Something Stinks

It's an understatement to say this summer has been a rough one for the city of Georgetown. From the "emergency" passage of a stringent commercial-development ordinance that has raised questions about possible open-meetings law violations (presently under investigation by Williamson County Attorney Gene Taylor), to the abrupt passage and then equally abrupt repeal of an ordinance forbidding city staff to talk to the public or the press, to the current circulation of a petition seeking the recall of Mayor MaryEllen Kersch and four other council members, it hasn't been a sleepy Texas summer for Georgetown's elected officials.

And there are at least a few more unsightly objects floating in the city's punch bowl.

Recently the Chronicle obtained copies of two construction engineering reports commissioned by the city in 1998 and 1999, each reporting on the allegedly substandard engineering or construction of Georgetown's Dove Springs wastewater treatment plant. According to the reports, since shortly after its original construction in 1993, the "state of the art" plant has been leaking. The city's commissioned independent engineering reports -- each titled "Structural Assessment of Aeration Basin/Clarifier and Sludge Holding Tank Walls" -- state, in no uncertain terms, that the plant is leaking because the tanks were not originally engineered or constructed with enough structural steel.

When the reports were completed, some members of city staff apparently expected the city to try and secure some financial redress from the original design engineers: the Georgetown firm of Steger & Bizzell. Instead, the mayor and city council chose to wage an expensive battle with Texas Attorney General John Cornyn and the Austin American-Statesman to try and keep secret the contents of the reports -- in anticipation, the city insisted, of any potential litigation.

Yet to date, that's about all the city apparently has done with the engineering information. The city has yet to undertake any remediation efforts to permanently fix the tanks. Meanwhile, the estimated cost to do so continues to rise -- not good news to a council admittedly facing a tight fiscal year. "Nothing's ever been pursued on that," said a source close to city government. "And the city doesn't have the money to fix it because they're broke -- but they have the money to fight the open records requests."

Underlying the city's continuing neglect of the treatment problems, some city sources say, is a potentially explosive political cabal. They allege that the reason nothing has been done to permanently fix the plant is because Mayor Kersch has very close political ties to the Dove Springs' plant's engineers, Charles and Perry Steger. "She is protecting the engineer," said one source. "Anyone who tells you differently is flat out wrong. She's stated it emphatically."

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Plugging the Leaks

In 1993 Georgetown opened its new wastewater treatment plant, Dove Springs, on 48 acres of land southeast of the city. It wasn't long before the $2.2 million facility started leaking: Large cracks formed on the sides of the treatment tanks, and sludgy brown sewage water began surfacing through the cracks. In the years since, plant workers have tried several times to fill the cracks with injections of epoxy, but to little avail -- new cracks quickly form. While city insiders say rumors about problems with the treatment plant developed early on and spread rapidly across town, it wasn't until 1998 that the city first commissioned an outside engineer to review the plant's construction and make recommendations for its repair.

The first report was requested by then-City Manager Bob Hart and the city's utilities director Jim Briggs, at a cost of nearly $7,300. And indeed, the completed report, written by Joseph Luke for the Austin engineering firm of José I. Guerra Inc., confirmed what had thus far been grist for the community rumor mill: The plant was not originally constructed with enough structural steel (although the report does not place specific blame for the inadequacy). Hence the walls of the concrete tanks were stressed and, as a result, began cracking and leaking. "The analysis indicates that the ring tension reinforcing steel in the wall, as detailed and as constructed, is in some locations significantly less than what is required by design," reads the March 1998 report. "In the worst case ... the actual reinforcing steel is only 35% of what is required." In its summary, the first Luke report also notes that on one of the tanks -- the clarifier tank -- the concrete walls appear "to be at or near their yield point at some locations." The report suggests several remediation plans, from using "post-tensioning" steel strands or a fiber-glass wrap to shore up the tanks' strength, to completely rebuilding the structures. The engineers estimated the repairs (minus engineering and contingency fees) would cost from $250,000 to more than $500,000.

After several requests to Charles Steger for comment on the engineering reports, Steger & Bizzell Engineering, Inc. sent a fax to the Chronicle saying the company "respectfully disagrees with the conclusions read to us out of context" from the José I. Guerra Inc. report.

What happened in the wake of the first report is unclear. Former city manager Hart (now city manager of Huntsville) did not return phone calls requesting comment. However, it is apparent from city documents that Hart was concerned about the apparently substandard engineering work on the treatment plant, and he asked the city's legal staff to research the possibility of taking legal action against the plant's engineers.

In the wake of the first Luke report, no further action was taken for more than a year. In October of 1999, the city commissioned an updated analysis, and engineer Joseph Luke again came to much the same conclusions. "It can be seen that the cracks that existed in 1997 have continued to propagate and new cracks have begun to develop," reads the second report. "This evidence supports our conclusion that the reinforcing steel continues to yield and that the epoxy-injecting has been at best a temporary solution." In the time since the first report, though, the estimated cost of repairing the tanks had increased. Not including engineering and contingency fees, the engineers now estimated the cost at $275,000 to $560,000.

