After a full day of hearing testimony Wednesday, Magistrate Judge Douglas Jones dismissed three charges against former City Engineer Keith Beatty, and said he would set a trial date for a misdemeanor charge that had been offered as an alternative to a charge of official misconduct.
Beatty also had been accused of permitting a false claim and misuse of public funds in conjunction with a resurfacing project done in 2006 on Union Street. The charges were made in conjunction with $11,917.18 worth of dowel baskets that were to have been installed as part of the Union Street project. Dowel baskets are basic truss structures, fabricated from thick-gauge wire and used to hold dowel bars at the appropriate height during the paving process.
The street work was done by Star Construction, owned by Jeff Herrick, and subcontractors hired by Herrick, according to testimony at Beatty’s preliminary hearing.
Herrick also has been charged as a result of the allegations.
The internal investigation of Beatty was conducted under the direction of former Deputy Police Chief Mike Williams. The case was turned over to the Kansas Bureau of Investigation, which filed the affidavit in the case. KBI Agent Ron Hagen, whose primary duty is investigating allegations of public corruption, conducted the investigation.
Hagen wrote in the affidavit filed in Beatty’s case that Fred Gaede of the city’s engineering department had inspected the project daily and had maintained daily notes and a photo log of the project’s progress.
In late July, Gaede noticed that dowel baskets were not being placed in the street as required in the contract. Hagen wrote that Gaede said he notified Beatty that Star Construction was not putting in dowel baskets, and that Beatty told him the original order had been changed.
No change order was found.
During Gaede’s testimony at the day-long preliminary hearing on Wednesday, Gaede testified that Beatty came to the job site and told him that the job would be done in the same way as the Washington Street project had been done, where dowel baskets also were to have been used but allegedly were not.
“Shortly before they were getting ready to do the … pavement, Keith came out to the job site and said, ‘This is how we’re going to do it,’” Gaede said, explaining the Washington Street reference. “I understood that we’re not going to use dowel baskets.”.
The city apparently was charged and paid for dowel baskets for the Union Street project.
Under cross-examination, Gaede said that he had signed “pay estimates” that allow construction companies to be reimbursed for work that has been completed before the project has been completed.
A change order, which Gaede said would include all of the changes incorporated in the project, did not mention the dowel baskets. They were included in Star Construction’s bill to the city, which Gaede also signed.
He was questioned whether he made any notes on the “as builts” forms that the dowel rods were needed and were not being installed.
“No, I did not,” Gaede said.
Gaede said that he had not made any notes to show adjustments because the project was not built as shown on an invoice.
“No,” he said. “Since that was omitted, yes; that should have been on there.”
He testified that he signed the pay estimates, or invoices, from Star, then passed them on to Beatty for Beatty’s signature, saying that he thought if anything were wrong with it, Beatty would mention it.
Gaede testified that Beatty was on the job site on several occasions.
“If there was anything amiss or something not there, he would discuss it with me,” Gaede said. “… I didn’t feel the need to” tell Beatty.
He said that to his knowledge at the time, only Beatty had authority to authorize change orders.
Gaede testified that he kept a daily log of progress and discussions for the project’s file. During cross-examination, he also said that he had not recorded Beatty’s presence at the job site on those days, though encounters with others were recorded.
Defense attorney Jack Focht of Wichita asked the judge to dismiss the charges, saying the state had failed to prove essential elements of the crimes alleged.
“What the state is asking you to do here is pile assumption on assumption on assumption, which just isn’t true,” Focht argued. “… What you can make of it is that some of the public employees were not doing their jobs.”
Focht said there was a “total absence of evidence” that Beatty had any knowledge of the missing dowel bars and that a supervisor should not be held criminally responsible for actions of employees.
“That’s not what the legislature had in mind at all,” Focht said. “This is not a case that should go forward at all.”
Assistant County Attorney Amy Aranda reiterated Gaede’s testimony that Beatty had been present on the job site and was aware that the dowel baskets were not being used.
“Only Keith Beatty had authority to make changes to the plans,” Aranda said. “So he had to have been aware dowel baskets were not installed. …
“Mr. Beatty had the ultimate fiduciary duty to make sure these pay estimates were accurate.”
Aranda said that Beatty knew when the (claim for payment was made) that the dowel joints had not been used in the street during the project’s completion.
“The city paid for something it didn’t get,” she said.
After a brief recess, Jones returned to the bench to give his decision. He told those assembled in the courtroom that he had thoroughly examined the evidence and listened intently to the testimony, before he announced his decision that probable cause did not exist to bind Beatty over for trial on any of the primary counts. He dismissed them without prejudice, and said that the misdemeanor Class A alternative charge associated with the misconduct charge could be prosecuted.
The alternative official misconduct states that Beatty altered a bid or proposal submitted on a contract or proposed contract, with the intent to reduce or eliminate competition among bidders or prospective bidders.
No testimony was given Wednesday on that charge.
“Counsel,” Jones said, “I think the best route would be to simply set that for trial.”
A date was not set during the session on Wednesday.
City Clerk Susan Mendoza, engineering technician Jon Proehl, and city treasurer Janet Harrouff also testified at the hearing.
homewrecker (anonymous) says...
