But some council members want more information about allegations
brought up in Rex E. Wyatt lawsuit
Gilroy – City officials say the failure to collect thousands of dollars in building fees in the last five years represents isolated or misconstrued incidents, rather than a culture of error.
Court documents related to a wrongful termination suit filed by Rex E. Wyatt, a senior building official fired on sexual harassment and other charges, state that building department employees failed to collect at least $5,500 in fees between 2002 and 2003.
Officials say they recouped the money where appropriate and added safeguards to avoid future errors, but they have not conducted a full accounting to determine the extent of the problem.
“We didn’t come to the conclusion that this is a pervasive situation,” City Administrator Jay Baksa said. “The supervisors responsible for the functions caught things in the short term and the long term.”
While Baksa maintains that the errors are limited to those detailed in the court documents, council members who were never informed of the situation may demand more details.
“In private business, when you run across an accounting issue similar to this, you go to an outside agency which has no contact with the city and do an audit of the finances to find out if there are any improprieties at all,” Councilman Craig Gartman said. “If there seem to be any issues, I would be one of the first to call for an independent auditor.”
The issue of missing fees cropped up in court records as part of a Dec. 2002 e-mail by Wyatt, written prior to any of the events leading to his termination. In his e-mail, Wyatt chided building inspectors and permit technicians under his supervision for failing to collect fees on a project.
“We have given away just under $500 on this one alone,” he wrote. “This happens way too often … Let’s see if we have a flaw in the system so it can be fixed before we bleed to death.”
Six months after the e-mail, former permit technician Carolyn Costa wrote in a memo that the department failed to assess $5,000 in fees on a commercial project. The statement was part of her response to a negative employee evaluation by Wyatt, who apparently blamed her for the mistake. In addition to denying responsibility for the error, Costa accused Wyatt of making “comments of a sexual nature” and creating an intimidating work environment – charges that ultimately led to his termination in August 2003.
In October, a judge ruled that the “weight of evidence” failed to justify the city’s decision to terminate Wyatt and ordered him reinstated with full back pay and benefits. The decision frees Wyatt to proceed with a lawsuit alleging that the city violated his civil rights.
While city council members grapple with the possibility of a settlement that could cost hundreds of thousands of dollars, top city managers are defending the operation of the building department.
“I think that the characterization was far worse than the reality of the situation,” said Community Development Director Wendie Rooney, referring to Wyatt’s comments in the Dec. 2002 e-mail. Rooney took charge of the building department and other divisions within Community Development the same month the e-mail was written. She was the first in a series of officials to decide Wyatt should be fired based on Costa’s allegations.
Baksa argued that Wyatt’s concerns in the e-mail were strictly limited to the collection of abatement and violation fees. He called those fees discretionary and said they involve an administrative decision “to use the carrot or the stick” with builders who fail to comply with the terms of a permit.
“It looks as though Rex [Wyatt] was more interested in moving toward the stick,” Baksa said.
He conceded, however, that only Wyatt could explain if the suggestion that the building division could “bleed to death” implied problems of a wider scope, such as the failure to assess mandatory fees.
An attorney for the former building official forwarded a request to his client for clarification, but the Dispatch did not receive a response by press time. Costa also did not return a call Monday.
Meanwhile, Baksa said officials caught the $5,000 mistake and ultimately collected that fee.
At the time of the error, the Building, Life and Environmental Safety division instituted an additional layer of review on all plans for buildings measuring 10,000 square feet or more. In the two years since, the city has taken other steps to prevent errors in the BLES division and other branches of the Community Development Department. The changes include the use of a database that prevents the issuance of building permits until all divisions have assessed and collected fees. The city also hired a budget analyst to ensure that fees correspond to revenue projections.
Rooney and the Community Development Department’s various managers continue to implement recommendations from a 2003 performance audit, but officials have never conducted a detailed investigation to determine if any other funds have slipped through the cracks.
Mayor Al Pinheiro, who said he was never informed of the missing fees, said that such issues generally fall under Baksa’s purview as city administrator.
“But if it’s something that’s not right, I want it fixed,” Pinheiro said. “If it’s something that Jay’s not telling us about, damn right we need to know.”
