Gardner still faces questions

RALEIGH -- Kenn Gardner has settled a legal claim against a private pool in Cary, but the Wake County commissioner has remained mute on questions of conflict of interest raised by statements made in his lawsuit.

Gardner also faces further legal action from Triangle Aquatic Center, the nonprofit he served as a board member and architect before he sued the center in October.

In his lawsuit, the commissioner demanded nearly $400,000 in back pay for design work he did for the pool as far back as 2003.

But that claim appears at odds with public statements Gardner made three years ago as he used his elected position to advocate on behalf of Triangle Aquatic.

Gardner's actions included a 2004 pitch to use county open-space preservation money to buy land owned by the nonprofit pool that would have helped raise money for constructing the facility.

As he voted against granting money to a competing pool project favored by Cary officials in 2005, Gardner repeatedly said there was no conflict of interest because his design work for Triangle Aquatic was a "donation."

In his 2007 lawsuit, however, the Republican commissioner claimed there was always a private understanding that he would be paid when financing for the pool was secured. Triangle Aquatic paid Gardner $244,355 in design fees before he sued.

State law forbids public officials from influencing or trying to influence the awarding of a government contract to an entity in which they have a financial interest. Further, the ethics policy for the Wake board dictates that commissioners must disclose such conflicts and abstain from deliberations or votes on the issue in question.

Longtime Wake Commissioner Betty Lou Ward said Thursday she is troubled by Gardner's actions on behalf of a nonprofit from which he intended to receive payment.

"Making statements publicly which may or may not be true is something you really just can't be involved with," said Ward, a Democrat. "That is of great concern to me. I do remember him saying he was donating his time [to TAC]."

Gardner has not returned several calls and e-mail messages from The News & Observer seeking an explanation for the inconsistency between his public statements and contentions in his suit.

In e-mail sent to the newspaper Wednesday, Gardner said that he was accepting a $25,000 payment from Triangle Aquatic and that the case was "settled."

"I am happy to state that I have accepted their offer of judgment and that the suit has been settled," Gardner wrote. "TAC has admitted liability and agrees to pay my family-owned business what is owed per the contract."

Paul T. Flick, the attorney for the center, said his client did pay Gardner $25,000 to drop his claim. But Flick said there is no admission of liability in the documents signed this week.

Further, Flick said the non-profit still intends to seek substantial damages from 13 counterclaims it filed against Gardner on Sept. 2, including accusations of shoddy design and overbilling.

"This only resolves his claims," Flick said. "It does not resolve TAC's claims."

County Attorney Scott Warren, who advises the commissioners on issues of conflict of interest, said Thursday he has discussed the issue with Gardner but said he could not comment publicly.

Sig Hutchinson, chairman of Wake's Open Space, Parks and Recreation Advisory Committee, said he clearly remembers the March 2004 meeting when Gardner sought money for Triangle Aquatic.

"We thought that was a bit strange because no other commissioner had ever come before us in favor of any project," said Hutchinson, who has led the open space board since its creation in 2000. "This is the only time it happened, to my knowledge."

Hutchinson is supporting Gardner's Democratic opponent for commissioner, Stan Norwalk, in the November election.

Commissioner Tony Gurley, a Republican, also recalled Gardner's assurances that he wouldn't be paid for his work on the pool.

"I remember him saying he was donating his services, and I thought that was very admirable," Gurley said. "I see the inconsistency. I do not know enough of the details to say whether that is a conflict of interest. I'm not sitting in judgment of that."