Disciplinary action hangs fire while department director and human resources confer and decide
Additional Research by Mark Henricks
Updated Wednesday December 16, 2015 9:50am (to correct last name of Rodney Gonzales)
Updated Wednesday December 16, 2015 1:18pm (to clarify auditor interaction with Ethics Review Commission)
The report of an investigation released by the Austin City Auditor in October 2015 found evidence that Eric Leal Gomez, an environmental compliance supervisor in the Development Services Department, allegedly misused his position, misused city resources, and inappropriately entered into a business relationship with a subordinate. The report provided details for the three findings.
Gomez addressed these findings in a 10-page e-mail addressed to department management September 23, 2015. Gomez conceded that he misused his city computer and Internet access in connection with efforts to establish a private business but stated the infraction had been cured and would not be a problem going forward. He argued the other two findings were inappropriate and requested they be retracted.
Nathan Wiebe, chief of investigations for in the City Auditor’s Office, said that Gomez’ responses have been considered but the findings will not be retracted.
“We allow the subject of an investigation to respond in writing,” Wiebe said. “If they present evidence that may potentially affect the findings we investigate and modify the report. In cases where they have presented their side of the story but the response hasn’t changed anything, then the report goes out. In this case, he requested redaction of two findings but what you see in the final report—that’s our response.”
The auditor’s investigation of Gomez was conducted in response to an anonymous complaint, Wiebe said.
While the complaint was anonymously filed with the auditor, Gomez said, “The problem was she started bragging about turning me into the auditor, resulting in this investigation.” He named a former employee that he said he had once pursued disciplinary action against the woman for allegedly falsifying timesheets.
Still, it would be up to the auditor to investigate, substantiate the allegations, and bear the burden of proof. An investigation published by the previous auditor was discredited, the City Council issued a formal apology to the accused, and a lawsuit is pending to get the documentation that supported that flawed report.
Disciplinary action pending
The Austin Bulldog interviewed Gomez for more than two hours on December 3. Gomez, who is on paid administrative leave pending further action by the City, provided a copy of a Notice of Pre Disciplinary Hearing issued December 1. The notice states he was scheduled to meet with Development Services Department Director Rodney Gonzales December 7 and faced the possibility of being discharged for the alleged infractions.
Gonzales was appointed director of the Development Services Department (formerly part of the Planning and Development Review Department) after the auditor’s investigation was launched. On December 1 Gonzales told The Austin Bulldog that an administrative review of the auditor’s investigation report has been conducted with the City’s corporate Human Resources Department and “we are proceeding with corrective action.”
On December 15 Gonzales told The Austin Bulldog that disciplinary action is still being explored in conjunction with the corporate Human Resources Department. (In this context “corporate” is used to distinguish the City department from the human resources personnel who work within each of the other city departments.)
“Corporate HR is an important part of this process,” Gonzales said. “I’ve spoken to them several times. I don’t have a timeline for you (on when a decision will be made).”
“Any discharge of any employees is a serious matter,” Gonzales said. “Discharge is the highest level of disciplinary action and we take it seriously. We’re taking all due diligence regarding what is the appropriate action.”
Nevertheless, in anticipation of being discharged, on December 1 Gomez filed a complaint with the Texas Workforce Commission alleging employment discrimination on the basis of his national origin (Hispanic and Mexican) and religion (Christian).
The religious aspect of his claim, he said, stems from what he considered to be inappropriate questions put to him during grilling by one of the auditor’s staff members conducting the investigation.
If his employment is terminated, Gomez will also have the right to appeal to the City’s Municipal Civil Service Commission and ask to be reinstated.
The auditor’s findings
The auditor’s three findings, the written responses to each that Gomez provided to the auditor, and his statements to The Austin Bulldog are summarized below. (The complete 22-page report, which contains the auditor’s findings and the written response that Gomez provided to the auditor, are linked at the bottom of this report.)
Finding 1: Misuse of Position—The Austin Bulldog through a public information request found that his immediate supervisor granted Gomez 141 hours of paid time off to study for the Bar Exam, at a cost to the City of more than $4,300. Gomez passed the exam and became a licensed attorney in November 2012.
Although the City stated that his job does not require Gomez to be an attorney, his job duties include assisting in preparing cases for prosecution of environmental violations. The job posting for the position that Gomez was hired to fill in 2011 listed being a law school graduate as a preferred qualification.
The auditor’s investigation determined that Gomez also had a private law practice and maintains a website that offers to help citizens with their land use development concerns and encourages clients involved in the permitting process in Central Texas to contact him.
A snapshot of the website taken in April 2015 was included in the investigation report. The auditor’s report highlighted sections as follows:
“As a legal manager for the City of Austin’s Planning Department, I understand the confusion you face. You need help from a lawyer with the in-depth legal knowledge to guide you through the regulatory process and help you come out on top. …
“Call today if you’re involved in a permitting battle, at any stage of the process, and find out how the Law Office of Eric L. Gomez can help you.”
