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McKenzie County Deputy also facing legal action: He and charged sheriff both likely to stay on the job

WATFORD CITY, N.D. — While McKenzie County Sheriff Gary Schwartzenberger prepares to answer a criminal charge, one of his deputies is navigating the justice system as well.

Michael Schmitz, a detective with the McKenzie County Sheriff’s Office, was charged last month with two counts of giving false information to law enforcement.

The charges, both Class A misdemeanors, carry a maximum of one year in prison.

He is accused of lying to to the Bureau of Criminal Investigations about prescription pill use and his role in a case involving a divorce and domestic violence.

An affidavit filed in district court alleges that Schmitz, who was evaluated for suspected prescription medication abuse in 2009, told a BCI agent that no further treatment was required following the evaluation, but when the investigator pulled hospital records, they showed a recommendation for counseling.

Court records showed that Schmitz admitted to a pill addiction and was ordered to attend therapy in Minot.

Investigators found that from December 2011 to October 2014, Schmitz received 61 prescriptions, written by 10 different doctors and filled in five pharmacies, for substances including hydrocodone, lorazepam and acetaminophen with codeine.

Schmitz allegedly told an agent that he did not receive medication after going to the emergency room in Sydney last fall, but pharmacy records showed that he was given a prescription for hydrocodone-acetaminophen as a result of the visit.

He also allegedly lied to investigators when questioned about a domestic violence case in McKenzie County involving a victim who told police she’d been followed and photographed by Schmitz as she met with a man. Schmitz, who also served the woman her divorce papers, told BCI that he’d been trying to identify the man that the woman was meeting with, because of the man’s involvement in an ongoing drug case. Schmitz refused to help agents verify his story, and claimed that he’d been in contact with the woman’s husband just a handful of times, when phone records showed more than 40 calls and texts between the two.

The husband was arrested for domestic violence last summer, records show. In response to questions from state investigators, Schmitz denied having provided a bondsman and an attorney recommendation for the husband, who, court records say, claims the detective provided both for him.

According to the affidavit, Schmitz knows the the woman’s father-in-law and husband, who were interested in developing some of his property, and had loaned him $35,000 at the end of last year.

Last week, McKenzie County judges Daniel El-Dweek and Robin Schmidt recused themselves from Schmidt’s case and requested another judge be assigned to it. McKenzie County State’s Attorney Jacob Rodenbiker has bowed out as well, leaving the prosecution up to Divide County State’s Attorney Seymour Jordan.

Schmitz is due back in court on Dec. 22 for a pretrial hearing, and a trial is set for the week of Jan. 11.

Schwartzenberger told the McKenzie County Farmer last month that Schmitz will stay on the job until the case is resolved.

That decision is almost entirely up to the sheriff, who it also appears will remain in office while a separate criminal case against him winds through the court system.

“It’s basically up to the sheriff. He could say, ‘I’m the one who hires and fires who works in my department.’ It’s not a clean hierarchy of power, it’s a real combination of folks needing to work together to get to the right answer,” Aaron Birst, legal counsel for the North Dakota Association of Counties, said of who holds sway over employees in the sheriff’s office.

Schwartzenberger has primary say over his workers, Birst said, adding that the county commission is able to set general guidelines for employees county-wide.

Schwartzenberger is accused of misapplication of public property, a Class A misdemeanor, for allegedly using his department’s credit card to rack up $980 in unapproved personal charges during a law enforcement conference in Las Vegas.

He did eventually repay the money, but not until the credit card he’d used was shut down by the bank for late payments, court documents say.

An investigation by the state’s Bureau of Criminal Investigations found that Schwartzenberger allegedly used the account to pay a number of things, including his wife’s plane ticket to attend the Western States Sheriff’s Association Annual Conference in March, a golf trip and a meal at a casino.

Schwartzenberger, who was elected last November and took office in January, is about 11 months into a four-year term.

A recall petition signed by 25 percent of McKenzie County’s voters or an action by the governor are the sole means of cutting that time short, Birst said. “Any elected official is accountable only to the voters,” he said.

The state has seen few criminal charges for public officials, and even fewer removed from office, Birst added, citing the governor’s removal of the Richland County sheriff in 2001 as one of the only examples in recent memory. “The case that’s occurring in McKenzie County — that’s rare,” he said.

Schwartzenberger has not returned calls, and county employees say they won’t speak about the case at the request of the state’s attorney’s office.

Calls to Richard Cayko, chairman of the McKenzie County Commission, were not returned, either.

A preliminary hearing is set for Dec. 2 in McKenzie County, where the Attorney General’s office is handling the case.

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