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HomeMy WebLinkAbout2009 04 27 Regular 600 Forensic InvestigationCOMMISSION AGENDA ITEM 600 April 27, 2009 Regular Meeting Consent Informational Public Hearin Re ular X MGR. /DEPT. Authorization REQUEST: City Manager requesting the Commission to review the Report of Findings from Phase 1 of the Forensic Investigation and provide direction for proceeding with Phase 2. PURPOSE: This agenda item is needed for the Commission to review the Report of Findings from Phase 1 of the Forensic Investigation and provide direction for proceeding with Phase 2. CONSIDERATIONS: On February 23, 2009, the Commission authorized the City Manager to proceed with a forensic investigation and approved a "two-phased approach" to facilitate this process (only Phase 1 was authorized at that time). Phase 1 included authorization for the City Manager to enter in a contract with Berkowitz, Dick, Pollack & Brant, CPA's to perform the following tasks: Meet with the Mayor, City Commission and key staff to discuss and determine the specific concerns regarding the need for a forensic investigation. Review specific accounting records and other appropriate documents to assist the firm in developing a scope of services for Phase 2. Issuing a Report of Findings to include a Scope of Services and Budget for Phase 2. Berkowitz, Dick, Pollack & Brant has now completed its work under Phase 1 and issued the attached report (a representative from Berkowitz, Dick, Pollack & Brant will be in attendance at this meeting to present the report). Their report includes a suggested scope of services that includes six potential procedures that they feel would be appropriate for Phase 2 of the forensic investigation as follows: A. Review of contract data. B. Review of controls in selected areas. C. Detailed interview with former City Manager including an investigation of certain financial issues. D. Review of current procedures with best practices in selected areas. E. Evaluate the sustainability of the current employee benefit programs. F. Design and assist with implementation of a Commission management reporting package. Detailed descriptions of each area noted above are included in the attached report. Based on discussions with representatives from Berkowitz, Dick, Pollack & Brant, the City Manager recommends that the Commission proceed with items A, B and D only, at this time. Accordingly, it would now be appropriate for the Commission to either: Issue an RFP utilizing the scope of services derived in Phase 1 to procure a forensic auditing firm to perform Phase 2 (A, B & D), or Contract with Berkowitz, Dick, Pollack & Brant to perform Phase 2 (A, B & D), or Not proceed with Phase 2. FUNDING: If the Commission agrees to utilize Berkowitz, Dick, Pollack & Brant for Phase 2 of the forensic investigation, their fee for services for Phase 2 (A, B & D) would be (not to exceed) $39,500 plus out-of-pocket expenses of (not to exceed) $2,000. RECOMMENDATION: The City Manager recommends that the City Commission proceed with Phase 2 of the Forensic Investigation and choose from one of the following options for procuring a firm to perform this phase: 1. Direct the City Manager to issue an RFP to procure a forensic auditing firm to perform Phase 2 of the forensic investigation utilizing items A, B & D from the scope of services developed in Phase 1, or 2. Direct the City Manager and City Attorney to enter in a contract with Berkowitz, Dick, Pollack & Brant to perform Phase 2 of the forensic investigation utilizing items A, B & D from their scope of services developed in Phase 1 and authorize an expenditure of (not to exceed) $39,500 plus (not to exceed) $2,000 for out-of-pocket expenditures for this phase. ATTACHMENTS: Phase 1 Report of Findings. Phase 2 Proposal from Berkowitz, Dick, Pollack & Brant. COMMISSION ACTION: ATTACHMENT 1 CITY OF WINTER SPRINGS FLORIDA Report of Findings -Phase I L7ER.KQWITZ ~I~K.PC7LLACK&~-RANT GERT[FIED PtIBLG ACCC~SINTANTS & CC3NSULTAN7'S. LLP City of Winter Springs Florida Report of Findings -Phase I Table of Contents Introduction and Scope ..............................................................................................2 Executive Summary ....................................................................................................2 Summary of Procedures and Findings ..................................................................................4 Potential Governance Considerations ...............................................................................7 Phase Trvo Scope and Estimated Costs .............................................................................9 City of Winter Springs Florida Report of Findings -Phase I April 16, 2009 Introduction and Scope Pursuant to an engagement letter executed March 6, 2009 Berkowitz Dick Pollack & Brant Certified Public Accountants & Consultants, LLP ("BDPB") was retained to assist the Mayor and Commission of the City of Winter Springs Florida ("Winter Springs") in evaluating the need for a forensic investigation. The work was designed to be done in two phases as follows: Phase 1 Phase 2 1. Interview the Mayor and Commission to determine what their specific concerns are regarding the need for a forensic investigation. 2. Interview key purchasing and accounting personnel to help identify potential risk areas. 3. Review selected accounting records to determine scope and time required for Phase 2. 4. Develop preliminary analysis report and define Phase 2 scope and budget. 1. Extract detailed information to be tested in high risk areas for a period of 24 months. 