handles a significant number of

investigations across the Midwest including crimes against children, homicides, crimes of

violence, and white-collar crimes. Because of the large number of electronic devices they

receive, their agency must prioritize cases, which can impact the timing of when they complete

their work. On June 29, 2023, after nearly a year, the examination report from the RCFL was

received. The report confirmed the devices had been wiped and no data was able to be recovered.

This office also obtained records from financial institutions. This process generally takes

months, as it did in this investigation, to request and obtain records. In November of 2022, the

original investigator assigned to this case retired and the case was reassigned.

Despite a thorough search, including the issuance of search warrants for various records,

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at no point during this investigation was this office able to locate any documentation of

Foundation Board minutes, nor any documentation of Foundation Board decisions related to

expenditure of funds. The lack of these records was a substantial hinderance to the investigation.

As a result, we took investigative steps to obtain electronic data from 14 separate iCloud

accounts. The amount of data received from these accounts was extensive and required sorting

through large amounts of data in the hopes of finding relevant pieces of evidence. Despite these

efforts, only limited helpful data related to the investigation was uncovered. Limited text

messages between past Board members were the only information we gained to attempt to

establish what the procedure was for distributing Foundation funds.

Ultimately, after all data was collected and reviewed, we were unable to locate any

formal documentation of the meeting minutes from the inception of the Foundation in May 2016

through December 2021, nor did we locate documentation of the decision-making process

behind the distribution of Foundation proceeds to benefactors.

Investigative Findings

Our investigation focused on three areas of reported concern relating to the conduct of the

previous Board members: (1) payments of scholarship assistance to active Board members; (2)

payments of “officer assistance” including those to active Board members; and (3) participation

in out-of-state trips. The previous Board members in question received a total of $15,540.81 in

scholarships and for “officer assistance.” These expenditures were the focus of this investigation.

I. Scholarships

The investigation revealed that prior to the Foundation’s creation, the FOP membership

discussed the possibility of granting members and members’ family members scholarships to

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pursue higher education. After Officer Mosher became president of the FOP, a scholarship

program was established. The Foundation ultimately operated the scholarship program, as it was

one of the stated purposes of the Foundation. The Foundation awarded scholarships beginning in

2017. The program initially only awarded scholarships for children of FOP members for

undergraduate education. This program was later expanded to include eligibility for FOP

members and scholarships for graduate education.

The Foundation utilized a separate committee to review the applications for scholarships.

During my office’s interviews with Scholarship Committee members, we learned that they used

a rubric that assigned points for different categories of consideration such as grade point average

(GPA), participation in extra-curricular activities, years of family FOP membership, participation

in FOP activities, and other specified criteria. The rubric included a provision that an applicant’s

GPA would be used as a tiebreaker if necessary. Scholarships were then awarded based on the

total score of the applicant. Foundation Board members also submitted their scholarship

applications through this committee. There were limited records associated with the submissions

and findings by that committee.

The bylaws restrict Board committees from authorizing any distribution of funds to a

Director (a member of the Board). “…a Committee of the Board shall not: (1) authorize

distributions to Directors, Officers, agents or employees except in exchange for value received;

….” Foundation bylaws Section 5.12. The Scholarship Committee, however, awarded

scholarships in 2021 to Officer Faber and Officer Scattergood while they served as members of

the Foundation Board in violation of this Section of the bylaws. Through our investigation, we

determined that Scholarship Committee members were not aware of this Section of the bylaws

and thus were not aware they were committing any violations.

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 A review of the scholarships awarded in 2021 revealed a discrepancy as the funds

awarded did not match the amount of funds that were distributed. While the resolution of this

discrepancy is not documented in any official Board minutes or business records, a review of text

messages of the past Board members, obtained pursuant to a search warrant, revealed a

discussion of how additional funding had become available after the amount for the scholarships

was originally established. The previous Foundation Board decided to apply the additional

funding to the scholarships that had already been awarded. This modification did not alter

Officer Faber’s award but did increase Officer Scattergood’s award based on her ranking in the

scholarship rubric.

