• August 30, 2014

Questionable finances

Lawsuit against Killeen hinges on mysterious audit comments that popped up with court documents

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Posted: Sunday, March 17, 2013 4:30 am | Updated: 11:57 pm, Sat Apr 27, 2013.

The lawsuit filed last week by Killeen’s former finance director hinges on a document — allegedly written by an outside auditor one year ago — that exposes several unsound financial practices at City Hall.

Former Killeen finance director Barbara Gonzales sued the city Monday under the Texas Whistleblower Act, alleging that Killeen City Manager Glenn Morrison ignored warnings of unlawful spending, presented by the city’s external auditors, Sheryl Mess and Steve Niemeier, in early 2012.

The outside auditors allegedly flagged 11 issues in the city’s financial policies, calling them outdated and noncompliant with the Texas Government Code and city policy.

“The city is committed to vigorously defending itself again against these claims,” said Hilary Shine, Killeen’s spokeswoman. “The facts will speak for themselves.”

Call for oversight

The lawsuit claims that “because (the external auditors) were not getting cooperation from the city manager, they provided Ms. Gonzales a draft list of audit comments that made reference to expenditures and practices that violate state law or city ordinances and policies.”

The “draft list” of issues centers on a lack of oversight in the city’s employee purchasing, travel, reimbursement, car and computer allowance programs.

Gonzales’ lawsuit also alleges Morrison spent $16,000 on a dinner that included alcohol, at a conference in Washington, D.C., although city policy does not permit the use of city funds for alcohol.

Currently the city charter gives the city manager — not the Killeen City Council — the ability to hire and fire the city’s internal auditor.

In 2012, external auditors suggested that the city realign its internal auditor position to “ensure that the internal auditor remains independent and the external auditor could rely on work performed.”

The official external audit, or Comprehensive Annual Financial Report, released in April 2012, just a month before the new council took office, did not contain any of the external auditor’s critical “draft list” comments.

Under the heading “Compliance and other matters,” the external audit stated, “The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under the Government Auditing Standards.”

It’s unknown why the draft list comments were not contained in the 2012 audit when it was released in April. Calls to Niemeier were not returned last week.

City investigations

Gonzales claims she blew the whistle on Morrison when she handed the list of unlawful spending procedures to Killeen Police Chief Dennis Baldwin in early 2012.

The lawsuit claims that standing up to Morrison in such instances ultimately led to her Dec. 12 termination. She is seeking between $200,000 and $1 million in compensatory damages from the city.

The official reason for firing Gonzales was a loss of confidence “due to a number of issues” that occurred under her management, according to her termination letter.

Gonzales was fired after a two-month investigation of the Killeen Fleet Services division, which is technically under Gonzales’ purview.

A former fleet services mechanic, John Acker, also was fired Dec. 12.

Acker also sued the city under the Texas Whistleblower Act, alleging he was fired for revealing incriminating information about a member of the Killeen Police Department.

The city’s internal investigation included an audit of fleet services performed by the city’s internal auditor, who reports to the city manager.

Because of that relationship, the lawsuit claims, the fleet services audit was an “undocumented, unfounded and unprofessional hit job on Barbara Gonzales.”

Shine said the internal auditor works directly for the city manager; however, Morrison supports a realignment of the position in the May 11 charter election.

“The city manager is in favor of the amendment for the internal auditor to report directly to the city council,” Shine said. “Now, it will be left to the voters to decide.”

Power shifts

While highlighting a lack of fiscal control in the city’s government, Gonzales’ lawsuit also alleges a misuse of power by the city manager during the six-month period when Killeen was without a working council.

After the city paid its former city manager Connie Green $750,000 to step down in early 2011, five of the seven council members were recalled by voters in November 2011.

From then until May 2012, the council was unable to conduct regular city business without enough members to establish a quorum.

Under the unusual circumstances of the recall, the interim city manager — Morrison — was able to issue certain actions to keep the city running, giving him more power than under normal circumstances.

Morrison approved 10 resolutions during the period without a council, which were later ratified by the incoming council.

Gonzales’ lawsuit alleges Morrison made illegal change orders and unlawful salary increases, including seven months of backpay to Shine, the executive director of public information.

Article III, Section 53 of the Texas Constitution prohibits compensation for county or municipal employees, “after the service has been rendered.”

