Benton County blames former engineer for alleged mismanagement

By John Trumbo, Tri-City HeraldOctober 6, 2012 

When Benton County's chief engineer resigned from his job in August, it came a day before he was to appear at a disciplinary hearing, according to documents obtained by the Herald.

The county is facing potential lawsuits because of Malcolm Bowie's alleged misconduct on two road projects.

On one project, his miscalculations on the crushed rock and fill dirt needed for the road could cost taxpayers an extra $364,000, claims the county.

Now, Bowie, who served as the county's professional engineer since 2009, is threatening to sue the county for defamation.

The two projects were the extension of Piert Road in Finley and the Clodfelter Road/Locust Road connection south of Kennewick.

A public records request filed by the Herald shows County Administrator David Sparks sent Bowie a five-page letter Aug. 7 describing Bowie's "misconduct and ongoing performance issues, and the potential for ... termination."

Bowie was told he would be allowed to respond to the allegations before to a final disciplinary hearing scheduled Aug. 9.

But Bowie submitted his resignation letter Aug. 8, claiming he had been in a "work environment with an element of hostility" for three years.

Bowie wrote that he was disappointed by the lack of support and open and honest communication. "There is a subversive resistance," he added.

His resignation described Sparks' letter as "scathing, inaccurate and slanderous."

Neither Bowie nor his attorney Kammi Mencke Smith of Spokane could be reached about his resignation.

However, Smith sent a letter Aug. 20 to the county commissioners demanding the county stop spreading inaccurate allegations about Bowie's job performance.

"It appears Benton County did no reasonable or good faith investigation prior to writing the (Aug. 7) letter," Smith wrote.

She said Sparks' letter should not be part of Bowie's personnel file.

"Finally, Mr. Bowie expects that none (sic) of the inaccurate allegations that are contained in the letter will be published to third parties," including potential employers, she wrote.

Smith said Bowie will "not hesitate to file a defamation lawsuit" if he becomes aware the inaccurate allegations are published.

Bowie, who was paid $99,384 a year, supervised 33 employees and received positive job performance reviews in 2010 and 2011, according to documents obtained by the Herald through a public records request to Benton County.

In the Aug. 7 letter, Sparks said Bowie did not properly manage the Piert Road project, which involved relocating about 1,500 feet of the Columbia Irrigation District canal closer to BNSF railway property.

As a result, the county faces the potential of a lawsuit from the irrigation district and railway for moving the canal closer to the tracks without prior approval.

Sparks claims Bowie allowed the county to issue a contract for part of the work without having all the agreements in place for the entire project.

Sparks' letter also asserts Bowie should have told commissioners the agreement for one of two contracts was incomplete before the county awarded the first contract in November 2011.

"Approximately a quarter of a million dollars of public money and perhaps even more ... had been expended for construction involving the first contract, without all legally essential approvals," Sparks wrote.

Sparks said Bowie also made assurances to the irrigation district about maintenance and indemnification before the county agreed on those issues.

The county had no choice but to award the second contract, knowing all the agreements were not in place, Sparks claimed.

"The potential remains for CID filing a lawsuit seeking injunctive relief, halting the project perhaps indefinitely," Sparks wrote.

But county Commissioner Shon Small told the Herald this week that he believes the irrigation district and railroad will resolve the problem.

"We are trying to accommodate CID as best we can. It all comes down to who owns a portion of the property," Small said.

Another concern was Bowie's handling of the Clodfelter and Locust Grove roads project. The $3.5 million project provides a more direct path to Interstate 82 from Clodfelter Road, helping wheat farmers in particular get their product to market.

Sparks claims that Bowie's miscalculations resulted in buying an excess of fill dirt and crushed rock at a cost of $364,251.

Sparks claims Bowie negotiated with the contractor, Tapani Underground of Battle Ground, to move the leftover 23,862 cubic yards of fill dirt and 15,500 cubic yards of crushed rock away from the construction site.

Sparks said Bowie entered into the "ill-advised arrangement" with the contractor without consulting or informing the county attorney or county commissioners. Tapani has not been paid for its purchase of the extra material, said Steve Becken, the county's public works manager.

The decision, which apparently was not put in writing, may have circumvented county policy requiring a contractor to file a contract dispute and, as a result, could have harmed the county's ability to resolve the issue, Sparks claimed.

"An opportunity for the county to avoid any payment for the questioned changed condition and change orders if the policy makers so choose, was arguably lost," Sparks wrote.

"You ... (agreed to) ... the purchase of rock and soil at a price in excess of fair market value," Sparks stated, noting Bowie suggested the county could recoup its losses "by selling the fill material to the federal government in future road projects."

And Sparks said Bowie's independent decisions on the project may have violated competitive bidding laws if it pays Tapani Construction what Bowie agreed to.

If the county does not pay the additional money, the county may face litigation, Sparks wrote.

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