Additionally, the scholarships were typically paid directly to the educational institution,

but both Officer Faber and Officer Scattergood were paid directly by the Foundation. Text

messages between past Board members revealed a discussion that indicated if it was easier to

write the check to the officers individually then it was approved for them to do. The

investigation determined through subpoenas that both Officer Faber and Officer Scattergood

were enrolled in graduate studies in 2021.

II. “Officer Assistance”

The Foundation’s other stated purpose is to support law enforcement officers and their

families in financial distress following “catastrophic injury or death.” Foundation bylaws Section

3.01. No officers associated with the Overland Park Police Department met this criterion at the

time of the Foundation’s creation or shortly after.

In November 2016, the Foundation began granting financial awards to FOP members for

“officer assistance” in situations other than catastrophic injury or death. The amounts awarded

to officers typically ranged from $500.00 to $3,500.00. This assistance included supporting

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officers or family members dealing with medical bills, dental bills, and veterinarian bills. There

were numerous payments related to these expenses made to FOP members by the Foundation

Board.

The scope of the assistance offered by the Board could be deemed to fall outside the

parameters of allowable donations as contemplated by the bylaws. The bylaws, however, are

broadly written. While the use of funds for these purposes may have violated the spirit of the

purpose of the Foundation, they may not technically violate the bylaws as written given the

inclusion of the term “without limitation” when describing the scope of the Foundation’s

purpose. If the use of the funds for “officer assistance” exceeds the scope of authority of the

Foundation Board as designated in the bylaws, that is a purely civil matter that is not addressed

by this investigation and review.

The Foundation’s bylaws do set limitations on who may receive Foundation funds. “No

Director, Officer, or employee or agent of the Foundation, nor any member of a committee, or

any other person connected with the Foundation, nor any other private individual shall receive at

any time any of the net earnings or pecuniary profit from the Foundation’s operations, provided

that this shall not prevent the payment to any such person of such reasonable compensation as

shall be fixed by the Board for services rendered to or for the Foundation: and no such person or

persons shall be entitled to share in the distribution of any of the corporate assets upon the

Foundation’s dissolution.” Foundation bylaws Section12.05(c). This bylaw provision appears to

be an attempt at preventing self-dealing and self-enrichment by Board members.

Soon after its creation, the Foundation began to expand the use of funds, including

granting “officer assistance” to FOP Board members beginning in 2018. Officer Mosher issued

the first such check to Officer Faber for $1,000.00. This award was presumably authorized by

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Officer Mosher and Officer Tinnin. This is only a presumption as the approval is required by the

bylaws, but the lack of records makes confirmation of this step impossible. Subsequent “officer

assistance” payments do have some accompanying text messages, which indicated requests for

“officer assistance” by a Board member were discussed and approved by the other two Board

members, all via text message. This practice of Board members receiving “officer assistance”

occurred with regularity on multiple occasions throughout the life of the Foundation.

While serving on the Foundation Board, Officer Faber received $3,000 in “officer

assistance” in addition to a $1,000.00 scholarship. Officer Scattergood received $4,540.81 in

“officer assistance,” including $1,040.81 for a veterinarian bill. She also received a $2,000.00

scholarship. Officer Heater received $4,000.00 in “officer assistance.” Officer Tinnin received

$1,000.00 in “officer assistance.”

When complaints of the practice of awarding “officer assistance” to Board members

arose, text messages of the former Board members revealed discussions that they believed they

were only receiving payments for things that all FOP members, including themselves, were

eligible to receive, and therefore they believed there was no wrongdoing on their part.

III. Out-of-State Trips

Complaints were made by FOP members regarding out-of-state trips by the Board

members. My office focused on three specific trips.

