No resolution is in sight nearly two years after Killeen’s former finance director sued the city under the Texas Whistleblower Act.
Barbara Gonzales filed a lawsuit in March 2013 following her December 2012 termination, alleging her firing was retaliation for reporting violations of state and local finance laws by City Manager Glenn Morrison. She is seeking between $200,000 and $1 million in compensatory damages from the city.
Gonzales was fired following a two-month internal investigation into the city’s Fleet Services Division, which she oversaw. The city said her termination was a result of the investigation.
She appealed her termination and went before a personnel review board, which in May 2013 determined the city should reinstate her. Morrison rejected the decision shortly afterward.
In early July 2013, depositions — oral testimony presented outside of court — began. Little movement was seen regarding the lawsuit until May, when Judge Jack Jones of Bell County’s 146th District Court ruled against the city’s request to dismiss the case, allowing it to proceed to trial under the Whistleblower Act.
The city is appealing Jones’ decision in the 3rd Circuit Court of Appeals.
John Acker, a Killeen fleet services technician who was fired along with Gonzales, also lodged a whistleblower lawsuit against the city in March 2013. However, he voluntarily withdrew his suit in June 2013 because he could no longer afford legal fees.
The Texas Whistleblower Act prohibits state or local government from retaliating against an employee who “in good faith” reports violation of the law by a governmental entity or another public employee.
Roy Barrett, a Waco-based attorney representing the city, asked the district court in May to dismiss the lawsuit, claiming Gonzales failed to prove reports filed against the city manager alleging violations of finance laws during her tenure at the city were the cause of her termination.
Barrett declined to answer questions from the Herald regarding the lawsuit Thursday, but provided a general statement.
“The city of Killeen will continue to defend itself in this lawsuit,” he said via email. “It is the city’s strongly held position that the claims made against it are legally and factually without merit because the employment decisions in this case were entirely justified and were made for reasons totally unrelated to any alleged whistleblower complaints of Barbara Gonzales.”
The Herald forwarded the same questions to the city. Spokeswoman Hilary Shine said the city does not comment on litigation, and questions related specifically to the case have to go through legal counsel.
According to the lawsuit, Morrison issued a check for a $10,500 dinner, which included alcohol, at a conference in Washington, D.C., in 2011 after Gonzales refused to process the check. City policy prohibits the use of city funds for alcohol.
The lawsuit also alleges Morrison gave Shine a $10,000 raise in April 2012 without council approval, and allegedly issued seven months of back pay to Shine, which amounted to nearly $6,000. The Texas Constitution prohibits retroactive pay.
The lawsuit states Gonzales brought issues of unlawful spending to Morrison and reported the alleged malfeasance to Killeen Police Chief Dennis Baldwin, which she believes to be the catalyst leading to her termination.
Todd Kelly, an Austin attorney, who has been representing Gonzales for about a year, on a contingency basis, said Gonzales was doing what the Whistleblower Act is in place for — holding government officials accountable.
“Barbara Gonzales reported the city manager to the police chief, and in return she was retaliated against and ultimately terminated,” Kelly told the Herald. “Anytime you have somebody who blows the whistle on somebody who is misappropriating government funds, and finds themselves out of a job, that’s specifically what the Texas Whistleblower Act is intended to protect.”
The Herald also asked the city’s spokeswoman and its attorney questions regarding its defense in the lawsuit, which they declined to answer.
With no resolution in the case in sight, legal fees continue to mount. So far, Gonzales paid an estimated $74,000 to Austin attorney Bill Aleshire, who initially represented her in the lawsuit.
However, through the city’s insurance with the Texas Municipal League Intergovernmental Risk Pool, the city hasn’t directly paid any legal fees in the case. Shine said the attorney is paid by the risk pool, and there is no cap as to how much can be spent.
The Texas Municipal League Intergovernmental Risk Pool, according to its website, provides local governments, airport authorities, hospital districts and other political subdivisions with workers’ compensation, property, specialty and liability insurance coverage and has more than 2,500 members.
The Herald requested information from Barrett regarding his legal fees in connection with the Gonzales suit, and how much time has been devoted to the case, but he declined to provide the information.
Jim Hemphill, an attorney who gives legal advice for the Freedom of Information Foundation of Texas, said the city is required to dispense any documents in its possession that reflect expenses of any kind because it is subject to the Public Information Act.
Shine said the city does not have documentation showing how much in legal fees have been paid to Barrett because the city pays into the risk pool, which covers legal expenses.
Shine said in-house legal staff also assisted in the case, as they do in all lawsuits lodged against the city. She said time spent on each lawsuit by city staff is not tracked because it’s considered part of their duties.
Shine said the city paid $1.35 million into the risk pool for the current fiscal year. In the 2014 fiscal year, the city paid $1.26 million and got an $11,406 refund; it paid $1.1 million in 2013 with a $7,343 return; $945,794 in 2012 with a $51,775 return and $1 million in 2011 with a $57,139 return.
“Increases in our contribution are attributable to growth in personnel and property,” Shine said. “(In) fiscal year 2012-2013, we adjusted our deductibles. Returns are poolwide, not specific to our usage.”
The Herald requested information regarding the city’s contribution to the risk pool Nov. 18; the city didn’t provide the information until late Friday afternoon.
For comparison, Harker Heights City Manager David Mitchell provided how much his city paid into the risk pool the same day the figures were requested.
Harker Heights paid $284,278 into the risk pool in 2011. It paid $275,209 in 2012, $302,879 in 2013, $322,752 in 2014 and $322,138 for FY 2015.
Harker Heights is about a quarter of the size of Killeen in terms of population.
The Herald also requested Thursday how much Copperas Cove paid into its risk pool, but officials said that question needed to be filed through an open records request.
There are eight lawsuits pending against Killeen. Of those, four, including the one filed by Gonzales, involve former employees.
Shine said in the past five years, seven lawsuits have been filed against the city by former employees — one was dismissed, two were settled and four remain active.
Mitchell said there are no lawsuits pending against Harker Heights. On Nov. 21, Heights reached a settlement with a former police officer who was suing the city for unpaid overtime related to the care and upkeep of his police dog.
Mitchell said two lawsuits have been filed against Heights by former employees in the past five years.
Kevin Keller, Cove spokesman, said there is one lawsuit pending against the city from a resident. The city hasn’t had any litigation lodged against it by former employees in the past five years, he said.
Kelly said Gonzales’ case against the city could set precedent.
“This was someone who reported that someone in charge was misappropriating money,” he said. “Cities and county governments will be looking to see how this case is handled.”