Even under the leadership of new Mayor MaryEllen Kersch, elected in May 1999, the city had not made a move toward any remediation of the plant's problems, nor had it entered into any legal action against the plant's original engineers. (Several city sources say the city attorney's office had been preparing to do so.) And it is even possible that none of this information would ever have come to light if it hadn't been for city manager Hart's yearly self-evaluation. On Jan. 11, 2000, Hart filed his self-evaluation with the city, and it contained a startling allegation.

"I am deeply concerned about the cost of repairs to the Dove Springs Wastewater Treatment Plant," Hart wrote. "When I raised to the Council the issue of inadequate engineering ... the Mayor walked out of Executive Session stating -- 'I am not going to have you go after a friend of mine while I am mayor,' and has since made several comments that her goal is to fire me and that she would ruin me both personally and professionally." Hart continued, "Since raising the issue concerning the Dove Springs Wastewater Treatment Plant, the relationship with the Mayor and some Council members has clearly and demonstratively deteriorated to the point that my continued employment is not pleasant ... If such treatment was outside the 'political' nature of the City Council and within the organization, it would clearly be retaliation under the 'Whistle Blower Act.'" That is, Hart was claiming that his attempt to address the structural problems at the treatment plant were resulting in job-related retaliation. Attached to his self-evaluation report was a copy of the 1998 Dove Springs engineering report. Two weeks later, Hart resigned.

As it happens, Charles Steger -- head of Steger & Bizzell -- had been Mayor Kersch's top campaign contributor, giving at least $500 (not a negligible sum in campaigns that typically cost less than $10,000). And his son Perry Steger, the original engineer on the Dove Springs plant (who no longer works at the company), was Kersch's campaign treasurer. In response to Hart's charges, Mayor Kersch vociferously denies making any threatening statements to Hart regarding the Dove Springs plant. "It was a lie, an absolute bald-faced lie," Kersch told the Chronicle. "I'd recused myself on all of that [discussions about the plant's engineering]. And that was in an executive session, so those minutes are protected." (Kersch wrote a public memo rejecting Hart's charges in detail and attached it to his self-evaluation.) Following several requests for comment on these charges to Charles Steger, a fax arrived at the Chronicle office, apparently from Steger & Bizzell Inc., which read, "Anyone who has ever known MaryEllen Kersch would find it absurd that she could be controlled or ordered around by anyone, let alone bought for a $500.00 campaign contribution."

At the time of Hart's initial charges, the mayor reacted quickly. In a memorandum to Hart written the day after he submitted his self-evaluation, Kersch denied Hart's allegations. "I left before the item was introduced, before any discussion of the item began and with no knowledge of the nature of the issue, and did not accuse anyone of 'going after' anyone," she wrote. "I write this memo to clarify these facts; additionally, I want to point out that, had it been my intention to 'ruin' you personally and professionally, I have had ample opportunity to undertake such action in response to the numerous phone calls I have had in the past few weeks regarding city-related issues, as well as your quest for employment elsewhere."

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Fixin' to Get Ready to Sue Somebody -- Sometime

When the Austin American-Statesman obtained a copy of Hart's evaluation, they did not originally receive a copy of the engineering report. The newspaper sought to get a copy under state open records laws. But when Attorney General John Cornyn ruled that the city had to release a copy of the report, the city filed suit to prevent the release. The report, the city claimed, was protected by attorney-client privilege, since there was some ongoing litigation involving Dove Springs, specifically pending litigation over the cleanliness of the effluent. (The city had been sued by neighboring homeowners who alleged that effluent was fouling a creek running through their property. The city successfully defended that case, which was unrelated to the issue of the tank engineering.) The Statesman intervened in the city's open records lawsuit in May 2000, and State District Judge Suzanne Covington ruled in favor of the Attorney General.

Georgetown appealed, and the case eventually made its way to the Texas Supreme Court, which ruled in favor of the city. In order to keep the report legally secret, the city reportedly spent nearly $100,000, and the protracted battle did little to quiet public speculation about possible ulterior motives on the part of Kersch. "Miss Open Government -- then she goes and fights the Statesman to keep the Dove Springs [report] closed," said one city source. "Why? Because of Charlie Steger? She could've opened it up and gone after the money to get it fixed. They're not going after him for what it's going to cost."

Kersch insists that the legal battle was waged on principle, and that a city should not be forced to hand over privileged legal documents that are subject to ongoing litigation. But there are two important problems with the mayor's argument. First, the 1998 engineering report was requested by the city manager and was not commissioned by the city's legal staff as a result of any pending litigation. Secondly, even after succeeding in the lawsuit about the effluent, the city has never sought to take legal action against Steger & Bizzell, the plant's engineers -- so if the mayor is anticipating any legal action to recoup the money needed to repair the plant, the city does not appear to be in any hurry to pursue it. One source familiar with the city's legal position said that the city could find itself without legal options, because "if those claims are not made within a certain period of time they are considered [legally] stale issues."

Critics of the current administration charge that city officials, under the leadership of the mayor and city council, have in fact ensured that no legal action will be taken against the engineers. In June, the council dissolved the city attorney's office, opting instead to out-source the city's legal needs to an Austin-based firm. At the time the office was dissolved, sources says, city attorneys were researching whether or not a suit might still be brought against Steger & Bizzell. "One way to avoid that issue is to eliminate the lawyers doing research on that subject," said one observer. "There is no litigation, and from all appearances there is no direction coming from the mayor or the council. Without that, the issue is moot."