The first area of concern was related to Board members working with SWEL (Surf

Waves Enjoy Life). SWEL’s bylaws describe the entity as a charitable organization dedicated to

providing support to military members and first responders by allowing them to “decompress,

disconnect and re-invigorate through the sport of surfing, meditation and yoga.” Board members

attended functions that were paid for by SWEL, but it is unclear from the records reviewed in

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this investigation if Foundation funds were used for the SWEL trips. Ultimately, the Foundation

made three $1,000.00 contributions to SWEL and conducted some joint fundraisers, for which

they split the receipts equally. There is no documentation related to the decisions or purpose

behind the donations to SWEL or whether Foundation funds were used on SWEL trips.

A second concern centered around the 2021 National Peace Officers Memorial Day

remembrance in Washington, D.C. A number of OPPD staff attended this event to honor the

passing of Officer Mosher. There were some indications that fundraising by the Foundation

occurred to help cover expenses for this trip. Exactly how the Foundation received these funds is

unclear because of the deficiencies in their record keeping. However, FOP meeting minutes

confirmed the Foundation transferred money to the FOP to cover these expenses. Members of

the FOP and the Foundation Board traveled to this event. There were additional complaints

made regarding the selection process for determining which officers and support personnel

would travel to Washington, D.C. to witness the addition of Officer Mike Mosher’s name to the

National Law Enforcement Officers Memorial during the event. The selection process was an

internal matter of the FOP and the Foundation and was not a consideration of this investigation.

The costs associated with this trip are directly related to the stated purpose of the Foundation and

no violations of Foundation bylaws occurred in this regard.

The third travel-related concern involved an invitation to a charity golf tournament that

was extended to the Foundation Board by Outreach Marketing for an event hosted by another

Outreach Marketing client. Outreach Marketing covered most of the expenses of this trip.

Records obtained during this investigation led to the conclusion that this trip was related to the

operation of the Foundation and consistent with maintaining and strengthening business ties with

partners. Incidental expenses of such trips are costs the Foundation would be liable to pay for or

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reimburse. Foundation bylaws Section 5.08 states, “Directors shall not receive any

compensation for their services. However, the Board may approve the reimbursement of a

Director’s actual and necessary expenses incurred in the conduct of the Foundation’s business.”

Section 5.08 of the bylaws permits the Foundation to cover expenses and reimbursement

of expenses incurred in conducting Foundation business. This vague language invites a broad

interpretation as to what constitutes Foundation “business.” Each of these specific trips could be

found to be directly or indirectly associated with the business of the Foundation. For that reason,

and the reasons set forth above, a definitive determination cannot be made as to whether the

expenditures related to these three trips fell outside the scope of expenses permitted by the

bylaws.

Legal Analysis

It is impossible to begin an analysis of the legal questions implicated in this investigation

without first highlighting the lack of minutes of Foundation meetings or any other substantive

documentation or business records outlining the deliberative process of the Foundation Board.

The lack of these records makes analysis of motivation and intent difficult, if not impossible, to

ascertain. Repeated disregard of the bylaws and inconsistent interpretations of what constitutes a

permitted expenditure by the original Board members essentially began immediately after the

creation of the Foundation. For purposes of this aspect of the analysis, we will start with an

analysis of criminal liability followed by civil liability.

I. Criminal Liability

By accepting payouts of Foundation funds, the evidence is clear that the four Foundation

Board members in question (Scattergood, Faber, Heater, Tinnin) violated the provision of the

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bylaws that prohibited self-dealing and self-enrichment. What is less clear is whether the

payment requests were for purposes that fall outside the scope of the bylaws. Both of these

considerations are crucial in determining whether there is any potential criminal liability for

these acts. When it comes to a legal analysis, it must be made clear that a violation of bylaws

does not necessarily equate to a violation of criminal laws.

As previously stated, the lack of any formal meeting minutes or records of the

Foundation posed a significant, if not insurmountable, hinderance to this criminal investigation.

