Treasurer files suit against county and Fleming

Kennedy-Desmond sites emotional distress, harm to reputation, and interference

editor@sierrastar.comNovember 19, 2013 

Tracy Kennedy-Desmond, Madera County treasurer-tax collector, has filed a claim for damages with the Madera County Board of Supervisors and Eric Fleming, county chief administrative officer.

In her Nov. 13 claim, filed with the county by Heather Phillips of the Fresno law firm Bennett & Sharpe, Kennedy-Desmond alleges that beginning on or about February 2013, and continuing , Fleming improperly and unlawfully portrayed her in a false light and defamed her, unlawfully retaliated against her for her report of violations of California state statutes ... purposely impeded her in the performance of her official duties, and continues to make statements to members of the media and board of supervisors which expressly ... assert that she is incompetent to carry out the duties of her elected position.

The claim describes her loss as "emotional distress, loss of good will, and harm to reputation."

This is an unlimited claim in excess of $25,000 according to the document.

The claim further states Fleming has made statements that Kennedy-Desmond has engaged in fiscal mismanagement and/or intentional acts of fraud or other actions which have negatively impacted the county.

"... Fleming has frivolously expended public funds in his attempt to further discredit and defame claimant, by engaging an outside firm to conduct an unnecessary audit of claimant's department, costing the tax payers approximately $50,000 ..."

In February Fleming and Marcia Hall, appointed county auditor-controller, brought concerns about Kennedy-Desmond's office procedures to the supervisors, who hired an outside auditing firm, Hemming Morse, to examine financial internal controls.

In June, the report, with 18 recommendations, was presented to supervisors. Issues included cash not reconciled to the general ledger on a daily basis; lack of segregation of some department duties; writing and signing a check to essentially move funds from one general ledger account to another without notifying the county auditor; and an inadequate quarterly review of interest income to the general ledger per the department's tracking software.

Each observation came with recommendations to correct or improve the reported issues.

At the time Kennedy-Desmond said some internal control suggestions were made in the report which will be beneficial to her department, however some will be challenging to implement due to current permanent staffing levels.

"We will certainly be implementing them (recommendations) to the best of our ability and available resources," Kennedy-Desmond said.

"The report was helpful in that it provided an independent and objective expert review of the situation, which in the end confirmed issues that had been identified by the county's auditor-controller in June 2012," Fleming said. "It also offers up solutions that I'm hopeful will be implemented by the treasurer-tax collector. These are significant issues that I'm hopeful will now be addressed."

Previous to the ordering of the report, there were reported clashes between Hall and Kennedy-Desmond. Supervisor David Rogers said in February everyone wanted to allow Hall and Kennedy-Desmond the chance to work on the issues, but personal clashes between the two officials interfered with that happening.

Prior to the Hemming Morse report, a Madera County grand jury report was released May 15 supporting allegations that Fleming exhibits a domineering, over controlling management style at times. The report, released after a six month investigation, said Fleming "is considered aggressive, impatient and short-tempered by some of his subordinates ... and has used intimidation and threats to obtain compliance with his directions."

The report further stated Fleming has negatively affected the morale and motivation of some employees with whom he interfaces, and has publicly demonstrated animosity and a lack of professionalism toward Kennedy-Desmond and Rebecca Martinez, the county's clerk-recorder.

It also said Kennedy-Desmond had been unfairly blamed by Hall and Fleming for delay of the 2011 Single Audit, an annual review of county-wide department finances.

The supervisors called the grand jury's report full of unsupported opinion and hearsay that "reeks of bias and is not appropriate."

The June 20 letter, signed by Board Chairman Max Rodriguez, went on to state "It is the board's opinion that the opinions expressed by the grand jury are recklessly presented as fact, which opens the potential for a claim of slander or libel against the grand jury."

On Nov. 5, the board discussed whether to keep Hemming Morse on retainer to perform additional checks of the tax collector's office to make sure problems were being fixed, at a cost of $9,500 for each review.

In a letter delivered to the board, Kennedy-Desmond defended her department and stated she would not cooperate with any further use of tax payer money to observe her office.

The board put its vote to use Hemming Morse for additional checks on Kennedy-Desmond's department on hold.

Madera County Counsel Doug Nelson said the supervisors will discuss Kennedy-Desmond's claim in closed session on Tuesday, Nov. 26. The county has 45 days from the time the claim was presented to act on it. If the claim is denied, the claimant has six months from the date of denial to file a lawsuit in state court.

To see the Claim for Damage in its entirety, download this pdf.

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