– Fort Myers, Florida – Southwest Florida
July 27, 2010

Cape Coral willing to sue for documents

MWH papers called key to utilities audit

By Don Ruane

1:10 A.M. — Cape Coral will attempt to show that records held by MWH Americas of a utilities expansion project are public and should be turned over to the city.

The council voted 5-3 for the city attorney to seek a court ruling declaring the records public.

Mayor John Sullivan and Councilmen Bill Deile, Erick Kuehn, Pete Brandt and Chris Chulakes-Leetz voted for the action. Councilmen Kevin McGrail, Marty McClain and Derrick Donnell voted no.

MWH has refused to provide the records, which the city wants in order to complete an audit of the 1999 contract for the utilities projects. The records are being sought so auditor Michael Kessler can complete an earlier audit that he claimed was thwarted by MWH’s refusal to supply the records.

The city has set aside $60,000 for Kessler to complete the audit. Seeking a court ruling will be an

additional cost that City Attorney Dolores Menendez could not specify. “I think the costs are going to be significant,” Menendez said.

“I have to believe today that MWH snookered Cape Coral pretty well,” Chulakes-Leetz said. “Mistakes have been made and we have so much else to do.”

But if the records can’t be declared public records, it will be time to drop the effort, Chulakes-Leetz said.

Sullivan was persistent about trying for a court ruling that the documents are public records as long as it doesn’t cost hundreds of thousands of dollars, Sullivan said.

“I certainly don’t like to quit this early in the game,” Sullivan said. “I want to go for it.”

“This litigation we’re talking about is only to get the documents,” Menendez said.

The next question is whether there is time to recover damages if something is uncovered. There is a statute of limitations on recovery of four years on fraud and five years on written contracts.

“We’ll take it one step at a time,” Sullivan said.

In a lighter matter, the council voted to let potbellied pigs Petunia and Baby stay in Cape Coral.

By a unanimous vote. the councilmen voted 8-0 to grandfather in the pet pigs under a 2008 ordinance than bans swine.

“I am so relieved,” said Petunia’s owner, Susan Toboll. “She was only three weeks old when I got her as a Christmas present. At my house once you get in the door, you’re in forever.”

A code complaint against the Tobolls and Dave Wilson, who owns Baby, threatened to force them to give up their pigs or move them out of the city. The decision also includes other potbellied pigs kept by residents who can prove the pigs were in the city before the 2008 ordinance was enacted.

Kessler gets definitive answers.

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