We were left to determine whether the lack of records, in conjunction with potential violations of

the bylaws by these Board members, were efforts to hide criminal conduct or, instead, amount to

gross incompetence and ineptness that may equate to civil violations of the Kansas Charitable

Organizations and Solicitations Act, K.S.A. 17-1759 et seq.

To charge the Board members with theft, this office would have to prove, by the standard

of beyond a reasonable doubt, that the past Board members either knowingly obtained the money

by deceptive means, or knowingly exerted unauthorized control over Foundation funds. As a

result of this investigation, my office has concluded that we cannot charge the four Board

members in question under either theory for the reasons set forth below.

a. Theft by Unauthorized Control

The first Board, almost immediately upon the inception of the Foundation, normalized

the behavior of awarding “officer assistance” for something less than death or catastrophic

injury, as the bylaws required. They also, almost immediately, normalized the behavior of

including Board members in the group of FOP members eligible to receive assistance, in

violation of the bylaws. While he never personally benefited from this practice, Officer Mosher

expressed his view in text messages recovered. He noted in one particular string of text

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messages, when considering another Board member’s request for assistance due to unexpected

dental bills, that as long as the Foundation has the money to fund requests, the Foundation has an

obligation to help. In practice, by allowing for a more liberal disbursement of Foundation funds,

the Foundation Board unofficially amended the bylaws. This was evident from the Board

members’ actions, starting from the top down. Board members acquiesced to this practice after

witnessing funds being disbursed to themselves and others for a whole host of purposes that at

first seemed to fall outside of the scope of the bylaws but then became part of a historically

approved series of expenditures.

The first issue in prosecuting theft by unauthorized control is created by the Foundation

Board’s approval of, and normalizing, payments for things less than catastrophic injury or death,

which began early in the Foundation’s existence. Prosecution of theft under this theory is nearly

impossible due to the language found in Section 3.01 of the bylaws, when it states, “without

limitation.” This open-ended phrase, without defining it, leaves one to question the intent and

scope of its meaning. The understanding of some of the Board members in question as it relates

to this provision is highlighted by their text exchanges when complaints arose. Those previous

Board members opined they believed they were not receiving anything any other FOP member

was not entitled to receive. From text messages recovered, we determined that when Board

members were the benefactors of the proceeds, they were excluded from the voting that led to

those disbursements.

The use of the phrase “without limitation” in Section 3.01 creates an open-ended and

undecipherable quagmire for trying to prove unauthorized control. Without further definitions,

such language invites the use of Foundation funds for a variety of purposes. This seemingly

limitless ability to disburse funds was exhibited by the Board from day one of the Foundation in

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their payments to FOP members. Similar payments to Foundation Board members began in

2018. This behavior by the Board, in conjunction with the lack of further definitions and clarity

in the Foundation bylaws, inhibits our ability to prove the past Board members knowingly

exerted unauthorized control over the foundation monies, a necessary element in proving theft

under this theory.

The second issue in prosecuting theft by unauthorized control is created by the prior

Foundation Board members’ approval of, and normalizing, payouts of Foundation funds to

Foundation Board members. As stated before, this repeated practice appears to be in direct

violation of Section 12.05(c) of the bylaws. While Financial Forensics notes that the provisions

in Section 12.05(c) relate to a prohibition of self-dealing, the terms “self-dealing” and “self-

enrichment” are not defined anywhere in the bylaws. While an accountant or attorney may

understand the legalese of Section 12.05(c), there is a question as to whether a volunteer would

understand the significance of that language without receiving training and guidance by an

attorney or someone familiar with the administration of charitable foundations.

