Sunday, March 7, 2010

Dump Truck Is Matter of Public Trust

Statement of Terry E. Cohen, Salisbury City Councilmember
Feb. 22, 2010
“The Public Trust”
Updated Feb. 24, 2010

Last Thursday (Feb. 18) in council work session, council and administration discussed the budget amendment needed for the acquisition of a 3-ton dump truck. The question was asked of me what it would take to move the amendment forward.

As of Dec. 21, 2009, I had been willing to move the budget amendments forward. That changed when I learned the truck had or may have been ordered without a budget amendment to legally appropriate the money, despite my having raised the issue the day after the award of bids and before the truck was ordered.

At the Feb. 18 work session, I was personally attacked for insisting that parties responsible be held accountable in some way because I think the City Charter and State Law are both clear about not making contracts for which the money is not appropriated. When I said I felt this had been a violation of the public trust, the response was laughter from a member of the council majority saying, “What public trust?”

To some, this may be a technicality or about one dump truck. It's really about the law and the public trust

Some say it's just an honest mistake, but the question was raised before the truck was ordered and should have been resolved before the order was placed. A mistake had been made with a second truck as an accounting matter, but this truck is about more than an accounting matter. Expediency is not an excuse. “The ends justify the means” is not part of the sections of law I cite.

This is another instance in a pattern of moving forward without appropriate action being taken first. Without accountability, the pattern will continue, and the checks and balances legally in place to protect the public's money will fail when we most need them to work.

A chronology. the two sections of law and the contract signature page follow or are attached.

Oct. 26, 2009Council approves award of bid for dump truck. (An award of bid designates who the contract goes to. It does not authorize a purchase. An appropriation authorizes a purchase.)

Oct. 27, 2009
Councilmember Cohen sends email to City Administrator John Pick, copied to Mayor Ireton and Director of Internal Services Pam Oland. (“Last night Pam said the S-3 vote was required because the purchase was not budgeted. Do we not, then, need a budget amendment? I realize the lease is already appropriated money, but the money was appropriated for another purpose....Thanks for looking into these questions and whether we need to make a budget amendment promptly....”)

Oct. 27, 2009 – Purchase order is cut.

Oct. 28, 2009 – Contract Agreement date.

Oct. 28 – Nov. 4, 2009 – Contract signatures obtained.

Nov. 6, 2009Executed contract and purchase order provided to vendor.

Nov. 16, 2009Email from Pick to Cohen that the budget needed to be amended two ways: 1. to accommodate new accounting rules and 2. to move appropriation from Sanitation division to Streets division. (First amendment was to have been presented at Nov. 30, 2009, work session, which was canceled.)

Dec. 21, 2009
Budget amendment to adjust for accounting change discussed and consensus reached to move forward. However, no mention was made that the trucks were already ordered by those present who had signed the contract.

Jan. 11, 2010 – Budget amendment to adjust for accounting change brought for legislative vote. Cohen asked when the truck was ordered. Oland responded that she did not have the date on hand. Cohen asked if both trucks were ordered together. Oland responded she did not know. Councilmember Debbie Campbell asked, regardless of the date, if the truck had been ordered. Oland replied she did not have the answer to that question. No one present who had signed the contract mentioned that the trucks had already been ordered.

Feb. 12, 2010
– Date of Invoice to City.

Feb. 16, 2010 – Date of Actual Delivery to City (received)

Feb. 17, 2010 – Vehicle Tagged

Maryland Annotated Code Article 31, Section 3.
§ 3. Contracts not authorized by appropriation prohibited. An officer or agent of any county, township or municipal corporation who is charged or entrusted with the construction, improvement or keeping in repair of any building or work of any kind, or with the management or providing for any public institution, shall not make any contract binding or purporting to bind the county, township or municipal corporation to pay any sum of money not previously appropriated for the purpose for which such contract is made, and remaining unexpended, and applicable to such purpose, such officer or agent who wilfully or knowingly makes or participates in making a contract without such appropriation or authority, shall be personally liable thereon, and the county, township or municipal corporation in whose name or behalf the same was made shall be not liable thereon.

§ SC7-29. Overexpenditure forbidden.

No office, department or agency shall during any budget year expend or contract to expend
any money or incur any liability or enter into any contract which by its terms involves the expenditure of money, for any purpose, in excess of the amounts appropriated for that general classification of expenditure pursuant to this Charter. Any contract, verbal or written, made in violation of this Charter shall be null and void. Any officer or employee of the city who shall violate this section shall be guilty of a misdemeanor and upon conviction thereof shall cease to hold his office or employment. Nothing in this section, however, shall prevent the making of contracts or the spending of money for capital improvements to be financed in whole or in part by the issuance of bonds or the making of contracts of lease or for services for a period exceeding the budget year in which such contract is made, when such contract is permitted by law.
[1959 Code, sec. 365. ch. 534, sec. 84] [Renumbered 1-11-99 by Res. No. 629]