2. Schedule information for all purchases/expenditures identified above. 3. Where necessary compare measurable data for number of units purchased, standard unit pricing etc. 4. Document results and recommend if additional work is required. The engagement letter only authorized phase 1. BDPB did not audit, review or compile the financial statements of Winter Springs, nor did BPDB perform any type of review of Winter Spring's books and records. Executive Summary BDPB interviewed the Mayor and Commission as well as the Interim City Manager, Finance Director and Assistant to the prior and Interim City Manager. We also performed a brief phone interview of the prior City Manager Ron McL.emore. The interviews were conducted to determine if there were any areas of concern regarding the operations of the City under the prior City Manager and any potential need for further investigation including a possible forensic investigation. We also discussed during our interviews possible internal control weaknesses which may have permitted an environment for abuse. 2 City of Winter Springs Florida Report of Findings -Phase I We found the following range of responses from the Mayor and the Commissioners: • There are no known problems with anything done by the prior city manager, Ron McLemore. • The prior manager Ron McLemore, had control over every contract and bid within the City. It is unknown that if he abused this power and gave bids to person or persons who may have not acted in the City's best interests. This calls all agreements into question to see if they were competitively bid and if the work performed was warranted. • Some specific areas of concern regarding contracts were public works projects, parks and recreation projects, building department, capital projects and landscaping in general. • Specific contractors were recommended so that permits and licenses could be obtained. Others felt that this pressure may have been required in order to obtain contracts. • Serious deficiencies exist in the financial reporting to the Commission and a lack of transparency in general is of concern. • Questions were raised about Tropical Storm Fay expenditures and reimbursements • Concerns regarding internal control environment in general that many areas could be overridden by the manager without adequate knowledge of the applicable staff and the City Commission. • We heard concerns that the lack of internal control may have allowed the prior manager to treat the City as his personal business and checkbook. The interviews with the Interim City Manager, Finance Director Assistant to the Prior and Interim City Manager supported the following: Purchasing is in fact decentralized which lends itself to possible inconsistent treatment of how bids and contracts were administered. Due to the size of the city, all internal audit functions are staffed from the finance department. There is no dedicated internal audit function to check that procedures are being followed and that policies are consistently applied. 3 City of Winter Springs Florida Report of Findings -Phase I The interviews indicated that risks exist in procurement due to its decentralized nature, in utility billing due to its size and complexity, in all cash related functions due to the nature of risks associated with cash and in general due to a lack of internal audit function. Summary of Procedures and Findings Interviews We interviewed the following: Name Title John F Bush Ma or Jean Hovey Commissioner Seat One Rick Brown Commissioner Seat Two Gary Bonner Commissioner Seat Three Sally McGinnis Commissioner Seat Four Joanne M. Krebs Commissioner Seat Five Michelle Greco Finance Director Kevin Smith Ci Mana er Jan Palladino Assistant to the City Mana er Our interviews showed a large range of concern regarding certain areas of Winter Springs from those who felt that this exercise was unnecessary to those who felt that additional investigation is warranted. Major areas of concern were as follows by department or function: Purchasin¢ Purchasing is decentralized which means that each department is responsible for their own actions with regard to purchasing. We did find in the policies and procedures manual the following requirements: 4 City of Winter Springs Florida Report of Findings -Phase I There are specific rules for purchasing which state that all expenditures under $2,500 only need a quote. Expenditures between $2,500 and $25,000 need 3 quotes. All expenditures over $25,000 require a formal Request for Proposal, piggyback another governmental entities contract or are designated as sole-source. However, we could not verify that these policies were strictly adhered to as each department had control over its purchasing function. The prior City Manager appeared to have final control over this area. Additionally, there was no internal audit function to check that the policies were being followed. The accounting function may have been able to detect certain problems but whether all bids were obtained, the best contract was chosen and if sole source rules were met is outside of the accounting function. Public Works including Capital Proiects Some of the interviews highlighted questionable items in this area as they are contract intensive and carry a higher risk. Due to the fact that much of the expenditures are for items that are usually not supplied by city staff or personnel, a higher level of scrutiny may be indicated. Some of the items questioned included professional services contracts and capital items including specific expenditures in a park. Urban Beautification and Landscaping Questions were raised about contracts, particularly those related to landscaping. Additionally, there