Does this mean charges against Star Construction will also be dismissed
September 3, 2009 at 5:22 p.m. ( permalink | suggest removal )
builderboy (anonymous) says...
Boy maybe I could go work for the city,county, state or federal governmenet and get paid for something I didn't do. Only time will tell what happens to star construction.
September 4, 2009 at 8:22 a.m. ( permalink | suggest removal )
okjayhawk (anonymous) says...
sounds to me like ms. aranda needs to do more investigative work before she decides to start filing charges and destroying people's characters. i might have to re-think my heating and air contractor...i was erroneously charged for some duct work that wasn't installed in my new house. maybe i need to inform the county attorney's office so they can file felony charges against them and hang 'em high. no wait, i just called them and they fixed the error for me. that's how i do business. it's called integrity ms. aranda, look it up.
September 4, 2009 at 9:50 a.m. ( permalink | suggest removal )
neighbor (anonymous) says...
Fire Gaede. Beatty is already gone, continue with the misconduct charge against him. Drop criminal charges against Star Construction, then file a civil suit against Herrick to reclaim the funds paid to him in error by City of Emporia staff and be done with the matter.
September 4, 2009 at 10:03 a.m. ( permalink | suggest removal )
Tell (anonymous) says...
Neighbor I normally agree with you but this time I think your wrong. Why fire someone that told the truth and did what his boss told him? If the city had a problem with any of this they could have asked years ago. I'm sure the job was bonded and had at least a one year warranty did they ever tell Herrick there was a problem? I think at this stage of the game the county attorneys office should be held accountable for their misconduct.
I would be willing to bet the damage done to Beatty and Star far exceeds 12000.00
Amy Aranda does have a chance to do something right and drop charges.
September 4, 2009 at 11:48 a.m. ( permalink | suggest removal )
okjayhawk (anonymous) says...
neighbor, why fire gaede? and, instead of making the attorneys pockets deeper, ask herrick to repay the funds to the city if they are even owed. and then issue him a public apology for dragging his name through the paving.
September 4, 2009 at 11:50 a.m. ( permalink | suggest removal )
neighbor (anonymous) says...
“Shortly before they were getting ready to do the … pavement, Keith came out to the job site and said, ‘This is how we’re going to do it,’” Gaede said, explaining the Washington Street reference. “I understood that we’re not going to use dowel baskets.”.
You know what they say about assuming. He assumed they were not going to use dowel baskets, because it had been wrongfully allowed at the previous jobsite. He understood, ie assumed. His job is to document jobsite actions, inspect the work, and ensure specs are followed. He did none of this concerning the dowel baskets ASSUMING there was a change order. He did not confirm the order existed by viewing it, and allowed the pour to take place. Perhaps this is what happened on Washington Street as well?
"Gaede said that he had signed “pay estimates” that allow construction companies to be reimbursed for work that has been completed before the project has been completed.
A change order, which Gaede said would include all of the changes incorporated in the project, did not mention the dowel baskets. They were included in Star Construction’s bill to the city, which Gaede also signed."
If Gaede was aware Dowel Baskets had not been used, why did he sign this pay estimate that the money was due to Star Constr.? Again, did he confirm there was a change order? NO, he knew the baskets had not been used, yet he still signed the paper anyhow which resulted in the payment being made to Herrick's company.
"He was questioned whether he made any notes on the “as builts” forms that the dowel rods were needed and were not being installed.
“No, I did not,” Gaede said.
Gaede said that he had not made any notes to show adjustments because the project was not built as shown on an invoice.
“No,” he said. “Since that was omitted, yes; that should have been on there.”
More assumptions and blaming someone else for his dereliction of his duties.
That's why I think he should be fired.
Legals fees for a civil action to reclaim the money for the baskets will be minimal compared to the civil suit that could be filed by parties involved.
September 5, 2009 at 12:52 a.m. ( permalink | suggest removal )
Tell (anonymous) says...
Everything in this world doesn't require a law suit. Charges should have never been filed.I think the county attorneys office has done enough damage. It looks like there was more than one inspector on the job at different times and I guess its hard to imagine that the job being one block from the city engineers office he didn't visit the job. Beatty had his day in court and won so he's done. Maybe the truth is the order was changed which Beatty had the authority to do.
September 5, 2009 at 6:26 a.m. ( permalink | suggest removal )
neighbor (anonymous) says...
When the story first broke and charges were filed against Beatty and Herrick, I posted about the process that must be followed on big construction jobs, specs, inspections, change orders, and what had to be done before the contractor recieved payment for the job. I said then that Star was wrongfully charged in Court. In this report, they laid out what had taken place, how Star Const. had managed to be paid for the work and mtls. Charging the owner in criminal court with felony charges when the payment was made in error, wrongfully submitted to the City Government by City employees, after City checks and balances failed to do what they are supposed to do to catch errors, is rediculous by my point of view. Even if all charges are dropped, both men's records will reflect that the charges were filed, which could cause them troubles in obtaining bonding for other work, could cause them troubles should they decide to travel abroad etc. Canada has gotten real touchy about allowing Americans across their border that have any kind of record. An acquaintance of mine was denied access into Canada when he went North to go fishing because he had been charged with battery(misdemeanor) for being in a fight when he was 19. He was 46 when they turned him away.
September 5, 2009 at 10:19 a.m. ( permalink | suggest removal )