Wake County Commissioner Kenn Gardner, whose defeat at the polls this November would almost certainly cost the Republicans their control of the board of commissioners, is treading in deep water because of recent revelations about his conduct in the Cary swimming pool wars of 2004-05.
And so far, even his fellow Republican commissioners aren't throwing him a rope.
In a brief statement at the commissioners meeting last week, Gardner said he "never misused my office," while apologizing to anyone with the "misperception" that he did.
But Gardner went on to complain that the line is fuzzy about what commissioners can and cannot do as public officials when it might result in their private gain. His suggestion that the commissioners create "a subcommittee or working group" to study such issues, however, was met with a frosty silence by his six fellow commissioners—three of whom are Republicans.
Gardner, an architect and the owner of a Cary architectural design firm, is a candidate for re-election in Wake District 4 against Democrat Stan Norwalk, a retired businessman and longtime Cary activist who helped create the smart-growth citizens group WakeUP Wake County.
The Gardner-Norwalk race is the only one of the three district elections in Wake that's considered a close contest. In districts 5 and 6, Democratic incumbents Harold Webb and Betty Lou Ward are expected to hold their seats against little-known Republican challengers Venita Peyton and Larry Tilley.
Should Webb and Ward prevail and Norwalk upset Gardner, control of the commissioners would shift from the current 4-3 Republican margin to 4-3 Democratic.
The shift might be less dramatic than the numbers would indicate, however, since the current chair, Republican Joe Bryan, was elected with the support of the three Democrats. Bryan declined to back either Gardner or another GOP commissioner who wanted the job, former Raleigh Mayor Paul Coble.
Moreover, Norwalk is an outspoken critic of commissioners past—both Republican and Democratic—for what he argues is their inadequate financial support for the Wake schools.
Norwalk has called for an investigation by the county attorney into the pool controversy. He says Gardner is entitled to "the presumption of innocence," and adds that the "mud being thrown up ... spatters on all commissioners and even candidates. The other members of the board of commissioners owe it to themselves to bring this matter to a head." Gardner's re-election troubles are largely self-made. In 2004, he went to bat—while he held the position of commissioners chair—for a new swimming pool project in Cary proposed by the nonprofit group Triangle Aquatics Center (TAC) Inc. At the time, Gardner was either a "volunteer" adviser (his assertion, in a lawsuit he filed against TAC) or a TAC board member and their prospective architect (the organization's assertion, in its counterclaim).
Gardner has acknowledged, in interviews with the Independent and The News & Observer, that he explored using county open-space funds to buy some of the land on which the TAC pool was to be built, in effect subsidizing the project. At the time, he hadn't been paid anything by TAC, but was anticipating that if the project went forward he would be paid.
He told the Indy last week, however, that he never "pressured anyone," and dropped the idea when it became clear that the Town of Cary, which would have been required to match the grant, was instead backing a much more ambitious pool project pitched by Cary Aquatics Center Inc., which wanted to create a top-flight training facility that would draw nationally ranked swimmers and coaches to the Triangle.
Eventually, the TAC pool was built. The Cary Aquatics pool, which was seeking public subsidy from the county's prepared meals and hotel/ motel food taxes (the two taxes that paid for the RBC Arena, the Raleigh Convention Center and the WakeMed Soccer Park in Cary, among other projects), was not. It's still technically alive, but with little prospect of public money, it's in limbo.
The rub, for Gardner, is that while he was touting TAC, he said publicly that he was donating his architectural services to the project and therefore had no conflict of interest as a commissioner.
As late as Oct. 24, 2005, in fact, Gardner said in a letter published in The N&O: "Finally, for those who have attempted to deflect the debate [over the rival pools] by attacking me for how I choose to donate my time ..." He went on to contend that any conflict of interest was not his, but instead belonged to those Cary Aquatics backers who'd made contributions to Wake political candidates.
By that time, however, Gardner had billed TAC $134,000 for design services dating back to the beginning of 2003, and had signed a contract that called for him to be paid an additional $244,335 as project architect, plus $8,000 a month to oversee the construction.
Those figures were contained in a contract executed by the two parties on Aug. 9, 2005, but they were not disclosed until Gardner sued TAC for nonpayment last November and the TAC board, after keeping mum for almost a year, struck back this month with a press release attacking Gardner.
TAC "volunteer president" Michael Curran charged that Gardner was trying to overbill to the tune of almost $650,000 (including an unpaid amount of some $394,000), and ripped the "quality of his architectural services," his "billing practices" and the "conflict of interest concerns raised as a result of his claim for compensation in the lawsuit and his actions taken as a sitting Wake County commissioner while a board member of TAC."
Gardner and TAC have since settled his bill, with TAC agreeing to pay another $25,000; TAC's counterclaims about design work remain unsettled.
The alleged design screw-ups described in the dueling lawsuits include the fact that some spectator views of the pool are blocked. TAC blames Gardner; Gardner blames Curran's meddling.
In terms of Gardner's political future, however, the question is whether he misled constituents about his role with TAC and whether, in looking for public funding for TAC while he raised doubts about the rival Cary Aquatics project—Gardner says he was for it after he was against it—he abused his office.
Gardner has defended himself by telling The N&O that he never said he was donating all of his services to TAC. He thereafter insisted to the Indy that he would not have billed TAC at all had it managed to attract public funding. "I was willing to walk away totally if there had been any taxpayer money," he said.
His "understanding" with TAC was that he would front his services to help the project get started, and would send a bill if, and only if, it remained a privately funded pool.
Yes, he acknowledged, he did attend a 2004 meeting of the county's open space advisory committee to see about a grant for TAC-owned property. But he added, "I didn't pressure anyone." And when it became clear, prior to the next meeting, that Cary leaders weren't interested in a matching grant, Gardner said, "I didn't circle back with anyone either."
The N&O reported that Gardner also met with County Manager David Cooke about the grant and solicited Wake schools then-superintendent Bill McNeill to sign a letter of support. The grant would have been for $500,000, to be matched by another $500,000 from town funds.
In its countersuit against Gardner, TAC claimed that it was surprised by his initial bill, and thought he had been donating his services through mid-2005. It said it paid the bill and hired Gardner for future services because it would have been too costly to start over with another architect.
Gardner says he discounted the initial $134,000 bill by $60,000 as a project "sponsor," and he discounted his services thereafter, collecting only about 1 percent of the project's final costs, whereas 6 to 8 percent is typical for architectural design work.