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Extraído del Informe Consolidado

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El Dorado County Grand Jury • 2000-2001

Board of Supervisors Response to the

Published: December 07, 2001 150 pages
View PDF View Full Original

Findings 87 findings

F1 Page 51
Many of the buildings at this school are twenty years old and built with concrete block construction. Because of this type of construction, when water permeates the concrete block and then evaporates, it creates an alkali residue inside the building.
F2 Page 51
Because of the age of the building, the district allocates additional funds for maintenance.
F3 Page 51
The new maintenance supervisor has created a maintenance schedule and has implemented a program to seal the concrete block to prevent further water damage.
F4 Page 51
All damage seen by the 1999/2000 Grand Jury has been repaired. New carpet has been installed in building PA-1.
F5 Page 51
Warning signs are posted to prevent blocking access to electrical panels.
F6 Page 51
Finding 6 of the 1999/2000 Grand Jury states, “Recurring problems with blockage of electrical panels and exits in the Performing Arts Center have led to several violations by the Fire Marshall. Due to failure to correct these conditions, the Principal was cited, fined, and placed on probation for a period of one year.” The response from the school district states: “The issue has already been addressed by the Principal. The teacher is cooperative and no longer blocks the areas mentioned. Staff knows to maintain clear access to hallways, exits and panels.” 52
F7 Page 52
Access to electrical panels was blocked in the Performing Arts Center and in an area adjacent to one of the Science Labs.
F8 Page 52
The above constitutes a repeat violation of the same type found by the 1999/2000 Grand Jury.
F9 Page 52
One of the light fixtures in Building E, that could not previously be opened, has been repaired. The second one has been slated to be repaired when its light tube burns out.
F10 Page 52
During an emergency drill students and faculty are required to go into the nearest room available. At a drill observed by Grand Jury members, one group from the kitchen went into a storage area that had no PA system and only one exit/entrance.
F11 Page 52
The school has 2 1/2 assistant principal positions to investigate charges of harassment as part of their duties. There are four counselors on staff. To provide additional counseling, the County provides the services of the New Morning Agency.
F12 Page 52
There are four campus monitors and a full-time County Probation Officer on campus.
F13 Page 52
Although the school does not have a “hot line”, it does have voice mail so students can anonymously report incidents or information to the administration.
F14 Page 60
All Star did not reveal the spread in any interest rates that would be charged to the County as part of the costs of this form of financing. Response to F14: The respondent agrees with the finding. The response is subject to one qualification and one clarification. The qualification is that, although no documents in County files indicate that All Star provided any information on any spread in interest rates, the respondents have no knowledge of the contents of oral communications from All Star to the CAO. The clarification is that the term “reveal” implies that All Star possessed information regarding interest rate spread, but the respondent has no knowledge whether or not this implication is correct. Because County Policy A-11 and Penal Code section 933.05 require that we either agree, or partially or wholly disagree with each finding, we agree with the finding because we have no knowledge to the contrary. 61
F15 Page 61
On January 27 and 28, 1999, the first of a series of meetings was held to identify the proposed occupants of the Justice Center, their needs, and a design concept that would serve those needs. The scope of the proposed Project changed several times during its design phase. Response to F15: The respondent agrees with the finding. The scope of the proposed Project changed subsequent to these meetings.
F16 Page 61
On February 11, 1999, in a letter written to the Director of DGS, All Star: a. Identified several additional phases of the Project including a juvenile hall; b. Proposed a Letter of Agreement in which the County would “agree to pay the costs associated with the development of these documents (master plan, programming and partial Schematic design Plans)…in the event that the County does not proceed with the project…by December 1,1999.”; c. Represented in the proposed form of the agreement, that: “Our reimbursable expenditures associated with Courts Phase I will not exceed $_____ and those associated with the Sheriff’s facility will not exceed $_____.” (Emphasis added); and d. Presented a draft form of a proposed lease agreement between the County and All Star for consideration. Response to F16: The respondent agrees with the finding.
F17 Page 61
A proposed master lease was submitted to the County Counsel for review and recommendation. Response to F17: The respondent agrees with the finding.
F18 Page 61
The County Counsel’s Office and legal representatives for All Star continued negotiations over the form of a proposed master lease throughout the term of the Project design and development phase of the Agreement between All Star and the County. Those negotiations failed to result in any Master Lease Agreement between the County and All Star being signed. Response to F18: The respondent agrees with the finding. Negotiations continued through the schematic design phase. It is unclear what is intended by the reference to a “development phase”. 62
F19 Page 62
On February 18, 1999, All Star wrote a letter to the Director of DGS identifying certain financial considerations absent from its previous letter. The letter stated in part: “… [I]n the event that the County does not proceed with the project and authorize us to continue with the design and construction by December 1, 1999[, our] reimbursable expenditures associated with Courts Phase I will not exceed $180,000 and those associated with the Sheriff’s facility will not exceed $195,000.” (Emphasis added) Response to F19: The respondent agrees with the finding.
F20 Page 62
On February 25, 1999, All Star sent a proposed Letter of Agreement, with conditions as stated above, to the CAO, requesting his signature as approval of the letter of agreement. Response to F20: The respondent agrees with the finding.