were questions about certain raises given in urban beautification and if standard procedures with proper controls were adhered to. Finance Some of the interviews highlighted the past problems with money management policies and guidelines. There were additional comments on the need to create a management financial package for the Mayor and Commission on a regular basis. There was also a call for increased transparency. Some interviewees questioned the long term sustainability of the retirement plan. City of Winter Springs Florida Report of Findings -Phase I Buildins Department The contracts in the building department were questioned. There was also a common sentiment that improvement in the efficiency of the department was necessary to make things customer friendly and streamline the permitting process. There were reports that there was pressure put on certain members of the community to use certain vendors in order to obtain permits and licenses. There were similar complaints about zoning issues. Internal Audit Due to Winter Spring's size of government there are not sufficient resources to have a dedicated internal audit function. Other The ability to control all functions by the prior City Manager was also cited in a few interviews. The potential for abuse of power was discussed. It appears that there were limited cases where this could have occurred and those cases were relayed to us verbally without all facts presented. It was also noted that there appeared to be an override of the controls and separation of duties in the payroll and Human Resources area. Documentation Obtained We received copies of the following: a. All available written policies and procedures for finance and purchasing b. Copies of resolutions of all budget changes and transfers for fiscal years 2006/2007 and 2007/2008 c. Community visioning letter d. New commissioner education package e. Sample forms such as for utility billing write-off authorizations f. Waste-Pro contract g. Selected vendor information as requested. 6 City of Winter Springs Florida Report of Findings -Phase I We summarized the following summary from the vendor information: As of 3/9/09 Year Ended 9/30/2004 9/30/2005 9/30/2006 9/30/2007 9/30/2008 9/30/2009 Est. # vendors with expenditures exceeding $25,000tyear 100 100 90 100 100 40 $ for vendors exceeding $25,000 er ear in 1,000's 18,600 22,300 13,700 19,500 15,200 5,400 Est. # vendors > $2,500 less than $25,000 290 300 300 285 280 180 Approximate total # vendors 2400 2300 2300 2200 2300 3200 Approximate total expenditures in 1,000's 21,500 25,300 17,000 22,500 18,200 7,200 Potential Governance Considerations The following items should be considered for potential discussion and actions to be taken: 1. An internal audit function might be set up to test for adherence to policies and procedures. This could be done using an outside contractor or it could be done using a rotation of staff/ departments to check on procedures not affecting their own departments. 2. All expenditures over a designated amount (i.e. $2,500) could be listed and included as part of the consent agenda each month to provide for greater transparency. 3. A periodic financial report could be included in the consent agenda to educate the Mayor and Commission on the highlighted financial condition of Winter Springs. 4. A hotline (either internally or using an outside service) could be used to receive tips/comments on possible areas for improvement or impropriety. Further discussion would need to take place regarding who receives these tips and how they are investigated. 7 City of Winter Springs Florida Report of Findings -Phase I 5. A review of purchasing guidelines might be undertaken to set forth specific policies and to set criteria for no-bid circumstances. 6. A further review of internal controls might be necessary to assist determining if additional weaknesses exist. Phase Two Scope and Cost Estimate Possible procedures for phase two: A. Review of Purchasing within the City Manager's Authority Review 20 vendors per year for two years with expenditures greater than $25,000. Check for contract, compliance with bid procedures (if any) and adequacy of supporting documentation for invoices. For a selection of up to 10 vendors, a detailed review of the invoices on a test basis to ensure that what was billed was received. Check an additional 20 vendors with expenditures less than $25,000 but greater than $2,500, each year for a two year period (on a random and judgmental basis). We would then check approximately 25% of the invoices for those vendors. If we see any issues with the initial test, we will increase the scope and number of years as mutually determined. B. Review of Controls in Selected Areas Review the current internal control policies for a variety of areas including payroll and human resources, utility billing and credits, building department, and procurement. Review auditors working papers and findings to see particular internal control issues noted as weaknesses. Review auditor's working papers to see the number and dollar value of journal entries to highlight areas where issues may exist. Vouch pay raise data and documentation for 10 employees per year for two years. City of Winter Springs Florida Report of Findings -Phase I Sample 25 credits per year to review adherences to internal control policies over utility billing credits. Interview building department employees to determine adherence with policies and procedures. Test the controls noted during the interview process for compliance by selecting 15 transactions per year for two years. Interview departments involved in procurement for