Checks and balances

Killeen Mayor Dan Corbin said he is looking forward to the opportunity for the city to defend itself from the allegations made by Gonzales.

He also said he wanted to change the internal auditor situation since he first joined the council in 2003.

“Nobody listened to me back then,” Corbin said.

Corbin left the council in 2006 and was elected mayor in May.

If supported by voters May 11, Proposition 12 will require the council to hire the internal auditor in the future.

Corbin proposed the ballot initiative during the charter review in October.

Internal auditors in other cities, including Temple, report to the council and not the city manager. Harker Heights and Copperas Cove do not have internal auditors.

“I believe that there is a pretty well accepted way to use an internal auditor throughout the nation in government, and it is for it to be responsible to the legislative body instead of the executive,” Corbin said.

“The legislative body needs someone to ask questions to and get straight answers and you can’t do that unless they are accountable and reportable to you.”

Despite supporting the charter change, Corbin said he has found no evidence of poor financial practices performed under Morrison’s administration.

“I can’t put my finger on anything where the present system has resulted in some sort of failure of internal controls,” Corbin said. “I have not come across any such things, and I believe the auditors believe that, too.”

Other council members have echoed the mayor’s sentiments in the past week since the lawsuit was filed.

Councilman Terry Clark, who does not support much of the charter election, said he would support Proposition 12.

“The continued employment of the internal auditor should not be determined by the city manager because it is the auditor’s responsibility to report discrepancies,” Clark said. “The discrepancies should be reported to the city council.”

Gonzales has requested a jury trial, which is expected to take place in early 2014.

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8 comments:

  • Viktor posted at 2:54 am on Wed, Mar 20, 2013.

    Viktor Posts: 316

    Bubba just look at the same names in Killeen that come up over & over for city and school board elections. Look at some names of people that hold key positions in the city & even school offices. They also serve on different boards. Combined efforts of these families create a good ole boy network that you mention. The salary of $97K as you state is funded by those that pay taxes here. That $97K is nothing compared to the good that comes from having someone within run the show at the top. Somebody has to be a spokesperson for all the scandal that comes out of the city. Killeen was likely part of the inspiration for a lot of the trash reality TV we see now. Scandal, misbehavior, mismanaging money, behaving badly on the job. It's disgraceful but people at the top must thrive on it since the constant issues in HR, personnel & other departments have been ongoing for years in some form or another. Eliza's post is right. TML has heard of Killeen & not in a good way either. It's distasteful as its not a positive image of this city. Growing Killeen isn't just cleaning up streets, sprucing up things, building a bunch of houses, restaurants & strip malls. It should include a positive image for the city where big businesses will want to come & grow the city. Its possible one day the right combination of leaders will be elected. Ones that can change the culture within the city & its departments to reduce or eliminate juvenile conduct that's unbecoming of adults.

     
  • Eliza posted at 10:03 pm on Sun, Mar 17, 2013.

    Eliza Posts: 724

    It pays us all at times, to know the Laws of the Land or of the State of Texas.
    The copy of the Texas Whistle Blowers Act below comes from
    the TML/Texas Municipal League web site.

    That's the agency for any who may not know, that the tax payers
    of Killeen, are paying premiums' to and who in turn, furnishes
    an attorney and/or settlement in case there's a law suit for any
    reason against the city.
    With the number of law suits that have happened in the last
    few years,none for which the tax payers themselves have
    been accountable for,I'm sure the agency knows the
    name KIlleen very well.


    The Texas Whistleblower (Act)

    prohibits a city from taking an adverse employment action
    against an employee who “in good faith reports a violation of law by the employing [city] or another public employee to an appropriate law enforcement authority.”

    2 The Act waives sovereign
    immunity for cities in causes of action arising out of claims by public employees whose
    employment was allegedly terminated for reporting illegal conduct.

    3 This memo will focus on each
    element of the statute as to what is covered by the Act.
    • “Employee Reports a Violation of Law in Good Faith”
    The Act requires an employee to have made the report of a violation of law in good faith.
    4 There must be a subjective and objective basis for believing there has been a violation of law.
    5 Meaning,
    the employee must in good faith believe that a law was violated and the belief must be objectively reasonable.
    The report must be about another public employee or governmental entity. It cannot be about another member of the community that may have violated the law.

