Pool's advocate wants pay

Gardner's suit seeks money for work he said was gratis

RALEIGH -- Wake County Commissioner Kenn Gardner wants nearly $400,000 in back pay for design work he did for a Cary pool. Three years ago, he said he was doing the work for free.

In a lawsuit filed in October, Gardner, an architect, seeks money from Triangle Aquatic Center. His claim appears at odds with statements he made in 2005 about whether it was a conflict of interest to use his elected position to advocate for the nonprofit group seeking to build the pool.

Gardner, a former Triangle Aquatic board member, has also placed a lien on the pool he designed.

In 2004, the commissioner pitched a proposal for the county to purchase land from the private pool foundation for $500,000. That proposal fizzled when Cary leaders voted against matching the county expenditure.

The following year, Gardner voted against a measure to grant $10 million to a rival aquatics project the town supported, arguing that it would provide unfair competition and that tax revenue should go to "schools, not pools."

When questions were raised at a public meeting in 2005 about whether it was proper for the commissioner to participate in public discussions about the dueling pools, Gardner said there was no conflict of interests because he was providing free architectural services to Triangle Aquatic.

In a letter to the editor printed in The News & Observer that March, the commissioner wrote that those questioning him had "attempted to deflect the debate by attacking me for how I choose to donate my time."

Now Gardner claims there was always an understanding between him and others on the nonprofit's board that he would be paid.

"While Gardner provided these professional services, the board expressly understood that Gardner would invoice for those services at a later time," the commissioner says in the suit he filed against the Triangle Aquatic Center. "Gardner clearly informed TAC that he would invoice TAC at a later date if the project moved forward in design and construction."

Elected leaders are not allowed to profit from their official actions, according to state law.

Michael G. Curran, the president of Triangle Aquatics, said the architect demanded more money after a falling out with other board members over design issues. Gardner resigned from the board in July 2006. The pool opened in October 2007.

"It was a surprise to us that he is now claiming that he fully expected to be paid for his time, which also means he was expecting to get paid for his time at the same time he was publicly stating that he had no conflict of interest in his vote for the hotel and meals tax," Curran said Wednesday.

Gardner was paid

Gardner, who was first elected to the county board in 2000, did not respond to a request for an interview Wednesday. In an e-mail, the commissioner reiterated his position that there was no conflict of interest.

"That issue was studied and reported by then County Attorney Michael Ferrell in 2005 as no conflict given that no public monies are involved," wrote Gardner, who is campaigning for a third term. "That position has been confirmed by current County Attorney Scott Warren."

Warren declined to make such an assurance Wednesday.

"I don't know enough to make any comment about it," he said.

In a motion filed Tuesday, Triangle Aquatics asked a Wake Superior Court judge to throw out Gardner's lawsuit.

The nonprofit group entered into a contract with Gardner's architectural firm in August 2005 to design the pool that paid him $134,800 for "work performed over the past 2.5 years" -- a period that would have gone back to early 2003.

According to Gardner's suit, he waived $60,000 of that fee in exchange for a plaque in his honor at the pool.

Curran said Gardner was paid the remaining $74,800 for his work before the contract was signed. His total pay was $244,355, Curran said.

Gardner now wants an additional $394,438, "plus costs, attorneys fees, and interest at the highest rate allowed by law," according to his suit.