The information contained in the snapshot is no longer on the law firm’s website. Gomez said in a December 8 e-mail to The Austin Bulldog that he “unpublished the page on land use” after he was informed of the city’s concerns. Today the website no longer exists.
The investigation report states that in an interview with auditor’s staff, Gomez admitted that potential clients contacted him because of the website. Gomez said he had only one client, a family member who lives outside Travis County.
The report states this appears to constitute Abuse of his position as defined by the Administrative Bulletin 06-03. But the report also states, “We found no direct evidence indicating Gomez represented clients involved in permitting proceedings, nor that he had clients regulated by the City of Austin.”
Gomez response—In his written response to the auditor, Gomez stated, in part, that “Findings 1 and 3 have been made erroneously, without sufficient proof, allege violations without providing prior notice, and clearly unsupported by the referenced policies. These findings are also defamatory … and discriminatory on the basis of disparate treatment. … As a result I am suffering emotional distress and damages, including but not limited to loss of future earning potential, damage to reputation, and exposure to public hatred, contempt and ridicule.”
“I am requesting that the Auditor’s office retract Findings 1 and 3 immediately and no later than 30 days from receipt of this report, and issue an apology, in order (to) disabuse my good name and reputation of these statements and to mitigate further damages.”
In more detail he argued that his website does not “state that as an employee for the City I can offer special services to clients, which is what is being implied by the auditor.”
He went on to argue that Administrative Bulletin 06-03 states that to have violated city policy he must be using his City position to obtain personal gain or favor from another City employee, vendor or citizen, but claimed, “I have personally gained nothing that is in any way related to my position with the City in the outside practice of law, be it pecuniary or just ‘favor.’”
Further he argued that the “cited policies have provided me with no notice in order to guide my behavior, and the Auditor has severely stretched the language of the cited policies to find me in violation.”
“The Auditor has absolutely no proof to carry any of the elements of this finding, because no proof exists. Accordingly, it is deeply troubling and irresponsible to publish such a claim without substantial proof to support it. This finding is irresponsibly presumptive, speculative and defamatory based on the evidence provided.”
In The Austin Bulldog interview, Gomez said, “I haven’t had a single call about anything to do with relating to land use, anything environmental. I haven’t had a single contact in any way so I certainly haven’t been paid or gained anything, which is required by the policy for me to violate it.”
Finding 2: Misuse of City resources—The auditor found that Gomez misused City of Austin resources, specifically the Internet and his work computer for his secondary businesses. Between January and April of 2015, the report states, more than 800 web hits appeared to be related to his secondary employment. Evidence indicated he used his City computer to build websites for his law practice and for another business that involved selling recreational equipment.
Through a public information request The Austin Bulldog obtained a copy of the Internet and Electronic Mail Acceptable Use Policy Acknowledgement / Acceptance Letter for the department that Gomez signed August 25, 2011, when he was hired. The letter states:
“All uses of the City computer equipment, electronic facilities, and electronic data are restricted to work related purposes only, and are open for disclosure under the Texas Open Records Act (sic). Use of the Internet, and Internet e-mail, will be allowed only by acceptance and compliance with the Acceptable Use Policy.”
The auditor found a significant number of documents stored on Gomez’s computer, both personal and connected to his secondary businesses. Roughly 100 documents related to his secondary businesses, including but not limited to draft representation documents for potential clients, client invoices, a demand letter sent on behalf of his client, and more.
Evidence pertaining to a business relationship with his subordinate employee (discussed in Finding 3 below) was also found on Gomez’ work computer, including a draft partnership agreement between Gomez and his subordinate; federal tax documentation assigning an employer identification number to the business; a limited liability company worksheet with member names, including Gomez and his subordinate; and e-mails discussing business between Gomez and others, including his subordinate.
The auditor’s report states these acts appear to violate City Code Section 2-7-62(J) Standards of Conduct; Fraud per Administrative Bulletin 06-03; City Personnel Policy Chapter A1G: Use of City Resources; and Administrative Bulletin 98-06: Acceptable Internet Use.
Gomez response—His written response states, “With respect to Finding 2, I take full responsibility for my actions and admit to using City property for non-city business, though not to the extent implied by the auditor.”
He stated that he had corrected his use and behavior and this would not be a problem in the future.
But he went on to claim, “… Internet usage and the abuse of City resources is rampant problem in my section, as well as, I’m sure, my division and department. I would find it discriminatory and unequitable if I alone am singled-out for violating a policy that is being so openly and notoriously violated by so many other employees.”
