McLay legal team seeking to toss 10 charges, trial date set
A jury trial for Josh McLay, the former Hastings wrestling coach accused of inappropriately spending nearly $14,000 in donated school district funds, was set for Jan. 6, 2020 at a court appearance on Friday.
McLay, 37, is facing eight counts of embezzlement of public funds and eight counts of theft by swindle over allegedly using $13,900 in district funds from 2011 to 2018. At the Friday morning hearing, McLay's legal team sought to have 10 of the charges — five embezzlement and five theft — stemming from 2011 to 2015 events dismissed due to the statute of limitations on those charges.
Minnesota law states that a person cannot be tried three years after a theft, unless the theft is valued at over $35,000.
The Dakota County Attorney's Office has plans to argue that those charges should be defined as ongoing and, thus, open to be tried, said Deanna Natoli, assistant county prosecutor, at the hearing. She would provide documents to substantiate that claim, she said.
The defense team preliminarily argued against that as well.
"There has not been an appellate court that has ruled theft by swindle as an ongoing offense," said Sarah MacGillis, a member of McLay's defense team. "This court would be making new law."
Judge Richelle Wahi, who is handling the case, will make a determination on the charges. That won't happen though, until after Natoli files her response to the motion on July 12 and the defense provides its response July 19.
Natoli also made a motion aimed to show that a member of McLay's legal team, Shelly Rohr, had a conflict of interest in the case and have her removed. Rohr's husband James is the assistant athletic director at Hastings Middle School and he and their son are potential witnesses, Natoli said.
However Wahi seemed skeptical that there was relevant Minnesota case law to support that claim, and she said she was concerned the motion could infringe on McLay's constitutional right to choose his representation. Natoli conceded that she had yet to find local cases that did support her, only outside cases.
McLay's team did not want to pursue a settlement hearing, all but making a trial a certainty.
A school district investigation last year determined that McLay used funds for coaching clinics to instead go to various college football games. In late November 2018, the school board accepted an employment resolution from McLay and his attorney that stipulated he would resign as assistant principal and head wrestling coach and be placed as a teacher in the district the following year. It also required that McLay repay districts funds he spent and that he received a 10-day suspension without pay after this past wrestling season.
The board voted unanimously to accept the agreement.