The Newton County Grand Jury investigated Chairman Kathy Morgan's actions in the 2011 Cook Road resurfacing project, and its findings, which were released last week, recommended a change in the policy for road projects and the shifting of the public works department away from the chairman's control.
The findings, also referred to as a presentment, came from a five-person investigating committee, which looked over documents and interviewed people relating to the case.
Morgan was accused during a March 20, 2012 board meeting by county Commissioner Mort Ewing of breaking county policy and state law by not putting Cook Road repair work out for bid. A one-mile portion of the road was resurfaced in summer 2011.
The findings never state whether Morgan broke county policies or state law but present a series of facts, some of which seem to state Morgan broke the county's purchasing policy and other facts that dispute statements Morgan made to local newspapers.
"The presentment speaks for itself and I have no comment on it," Morgan said Tuesday in an email when asked for a comment. "As to any comments I previously made, I stand by those comments."
District Attorney Layla Zon, who is responsible for working with the grand jury, told The News in an email that "I have reviewed the investigation and the pertinent law. I am not pursuing any criminal charges at this time."
The breaking of state law would be a criminal matter, but the breaking of county policy would be a civil matter, which is not prosecuted by the state.
One recommendation by the grand jury committee committee was that "the board of commissioners review this presentment for any possible misconduct or infringements of policy and procedure."
The grand jury's part in the investigation is complete.
However, Commissioner Ewing said Tuesday he had not seen a copy of the findings and did not know the procedure for such a review. County Attorney Tommy Craig could not be reached for comment.
If officials determine Morgan did violate county policy, it's unclear what could happen.
Project not bid out
The county policy most likely to have been broken was the purchasing policy. The findings' facts included:
- no part of the Cook Road resurfacing project was bid out
- Newton County wrote a check to Pittman Aug. 12, 2011 for $187,038.19 for the Cook Road project
- the county purchasing policy states that for projects of $50,000 or more: "Per the county's enabling legislation, bids are required."
- the project was never approved by the board of commissioners
However, Morgan already publicly apologized for her actions regarding the project at the June 19 board meeting, stating that she "should have placed this as an agenda item to receive approval."
"I believe we prepared a quality road and the outcome would have been the same. I acknowledge now that I might have handled this better. I am sorry if I did not follow procedures properly or if my actions caused any concern. I am working with the public works director to establish standard operating procedures to prevent this from happening again," Morgan stated previously.
No public action regarding the Cook Road project was taken following her apology, so it's unclear if the grand jury's report will change anything.
Morgan's comments came at around the same time the grand jury committee was finishing compiling its findings, as this particular grand jury was in existence from January through June.
Grand jury
The grand jury, which is comprised of between 16 and 23 people and is generally created to serve for six months at a time, has two main functions:
1. to hear evidence in criminal cases to determine whether there is probable cause a crime was committed
2. to inspect or investigate the departments of the county, and other select governments
"The grand jury's presentment is the product of the civil investigation conducted pursuant to the grand jury's authority to inspect county offices," Zon explained in her email.
State laws broken?
The question of whether state law was broken is unclear. The findings summarize two state law purchasing requirements:
"1. Public Works Bidding, O.C.G.A. 36-91-1 et. seq. Applies to the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to any public real property. Requires bids/Requests for Proposals (RFPs) for all projects $100,000 or more."
"2. County Road Projects, O.C.G.A. 32-4-60 et. seq. Applies to the construction, reconstruction, or maintenance of all or part of a public road. Requires bid for all projects $20,000 or more. This statute does not apply to the purchase of materials where the county performs the work or to engineering or other kinds of professional services."
Why Pittman?
In her initial reply to Commissioner Ewing's claims of wrongdoing, Morgan said there were special circumstances that caused her to not follow policy. She is quoted in the Newton Citizen's April 11, 2012 online article as saying Pittman was a "single source provider" for an asphalt product blend known most popularly by the brand name Perma Flex. The rationale given was that no bids could be taken if only one source could provide the work.
PermaFlex, or similar product blends, is used to create a layer in-between the original road and a new resurfaced layer. Otherwise, existing cracks in a road can more easily begin to damage the newly repaired road.
However, the grand jury's findings state: "‘Perma Flex' is not a ‘single source' product or application technique. ‘Perma Flex' has been used extensively in Georgia since 1996. ‘Perma Flex' is available from many contractors in the Atlanta area and is not a single source product."
In its conclusion, the findings state "The Grand Jury has no way of knowing whether the citizens of Newton County received value in the services provided by Pittman Construction with respect to the OGI (open graded interlayer - the generic name for a Perma Flex-like blend) layer applied to Cook Road since there is no way to determine if the county received fair market value for the project. Competitive bids were not taken and a budget was not established, and therefore the final cost can not be evaluated. Additionally, because there was no quality control or product testing performed, the quality of the final road can not be established."
Recommendations
Based upon the findings, the grand jury recommended:
1. Mandatory policies and procedures be established within the DPW (department of public works) for budgets, cost control, verifications and approvals of billing, technical specifications and regular cost reports and progress reports on all projects will be submitted to the board of commissioners for review.
2. The board of commissioners review the presentment for any possible misconduct or infringements of policy and procedure.
3. The following grand jury review the Neighborhood Stabilization Project for current status and compliance with applicable codes, regulations and policies.
4. The board of commissioners consider putting the department of public works under the supervision of the county manager.
Relating to the last part, public works is the only department which remains under the control of the elected chairman - as called for by the county charter - since the board voted last fall to switch to a county manager form of government.
When asked by email about that recommendation, Morgan said "I do not believe that it is in the best interests of the citizens of the county."
Related to point 1 and other questions about records housekeeping, she said "We try to the best of our ability to follow county guidelines and procedures."
Morgan will not serve as chairman next year since she lost to her Democratic challenger Marcus Jordan in the July primary election.
The grand jury investigating committee was comprised of William Perugino, Ricky Bradford, Eve Chaple, Jeremy Whitfield and Ronnie Dimsdale, who later resigned because he ran for a county commission seat. Perugino said Tuesday that he could not offer comment as he was bound by the oath that grand jurors take when conducting their work.
The full findings of the committee can be found in the legals section of this paper.
