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News-Press.com - Fort Myers, Florida - Southwest Florida
May 5, 2010

Cape Coral continues quest for MWH payroll records

By Don Ruane

1:10 A.M. - Cape Coral's city attorney will try to determine the best and most cost effective way to get payroll records from MWH so auditor Michael Kessler can complete his review of the utilities expansion project contract.

The council voted 6-2 Monday, with Derrick Donnell and Marty McClain opposed, to continue to try to pursue the records.

MWH has refused the city's request to turn over the records. The company contends it has no further requirement to participate in any re-audit of the contract.

"The position has not changed," MWH spokeswoman Jennifer Thomas said Tuesday.

MWH also had no comment on the vote directing City Attorney Dolores Menendez to gather more information, Thomas said.

The cost of pursuing the records could become a factor. The city has set aside $60,000 to continue the audit but has not yet paid Kessler. He has said he can't go on without the records.

"I don't want to write an open blank check," Councilman Kevin McGrail said.

"We need to chase these records and get them," Mayor John Sullivan said.

The city could improve the trust residents have in the city government if the records show no problems, Sullivan said. The city could be due a refund if problems are revealed, Sullivan added.

Kessler conducted an audit in 2004 but complained he could not get payroll data he needed from MWH to see if the city was overcharged. He also said his audit raised questions about the possibility of bid-rigging. No bid rigging charges have been filed.

MWH brought in auditing firm PricewaterhouseCoopers to conduct another audit, which refuted Kessler's claims that the company had withheld information.

City Councilman Bill Deile recommended the city file a motion asking the court to rule the city is entitled to the data so it can determine if the city has a cause of action against MWH.

Menendez said she is unfamiliar with such a motion, which Deile called a bill of discovery, but would research it.

The city charter gives the council the power to issue a subpoena if it is investigating "affairs of the city," Menendez said quoting the charter.

The term is not defined in the charter. The council might have to convince a judge it is investigating an affair of the city, if it issues a subpoena and MWH fights it, Menendez said.

The city also might be able to get a ruling that the information is a public record and should be turned over to the city, Menendez said.

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