F21 Page 62
On May 28, 1999, All Star wrote to the CAO advocating the following: a. That the County complete the legal subdivision of the Phase I property and convey title to the property to All Star; b. That the County authorize a Letter of Agreement in the form of previously written letters, including the provision that “Our reimbursable expenditures associated with Courts Phase I will not exceed $600,000 and those associated with the Sheriff’s facility will not exceed $500,000.” (Emphasis added); and c. January 2000 was set forth as being the deadline date for a finalized lease agreement. Response to F21: The respondent agrees with the finding.
F22 Page 62
On June 23, 1999, the CAO prepared an Agenda Transmittal requesting that the BOS authorize him to sign a Letter of Agreement with All Star for the necessary planning, programming, and schematic design required to proceed with the environmental review for the proposed Justice Center Complex. The BOS was advised that the estimated cost to the County, in the event the County chose not to proceed, was approximately $1,000,000, and that these costs would be wrapped into the lease rate if the County did proceed with the Project. Response to F22: The respondent agrees with the finding.
F23 Page 62
That request was scheduled as item 42 on the BOS Consent Calendar. Response to F23: The respondent agrees with the finding. 63
F24 Page 63
The BOS approved the request. Response to F24: The respondent agrees with the finding.
F25 Page 63
A Letter of Agreement, dated July 9, 1999, was prepared by All Star for approval by the CAO and included the signature of John Thomas, President of All Star. The County approved the Letter of Agreement by the signature of Michael B. Hanford, Chief Administrative Officer. Response to F25: The respondent agrees with the finding.
F26 Page 63
Terms of that Agreement stipulated reimbursement by the County to All Star upon a failure to finalize a lease agreement by April 2000. Further, the Agreement provided that “reimbursable expenditures associated with Courts Phase I will not exceed $600,000 and those associated with the Sheriff’s facility will not exceed $500,000.” (Emphasis added) These provisions constituted “caps” rather than fixed fees. Response to F26: The respondent agrees with the finding.
F27 Page 63
On September 9,1999, All Star prepared a letter for the purpose of amending the Letter of Agreement dated July 9, 1999. The purpose of the amendment (“Amendment #1”) was the addition of a Juvenile Hall Facility to Phase I of the Project. Amendment #1 stated in part: “If for any reason the County and All Star cannot conclude lease terms and rates, All Star shall be entitled to a fee of $300,000 for services provided.” (Emphasis added) This language constituted a “fixed fee” for services provided. Response to F27: The respondent agrees with the finding.
F28 Page 63
This proposed letter of amendment was not routed to the County Counsel’s Office for review and recommendation. Response to F28: The respondent agrees with the finding.
F29 Page 63
On October 8, 1999, the CAO prepared an Agenda Transmittal requesting BOS “authorization to sign the amendment to the previously approved letter dated 7-09-99, adding a new juvenile hall….” In his attached memorandum, the CAO advised the BOS that the amendment would be an “authorization of fee up to $300,000 to be paid them for their work if we do not move forward with the project.” (Emphasis added) This language would have constituted a “cap” rather than a “fixed fee”. In fact, however, the actual letter of amendment by its terms constituted a “fixed fee” agreement. Response to F29: The respondent agrees with the finding. 64
F30 Page 64
The proposed amendment was scheduled as item 47 on the BOS’s Consent Calendar for October 26, 1999, and was approved by the BOS. Response to F30: The respondent agrees with the finding.
F31 Page 64
Failure to route the proposed amendment to County Counsel, for review and
F32 Page 64
In a letter dated November 19, 1999, All Star requested authorization for another amendment (“Amendment #2”) to the July 9, 1999, Letter of Agreement, for the production of construction documents. Amendment #2 would have imposed costs to the County in addition to those already the subject of the existing Agreement. Amendment #2 states in part: “ If for any reason the County and All Star cannot conclude lease terms and rates, All Star shall be entitled to a fee of $625,000 for the Courts and Sheriff’s facility and $325,00 (sic) for the Juvenile Hall Facility for services provided.” (Emphasis added) Response to F32: The respondent agrees with the finding.
F33 Page 64
In a letter dated November 29, 1999, All Star submitted another letter requesting the authorization of Amendment #2. This letter was essentially the same as the letter of November 19 save for monetary changes in the last sentence which reads in part: “… All Star shall be entitled to a fee of $725,000 for the Courts and Sheriff’s facility and $425,00 (sic) for the Juvenile Hall Facility for services provided.” (Emphasis added) Response to F33: The respondent agrees with the finding. 65
F34 Page 65
In a memo on All Star letterhead, dated December 12, 1999, the Project cost was estimated to be to be $36,000,000. Yearly lease payments were represented as ranging from $2,980,000 figured at a rate of 6%, to $3,775,000 figured at a rate of 7.5%. These figures were proposed in the context of a 30-year, fixed rate, fully amortized agreement. Response to F34: The respondent agrees with the finding. The memo states that All Star reviewed “some of the possibilities for lease rates based upon market conditions today” suggesting that these quoted rates may or may not have been the ultimate rates, and makes additional assumptions should the County decide to invest.
F35 Page 65
Yearly payments on $36,000,000 at 6% calculate to be $2,615,360, and for 7.5% calculate to be $3,048,164. Response to F35: The respondent agrees with the finding.
F36 Page 65
At a meeting of the BOS on December 14 1999, the Board approved in concept a lease-leaseback agreement and an underlying ground lease with All Star, “subject to the opinion of County Counsel as to its collision with (ballot) Measure A.” Response to F36: The respondent agrees with the finding.
F37 Page 65
In a letter dated December 13, 1999, from the Taxpayers Association of El Dorado County, the Association President requested the BOS give due consideration to Measure A. The letter states in part: “This proposed lease, lease-back arrangement appears to circumvent the requirements of Measure A.” Response to F37: The respondent agrees with the finding.