He also argued that “nowhere—nowhere—on my website does it say that I am providing legal services to the ‘City of Austin’ or to ‘citizens.’ Rather my practice is aimed at ‘Central Texas.‘”
“In fact, when I told my supervisor that I would be considering starting a law practice on the side he told (me) that he didn’t see a problem as long as I avoided Travis County.”
He claims that he is being singled out because there is at least one other person in my section who is actually “gaining” from a side business directly related to the industry we operate in. “This person’s actions are open and notorious, having been described to section staff by management during training meetings. The auditor has also been made aware of these actions, but nothing is being investigated with respect to that person.”
Chief investigator Wiebe declined to say specifically whether that allegation had been investigated, but said, “If we ever receive allegations of fraud, waste, or abuse, we conduct due diligence to the best of our ability.” If evidence is found, a report is issued. He could not recall any report against another employee in the same department in recent years.
The Austin Bulldog located records online that indicate a website for the Law Office of Eric L. Gomez was created December 5, 2014, and registered through GoDaddy.com LLC. Gomez provided The Austin Bulldog with a “Product expiration notice” e-mailed to him December 4 that indicates this account has expired. On December 9, 2015, the website, elglegal.com, was no longer available online and a godaddy.com notice stated “This domain name expired on 12/4/2015 and is pending renewal or deletion.”
Gomez told The Austin Bulldog, “I haven’t been shown one shred of evidence throughout this whole (auditor’s) report. All I have is statements on the page. … They haven’t shown me a list of browsing history.”
Finding 3: In business with subordinate—The auditor found Gomez had entered into a business relationship with one of his subordinates, a person for whom he has performance review responsibilities. The relationship involved the building and selling of outdoor recreational equipment. When interviewed by the auditor, Gomez “admitted asking his subordinate to be a co-owner and the business and the partnership structure was solely his idea. This was confirmed by the subordinate,” the report states. The auditor found that neither man had informed management of the business relationship.
The auditor found this business relationship with his subordinate appeared to violate standards of conduct, abuse, and city personnel policy.
The auditor’s report did not name the business or the subordinate involved. Through independent research and confirmed in an interview with Gomez, The Austin Bulldog identified the company as Leviathan Outdoors. The LeviathanOutdoors.com website consists of a single page, which states “Coming Soon!!!”
Gomez told The Austin Bulldog the employee allegedly involved in the relationship is David Chapman, an environmental compliance specialist senior, who has since been promoted to a supervisory position and no longer works under Gomez. Chapman’s LinkedIn page once listed his connection to Leviathan but that information has been removed.
Gomez adamantly insists that while he did invite Chapman to be a partner, that business was never established. He said the draft documents that investigators found on his work computer were never filed with the Secretary of State or the county clerk.
He said he has no business and no clients.
“Wanting to do something and actually doing it are two different things,” Gomez said.
Leviathan does not now and never did exist as a business, he said. The idea for the business was dreamed up, he said, by him and his fishing buddies, the “drunken wishes of people on a fishing trip. … How many of those songs have been sung by drunken sailors on the ocean?”
“I have two websites that cost me about $20 to build … I have no clients.” He said he built the websites on his lunch breaks in November 2014.
A previous auditor’s investigation discredited
The Gomez investigation report was published one year after the Austin City Council voted to approve a Resolution that included a formal apology to Daniela Ochoa-Gonzales over a flawed auditor’s investigation that found she was guilty of a conflict of interest regarding her duties on the City’s Zero Waste Advisory Commission.
This highly unusual formal apology was made possible when Ochoa-Gonzales signed a waiver agreeing not to sue the City over the false allegations. But the apology came too late for her personally, as she had been fired from her job at the University of Texas at Austin as soon as the auditor’s report was issued and drew widely publicity. She was also forced to resign from the Commission.
The Resolution also required that a conspicuous notice be placed on the auditor’s report about Ochoa-Gonzalez, stating, “This report has not been accepted by the Austin City Council and is subject to Resolution No. 20141016-024, passed on October 16, 2014.”
Commissioner Ochoa-Gonzales had been reported to the auditor for having a conflict of interest due to her contract for work with Texas Disposal Systems Inc. The auditor’s investigation report released April 18, 2014 substantiated the allegation—incorrectly as it turned out.
Among the report’s discrepancies was the fact that Ochoa-Gonzalez didn’t learn of it until an aide in Council Member Mike Martinez’ office called and asked for her resignation.
She issued a written statement to rebut the findings April 28, 2014, and noted she was never given the opportunity to defend against the accusations and was publicly “tarred and feathered” by prematurely disseminating the report. She also raised a number of important questions, including: “Doesn’t the (auditor’s office) have a minimal responsibility (to) ensure accuracy of its reports prior to irreparably injuring a person’s reputation?”
Mayor Steve Adler reappointed Ochoa-Gonzalez to the Commission but she later resigned because she was moving out of Austin.
