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McDonald seeking dismissal of charges
Thursday, July 2, 2009
Former Maricopa Director of Community Services Martin McDonald has been indicted on felony charges that, according to his attorney, Clair Lane, are a mistake. Citing e-mails dated August 16 and 17, 2005, Lane claims that McDonald is not guilty of the charges of which he is accused.
The complicated case, based on the purported use of a City of Maricopa FedEx account by McDonald, claims that he availed himself of the City of Maricopa’s FedEx account discount. The e-mail provided for review shows two e-mails.
One is from McDonald, on April 16, 2005, and is directed to a Fed Ex employee stating,”…somehow my account was transferred into a government account, which is not accurate at all. It needs to be my own personal account with no reference to the City of Maricopa as customer service had set it up back in 2004. I have no clue how this happened but it’s wrong and I need it changed before I start shipping.”
On the following day, a FedEx employee who knew McDonald responded, “I see the error you are referring to on (account) and have fixed the problem to show just your name as the shipper name and in the (“bill to”) section as well. This should eliminate any reference to the City of Maricopa on your account and it’s no longer a government account, either. I’ve sent a request to have your discount restored as well. I am not sure how this happened, but the problem is fixed….”
Note: McDonald had been an employee of FedEx before he was hired by the City of Maricopa, so he knew FedEx procedures.
Problem not fixed
In subsequent years, McDonald continued to ship items through FedEx for the World Championship of Fantasy Football (for which he took leave time). The billing problem appeared fixed until McDonald’s promotional goods customer did not pay the bills on time in 2005 and again in 2007.
When then City Manager Rick Buss asked Roger Kolman (now Assistant City Manager) to check the situation, McDonald claims to have shown Kolman documentation that the “problem” was supposedly “fixed.”
Apparently, FedEx had never fixed the account information in 2005 as the e-mails claim.
In December 2007, McDonald’s client was late paying. FedEx contacted the City of Maricopa asking for payment for the account, which was supposed to have been switched to McDonald’s personal account.
According to Attorney Lane, Kolman has only a “vague memory” of the FedEx billing problem and was not questioned by investigators who, instead, questioned Kolman’s colleague.
An independent investigator was hired from the City of Phoenix, but did not have a background in investigations, according to Lane. In any case, it appears that not everyone involved was questioned.
Rick Buss remembers, again says Lane, the FedEx problem was supposed to have been fixed.
Coincidence and severance
Lane considers it an interesting coincidence that McDonald was given a severance package on the day before he was indicted.
McDonald’s three-month severance package has been in limbo because of another financial matter that involved Pinal County funds granted to the Maricopa Public Library.
With strict rules on how funds are allocated, McDonald made the mistake of suggesting that the funds be directed to the Friends of the Library, who could then purchase the intended items for the new library.
If the funds were given to the City of Maricopa directly, the City would have been required to deposit the money in the City’s General Fund. Then, it would not have been certain that the funding could have been allocated to the library.
The appropriate funding mechanism to use the Pinal County money for the library exclusively, according to Lane, would have been to set up a special fund.
Not aware of protocol?
McDonald cannot be seen as criminal in the matters of the FedEx account and the library funding, says Lane. He is waiting for the City Council to approve McDonald’s severance package at the next regular City Council meeting on July 6. The City’s Attorney, Denis Fitzgibbons, has determined that McDonald’s suggestion regarding the library funds is not criminal.
Whether McDonald was aware of government rules and protocol regarding handling of funds seems to be a matter of question.
Lane claims that FedEx did not seem to particularly “desire prosecution,” although the court papers indicated they were bent on pursuing prosecution for the alleged misuse of a government discount for McDonald’s own personal gain.
Outcomes and evaluation
A several-year situation, with the e-mails McDonald has produced, appears to make the charges against him moot. Or, at the very least, that there was no intent to defraud the City or FedEx.
How many of us have been held hostage by computer glitches and problems that are supposed to be “fixed” and then aren’t?
With McDonald’s hearing scheduled for July 20, Lane is moving quickly to get the charges against McDonald dismissed using the two e-mails to prove his case.
Lane comments that McDonald will not have his job back and wonders why the City of Maricopa did not just dismiss his client if they wished to remove him from the position. After all, Lane comments, Arizona is a right-to-work state and they could have removed him for any reason they chose.
He hopes that the City Council will award McDonald his offered three months of severance pay. Since City Manager Kevin Evans provided McDonald with a glowing letter of recommendation, it would appear that the City does not consider him an unfit employee.
Policy on the issuing of a City of Maricopa severance package appears to have been handled inconsistently since Maricopa was founded in 2003.
Lane is also seeking to have McDonald’s paid leave date moved to his employment anniversary so he can have an even five years of work history with the City.
As if a “little bitty snowball careened down the hill” is how Lane likens the situation.
It is time for resolution and a strict adherence to “transparency,” a word much used these days.
NOTE: The above story is based on an extended interview with Attorney Clair Lane, representing Martin J. McDonald. Due to The Communicator’s impending publication deadline, none of the other people referenced in the story were interviewed. The two e-mails discussed from 2005 were reviewed by this reporter.
Martin "Marty" McDonald