Probe faults Modesto city attorney

kvaline@modbee.comMay 11, 2013 

  • ABOUT THE REPORTER
    alternate text Kevin Valine
    Title: Reporter
    Coverage areas: City of Modesto and nonprofits
    Bio: Kevin Valine has been a copy editor and reporter at The Bee since January 2006. He's worked at the Reno Gazette-Journal, Sarasota (Fla.) Herald-Tribune and Paradise Post as a reporter and copy editor. He's a graduate of San Jose State.
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— An investigation has determined that Modesto City Attorney Susana Alcala Wood violated policy last summer in her handling of a request to change an employee's timecard hours.

The employee wanted her timecard to show she earned less money than she actually did, to qualify for a state-subsidized preschool program for her 4-year-old daughter, according to the investigation.

The investigation concluded that Wood:

• Exhibited "failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the city."

• Violated the city's code of ethics by failing to "avoid conflicts of interest or its appearance; protect the public's resources and use them for public purposes not for personal gain; avoid embarrassing or discrediting our organization, our community or ourselves."

• Was provided with emails, which she did not read, that suggested the employee did not qualify for subsidized child care and apparently failed to consider the implications of facilitating the employee's request to change her timecard; and she should not have directed another employee, who was not trained in these types of requests, to handle the matter.

The city released the 48-page investigative report Thursday after The Bee filed a request for it last month under the California Public Records Act. The city blacked out the names of all employees in the report except Wood's. She was the only high-level employee investigated.

The city learned about the allegations against Wood and her office in October. The California Department of Education, which subsidizes the preschool program, had received an anonymous complaint. The state turned the complaint over to the preschool, which notified the city.

City Manager Greg Nyhoff hired Santa Cruz-based Belcher, Ehle, Medina & Associates to conduct the investigation, and the Alameda law firm of Wiley Price & Radulovich to oversee it. The investigation cost the city $41,207.

Nyhoff has said city investigations typically are handled by the city attorney's office, but he could not use that office to investigate allegations made against it.

Wood said Friday it's important to note that the allegations against her and her office involved fraud and that the investigation found no evidence of that. She said the report criticizes her for not handling administrative matters well. "There was no finding of fraud, which I knew would be the case," said Wood, who has been city attorney since June 2006.

Anonymity troubled mayor

Modesto Mayor Garrad Marsh said he questioned whether there should have been an investigation, especially because the complaint was made anonymously. He said it is not city policy to investigate anonymous complaints.

But he said that because the allegations involved the city attorney's office — where integrity and ethical behavior are critical — the investigation was warranted.

Marsh said the situation could have been avoided had Wood read the emails, but added it's understandable that an oversight can happen given the number of emails Wood receives and her heavy workload.

He said Wood will not be disciplined. Marsh said the City Council recently decided unanimously not to punish any employee involved in this matter, though Marsh said he counseled Wood regarding the incident.

Wood is one of the city's three charter officers. As such, she is hired and fired by the City Council and reports directly to the council. Nyhoff and City Clerk Stephanie Lopez are the other charter officers.

"I've worked with Susana for many years," Councilman Joe Muratore said. "I don't think she did anything intentional and I think the council made the right decision."

Wood blamed the problem on not having enough employees. She said her staff has declined from 17 to 10 in several years because of the recession. She said the staff member she asked to help the employee with her timecard does not have experience with payroll. Wood said because of budget cuts she no longer has an office administrator to handle timecards and other administrative matters.

Wood disagreed with some of the report's findings but acknowledged she could have done a better job. "At the end of the day," she said, "the buck stops with me."

Subsidy qualification

The report gives this account of the events:

An employee in the city attorney's office applied about a year ago to have her daughter attend Creative Child Care in Manteca, near the employee's home.

The employee — whom Wood said is a support worker and not an attorney — said Creative Child Care told her she qualified for subsidized preschool, then later told her she did not after the state changed the income limits.

The employee reapplied just before preschool started and provided Creative Child Care with records for two pay periods for July and August 2012. The records showed the employee worked 72 hours each two-week pay period instead of a typical 80 hours.

The employee got permission from Wood to have the July timecard modified after it had been submitted to the payroll department.

The report said the city attorney's office employee who helped the other employee with her timecard also unknowingly violated city policy by completing a salary verification form that was submitted to Creative Child Care, something Wood did not authorize. City policy is for the payroll department to verify an employee's salary.

The July timecard modification involved changing one paid sick day into an unpaid day off. The employee later asked Wood for permission to take an unpaid day off for the August pay period.

When asked by the investigator whose idea it was to change her July timecard, the employee said that "she did not recall who suggested it, but it was someone at the city attorney's office."

The employee has worked for the city since 2007, and her annual pay was $49,422 when she applied for the preschool program.

Lack of intent

The investigator concluded it does not appear the employee had intentionally violated city policies. The employee "lacked the ability to accurately compute her monthly and yearly salary, factoring in furloughs, to qualify for her daughter's preschool program," the investigator wrote.

The investigator wrote that the employee relied on Creative Child Care, Wood and another city attorney's office employee to handle the matter.

Creative Child Care Chief Executive Officer Debbie Eison said Friday that her company later did its own investigation and determined the employee qualified for subsidized preschool based on a review of six months of pay stubs.

"It was rather confusing," she said.

The investigator said Wood told him she could not recall all of the details, but the employee "had approached her and asked to take leave without pay on her July timecard to help qualify for a preschool program she was trying to enroll her daughter into."

Wood said the employee frequently had very little leave time on the books, so it was not unusual for her to take time off without pay. The investigator said Wood told him she did not think there was anything unusual in the employee's requests or that the employee was trying to lower her income to qualify for the preschool program.

Bee staff writer Kevin Valine can be reached at kvaline@modbee.com or (209) 578-2316.

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