In the wake of the Ochoa-Gonzalez incident the City clarified its rules to require that all investigations of board and commission members be conducted by the City’s Ethics Review Commission and not the auditor’s office. that only the Ethics Review Commission can determine whether a violation of the Code of Ethics has occurred. If an investigation is conducted by the Auditor’s office, the results of a substantiated investigation will be filed with the Ethics Review Commission for its consideration and ruling. The Ethics Review Commission can also hear sworn complaints directly from individuals who file with the Commission. But The auditor’s office continues to be responsible for looking into complaints involving City employees.
Auditor investigations more public, but not completely
The discredited Ochoa-Gonzalez report was issued when Ken Mory was the city auditor, one of five City employees who work under the direct supervision of the City Council and not the City Manager. Six weeks after the formal apology was issued Mory stepped down December 1, 2014.
Corrie Stokes succeeded Mory as city auditor and the Gomez investigation was conducted and completed on her watch.
The Austin Bulldog’s review of 31 investigation reports published by the auditor’s office over the last five years, and obtained with a public information request, shows there is a distinct difference in the reports issued since Stokes took over.
Only one of the 29 investigation reports issued on Mory’s watch exceeded more than one or two pages and that exception was for the since-discredited Ochoa-Gonzales investigation, which totaled four pages.
The two reports issued since Stokes became auditor are 22 and 12 pages.
Chief Investigator Wiebe told The Austin Bulldog that the auditor’s investigation reports had, “undergone scrutiny so we have enhanced our reporting process.” The more extensive reports are designed to provide enough information for an independent, non-informed reader to make sense of them, whereas the earlier brief reports read more like executive summaries, he said.
The procedure is slow-paced by design, Wiebe said. “People’s careers are on the line so we are very careful at each step of the process.”
Although many of the investigative details will continue to be withheld, these more comprehensive reports provide vastly more information about how the auditor’s findings were developed. This is helpful both to City employees accused of wrongdoing and to the department heads who ultimately must decide what disciplinary action to take, if any, concerning the auditor’s findings.
Wiebe said information developed to substantiate investigation reports does not have to be published because it qualifies under Section 552.116 of the Texas Public Information Act’s exception for “audit working papers.” The exception is defined to include all information prepared or maintained in conducting an audit or preparing an audit report.
Texas Disposal Systems lawsuit
The validity of applying the “audit working papers” exception to the investigation report concerning Ochoa-Gonzalez is being challenged in court.
The City of Austin refused to release records supporting the auditor’s findings against Ochoa-Gonzalez, as requested through a public information request filed by an employee of Texas Disposal Systems.
Instead, the City sought permission from the Texas Attorney General to withhold the information. In Opinion OR2014-12644 issued July 22, 2014, the Attorney General concluded that the records constituted audit working papers and thus were exempt from disclosure.
The Attorney General’s website states, “Courts have stated that attorney general opinions are highly persuasive and are entitled to great weight; however, the ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.”
And a court ruling is what Texas Disposal wants.
The company filed a lawsuit against the City of Austin March 17, 2015. The lawsuit, which is still pending, seeks court action to force the release of all documentation supporting the auditor’s investigation of Ochoa-Gonzalez.
The lawsuit, Texas Disposal Systems Inc. et al v. City of Austin, Texas, Cause No. D-1-GN-15-001031, states, “An investigation regarding alleged nondisclosure of potential conflicts of interest is not a systematic inspection of accounting records, and therefore is not an ‘audit.’ … Therefore the requested documents are not exempt from disclosure as ‘audit working papers.’”
The City of Austin filed an Answer with a General Denial April 20, 2015, claiming defenses of official and governmental immunity.
As of December 13, 2015, neither side has taken further action, according to records maintained by the Travis County District Clerk.
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to publish investigative reporting in the public interest. You can help sustain this important work by making a tax-deductible contribution&view=form&id=7&Itemid=19″>tax-deductible donation.
Links:
City Auditor’s Investigation of Eric Leal Gomez, October 2015 (22 pages, which include responses from the accused, Eric L. Gomez)
City of Austin Administrative Bulletin 06-03: Fraud, Waste, and Abuse Reporting, Investigation and Prevention (7 pages)
City of Austin Personnel Policies (76 pages)
City of Austin Administrative Bulletin 98-06: Acceptable Internet Use (7 pages)
Internet and Electronic Mail Acceptable Use Policy Acknowledgement / Acceptance Letter (1 page).
City Auditor’s Investigation of Daniela Ochoa-Gonzalez, April 18, 2014 (4 pages)
Daniela Ochoa-Gonzalez Response to City Auditor’s Investigation, April 28, 2014 (5 pages)
Texas Disposal Systems Inc. et al v. City of Austin, Texas, Cause No. D-1-GN-15-001031 (50 pages)
Defendant’s Original Answer and Affirmative Defenses, Cause No. D-1-GN-15-001031 (4 pages)