F38 Page 65
In a letter from the CAO to the BOS dated January 3, 2000, the CAO articulated a number of factors relevant to the Project including the following. a. “There is a strong possibility that the State Task Force on Trial Court Facilities will recommend that the State or the California Administrative Office of the Courts (AOC) assume responsibility for statewide court facilities. If other county departments were housed in the court building, the County could be required to pay facility rental charges to the State at some time in the future.” b. Government Code Section 68073 states, “The County is responsible for providing necessary and suitable facilities for judicial and court support positions created prior to July 1, 1996.” 66 c. “Building and financing the construction of courthouse facility space for expanded staffing and functions (those created after July 1996) might not be a county responsibility in the future, however, if undertaken by the county at this time, would most likely create a higher level of ongoing financial responsibility by County government”. d. Quoting from an attached document entitled “Transfer of Trial Court Facilities” (sic) the CAO stated: “The ‘preliminary General Principles’ propose that…[n]ew construction would be the responsibility of the State. The State would provide future financing for renovation/reconstruction projects via the State budget process. New construction financing would be the responsibility of the State….” e. “Building a new court facility which would accommodate an increased number of judicial officers and staff (i.e. positions over and above those in existence prior to July 1, 1996),…would unnecessarily create a lasting financial burden for the El Dorado County budget.” f. “It appears that it would be preferable to let the State take responsibility for future expansion of the Courts and not burden the County with financial expenses that are the responsibility of the State.” Response to F38: The respondent agrees with the finding.
F39 Page 66
The County nevertheless proceeded to pursue the development of this Project, including the potential construction, in two phases, of an eight- courtroom court building. Response to F39: The respondent agrees with the finding.
F40 Page 66
In a memo dated January 14, 2000, County Counsel submitted a detailed analysis of Measure A and its impact on the Project. The memo concludes by stating in part “Measure A requires one thing. In the future, if the Board of Supervisors chooses to enter into an agreement to sell revenue bonds to acquire, construct, purchase or lease County building or other capital facilities, they must put their plan before the voters for final approval.” (Emphasis in original). The County Counsel also “conclude[d] that the Justice Center project, as currently proposed to be financed, does not require voter approval under Measure A.” Response to F40: The respondent agrees with the finding.
F41 Page 66
While the proposed lease, leaseback agreement would not have required voter approval under the specific language of Measure A, entering into the proposed master agreement with All Star would have committed a significant 67 amount of County Funds, estimated $3,000,000 or more, annually for thirty (30) years. In fact, the long term commitment of large sums of the County’s funds for capital improvements was the event that previously triggered the ballot initiative commonly referred to as Measure A. The Project, measured in terms of cost, was at least as significant as the expenditures that had resulted in the passage of Measure A. Response to F41: The respondent disagrees partially with the finding. Respondent agrees that a capital project involving commitment of large sums of money was a catalyst for Measure A, but we cannot state that it was the reason for Measure A. Measure A might have been prompted by public disapproval of the particular project proposed at that time.
F42 Page 67
The County actively sought a financing scheme that would legally allow the completion of the Project without the necessity of taking the proposal before the voters for their approval. Response to F42: The respondent disagrees partially with the finding. Respondent agrees that it pursued design/build/finance, after an initial study of financing methods available for capital projects which included design/build/financing as well as other types of financing for capital projects. The chosen method was seen as superior for numerous reasons; it was not chosen merely because it would be legally exempt from voter approval.
F43 Page 67
On January 18, 2000, The CAO submitted to the BOS, for approval, a request for authorization to sign Amendment #2. That request was scheduled as an item on the BOS’s, January 25, 2000, Consent Calendar. On January 25, however, the CAO requested that the item be continued to February 1, 2000. Ultimately, the CAO withdrew his request for approval of Amendment #2. Response to F43: The respondent agrees with the finding.
F44 Page 67
In a memo dated January 25, 2000, All Star detailed a number of proposed changes to contract language for agreements between All Star and the County. Those proposals were reviewed by County Counsel’s Office. Response to F44: The respondent disagrees partially with the finding. County Counsel reviewed the proposed changes to contract language that pertained to a proposed agreement that would supercede the prior agreements. 68
F45 Page 68
In a response addressed to All Star’s Attorney, County Counsel stated in part: “Your client requested modification of the ‘not to exceed’ language to ‘the amount of’, which has not been incorporated. Obviously, if the County were to terminate the project prior to the completion of the final plans, the full costs of the work would not have been incurred by your client, nor would the County have received all the work bargained for.” Response to F45: The respondent agrees with the finding.
F46 Page 68
A courtesy copy of this letter was routed to the CAO. Response to F46: The respondent agrees with the finding. The copy provided to the CAO was not merely a “courtesy copy”, but was in fact confirmation of the issues outlined by County Counsel and County Counsel’s
F47 Page 68
In a memorandum from the County Treasurer/Tax Collector dated February 8, 2000, to the District III Supervisor, several recommendations were made regarding the Project. The last of these reads: “All Star Investments, LLC, should fully disclose to all interested parties all income from all sources on this deal, including any spread on the interest rate.” Response to F47: The respondent agrees with the finding.