    A “law,” for purposes of the Act, includes: (1) a state or federal statute; (2) an ordinance of a local governmental entity; or (3) a rule adopted under a statute or ordinance. A city charter may also be
    considered a “law. Generally, internal policies are not considered laws. However, some courts look to city council adoption.9

    “To an Appropriate Law Enforcement Official”
    Under the Act, a report is made to an appropriate law enforcement authority if the authority is a part
    of a state or local governmental entity or of the federal government that the employee in good faith
    believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report;
    or (2) investigate or prosecute a violation of criminal law.10
    Courts have opined that internal reports
    are not usually a “report to appropriate law enforcement authority.” For example, in one case, a
    court ruled that an employee’s report to the city of a police officer’s sexual harassment and employment retaliation was not reported to the appropriate agency and, therefore, could not form
    the basis of a whistleblower retaliation claim. The court wrote that the proper agency was one that
    had the authority to regulate under, enforce, investigate, or prosecute a violation of the state’s sexual harassment and employment retaliation laws, and a city’s general authority to regulate under,
    enforce, and investigate claims of sexual harassment was not enough to make it an appropriate law
    enforcement authority under the Act.11
    Employee is “suspended, terminated, or other adverse personnel action because of
    making the report”
    To claim protection under the Act, an employee must have been subjected to suspension, termination
    12, or other adverse personnel action because of the report of an alleged violation of law by another city employee or official.
    A “personnel action” is defined as “an action that affects a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation.”

    13 In some cases, reprimands or severe harassment may be enough for an “adverse
    personnel action.” The employee must file a grievance no later than the 90
    th day after the date on
    which the adverse personnel action occurred or when the employee discovered through reasonable diligence that the action taken was because of the report.
    14

    Ability to File Suit

    The Act gives a public employee who claims that his suspension, termination, or other adverse
    personnel action was in retaliation for his good faith reporting of violations of the law the right to sue for damages and other relief.

    15 Courts have opined that the Act does not distinguish between
    probationary and non-probationary employees.

    16 An employee who is allegedly “retaliated” against
    for reporting a violation of law is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney fees.

    17 In addition, the employee may also be entitled to
    reinstatement to the employee’s former position, compensation for wages lost during the period of
    suspension or termination; and reinstatement of fringe benefits and seniority rights lost because of the suspension or termination.

    18
    Further, a supervisor who knowingly takes an adverse personnel action covered by the Act against an employee in retaliation for the report may be liable for a civil penalty not to exceed $15,000.
    19
    The Act requires the supervisor and not the city to pay for the civil penalty and deposit it in the state treasury.20


     
  • Eliza posted at 5:42 pm on Sun, Mar 17, 2013.

    Eliza Posts: 724

    It may be easier to pay off ,but then its going to show the public who is the guilty party/s.isn't it ?
    And if the tax payers have to pay off another law suit ,again because of allegations against city employees,
    The tax payers themselves,
    may have to bring their own law suit against the city [smile]

     
  • Viktor posted at 5:07 pm on Sun, Mar 17, 2013.

    Viktor Posts: 316

    It's probably easier to pay Gonzales off. At least that way things can be kept quiet. This under the radar way of doing things that have to do with city business has been flourishing for years. Why change now? Just pay all the employees off because there's too much dirt that may come out in court. Then we can all resume business as usual.

     
  • Max67 posted at 3:06 pm on Sun, Mar 17, 2013.

    Max67 Posts: 63

    I agree. It should probably also be noted that Glenn Morrison was supportive of the initiative to have the city's internal auditor report to the city council instead of him only AFTER he had already placed Ms. Gonzales on leave in order to terminate her, which is after she had raised the issue.

    It's also important to keep in mind that Glenn also had his internal auditor (who reports directly to him) conduct the fictitious audit/investigation of Fleet Services, which was designed to give him an excuse to terminate the employees he wanted to eliminate. He was in control of that effort, ad he'll be in control of the deciosion made in the public (termination appeal) hearings for Barbara Gonzales and John Acker.

