Atherton City Council members and residents alike are agitating for the release of an investigator’s report probing charges of wrong-doing by employees in the town’s building department. An expert on public records law said it was “incredible” that town staff was blocking a city council’s access to a report it clearly was entitled to see.
In November 2005, the town hired attorney Lance Bayer to investigate a number of residents’ complaints about the building department, and his report was delivered some time in June. According to Atherton City Attorney Marc Hynes, disciplinary action may be taken against some building department employees as a result of that investigation.
So far, that investigator’s report has only been seen by City Manager Jim Robinson and by Mr. Hynes, and attempts by two council members to view the report, even in an edited form to protect employees’ privacy, have been rebuffed.
At the council’s July 19 meeting, council members Kathy McKeithen and Jerry Carlson criticized Mr. Robinson and Mr. Hynes for keeping the investigation report under wraps. Ms. McKeithen called the city attorney’s arguments for refusing to release the report “essentially rote.”
“If the alleged problems are found to be as inconsequential as the town’s response indicates, then show us the report and let us get back to more important matters,” she said. “If, however, improprieties have occurred and were found to exist, then let us shed some light on them. It has been said that sunlight can be a powerful disinfectant.”
At that same council meeting, it was revealed by Atherton Finance Director John Johns that an internal audit of the building department found employees failed to charge developers a total of about $100,000 in building fees, based on a review of major projects over the past 18 months.
“The whole secrecy thing, in my mind, doesn’t make any sense,” Atherton resident and a veteran council-watcher Jim Dobbie told the council. “It’s high time we got back to being squeaky clean. If something is wrong, we can deal with it, and if nothing is wrong, we can say it.”
Credibility crisis
Rumors about exactly what has been going on in the building department have reached a boiling point in town, especially in the wake of Building Official Mike Hood’s sudden retirement June 30. Council members called the situation a crisis in the credibility of Atherton’s government and called for a more extensive audit of building department files.The heightened tensions between the council and Mr. Robinson, the city manager, and Mr. Hynes, the city attorney, may account for Mr. Carlson’s caveat that a new audit is to be overseen by Mr. Johns, the finance director, and that the city manager is to have no direct involvement.
Mr. Robinson told the council he saw no problem with that, and only suggested that measures be taken to ensure that building department staff had time to keep up with its day-to-day business — conducting building inspections, reviewing applications and issuing permits — while the audit is conducted.
Mr. Robinson has repeatedly referred questions about the investigator’s report, its contents and its release, to Mr. Hynes.
According to Mr. Hynes, the contents of the report on the investigation of building department employees has not been released because of the privacy rights of the employees and the attorney-client privilege.
Although Mr. Hynes told the Almanac that nothing of a criminal nature was revealed by the investigation, Mr. Johns told the council at the July 19 meeting that his audit turned up documents that could be considered “evidentiary,” implying that a more serious type of misconduct may have occurred.
McKeithen’s request
Ms. McKeithen has said that what was supposed to be an investigation into specific allegations was initiated at her request in November 2005, in response to citizen complaints, and she was led to believe that she would see a copy of Mr. Bayer’s report, with the names deleted, when it was completed.“Unfortunately, this promise seems to have been forgotten, or perhaps the correct word is overridden, by directions from the city manager and the town attorney to Mr. Bayer to reveal no investigatory results,” Ms. McKeithen said.
She said she then filed a public records act request for the report that was denied by Mr. Hynes.
Mr. Hynes told her the report was exempt from public disclosure due to attorney-client privilege, because it pertained to discipline of public employees and would go into their personnel files, and because the employees’ privacy interest “outweighs the public interest served by disclosure.”
“I think the arguments are specious, and don’t really give you any specifics,” Ms. McKeithen said.
She said she found it suspicious that the response to her public records request was delayed until the end of June, coinciding with Mr. Hood’s departure June 30.
Councilman Jerry Carlson said he tried to get a copy of the report, and was also denied.
“I’m damn certain we have a responsibility to (see it), and we are going get some answers,” Mr. Carlson said.
Both Ms. McKeithen and Mr. Carlson told the Almanac that they intend to continue their efforts to get access to the investigator’s report. Ms. McKeithen said if the report is released to the council, she couldn’t see a reason why the report should not also be available to the public.