F48 Page 68
The Grand Jury found no evidence that this request was ever made of All Star. No such information was ever provided to the County by All Star. Response to F48: The respondent agrees with the finding. The response is subject to two qualifications. First, the respondent has no knowledge of what evidence the Grand Jury found. Second, the respondent has found no documentary evidence that the information was provided, but has no knowledge of oral communications between All Star and Hanford. Because County Policy A-11 and Penal Code section 933.05 require that we either agree, or partially or wholly disagree with each finding, we agree with the finding because we have no knowledge to the contrary.
F49 Page 68
In an attachment to a letter dated May 23, 2000, All Star represented the Costs for Phase I of the Project to be $38,100,000. Response to F49: The respondent agrees with the finding.
F50 Page 68
The County received a grant from the State Bureau of Corrections (BOC) in the amount of $1.4 million, the funds to be applied to the construction or renovation of a juvenile hall facility. The grant included a deadline for the use of funds. Response to F50: The respondent agrees with the finding. The grant included deadlines for construction to commence, and for construction to be complete.
F51 Page 69
Repeated changes in the Project caused delays in the required CEQA process, which, combined with other lease issues, led to negotiations for the Juvenile Hall portion of the Project not being completed in a sufficiently timely manner to allow the expenditure of the grant funding prior to the grant deadline. The funds were returned to the State without prejudice. Response to F51: The respondent disagrees partially with the finding. The grant award was turned back to the state, but no grant money was ever received from the state. Changes in the project causing delays in the CEQA process and lease issues contributed to this result. There were additional issues, however, some related to Board of Corrections requirements, that also contributed to the respondent’s inability to meet the construction deadlines in the grant.
F52 Page 69
All Star made a demand to the CAO for payment, in a letter dated June 7, 2000, which reads in part: “We request that the County honor the commitments made in the July 9, 1999 Letter of Agreement, as amended September 9, 1999, and provide All Star Investments with immediate payment of the aggregate total of $1,400,000 now due and owing for the environmental and design documentation furnished to the County.” No supporting invoices or other documentation justifying the amount of such payment was submitted by All Star to the County. Response to F52: The respondent agrees with the finding.
F53 Page 69
On June 14, 2000, notwithstanding the absence of supporting invoices or other documentation justifying the amount of All Star’s claim, the CAO prepared an Agenda Transmittal and letter attachment recommending to the BOS that the All Star billing be approved for payment, and paid, in the amount of $1,400,000. These funds were to be paid from the Department 15 Capitol Facilities Construction Account. The CAO represented to the BOS that it had previously approved “a Letter of Agreement and amendments thereto calling for the payment of $1.4 million to All Star Investments” in the event the lease was not finalized by April 2000. (Emphasis added). That was incorrect. The BOS had actually authorized the payment of up to $1.4 million, not a flat fee of $1.4 million. The matter was scheduled as Agenda Item #86 on the BOS Calendar for June 27, 2000. The Agenda item itself, as opposed to the documents submitted to the members of the BOS in support of the Agenda item did not publicly specify the amount of payment to be made. Response to F53: The respondent agrees with the finding. 70
F54 Page 70
The CAO’s recommendation to the BOS was misleading, in that it did not advise the BOS of the following facts: a. That the $600,000 figure for the Phase I Court Facility was a cap, rather than a fixed fee; b. That the $500,000 figure for the Sheriff’s Facility was a cap, rather than a fixed fee; c. That the $300,000 for the Juvenile Hall had been approved on the basis of the CAO’s representation of it as a cap, rather than a fixed fee, contrary to the language of the agreement (Amendment #1) itself; d. That no supporting backup for All Star’s claim for its own services, or allocation of that claim between three separate portions of the Project, had been received; and e. That no supporting backup for All Star’s claim for subcontractors’ services, or allocation of those claims between the three separate portions of the project, had been received. Response to F54: The respondent agrees with the finding. The response is subject to one qualification. Although the Agenda transmittal was inaccurate, the term “misleading” seems to imply that the inaccuracy was intentional. The respondent has no knowledge of any such intent underlying the CAO’s
F55 Page 70
After input from the Auditor/Controller, at the June 27 meeting of the BOS, the CAO modified his recommendation to authorize payment to All Star “after proper invoices are received and reviewed by the CAO, County-Counsel and Auditor-Controller.” Response to F55: The respondent agrees with the finding. The CAO modified his recommendation after discussion with the Auditor/Controller and County Counsel.
F56 Page 70
Except for the input of the Auditor/Controller, it appears the sum of $1.4 million would have been paid to All Star without any determination having been made by the CAO or the BOS: a. That $600,000 had actually been expended by All Star for the Phase I Court facility; b. That $500,000 had actually been expended by All Star for the Sheriff’s facility; 71 c. That the amounts of All Star’s subcontractors claims, and allocation of those claims between the three separate phases of the project, were justified; or d. That the amount of All Star’s claim for its own services was justified. Response to F56: The respondent agrees with the finding. County Counsel provided information in addition to the Auditor/Controller.
F57 Page 71
All Star submitted an invoice dated 7/10/00. It is a single item invoice for “Professional Services rendered for the schematic design for the El Dorado Juvenile Hall Facility”. The amount billed was $300,000. Because of the language of Amendment #1, which constituted a fixed fee agreement, the Auditor paid the claim in full on September 6, 2000. Response to F57: The respondent agrees with the finding.
F58 Page 71
Examination of billings and invoices associated with the work of All Star and its subcontractors shows that the reimbursable expenses associated with the Juvenile Hall Facility would have been less than $140,000. Thus the fixed fee provision of Amendment #1 ultimately cost the County in excess of $160,000. Mixing of a “fixed fee” agreement with other “cap” agreements in the same project created a foundation for additional issues regarding the amounts due and payable by the County. Response to F58: The respondent agrees with the finding.