    Glenn did not have the auditor follow-up on fraud, waste, and abuse events that were tied to himself and the division he headed up at the time those events were reported to have occurred (and shortly after). Since he was in control of the city's internal auditor, it seemed to be easier for for him to get away w/ his actions -and feel less of a need to cover his trail. He also covered for his "good 'ole boy cronies. Based on how he was able to get rid of people who created bumps in the road for him, I would say it was working for him - and could continue to work for him if he's allowed to get away with it.

    How can someone with such low moral values be given so much power and be permitted to violate the laws and rights of his staff who tried to hold him accountable and the taxpayers (whose tax dollars he abused). I think we'll see that those violations were also often in the best interest of a few select management staff who supported him in his wrongful actions. It makes you wonder if the council should consider the potential benefits of terminating the mgt. personnel committing the offenses (and abusing tax dollars) and rewarding those who tried to stand up for the taxpayers (unfortunately, at a very high cost to them and their families).

     
  • Eliza posted at 11:16 am on Sun, Mar 17, 2013.

    Eliza Posts: 724

    I want to commend reporter Brandon Janes and KDH for the extensive investigative work they do on articles concerning the peoples business,----

    "The pen is mightier than the sword" Edward Bulwer-Lytton

    -
    @ Gonzales has requested a jury trial, which is expected to take place in early 2014.

    Its been not quiet 2 yrs. since the old city council were removed from office due to them alone, deciding to spend $750,000 tax payer money, to pay off someone who had made allegations against them,impart, that they were holding illegal meetings.

    If this were true,the tax payer was never given a chance to find out,since the pay off (even more then the person was to legally receive, was tallied up and check written before the tax payer was even told how much it added up to.

    The new city council when elected promised complete openness to the public,this lasted approximately 5 months before it became uncomfortable to some members, and part of the council meetings went behind closed doors.

    There will when there's a recent history of wrong doings in the past, always be a suspicion of doubt about the ones who take over until its proven the new group who are in charge of the peoples money, can be trusted to not be the same as the ones who had to be re called.

    That's why its a good thing to follow the states Sunshine Act to a tee,its been written that if followed ,there should be none of the problems of doubt as has now reared an ugly head all over again. The following of the Sunshine Act may have lessen the embarrassment in the last weeks when the City Manager sent out e-mails telling the council members Not to speak with KDH about a matter which concerned the public.

    I'm surprised the city manager ,who stated he was advised through City Attorneys office didn't know he was advising the council wrong. I'm also surprised none of the council members,it seems, knew they were being given wrong advise on the subject KDH had inquired about.

    When someone is told not to answer a question which pertains to the public when the only reason they have the position they do,is the public, an automatic alarm should go off.And questions should be ask.

    If Ms Gonzales is sure of her case,and she has been precise about moneys spent,people its been spent on who were not eligible ,personal reimbursements on personal credit cards,even down to an outlandish gratuity payment etc, the only way to seek justice for herself and the people, and not be ruled a liar, is to go into an open courtroom and into that sunshine before the public, and state before the people her case and what she has knowledge of.

    Since if she had stood by with knowledge of any wrong doing going on in using the people money, she would have been just as guilty and could have been pulled into the situation of what is now being accused of others.

     
  • snoopy posted at 10:17 am on Sun, Mar 17, 2013.

    snoopy Posts: 1

    There would be a strong link between the resignation of the previous city manager and the present city manager. The financial miscues associated with the expenditures for diner is not uncommon with city government's conference travel. This particular conference in all probability was to the National League of Cities conference. Most politicians and city executives are a little more clever in disguising their partying by having their contracted lobbying group front the payment for the meals and drinks, and then hiding the costs through their contract with the municipality. If more digging is done here, some city executives and former elected officials might find themselves criminally culpable.

     
  • Bubba posted at 10:12 am on Sun, Mar 17, 2013.

    Bubba Posts: 683

    Well, it seems the "good-ole-boy" system is still alive and well in Killeen. I guess it wasn't enough to pay off the last guy with $750,000 to keep him quiet-the new regime seems to be no better than the last. I read in the paper that hilary shine, the "Executive Director of Public Information" for Killeen, whatever THAT means, is being paid $97,000 a year to sit around and hand out pamphlets about Killeen, apparently. Really? I'll start that job tomorrow for $60,000 a year, live pretty well, and hand the left over money to the treasury. Why would any employee of a small town like Killeen require a salary of $97000 a year to do anything? Just who is being paid off here? Wake up, Killeen.