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“No Evidence of Deliberate Wrong-Doing” in Stadium Time Reporting, Says Auditor

Asked point blank if he had found any evidence of deliberate wrongdoing in Levi’s Stadium time-reporting, independent auditor Fred Brousseau told members of the Santa Clara City Council, “I’ve not seen evidence of wrong-doing. I’ve seen difference of opinion about Measure J, but no evidence of deliberate wrong-doing.” That was the bottom line of the Sept. 26 meeting of the Ad Hoc Stadium Audit for Measure J Committee.

This follows months of insinuations of that very thing from Mayor Lisa Gillmor and her Council Member allies, as well as from some political candidates. Last winter, the same people claimed that a Grand Jury report was going to substantiate these claims. When that failed to uncover any civic corruption, the present $200,000 audit was launched.

Brousseau reported that time-keeping at stadium events was well-managed – the time-keepers are physically in the stadium and record employees’ time on duty directly. Every unit of the police department has a time-keeper, who collects employee time sheets and reports the hours and activities to the finance department. The same time-keepers work at stadium events.

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For activities between events such as planning, Brousseau offered no findings showing errors. All he would say was that he had “credible information” that “the potential is there” for time to be recorded in different ways for the same activity.

“There are things that may not have been recorded.” In other words, mis-recording or incorrect charging of employee hours has yet to be demonstrated. Unlike stadium duty, which is clear-cut so the time between clocking in and clocking out is the time charged, outside the stadium employees may have several different tasks that they report on time-cards.

Since there’s no longer any question that the Santa Clara Stadium Authority (SCSA) has had detailed time-keeping and accounting codes for stadium-related work from the start, Gillmor is now looking for evidence that instructions weren’t communicated or employees didn’t follow them.

She returned to this repeatedly. “You said staff time wasn’t always reported [and]… there didn’t seem to be any local direction.”

All the codes were there but not every employee may have understood how to use them, Brousseau said. “It was a new endeavor and there were questions,” said Brousseau. Employees “may have” referred those questions to the finance department or to their supervisors.

“So every department head could use their discretion,” asked Gillmor. Do the current directives leave room for managerial discretion she wanted to know?

“No directive could cover all questions,” answered Brousseau.

City Manager Rajeev Batra asked how time-keeping for stadium-related work was different from any other work city employees do, which is charged back to specific departments and accounts. The process is a familiar one.

At this point conversation careened off-track into micro-definition of “stadium-related activity.”

If someone at a stadium restaurant choked “on a chicken bone” would that paramedic call be charged to the 49ers even though there was no stadium event? Should the five minutes the dispatcher spent taking the call be charged?

What if someone leaves the stadium and gets arrested for drunk driving a mile away? If a crime is committed at the stadium, is the time officers spend investigating and testifying in court chargeable?

Should developing a plan to handle Uber traffic be charged? Should meetings called with the 49ers by the City be charged? Should the time spent writing reports that include stadium activity be charged? Should time spent talking about the stadium at City Council meetings be charged?

Brousseau said that “anything attributable to the stadium” was included, and Gillmor said that Measure J explained that.

“You [Brousseau] said earlier that this was a work in progress,” said Council Member Patrick Kolstad. “It occurred to me that the law of reasonableness has to be applied here.”

“I’m sure there will be some judgment,” said Brousseau.

The committee didn’t discuss the definitions of “reasonableness” or “judgment.” Further, it refused to say whether the intention was to establish new accounts, and if so use them for future timekeeping or charge them retroactively for the last two years. Nor would the committee say that it wouldn’t penalize employees and managers for not doing something in the past they weren’t told to do.

Levi’s Stadium is different from any other city business because the city recovers public safety costs for serving the stadium. California municipalities can’t recover public safety costs without special state legislature action, noted City Attorney Ren Nosky.

The meeting’s other topic was whether police officers should be allowed to make public statements at will, without permission from the police chief. Candidate for police chief Patrick Nikolai has said – at public meetings, campaign appearances and in a letter to the Mercury News – that he can’t speak publically about “possible violations” of Measure J and “the facts” he and the Mayor have said police officers shared with them.

City ordinance specifies that police officers may not make statements about police business to the media without the chief’s permission, said Nosky. They can speak as private citizens, “but no one has a protected right to speak to the media as an employee.”

The City Attorney also noted that all city employees have a mandatory duty to report any violations of law to a superior. “They’re absolutely required to come forward,” added Kolstad, a retired police officer.

Broussard said that “15 to 20” employees have spoken to him about these “possible violations.” However, “someone telling us something isn’t alone enough.” It has to be verified with specific information from city records. “If we can’t document it, it would not hold up as a finding.”

Gillmor responded by reiterating her interest in hearing employees’ suspicions, and her as yet unproven belief that Santa Clara has been underpaid.

“I want everyone to feel free if they see anything wrong to come forward,” she said. “Our goal is to clean this up.” Otherwise, she said, “We would have been stuck with this for 40 years.”

Gillmor also said she’s open to the possibility that the audit might show that the 49ers were charged for time that wasn’t spent on stadium-related work. “Findings cut both ways,” she said.

Although the stadium opened two years ago, and the City Council signed off on the term sheet in 2010 and the development agreement in 2011, it’s only been in the last four months that the Council – several of whom appeared in Yes on J commercials in 2010 – has discussed the details of time-keeping procedures.

The next committee meeting is Oct. 12, 2016 at 5 p.m.

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