F59 Page 71
All Star submitted to the County a one-page Invoice, dated July 17, 2000, seeking payment in the amount of $1,123,222.20 for the following costs: a. $450,000 for Development and Management Services rendered for the El Dorado County Courthouse and Sheriff Facility. The claim for those costs was supported by a one-page memo, dated July 3, 2000, asserting that an Ellen Warner spent 1,800 hours on the project, at a rate of $250 per hour, and that the hourly rate was “inclusive of all management, accounting and overhead.” b. $503,840.00 for Nacht & Lewis Architects. c. $63,668.85 for Carlton Construction Co. d. $4,066.50 for The Hoyt Co. e. $5,000.00 for Walker Parking Consultant. f. $45,997.03 for Legal Services. 72 g. $45,000.00 for Financing Services. h. $5,669.82 for Miscellaneous Expenses. No subcontractor invoices or other billing documents were submitted in support of the claim. Response to F59: The respondent agrees with the finding.
F60 Page 72
In a letter dated August 3, 2000, All Star responded to a concern which the County had raised regarding the possibility All Star was double billing for work preformed on the Juvenile Hall Facility. The letter reads in part: “We have reviewed the billing and back up submitted to you previously, and confirm that the Juvenile Facilities costs are not included in the Sheriff and Courthouse Project.” Response to F60: The respondent agrees with the finding.
F61 Page 72
Ellen Warner, the person identified in the claim referenced in F59 (a.) above, was represented to the County by All Star through numerous communications on All Star letterhead, to be “VICE PRESIDENT, All Star Investments, LLC”. Further, according to the CAO in a letter to All Star dated October 25, 2000, “John Thomas has readily acknowledged that his company [All Star] did not incur a reimbursable cost to Ellen Warner in the amount of $250.00 per hour.” Response to F61: The respondent agrees with the finding.
F62 Page 72
Invoices obtained from Nacht and Lewis, the company identified in the claim referenced in F59 (b.) above, for billings to All Star for work preformed on the Project, show total billings of $523,077.08. Of that sum, however, $120,849.60 is clearly marked and billed exclusively to work preformed on the Juvenile Hall Facility. Response to F62: The respondent agrees with the finding.
F63 Page 72
Examination of billings from Carlton Engineering, the company identified in the claim referenced in F59 (c.) above, discloses that the amount actually billed by Carlton Engineering was $62,961.87, of which $6,453.30 was directly attributable to work preformed for the Juvenile Hall Facility. This was subsequently confirmed by a letter from All Star dated November 17, 2000. Response to F63: The respondent agrees with the finding.
F64 Page 72
As a result of the review of “proper invoices” by the Auditor/Controller and County Counsel, the Auditor/Controller determined that All Star was 73 legitimately entitled to the amount of $376,358.64 for services preformed on the Project in addition to the $300,000 fixed fee paid for the Juvenile Hall Facility. The total paid by the County to All Star for its services was $676,358.64, not the $1.4 million originally claimed by All Star. Response to F64: The respondent agrees with the finding. The response is subject to the following clarification. County Counsel and the Auditor-Controller requested and received invoices and billing records directly from the sub- contractors, and those invoices and documents were the basis for the payment. “Proper invoices” were not received from All Star.
F65 Page 73
Diligence on the part of the Offices of the Auditor/Controller and County Counsel resulted in savings to the County in excess of $700,000. Response to F65: The respondent agrees with the finding.
F66 Page 104
An escrow, No. PV-207337, was opened at Inter-County Title Company in connection with the purchase of Parcel A by exercising the Purchase Option which had been acquired through escrow No. PV-206564. As of February 15, 2001, when escrow No. PV-207337 closed, the County had expended a sum in excess of $235,000 to purchase Parcel A, not counting the $70,000-plus which the County had paid for the Option to purchase that parcel. Response to F66: The respondent agrees with the finding.
F67 Page 104
As of February 15, 2001, the County had expended solely for the acquisition of the Logan Building and related parcels, out-of-pocket, approximately $2,155,000. That sum is essentially identical to the sum which Frank, on February 24, 2000, had told Hanford would be required to acquire those parcels. That sum does not include the approximately $130,000 which the County has expended, out-of- pocket, on non-county-employee labor and materials for changes to the lower floor of the Building for occupancy by the Sheriff's Office, nor does it include the amount, unquantified as of the date of this report, of non-out-of-pocket costs of county employee time incurred in the making of those changes. Response to F67: The respondent agrees with the finding.
F68 Page 104
The 1999/2000 Grand Jury found that, "[a]s of June 1, 2000, the [BOS] has failed to inform the public of its specific intended use of the Logan property." The BOS agreed with that finding, but stated that "[o]nce this decision [regarding which County departments would ultimately occupy the Logan facility] is reached, it will be announced publicly by the Board." As of March 1, 2001, however, ten months later, and with the exception of the Sheriff's Department's occupancy of the lower floor, no such announcement had been made. Response to F68: The respondent agrees with the finding. No announcement has been made because no decision has been reached.
