MONTESANO — The Grays Harbor Prosecutor’s Office declined to press theft charges against Montesano Public Works Lead Russ Burke, although a police investigation turned up more than 1,500 pages in documents showing plenty of evidence that gallons and gallons of paint disappeared immediately after Burke started his own business.
In an interview with a detective, Burke said “he could see where this investigation was going.” He denied having anything to do with the missing paint.
Police could find no witnesses willing to come forward to say they saw Burke steal city paint. Several current and former city employees said in interviews with a detective they thought the whole thing was a “witch hunt” against Burke because it followed on the heels of a recent investigation into whether Burke was creating a hostile workplace. Burke has since filed a $400,000 claim for damages against the city as a potential precursor to a lawsuit against the city.
There were no available city inventory records indicating what paint was used or where. However, there was evidence to suggest that Burke used a friend to bid on a surplussed paint sprayer — an issue which prompted the Montesano City Council to change its surplus policies just a few weeks ago.
The Vidette reviewed the documents at the Hoquiam Police Station in response to a public records request. Burke was given the option of getting an injunction to stop the release of the documents, but his attorney declined to do so.
City Administrator Kristy Powell provided detectives with a witness she thought could be a “smoking gun” in the case, but detectives interviewed her and she wasn’t very cooperative. She told detectives that Burke had told her back in 2009 that Burke was using leftover paint at the city of Montesano to help his business, but she didn’t want to testify in court.
“Even assuming we can get her to cooperate in testifying at trial, her impeachment value to the defense likely outweighs any prosecution value,” Deputy Prosecutor Jim Baker wrote in his letter, deciding not to pursue charges.
Baker said that the city’s paint and equipment “has been stored in an unsecured area accessible to many employees and even the general public” and “has not been subject to any system designed to monitor or measure the amount of paint the city may use from year to year, rendering any reliable estimate of paint loss very problematic.”
“The state cannot prove guilt by simple access by Burke to this property,” Baker wrote.
Burke is entering his 16th week on paid administrative leave with the city. Now that the police investigation is done, the city expects its own internal investigation to finish up within the next few weeks, Mayor Ken Estes says.
The evidence at hand shows that the city ordered more paint, even though there’s no proof it was ever used.
However, there’s also no evidence that the paint was disposed of either. It just disappeared under the watch of city employees, Burke, who was interim public works director; and under current Director Ricky Howard.
State records show that Burke started his painting business with his nephew Curt Crites, a Grays Harbor County planner, back in 2010. Police found some evidence that the business may have started back in 2009, though.
The city went from ordering 125 gallons of paint and thinner a year from 2007 to 2009 to 210 gallons of paint a year from 2010 to 2012.
The paint is used to paint stripes on city streets. Detective Krohn says that there was some evidence a new spraying machine sprayed more paint per square inch than the older model. However, that sprayer was purchased in 2007 and Krohn points out that the increase in paint sales didn’t happen until a couple years later.
Howard’s estimate to the city is that it takes just 59 gallons of paint to paint all of the curbs and any stripes within city limits — except for Academy, Pioneer and Broadway, which are streets the city has contracts for another company to do regularly.
PAINT JUST GONE
So, what happened to the other gallons of paint? No one seems to know, Krohn says.
There was a suggestion by witnesses and Burke that some of the paint was taken to be disposed of at LeMay’s hazardous waste collection at Junction City; however, there were no direct witness accounts of paint being disposed and no correlating surplus resolutions or inventory control records, Krohn says. The last time the city disposed of striping paint at the site was in 2008, LeMay’s records show. The overall investigation, which included search warrants served on Burke’s home, showed that Burke has invoices for $8,980 proving that he did buy his own paint. However, there were very little business records showing the different jobs he and business partner Crites did.
Krohn spent weeks interviewing different business owners and discovered that between 2009 and 2012, RC Striping LLC made at least $70,413 — and those figures didn’t include some jobs, such as a large condominium complex at Westport, because records couldn’t be obtained there.
Burke told The Vidette he did nothing wrong and that his business doesn’t have a very high overhead in supply costs.
Burke used the exact same paint vendor to get his supplies as the city.
In fact, Tyler Trimble, a summer employee working for the city, told Detective Krohn that Burke would have him pick up paint for Burke’s personal business at the same time as paint for the city.
“While I worked as summer help for the city of Montesano, Russ would send me up to (the painting business_ in Auburn to buy paint for the city,” Trimble wrote in his statement to detectives. “Russ would also have me pick up paint for his personal business at the same time. It probably wasn’t ethical since I was on city time, but he had me pay with either his TImberland Bank Visa or a check and kept the purchases separate. This was over a two- or three-year period and I probably did this four or five times. It was always in conjunction with city business.”
Trimble is now a candidate for city council and is running unopposed.
No other summer employees working at the same time as Trimble or before him admitted they picked up paint for Burke at the same time.
The issue involving the missing paint first came to light in February. In a report to detectives, Howard says that the paint vendor had apparently not been paid since July of 2012. The company called the city inquiring what was going on. Apparenty in Sept of 2011, Burke had directed the painting business to send all invoices directly to his city email.
“Burke said he did not remember sending that email,” Krohn wrote, adding that Burke says he lost his old email account when Howard took over as Public Works director.
“Why were invoices and/or information concerning invoices held from city officials?” Howard writes “Why does it appear from the purchase history of the last three years the quantity has doubled?
“Does Mr. Burke’s contracting business benefit from any of this?”
In August of 2011, the Montesano City Council declared a street-line paint sprayer surplus at the recommendation of Burke as it no longer worked, according to a city report at the time found in the police records. The original cost of the sprayer was around $6,000. The declared surplus paint sprayer was eventually sold for $25 to Scott Martin, maintenance director for the Montesano School District and a personal friend of Burke.
“I asked Scott if he ever helped Burke with his painting business and he said he did not,” Krohn wrote in his report. “I asked Scott if he owned any painting equipment and he said he did not. I asked Scott if he bought a paint sprayer and he paused for a minute and then said he had. I asked Scott how he became aware of the paint sprayer being declared surplus and he said Burke had told him about it. Scott related Burke asked him to purchase the sprayer for him.”
Martin told the detective that he never took possession of the sprayer, he just put in the bid. Burke took direct possession of it.
“I asked Scott if Burke paid him for the paint sprayer and he said he wouldn’t give it to him for free but he didn’t remember what kind of deal he made with Burke,” Krohn wrote. “Scott believed this deal was some time ago. I informed him it occurred in September 2011, which was almost a year and a half ago. Scott seemed surprised it had been so recent as it seemed much longer than that to him.”
The city had purchased a newer sprayer back in 2007 and the older version was malfunctioning and had just been gathering dust, Burke told The Vidette. Burke says that the older machine had issues spraying paint on hills. There was an issue with the oil level, he said. Ultimately, after Martin bought it for him, Burke said he put another $500 into repairing the machine.
“I know the way it looks but we didn’t do anything wrong,” Burke said.
Within weeks of the start of the investigation, the Montesano City Council was considering a new ordinance changing the way surplussed equipment was sold. However, none of the council members mentioned the issue involving Burke in their debate of the situation.
The way it had been working was that a bid could be placed in an envelope at City Hall after the council determines equipment was no longer needed. That gave an inside track to anyone who happened to hear about the surplussed item.
The way it works now is that all surplussed equipment would have to go to an online auction and be available for purchase by anyone, including elected officials and city employees, as well as the public.
However, if an item doesn’t sell, it’ll be up to the city council to award the equipment.
“This makes it fair for all parties involved,” Estes said. “This is a change that was long overdue and I’m glad the change was made.”