adherence with policies and procedures. Test controls over procurement procedures by testing 10-25 transactions (no less than 3 contracts or awards per department) per year for compliance with controls as noted during the interviews (we will not test controls the interviews indicate are not being followed). Reconcile areas with material cash to ensure general ledger data agrees to detailed records selecting a monthly, weekly or daily amount to compare to the detail (depends on how detailed records are recorded). Highlight any areas that may indicate weaknesses in internal controls. C. Detailed interview with former manager including an investigation of certain financial issues This would require cooperation from Mr. McLemore and potential use of an investigator. D. Review current procedures with best practices in selected areas There are a variety of best practices regarding cash management, building department issues, payroll and human resources, as well as other departments which could be reviewed to ensure that Winter Springs is taking advantage of current best practices and technology. E. Evaluate the sustainability of the current employee benefit pro rg ams This would require assistance from an actuary and the budget only includes our analysis and not any necessary actuarial studies. F. Design and assist with the implementation of a Commission management reporting nacka¢e Review existing financial report and design monthly or quarterly reporting packages for the Mayor and Commission that would recap significant financial transactions and provide cash flow information. City of Winter Springs Florida Report of Findings -Phase I Estimated Pricing for Phase 2 Section Price Range A $11,000 - $25,000 B $11,000 - $20,000 C $3,000 - $6,000 D $6,000 - $12,000 E $7,500 - $12,500 F $5,000 This report is based upon the scope of work described previously and the information obtained to date. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you. ery t your ~~ ~ Ric and Pollack For the Firm 10 ATTACHMENT 2 ~$1~RKOWITZ I~iCKP4LLACK&B RANT ~~~ C;~sxa~ren Fs~a~.t~ rOc;~c~~NaPasrxs ~ ~'~?n~c;z.x•~s~rs~~.t.r 2ott Souch )3ixa}nc Soalevard 5izdt Flag Svtian», Flc~r~da33131 531 Icirgltonr. 305-379-7000 "IaU Free: 800-y~1-1CPA (1272) l~az: 305-37J-8ZUD Apri121, 2009 ~iS East tas olas &aulevan3 Fiftecnrh Flaw Fnrc t..~udcrdale, l=larida 3i3~1.27.~r Telephan€: 954-7 t 2.3600 'Ball Frcx: 800-999-IfuNA (t~72) Faz: 954-312.3030 wr~~bdpb.ru~ Mr. Kevin Smith, City Manager City of Winter Springs 1126 East SR 434 Winter Springs, Florida 32708 Dear Mr. Smith: This is an agreement between Berkowitz Dick Pollack & Brant Certified Public Accountants & Consultants, LLP, (hereinafter referred to as the Firm) and the City of Winter Springs doing business at 1126 East SR 434, Winter Springs, Florida 32708, (hereinafter referred to as the Client). It is agreed as follows: 1. The Firm will provide the following services described as Items A, B and D per Report of Findings - Phase I dated April 16, 2009: a. Review of purchasing within the City Manager's authority. b. Review of controls in selected areas. c. Review current procedures with best practices in selected areas. d. Develop a written report based on our findings. 2. This Agreement will remain in force until canceled by either party. It is recognized by the parties that outside the terms of the Agreement, the Firm is available to provide other services upon written request by the Client. Such services shall be provided under the same terms and conditions as those covered by this Agreement unless documented by a separate Agreement. 3. With respect to financial, statistical and personnel data relating to the services provided which are deemed confidential bylaw and which are submitted to or obtained by the Firm in order to carry out the Agreement, the Firm will instruct its personnel to keep such information confidential to the extent provided by law. Any data obtained, which is subject to the Florida Public Records Act and the Sunshine Law, is exempt from this provision. The working papers prepared in conjunction with our work are the property of our Firm, constitute confidential and proprietary information and will be retained by us in accordance with our policies and procedures, unless such papers constitute a public record which must be disclosed pursuant to the Florida Public Records Act. The Firm shall comply with all applicable Federal, State, Seminole County and City laws, code and ordinances, and with all applicable rules and regulations promulgated by local, state and national boards, bureau and agencies as they relate to the Agreement and/or the provision of Services hereto. Mr. Kevin Smith, City Manager City of Winter Springs Apri121, 2009 Page 2 4. Client will advise the Firm, with sufficient notice, of the work to be performed by the Firm. Should information become known that would make the Firm's continued involvement in this engagement inappropriate, the Firm reserves the right to withdraw from this engagement. Client has read and agreed to the fees, billing policy and other terms and conditions as specified in Exhibit A. Exhibit A and its terms and conditions are an integral part of this agreement. This agreement contains all the understandings between the parties and supersedes all prior offers, negotiations and agreements relating to the subject matter hereof. If any provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way, unless such partial invalidity materially affects the intent of the parties. The Client will indicate its agreement with the contents of this letter and Exhibit A dated April 21, 2009 by signing this letter and