F69 Page 104
As of March 1, 2001, George Martin ("Martin"), the Director of DGS, was, for the first time, in the process of seeking bids for an independent study to be conducted by a consultant in order to determine occupancy feasibility and what those costs were likely to be. As of that date, out-of-pocket costs approximating $130,000 had already been expended in connection with the occupancy by the Sheriff's Department of the lower floor of the Building. That expenditure, however, is approximately $100,000 less than what would have been expended had the Sheriff's request for purchase of two modular facilities to be located in the parking area of the existing Sheriff's facility, and related remodeling of that existing facility, been approved and implemented. 1 05 Response to F69: The respondent agrees with the finding.
F70 Page 105
As of March 9, 2001, the County had expended, in both acquisition costs and remodeling costs for the lower floor of the Logan Building, approximately $2,300,000, not counting the time costs of County employees involved in that remodeling. Moreover, no remodeling or retrofitting costs or expenditures had yet been incurred in connection with the middle and upper floors of the Logan Building, and no costs or expenditures had been incurred in connection with the design and construction of any proposed facility to be located on Parcel A. Response to F70: The respondent agrees with the finding.
F71 Page 105
On March 13, 2001, on request of newly elected Supervisors Baumann and Borelli, the BOS undertook discussion of the subject of whether the County should continue to expend funds in connection with the Logan Building, or whether the County should sell it and cease further expenditure of funds thereon. The BOS directed Martin, the Director of DGS, to investigate: · The space needs of the County generally; · The most likely appropriate potential departments or agencies to be assigned to use the Logan Building; and · The probable costs of retrofitting the Logan Building to make it usable for those departments or agencies; and · To report the results of that investigation back to the BOS on April 24, 2001. That direction effectively obligated DGS, which had no specific expertise in the subject, to perform the same functions for which it had previously solicited bids from consultants, in a highly compacted time frame. Response to F71: The respondent disagrees partially with the finding. We disagree with the statement that the Department of General Services had no specific expertise in the subject.
F72 Page 105
On April 24, 2001, the Director of DGS presented a report to the BOS in response to the BOS's direction of March 13, 2001. In that report, the DGS Director made the following representations to the BOS: · Minimum retrofit costs would total $349,000; · Complete retrofit costs would total (depending upon whether the existing tile on the middle floor was or was not removed prior to the installation of carpeting) $389,000 to $397,000; · Purchase of furniture, not including desk top office supplies, for approximately forty-five (45) employees occupying the Building would cost an additional $157,500; · Actual cost of the Logan Building and related parcels was $2,157,637; · The Building and related parcels had appraised values of $1,565,000 for the Building (Parcel C), $110,000 for the parking area (Parcel B) and $255,000 1 06 for the "lot" (Parcel A), or a total of $1,930,000. · The County's acquisition cost was $227,637 over that total appraised value of $1,930,000; · Fair market value of the Logan Building and related parcels, for resale purposes, is between $1,000,000 and $1,450,000; · Continued occupancy of the lower floor of the Building by the Sheriff's Department, avoiding the purchase of two modular units for that purpose, would effect an annual savings of $30,000; · Potential rental to private businesses of the five suites on the upper floor of the Building would generate annual rental income of $53,742; and · The ability to rent out the middle floor of the Building is marginal at best. Response to F72: The respondent agrees with the finding.
F73 Page 106
In his report the DGS Director then identified various County departments which, in his view, might be the most likely candidates to occupy the middle floor of the Building, and recommended · That the Building not be sold at this time; · That the Sheriff's Department continue to occupy the lower floor; · That the upper floor be rented out to private businesses; · That there be a "thorough analysis" of the appropriateness of occupancy of the Building by the departments which he had identified; and · That rental demand for the middle floor of the Building be "probe[d]." Response to F73: The respondent agrees with the finding.
F74 Page 106
Inherent in the report of the DGS Director is the proposition that, if the Logan Building were to be sold, the County would probably sustain a loss of approximately $750,000 to $1,000,000. Whether that amount would or would not exceed the amount of additional funds necessary to retrofit the Building for purposes of efficient use by the County is, in the view of the Grand Jury as of the time of rendering this Report, a question requiring further study and investigation by qualified design and engineering professionals. Absent such study and investigation, however, it is the tentative view of the Grand Jury that the amount of those retrofitting costs would exceed the amount of the loss that the County would sustain upon a sale of the Logan Building and related parcels. Response to F74: The respondent disagrees partially with the finding. The Grand Jury holds the “tentative view” that it will cost the County more to retrofit the Logan Building than the $750,000-$1,000,000 loss the Grand Jury believes the County might realize if it sold the properties today. We disagree with the Grand Jury’s tentative view, however, and see no basis for it in the findings of fact. The DGS Director estimated retrofit costs at approximately half of the Grand Jury’s projected loss. Even All Star Investments’ estimate, cited in F60. (which one might expect to be a high estimate), does not exceed the Grand 1 07 Jury’s figure.
F75 Page 107
The BOS, as a group, did not tour or otherwise view the Logan Building prior to authorizing its purchase. Some, but not all, of the members of the BOS did view it on an individual basis. At least one of the members of the BOS, however, never saw the Logan Building before voting to authorize its purchase. Response to F75: The respondent agrees with the finding.
