Investigation finds no favoritism, suggests policy at fault

An investigation into whether North Branch city officials acted discriminatively, showing favoritism to one neighbor over another in a battle over code violations, was completed and submitted to the city Monday. It's conclusions are a bit of a mixed bag for the city, determining that no such favoritism was shown, but at the same time acknowledging that various outcomes of complaints filed could "support a public perception of favoritism."

The original allegation of discrimination was brought forth by resident John Maldonado in mid-August, when he charged that the city's Building Inspector/Code Enforcement officer Mark Jones and Building Official Rich Meyer had showed a neighbor favoritism in dealing with code violation complaints. Also, that they had tried to set him up with a bogus inspection which was essentially a fishing expedition for possible violations, on behalf of his neighbor.

The latter, the most serious allegation, was bolstered by an audio tape, made by Maldonado, of the Aug. 11, 2006 inspection by Meyer and Jones. On that tape, Meyer can be heard to tell Maldonado that he will be informed of any violations "when we finish inspecting your property."

The Kelly report referred to the conversation between Maldonado and Meyer as confusing, with each participant using different words to describe different things. "Essentially it's a semantic problem," said Trevor Oliver, a Kelly and Lemmons associate.

He explained that the confusion likely stemmed from Maldonado's use of the word "violation" in the context of the conversation. For instance, Maldonado asked Meyer what the "violations" were on his property, but likely intended to ask what the "complaint" was against him. Meyer, hearing the word "violations," was unable to provide Maldonado with an answer until he had a chance to determine if any violations were present. Thus, the appearance of a fishing expedition was born.

"I could see where John was coming from," said Oliver, "and Meyer should have probably heard it that way." The bottom line in the report, though, was that Meyer took a technical view of Maldonado's words and therefore could not answer the question.

The report did find that individual instances of enforcement during 2005 and 2006, could have given the impression of favoritism, for either the Maldonado’s or their neighbor, the Wariakois, depending on the situation.

For instance, the city did not require Maldonado to fill out official complaint forms before investigating possible code violations at the Wariakois, a step in the process that the Wariakois were required to do. On the flip side, the city granted much longer extensions to the Wariakois in order to come into compliance with city code.

The extra time given the Wariakois was explained in two ways by Kelly. First, the report notes it is city practice to grant extensions as long as a property owner is not resisting the enforcement effort. Secondly, there were many more things to fix, and larger projects, at the Wariakois.

And, although no deliberate favoritism was found to have been employed by the city on the Wariakois' behalf, the report stated, "The frustration among neighbors caused by a lenient extension policy, and the appearance of favoritism to some in the public from it, may be good reason to reconsider the policy."

Further examples of perceived city leniency and individual favoritism include: allowing the Maldonado's to keep ducks on their property, based solely on the Maldonado's word that city employees had previously approved the usage, and a building permit granted the Wariakois for constructing a deck even though their property was out of compliance at the time of the request.

In one case, the city is described as giving the Wariakois "worse treatment," when it twice declined to issue a warning letter to the Maldonado's based on violations pointed out by the Wariakois.

The ultimate finding of the report is that the feud between the Maldonado's and the Wariakois is a "tit for tat" situation in which complaints of code violations were made in retaliation for previous complaints, and made worse by the city's complaint driven system. It also noted that such disputes are "common" in such a system.

The report suggests throughout that the city reconsider the policy of a complaint driven system, but Oliver characterized that advice as something for the city to consider, not to be construed as a legal opinion.

The Maldonado's expressed a great deal of dissatisfaction with the findings of Kelly and Lemmons in a Tuesday interview. John Maldonado stated that investigators only looked at about one quarter of the evidence and did not follow up with the Maldonado's. Lynn Maldonado said only, "It was a biased investigation slanted toward the city."