The routine practice of authorizing payments of Foundation funds to Board members,

which was generally done with approval from other Board members, poses the most difficulty in

prosecuting the Board members for accepting these funds. Once the practice of paying funds out

to Board members was initiated and approved by members of the original Board, the rest of the

Board seemingly acquiesced. Because of that top-down authorization and approval of those

practices, we cannot prove, much less beyond a reasonable doubt, that the four Board members

in question exerted unauthorized control when these payments were always approved and

authorized by other Board members. This practice was historically carried out by the Board

members for years with each other’s approval, an issue which is only compounded by the lack of

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records or meeting minutes to show why certain decisions were made and who was involved in

making those decisions. For these reasons, we cannot prosecute the four Board members in

question for theft by unauthorized control.

b. Theft by Deception

During the financial audit of the Foundation, Financial Forensics utilized a simplified

accounting system categorizing the expenses and entering all the reported revenues and expenses

from May 2016 through January 2022 into the simplified system. Financial Forensics had to

mostly rely on the description for the expenses previously entered into QuickBooks, as few

receipts were available during their audit. In comparing the results of Financial Forensics’

simplified accounting to the QuickBooks accounting, as well as reconciling both with the bank

records, reports from Outreach Marketing, and tax records, Financial Forensics determined that

the QuickBooks records fairly reflect the results of the operations of the Foundation for each of

the periods examined.

While errors were found, Financial Forensics’ conclusion is based on the accounting

concept of materiality – financial statements can contain errors and still give a substantially

accurate picture of Foundation operations. Financial Forensics found that the Foundation’s

financial reports contain errors that are cumulatively immaterial. There were no inaccuracies or

inconsistencies with the recording of payments or categorization of payments that would lead to

the belief that there was an intent to hide anything. There was no deception in the accounting

documents by the past Board that shows an intent to defraud. Therefore, we cannot prove,

beyond a reasonable doubt or otherwise, that the four Board members in question committed the

crime of theft by deception.

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 II. Civil Liability

The Foundation was created with the assistance of the FOP attorney, but there is nothing

to suggest that the Board retained the services of an attorney, or any other professional with

operational experience of a charitable foundation, at any point after the Foundation’s initial

creation. The volunteers themselves chose to be responsible for the operation and accounting of

the Foundation.

The evidence is clear that the Foundation Board did not have the training and experience

to maintain the legally required documentation for a charitable foundation. Board members

failed to maintain minutes of meetings which would have documented decisions of the Board

and approval of expenditures. While revenue and expenditures were entered into a QuickBooks

accounting program the Foundation utilized, receipts were not maintained, making verification

of the purpose of the expenditures difficult to verify.

The available evidence, however, does support the belief that a violation or violations of

the Kansas Charitable Organizations and Solicitations Act occurred. All of the former Board

members may have civil liability as a result of these violations. This office will cooperate with

the Kansas Attorney General’s Office’s investigation of the Foundation for these potential civil

violations.

Conclusion

There is no question that the practices of the Foundation from its inception in 2016 were

lacking in professional administration and record keeping. There was a history of normalizing

payments to Board members and providing assistance to all FOP members, including Foundation

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Board members, for a wide variety of reasons, seemingly in contradiction of the bylaws. This

behavior amounted to an informal and unspoken amendment to the bylaws, behavior which was

approved by the Board from the top down and acquiesced to by all Board members. This

behavior remained unchecked until January of 2022. The lack of concise language in the

bylaws, as noted above, also created uncertainty in determining what were considered

permissible expenditures. These uncertainties created evidentiary and legal issues that inhibit our

ability to file criminal charges against the aforementioned Board members.

Financial Forensics made recommendations to the new Board regarding the Foundation’s

accounting which should be implemented going forward, along with training as to the

responsibilities of Board members, training which should include a legally complete explanation

of the responsibilities and limitations imposed upon Board members by the Foundation’s bylaws.

There can be little argument that the actions the former Board members took were

questionable and breached the trust of both the public and the patrons they solicited from. The

available evidence, however, does not support prosecution for theft beyond a reasonable doubt

for the reasons outlined in this report. This finding does not address the potential civil liabilities

or violations under the Kansas laws regarding charitable organizations.

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