F76 Page 107
The 1999/2000 Grand Jury found that "the County appear[ed] to have paid significantly more than either the property's appraised value or the price noted in the real estate marketing documents." In its response thereto, the 1999/2000 BOS stated that that appraisal was "predicated upon the facility being utilized as an income generating property," and that "changing the use from income producing to non-commercial government use no longer justifie[d] this significant discount." That response ignored the fact that the only "discount" discussed in the Spencer Appraisal Report was a discount from $1,675,000 "stabilized" value, based on the income method of valuation, to $1,530,000 "as is" value. That response also ignored the fact that the "comparable sales" valuation of the Logan Building, as discussed in the Spencer Appraisal Report, was $1,620,000. For these reasons, this Grand Jury concludes that the 1999/2000 BOS was less than candid and forthright in its response to the 1999/2000 Grand Jury Report on the Logan Building. Response to F76: The respondent disagrees wholly with the finding. The 1999/2000 BOS was fully candid and forthright in its response to the prior Grand Jury. Spencer appraised the value of the Logan Building primarily using the “income approach.” The value under that approach was significantly diminished because of the prolonged vacancies the building had experienced. That is the “discount” to which the BOS referred. The fact that the Grand Jury may disagree with the substance of the 1999/2000 BOS response does not render the response “less than candid and forthright.”
F77 Page 107
The 1999/2000 Grand Jury found that "[a]ny required internal modifications [of the Building] will require expenditure of additional funds." In response thereto, the BOS stated that "[m]odifications and renovations of this complex will be required to meet the specific functional requirements of its, yet to be determined, new tenant. However, the current total cost remains $600,000 less than the estimated cost to have built a new comparable facility (1.7 acres with the same square footage); and that assumes a suitable site would be available and that no major environmental impacts were identified or would require mitigation." That response evaded the following issues: · That the "replacement cost" figure did not appropriately value the Logan Building, because the building was overbuilt for the area and no other 1 08 Building, because the building was overbuilt for the area and no other purchaser would have paid replacement-cost for the Building; · That the County had no legitimate need to acquire an "overbuilt" building; · That the interior of the Building was not configured in a manner which would reasonably accommodate the County's needs, without the existence of substantial wasted space; · That because the County did not then know (and, with the exception of the lower floor of the Building, as of June 20, 2001 still does not know) the identity of the "yet to be determined new tenant," it therefore had no legitimate basis for speculating that the costs of modifications and renovations required to meet the specific functional requirements of that tenant would be less than $600,000; and · That, by referring only to "major environmental impacts [which] would require mitigation," the County ignored the potential ADA impacts arising from the issue of access to the upper floor. For these reasons, this Grand Jury concludes that the 1999/2000 BOS was less than candid and forthright in its response to the 1999/2000 Grand Jury Report on the Logan Building. Response to F77: The respondent disagrees partially with the finding. The basis for the 1999/2000 BOS’s statement that a comparable new facility would cost $600,000 more is unclear, and a majority of that BOS has left office. The BOS response, however, is clearly a “generic” one, not necessarily tied to the Spencer Appraisal Report, to the notion of replicating an “overbuilt” facility, or to the identity of a prospective tenant of such a new facility. The reference to environmental impacts clearly applied to the hypothetical construction of a new facility, not to ADA impact issues at the Logan Building. The fact that the Grand Jury may disagree with the substance of the 1999/2000 BOS response does not render the response “less than candid and forthright.”
F78 Page 108
The 1999/2000 Grand Jury recommended that the BOS "be more forthcoming with the citizen taxpayers regarding all aspects of its acquisition of the Logan property." In response thereto, the 1999/2000 BOS stated that "[t]he
F79 Page 109
Although the 1999/2000 Grand Jury investigation of the Logan Building acquisition was initiated on the basis of a complaint alleging the existence of conspiratorial conduct, the 2000/2001 Grand Jury was unable to develop any direct evidence of a specific conspiracy. Although Albaugh and the Lyons both lived in Auburn, the Grand Jury was unable to develop any direct or specific evidence that they had any contact or communications with, or even knew, each 1 10 other. The Grand Jury was also unable to develop any direct evidence of other conspiratorial conduct on the part of any other persons involved in the acquisition of the Logan Building and related parcels. Response to F79: The respondent agrees with the finding. The respondent is aware of no evidence, direct or indirect, general or specific, that would suggest any conspiratorial conduct among Albaugh, Lyons, or anyone else, or even what the purpose of such a conspiracy would be. The Grand Jury’s finding is ambiguous, not even suggesting the nature of the conspiracy. In addition, the phrase “Although Albaugh and the Lyons both lived in Auburn,” appears to be a non sequitur in that it implies, without basis, that the fact that both Albaugh and Lyons lived in Auburn alone should give rise to the suspicion of conspiratorial conduct.
F80 Page 110
The existing interior of the middle floor of the Logan Building is configured (and partially constructed) in such a way that, if and when it is assigned for use by county agencies, the following situations will result and potential impacts, by way of example only, will occur: · The nature and quantity of restroom facilities within the Building, while appropriate for a single-owner business, are inadequate for a County building serving public needs, and substantial additional plumbing improvements and expansion will be required; · The floor-tile covering most of the middle floor of the Building, while obviously luxurious and expensive, is unsuited to traffic by the public. It either will have to be (i) removed and replaced or (ii) covered by some kind of carpeting. If that is not done, it will constitute a potentially dangerous condition as to which the County will be exposed to potential liability for slip-and-fall incidents; · Either (i) there will be a significant amount of wasted and unusable space on the middle floor, or (ii) a considerable amount of the expensive built-in cabinet and drafting-table fixtures on that floor will have to be removed, reconfigured and replaced. Significant, but as yet unquantified, remodeling and/or retrofitting costs will be necessary to mitigate these, and other, problems. Response to F80: The respondent disagrees partially with the findings with the finding. The Director of DGS has provided a preliminary quantification of remodeling and/or retrofitting costs. The adequacy of restroom facilities will depend upon how the building is occupied and used.
