The Cape Coral City Council directed City Attorney Dolores Menendez to seek a legal judgment on whether records from MWH Constructors are public or private.
After debating what step they should take, members of the city council voted 5-3 for the city attorney to find out if the city has access to MWH financial records that were previously withheld from Kessler International, a New York-based firm specializing in corporate investigations and forensic accounting.
Councilmembers Derrick Donnell, Marty McClain and Kevin McGrail voted against the motion.
Mayor John Sullivan said Cape Coral citizens have a right to know whether MWH overcharged the city for services contained in a 1999 contract. He said many residents spent upwards of $30,000 on assessments and impact fees for the utility expansion, resulting in broken families and some residents losing their homes.
According to Menendez, if the city obtains the documents from MWH and finds the city was overcharged, they could claim a breach of contract or fraud, but the statute of limitations for making these claims was five years so the city may not have the option of recovering funds even if they find that MWH had overcharged for services.
Although council prefers not spending too much on the legal process of obtaining the records, Menendez said she couldn’t provide an estimate of legal services for her office or another firm to pursue the records.
City staff said financial records already turned over by MWH, such as employee time cards and invoices, don’t appear to have been defrauded; yet Kessler’s initial audit turned up questionable findings in 2007.
Councilmember Chris Chulakes-Leetz voted for the motion but said the issue should be dropped if nothing is found.
“If we have reached our brick wall than I ask it be the end of it,” said Chulakes-Leetz. “If these records aren’t public, we need to accept the fate that we got taken, from my point of view.”
In a later discussion, the city council said it wouldn’t make any decisions on a new contract for Michael Kessler until it is apparent whether the city is able to procure the desired documents from MWH.