West Bay director charges cover-up in employee settlement

By RENEE DEAL

Director John Carcione of the West Bay Sanitary District last week accused the district's attorney William Esselstein and several other district officials of a cover-up in the matter of the district's 1996 legal settlement with a former employee.
The charge was made during the April 1 special meeting of the board, during which Mr. Esselstein submitted his letter of resignation as district counsel -- an action prompted, he said, by "vicious attitudes" and "boorish behavior" directed at him since December.
Mr. Carcione also accused Mr. Esselstein of not conducting an adequate investigation of claims made by the same employee that then-district manager Charles "Sandy" Thomas was engaged in wrong-doing. An investigation of Mr. Thomas by the county district attorney's office did not occur for about eight months after the employee's allegations were made, and Mr. Thomas now faces 36 felony counts of stealing and other crimes against the district.
Threatened lawsuit

The settlement was finalized in August 1996 with employee Maxine Harrington, who had threatened to sue the district for wrongful termination that spring.

At the time, Ms. Harrington claimed that she had been a victim of Mr. Thomas' sexual harassment; she also alleged misuse of funds by Mr. Thomas involving Peninsula Pump & Equipment -- the South San Francisco company that the district attorney now says was a part of Mr. Thomas' alleged scheme to steal more than $300,000 from the district.

Using enlarged copies of board agendas, minutes and district correspondence as visual aides, Mr. Carcione told those in the packed board room last week that he believed Mr. Esselstein intentionally hid the settlement sessions from the public by giving inadequate information on board agendas and minutes pertaining to closed sessions to discuss and approve the settlement.

The omissions of Ms. Harrington's name and a brief summary of the nature of the "anticipated litigation" on those public records were violations of the Brown Act, the state's public meeting law, according to Brown Act expert Terry Francke, an attorney for the California First Amendment Coalition.

Also, the minutes of all four closed sessions that appear to have been conducted to discuss and settle the matter indicate that no action had been taken during the sessions. But board action was required to authorize the settlement, which included paying Ms. Harrington four months' salary and up to $1,500 in attorney's fees. This omission -- "a flat misrepresentation" -- was also in violation of the Brown Act, Mr. Carcione charged.

In a memo attempting to answer some of Mr. Carcione's questions, raised a week before the meeting, Mr. Esselstein said that omission in the minutes that the board took action on the Harrington matter was "an oversight."

But Mr. Carcione argued that the minutes had been approved by the directors at that time, two of whom still sit on the board. He challenged the suggestion that the omission was inadvertent, noting that since he has been observing and participating in board meetings, directors have labored over the minutes to ensure their accuracy,

"Mr. Carcione is a wonderful Monday morning quarterback," said director Finn Halbo, who was on the board when the 1996 settlement was approved. "He had a long wonderful story about what might have happened, and ... he assumed the worst," he added.

Free rein

Ms. Harrington's allegations of wrong-doing by Mr. Thomas represented the second time Mr. Esselstein had been told something was amiss in the general manager's office. About nine months after Mr. Thomas was appointed manager in 1991, employee John Simonetti met with Mr. Esselstein to report payments to Peninsula Pump for work not done, Mr. Simonetti told the board last December.

In a memo written earlier this year, Mr. Esselstein wrote: "I have never been in possession of any information, whether related to the Simonetti matter, the Harrington matter or any other matter, from which I gained the impression that the former district manager had been engaged in misconduct with Peninsula Pump ..." Mr. Esselstein wrote in a March 30 memo that while another attorney was hired to investigate the sexual harassment allegations, he was the one who looked into the matter. "In that connection, I took up Ms. Harrington's allegations with both Thomas and the board." After talking with Mr. Thomas and receiving explanations he considered satisfactory, he determined "the allegations did not appear to be true."

Mr. Carcione said that because Ms. Harrington's allegations were brushed aside -- apparently with no one but Mr. Thomas questioned -- Mr. Thomas was emboldened and given free rein to continue his dealings with Peninsula Pump, which allegedly involved misuse of the district's funds for Mr. Thomas' benefit. During the last six months of Mr. Thomas' tenure, far more district money was paid to Peninsula Pump than in the prior years of his tenure, Mr. Carcione said.