F81 Page 110
The Logan Building is located in an area of Diamond Springs which is already subject to significant traffic congestion, and the adaptation of the Building to County uses will exacerbate that problem. Because the acquisition by the County of the Logan Building and related parcels was "categorically exempt" under CEQA, however, no environmental study of those traffic, or any other, 1 11 environmental issues was undertaken prior to its acquisition. Response to F81: The respondent disagrees partially with the finding. Construction has begun on a realignment and signalization of the Pleasant Valley Road - Highway 49 intersection that will dramatically improve traffic conditions in the area. Those improvements were planned and funded before the Logan Building was acquired. These improvements seem likely to offset any adverse traffic impacts of the County’s use of the Logan Building.
F82 Page 111
There are significantly differing views as to the amount of the total additional costs and expenditures estimated to be required in order to make the Logan Building fit and usable for county purposes. At the low end of the estimates is that of the Director of DGS that those costs involve a minimum of $349,000, and for a complete retrofit will require $389,000 to $397,000, plus an additional $157,000 for employee furniture. In the middle is an estimate of All Star Investments, made during the course of its work on the Justice Center project, that approximately $750,000 would be required for use of the Logan Building by the Sheriff's Office. It is the view of the Grand Jury, however, that if a proper and appropriate job of remodeling is done in order to reconfigure the Building for maximum efficiency of use by the County, the costs and expenditures therefor will exceed, and probably will substantially exceed, seven figures, i.e., $1,000,000 or more. Response to F82: The respondent disagrees partially with the finding. We have no knowledge of the basis for the Grand Jury’s opinion that reconfiguring the building will cost $1 million or more, and the Grand Jury’s estimate greatly exceeds the two cited opinions, with no explanation. Furniture expenses could well be part of any relocation of staff to new quarters, and they should therefore not be assigned as an expense specific to retrofitting the Logan Building.
F83 Page 111
The Grand Jury expresses no view, as of the time of the preparation of this report, as to whether the County (i) should incur the costs and expenditures necessary to completely retrofit the Building in light of its previously expended funds, or (ii) should "cut its losses" and attempt to dispose of the Building at the best available price, recognizing that it will not be able to recover the full the amount that it has previously expended. The Grand Jury is of the view, however, that that determination should not be made by the BOS until a study and report from a consultant with expertise in the subject, setting forth specific proposed uses and costs, has been completed and presented to the BOS. Response to F83: The respondent partially disagrees with the finding. A consultant may not necessarily be required.
F84 Page 111
In November 2000, the County Counsel and the CAO asserted claims of confidentiality and privilege as to some of the Grand Jury's inquiries of them 1 12 pertaining to this investigation, and they accordingly testified only as to non- confidential matters. The 1999/2000 BOS then authorized the filing of a lawsuit against the Grand Jury to preclude inquiry into such matters. On April 3, 2001, Superior Court Judge Suzanne Kingsbury signed and filed a Judgment which rejected the County's assertions. The 2001/2002 BOS then authorized disclosure of all matters pertaining to this (and one other) investigation, and the Grand Jury obtained further testimony from the CAO concerning matters previously withheld. Response to F84: The respondent agrees with the finding. The lawsuit was filed only after a legitimate exchange of views among the affected parties failed to resolve the dispute. The parties cooperated in good faith in placing the matter before the Court. The County initiated the lawsuit after representatives of the Grand Jury had indicated that the Grand Jury was prepared to sue the County to resolve the issues. The County determined that it was more forthright to seek judicial resolution immediately, rather than waiting to be sued by the Grand Jury for enforcement of the subpoenas. For additional detail, see also response to finding F78.
F85 Page 112
Section 703 of the County Charter provides as follows: "Every county officer and employee shall cooperate in providing the Grand Jury with any requested information or documents, except where disclosure is prohibited by law." Response to F85: The respondent agrees with the finding.
F86 Page 112
In the County's lawsuit against the Grand Jury, in arguing that Section 703 of the County Charter did not constitute a waiver of attorney-client privilege or closed session confidentiality, the County Counsel made the following assertions concerning that provision: · In the ballot arguments made at the time the Charter was adopted by the voters, the "County Counsel's impartial analysis advised, 'The proposed charter makes relatively few substantive changes to provisions already contained in general law,'" and that "[w]aiver of the lawyer-client privilege and closed-session confidentiality as to the Grand Jury were not among them." · "[T]here is no reason in law or logic why section 703 should not simply be declarative of existing law." · "Section 703 is operative as a policy expression of full support for the Grand Jury's work, without altering existing law." Response to F86: The respondent agrees with the finding.
F87 Page 112
Superior Court Judge Kingsbury, in her April 3 Judgment, did not rule on the question of the legal effect of Section 703 of the County Charter. She did not rule that Section 703 constituted a waiver of privilege or confidentiality by the County as to the Grand Jury, but she also did not rule that it did not constitute such a waiver. It is the view of the Grand Jury, contrary to that of the County 1 13 such a waiver. It is the view of the Grand Jury, contrary to that of the County Counsel that Section 703 was intended to, and does, constitute such a waiver, and that that waiver is additional to and separate from the determinations of state law which Judge Kingsbury made in the Judgment. Response to F87: The respondent agrees with the finding. That is, the respondent agrees that the Grand Jury holds this view.

Recommendations 15