PORT ANGELES — Former city Finance Director Yvonne Ziomkowski will not be charged with any crimes for cashing out three years’ worth of unused vacation days and sick leave totaling $28,862, Kitsap Deputy Prosecuting Attorney Jonathan Salamas said Thursday.
Salamas rejected a recommendation by the State Patrol, which said Ziomkowski should be charged with eight crimes, including felony first-degree theft.
“Based upon the available evidence, it is unlikely that a jury or fact-finder would conclude that Ziomkowski acted intentionally beyond a reasonable doubt,” Salamas said.
Ziomkowski, a 24-year city employee, was fired March 15 — a month after the State Patrol released its conclusions — for violating city policy in taking the cash-outs.
She learned Thursday morning from a Peninsula Daily News reporter that no charges will be filed against her.
“I feel relieved there are no criminal charges, but I have been so humiliated,” said Ziomkowski, 58.
City Human Resources Manager Bob Coons said Thursday that Ziomkowski was required to repay $28,862 in unused sick leave and vacation days — an amount determined by the state Auditor’s Office — while she was allowed to keep $32,867 in remaining overpayments.
“I am clean,” Ziomkowski said Thursday.
“I paid every single penny. I don’t owe the city a penny.”
The criminal charges recommended by the State Patrol were first-degree theft, misappropriation and falsification of accounts, misappropriation by a treasurer, falsely auditing and paying claims, falsely paying claims, wire fraud, exceeding purchase and spending authority as authorized by city code, and exceeding cash-out limitations as authorized by city code.
Wire fraud apparently refers to the electronic transfer of the funds, which covered accrued time from 2009 through 2011.
Clallam County Prosecuting Attorney Deb Kelly referred the matter to Kitsap County to avoid an appearance of a conflict of interest, she has said.
“It’s out of our hands,” State Patrol spokesman Russ Winger said Thursday of the decision not to prosecute Ziomkowski.
“They are going to look at the odds. If we take this to trial, are we going to get a jury to agree on the criminal intent of these charges?
“That’s the prosecutor’s determination.”
Outgoing City Manager Kent Myers, who fired Ziomkowski, said Thursday only that people should read the State Patrol report.
“I would encourage people to review the State Patrol investigative report, and that’s at City Hall,” said Myers, whose last day is May 2, after which he will become the city manager of Fredericksburg, Texas.
The State Patrol report said Ziomkowski “took advantage” of a system that she controlled as finance director and that lacked oversight and internal controls.
But Salamas said he relied more on the state Auditor’s Office audit of the city’s 2010 finances, which uncovered the overpayments.
The agency took the city to task for the annual-leave cash-outs taken by Ziomkowski and other city officials
The audit said the city’s “unclear policies and inadequate controls” resulted in possible incorrect payments and that no employees intentionally misappropriated money or intentionally did anything wrong.
“Any irregularities or inconsistencies appear to be the result of interpretations that varied over time or gaps in city policies,” the audit said.
“We found no evidence of any intentional wrongdoing or misappropriation by an city employee,” the audit said.
Said Salamas: “The audit report was a major factor in our consideration of this case.”
The city said as part of the audit report that it would comply with the report’s recommendations.
The recommendations: The city should clarify vacation and sick-leave cash-out policies, assign a staff member to monitor compliance, revise the cash-out form for department heads to include the city manager’s signature and work with employees to ensure payments are correct and supported by policy.
“I’m glad it’s over, frankly,” Mayor Cherie Kidd said Thursday.
“We are aware city policies were ambiguous,” she added.
“Obviously, this is an area that needs attention. We are taking steps to make sure this doesn’t happen again.”
Ziomkowski’s lawyer, Karen Unger of Port Angeles, said in a telephone interview from Florida, where she is involved in a case, that she wasn’t surprised her client won’t be prosecuted.
“It’s always an issue with a criminal act that you have to intend to do something unlawful,” she said.
“She did what everyone else was doing, including the city manager,” Unger said.
“This practice was going on in the city, and it wasn’t started by Yvonne. What are they going to do, prosecute everyone?
“I don’t know why she was singled out.”
Unger said Ziomkowski finally has been vindicated.
But Unger also said she’s going to do some digging.
“When I get home, I’m going to find out what’s going on and how this happened,” she said.
Ziomkowski had been compensated for 896 hours, or 112 days, of leave since 2009.
Employees are compensated for their unused leave, which rolls over each year, when their employment with the city ends.
A Peninsula Daily News investigation showed that 10 other employees since 2003 — including Myers and his interim successor, Fire Chief Dan McKeen — received cash-outs that exceeded city policy.
Overpayments were approved by a supervisor or possibly were a result of payroll error, city staff have said.
Myers overdrew by 20 hours in 2009.
In an earlier interview, he called it an accident.
Myers repaid the leave, worth $1,442, last December.
Under current city policy, employees can cash out 80 hours of leave a year.
The largest overpayments, excluding Ziomkowski’s, went to McKeen.
He was paid $11,431 for 237 hours of leave in 2007.
Next highest was former Police Chief Tom Riepe, who received $10,271 for 231 hours of leave in 2006.
Those payments were approved by then-City Manager Mike Quinn, who sought to reduce the amount of sick time they had on the books.
Neither Riepe nor McKeen was required to repay the funds because Quinn, as their supervisor, approved the payments.
Since 2003, the city has spent $1.4 million compensating employees for unused leave.
________
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at paul.gottlieb@peninsuladailynews.com.
