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Auditors seek change in reporting of minor violations

Thursday, September 24, 2020 by Jo Clifton

The City Council Audit & Finance Committee voted unanimously Wednesday to recommend a change in city regulations that will allow the Office of the City Auditor to refer “de minimis” or small-scale violations of city code related to misuse of city resources for secondary employment to the city manager or appropriate department. The full Council must approve the changes before they can take effect.

Brian Molloy, chief of investigations for the auditor’s office, explained that under current code and personnel policies his office is required to make a public report of any employee’s misuse of city resources, regardless of how insignificant it might be, if the usage is related to the employee’s personal benefit. The code specifically defines de minimis use and excludes secondary employment matters from qualifying as de minimis, Molloy said. “No matter how small it is, we have to write a report about those violations,” he said.

“That creates a lot of drain on our resources, having to go through our full reporting process, and it also creates an inequitable situation where misuse for secondary employment, no matter how small, has to be reported publicly, where any other type of city code violation that might be comparatively small scale, we can refer out to the individual departments. So we’ve proposed this change to city code to allow us to refer misuse for secondary employment violations if it doesn’t interfere with the employee’s job performance, and if it doesn’t interfere with city official business and it’s too small to have any impact on the city.”

Mayor Steve Adler told his colleagues the proposed change “is a really good thing to do and I’m happy that we’ve gotten to this place. I think it’s a really good way of maintaining the controls and ethical conduct in a way that most efficiently and fairly handles these situations.”

In August, auditors put together a report about four employees who engaged in what the auditors considered to be minor misuse of city equipment. Yet under the code, they were required to report what they found and include the employees’ names in the report.

Auditors received allegations about one Austin Code Department employee misusing his computer and city vehicle for his outside work. In that instance, investigators found two occasions in which the employee’s GPS data indicated he had used his company truck for personal purposes on two occasions over a four-month period. He also visited his personal email account on eight occasions over a roughly 6-month period.

In his response, the employee categorically denied that his actions resulted in any economic gain. He said on one occasion he used the company vehicle to drive home to pick up his identification badge so he could enter the Austin Code Department office. He said he was unaware of the city policy regarding secondary income until he received the city training on the matter. However, he defended his actions by saying he had not actually gained economically during the time cited in the report.

Auditors also received separate allegations about misuse of city resource related to two Austin Energy employees. In one instance, the employee was using his city email and computer for his secondary employment. Auditors found 86 emails, mostly to that employee but some from him, related to the business during an 18-month period. They also found two documents on his city computer related to sales and finances for the business.

Auditors indicated that they thought the usage was minor or insignificant, but noted that under city code they were required to make the report. This employee, who did not file a written response, resigned in September 2019, according to a memo from AE General Manager Jackie Sargent.

An allegation against a second Austin Energy employee, made in August 2019, said he was soliciting business from city employees for his drone photography company. Auditors found 181 business-related web browser hits on this employee’s computer in less than three months. They also found five email exchanges apparently involving the employee’s businesses. In an interview, the employee “admitted using his city computer for business-related web browsing. He also did not dispute using his city email for his secondary employment.” The employee told auditors he had offered to do drone photography for free for his colleagues.

Auditors said this employee’s chain of command was aware of his secondary employment. He offered to stop doing one of his secondary businesses in early 2019 and was told he could continue the business as long as he did not pursue it while on the job. The employee wrote a three-page explanation about his activities, stressing that his outside work did not interfere with his Austin Energy employment. He wrote, “Due to this, I have shut down all of my hobbies. It is not worth risking my job over.” Auditors included a statement about being required to write a report about their findings because of the way city code is written.

Auditors also received a complaint about an Austin Resource Recovery employee alleging that he misused his city computer for his secondary employment. Looking through the employee’s computer, auditors reported that they found 19 documents and images related to the employee’s outside business. They also found an invoice-creation program and four visits to his business email accounts over a six-month period. Once again, auditors noted that they were required to write up the employee, regardless of how minimal the violation. They did note, however, that this employee did not disclose his outside business to his supervisor as required by city regulations.

The employee responded to the report by writing, “My only response is that I can assure this will not happen again.”

Auditors reported that both the city manager’s office and AFSCME, the city union, had been briefed on the proposed change and approved of it.

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