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Retaliation from city toward its internal auditor continues, lawsuit alleges [1]
['Elida S. Perez', 'More Elida S. Perez', 'El Paso Matters']
Date: 2023-12-20
The city’s longtime chief internal auditor claims not getting an employment contract is part of ongoing retaliation against him, according to a whistleblower lawsuit he filed against the city.
The lawsuit, filed Dec. 14, follows a workplace complaint and request for a grievance process filed in July by Chief Internal Auditor Edmundo Calderon with the city’s Human Resources Department alleging, in part, that city officials, including City Attorney Karla Nieman, former City Manager Tommy Gonzalez and city Rep. Cassandra Hernandez, retaliated against him after he audited fuel card usage by elected officials.
The lawsuit alleges, in part, that Calderon faced retaliation through open criticism of his audit report process by Gonzalez and Hernandez, staff retaliation by not granting full funding for cyber security during the city’s budget process and not being given an employment contract after the May 6 city charter amendment election.
“To date, Calderon has not received an employment contract or any other documents necessary for the final appointment (of his employment). The delay and continued refusal to provide a contract was done in retaliation,” the lawsuit states.
Calderon and his attorney Laura Enriquez declined to comment.
The “delay and refusal” to give a contract stems from Calderon conducting the fuel card audit and not immediately notifying the city manager or elected officials that he was doing so and that he involved the El Paso Police Department as part of the audit investigation, according to the lawsuit.
The lawsuit also alleges Nieman and members of the City Council told Calderon he would be given an employment contract following the charter election and that one was being prepared by the city’s Human Resources Department.
“The City of El Paso is now trying to claim that it never intended to give Calderon a written employment contract in an attempt to avoid liability in this lawsuit,” the lawsuit states.
The charter election changed the reporting structure for the office of the auditor. Prior to the election, the auditor reported to the city manager and City Council. The amendment approved by voters removed the city manager’s authority so that the auditor reports directly to the City Council, with direct oversight from the chair of the Financial Oversight and Audit Committee.
Calderon, who was hired in 2005, works as an at-will employee for the city getting paid about $154,000 per year with benefits other high-level city employees receive such as medical insurance, paid vacation and sick leave, a vehicle allowance and retirement benefits, among others.
At-will employment means either the employee or the employer can terminate the working relationship at any time and for any reason. At-will employees are not covered by the city’s civil service rules, which provide some employee protections and benefits. Employees under contract have specified terms and conditions for ending employment.
The City Charter does not specify the pay, or whether the internal auditor would have an employment contract after voters approved the change to the reporting structure. Under the previous arrangement, Calderon did not have an employment contract. Only the city attorney and city manager, who report directly to the council, have contracts.
In Austin and Fort Worth, the internal auditor reports to the mayor and city council. Dallas and San Antonio have the same reporting structure El Paso used to have prior to the charter amendment where the auditor reports to the mayor and council and city manager.
In Austin, the city auditor’s employment terms are not through an employment agreement or contract.
“I do not technically have a contract. The terms of my employment are set by City Council annually through an ordinance,” said Austin City Auditor Corrie Stokes.
Stokes said the Austin City Charter establishes a five-year term for the auditor, during which it requires a supermajority of the City Council – currently nine of 11 members – to remove her.
She said the initial ordinance that appointed her as auditor included benefits that mirror what may be in an employment contract such as a car allowance, phone allowance and compensation.
The Fort Worth city auditor position is an at-will employee that is appointed by the City Council, said Fort Worth spokesperson Bethany Warner.
In July, the El Paso City Council voted to appoint Calderon as the city’s chief internal auditor, but did not vote to issue him an employment contract. Hernandez voted against appointing Calderon as the chief auditor.
Hernandez declined to comment.
“Representative Hernandez voted against Calderon’s appointment in retaliation for conducting the audit, not notifying anyone sooner, and using the police department to assist with the investigation,” the lawsuit states.
Among damages, the whistleblower lawsuit is asking for an employment agreement, monetary compensation of at least $250,000, but not more than $1 million as well as a civil fine of $15,000 to be paid by Gonzalez, Hernandez, Nieman and assistant City Attorney Juan Gonzalez. The fine would be deposited to the state treasury, a stipulation of the Texas Whistleblower Act.
The El Paso City Council has discussed the workplace complaint in executive session multiple times, including on Monday, but has not taken action or discussed the complaint publicly.
The city declined El Paso Matters’ request for comment.
The allegations in the lawsuit mirror those outlined in the workplace complaint filed in July following the fuel card audit.
The fuel card audit report was conducted after Calderon received an anonymous tip in November that claimed former city Rep. Claudia Rodriguez was using her city-issued fuel card to put gasoline in the vehicles of her campaign workers.
The lawsuit alleges that retaliation from city officials started after an April 6 meeting Calderon had with a detective from the police department regarding concerns about Rodriguez’s and Hernandez’s fuel card use. The initial meeting with the detective led to a meeting with interim Police Chief Peter Pacillas who said a criminal investigation due to possible credit card abuse and/or misapplication of fiduciary property needed to be launched.
The lawsuit alleges Gonzalez made aggressive phone calls yelling and questioning Calderon as to why he was conducting the audit and not notifying him sooner and “was screaming at Calderon at the top of his lungs.”
“Gonzalez tried to make Calderon second guess himself on the findings. Tommy Gonzalez was using a ‘gaslighting’ approach,” the lawsuit states. “He was minimizing Calderon’s work. Tommy Gonzalez was treating Calderon poorly and began the retaliation against Calderon for conducting the audit.”
Gonzalez, who was fired as the El Paso city manager in February and is now city manager in Midland, Texas, could not be reached for comment.
The police investigation ultimately determined no crime had been committed based on the city’s policies related to the fuel card program.
The audit concluded that Hernandez and Rodriguez used their taxpayer-funded fuel cards much more than their peers. The audit also revealed instances of the fuel cards being used while the elected officials were out of town and on back-to-back days which initially led to the police report.
Hernandez and Rodriguez were issued letters of reprimand for their usage of the taxpayer-funded fuel cards by the city’s Ethics Review Commission. An ethics complaint filed against city Rep. Alexsandra Annello for her use of the city-issued fuel card was dismissed by the ethics commission in August.
The fuel card program was ended by Interim City Manager Cary Westin in July.
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[1] Url:
https://elpasomatters.org/2023/12/20/el-pasos-chief-internal-auditor-files-whistleblower-lawsuit/
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