returning it to the Firm. We have enclosed an extra copy of this letter and Exhibit A for your records. In the event you have any questions or comments, please contact me. j f/,~ ry t yo s r^` c Richard A. Pollack For The Firm BDPB:Ire Enclosure Mr. Kevin Smith, City Manager City of Winter Springs Apri121, 2009 Page 3 ACCEPTED AND AGREED: City of Winter Springs Please include the following information regarding the Client representative to whom the Firm will send its invoices: Name Title Company Address Phone Number Fax Number Date E-mail Address Exhibit A Berkowitz Dick Pollack & Brant Certified Public Accountants & Consultants, LLP Fees, Billing Policy and Other Terms and Conditions Apri121, 2009 Fees for this engagement will not exceed $39,500.00 and plus of out-of-pocket costs not to exceed $2,000. for the initial trip and will be based on the time spent by various members of the Firm's staff at regular professional rates in effect at the time services are rendered. These hourly rates are currently as follows: Directors $420 Associate Directors $325 - $340 Managers $250 - $315 Supervisors $155 - $210 Seniors $140 - $150 Staff $110 - $135 Paraprofessionals $ 75 - $100 All services and expenses will be billed periodically and shall be payable within thirty (30) days of receipt of such billing. In the absence of the Firm's receipt of a written objection to any invoice within thirty (30) days of the date it is rendered, the Client will be deemed to have accepted and acknowledged, as correct, the services rendered as described in the invoice and the value thereof. It is agreed that the Client will be responsible for the payment of the Firm's charges. In the event it is necessary for the Firm to incur attorney's fees and costs to collect outstanding fees, the Client agrees to pay such reasonable fees and costs of collection, but only to the extent that a court of competent jurisdiction has determined that the Client has failed to properly pay the Firm's charges. The Firm may, at it sole discretion, suspend services to be provided pursuant to this agreement if an invoice from the Firm to the Client becomes 15 days overdue. The Firm, at its sole discretion, may not resume work until all outstanding invoices are paid in full. The Firm charges interest at the rate of twelve percent (12%) per annum on any past due amount. If the Firm is not paid, it may cease all work until paid and/or withdraw from this engagement. If the Firm elects to terminate the Firm's services for nonpayment, the Firm's engagement will be deemed to have been completed. The Client will be obligated to compensate the Firm for all time expended, but not to exceed $39,500.00. The Client agrees that the Firm shall not be responsible for any consequences, including any financial damages, pertaining to the Firm's suspending work as described above. Any dispute arising under this agreement (including but not limited to the scope, nature and quality of services performed by the Firm, the Firm's fees and other terms of the engagement) shall be submitted to mediation. A competent and impartial third-party, acceptable to both parties, shall be appointed to mediate, and the Client and the Firm shall pay an equal percentage of the mediator's fees and expenses. If the dispute is not resolved in mediation, the mediation shall terminate and the dispute may be settled in a court of competent jurisdiction located in Seminole County, Florida. No litigation proceedings shall be commenced under this agreement until at least 60 days after the first joint meeting among the Client, the Firm and the mediator. Our engagement with you is not intended to shift risks normally borne by you to us. Except to the extent finally determined to have resulted from the Firm's gross negligence or willful misconduct, the Firm's maximum liability to the Client for any reason, including the Firm's negligence, relating to the services under this letter shall be limited to the fees paid to the Firm for the services or work product giving rise to liability. Any liability of the Firm to the Client shall not include any special, indirect, consequential, incidental, punitive, or exemplary damages or loss nor any lost profits, savings, or business opportunity. Exhibit A Berkowitz Dick Pollack & Brant Certified Public Accountants & Consultants, LLP Fees, Billing Policy and Other Terms and Conditions Page 2 If, in a proceeding or lawsuit in which the Firm is not a party and the Firm or any of its directors, partners, agents or employees, is requested, pursuant to subpoena or other legal process to produce documents and/or to give testimony upon oral examination (at deposition, hearing or trial) relating in any way to the services provided pursuant to this engagement, the Client shall pay the Firm at standard billing rates for its professional time and expenses, including reasonable attorneys' fees, incurred in responding to, and complying with, such subpoena or legal process. To the extent permitted by law and subject to any applicable limitations imposed pursuant to section 768.28, Florida Statutes. The Client hereby indemnifies the Firm, or any of its directors, partners, agents or employees and holds them harmless from all claims, liabilities, losses and costs arising in circumstances where there has been a misrepresentation by a member of the Client's management, including those charged with corporate governance, regardless of whether such person was acting in the Client's interest. During the term of the Agreement and completion of this engagement, the Firm agrees to maintain professional malpractice insurance with minimum coverage of $1,000,000.00 per claim.