Saying her "interest is in a clean hearing," examiner Dr. Paula Ann Hughes granted former Kyle Police Sgt. Jesse Espinoza’s request for a continuance today in the arbitration hearing stemming from his suspension from the force because, she said, a gag order issued in a related lawsuit could prohibit Espinoza’s attorneys from obtaining complete testimony from Kyle Police Chief Jeff Barnett. Dr. Hughes did, however, stop the clock on back pay that might be awarded to Espinoza should he win his appeal.
The decision leaves the case somewhat in limbo, although Bettye Lynn, the attorney representing the city in the arbitration hearing, indicated the city might want to press forward with a hearing on a related issue. Lynne told me after the hearing it is her policy not to talk on the record with the media and attempts to reach officials at City Hall have so far proved unsuccessful, but I’m guessing even if they could be reached their answers would be something along the lines of "We really can’t comment on any of this until we consult with our attorneys." I’ve been involved in enough matters of this sort to know how the game is played.
Dr. Hughes’s decision was predicated around a gag order imposed in connection with a federal lawsuit filed in December 2013 by Louisiana anesthesiologist Dr. Glen Hurlston against Chief Barnett, the cities of Kyle and Princeton, Texas, and other police officers in Princeton, a town of about 6,800 located just east of McKinney in North Central Texas. Barnett was the chief of police in Princeton before assuming his current position here.
Without getting into details about the suit and all the allegations surrounding it, Espinoza’s attorney Grant Goodwin argued today Espinoza would be denied a fair hearing because the gag order instituted against all the parties in that suit would prohibit him from eliciting the testimony he needed from Barnett. Goodwin’s original motion asked for a continuance until all legal matters had been decided — including a federal lawsuit Espinoza recently field against the City of Kyle — but Dr. Hughes stressed "the issue is the gag order" and that she was granting the continuance only until such time as the Hurlston lawsuit is decided.
"My objective is to provide a just hearing," she said in her ruling, "If I can’t get the whole story, I can’t make a fair decision."
Espinoza is seeking to receive all back pay lost because of his suspension. Dr. Hughes ruled back pay would not be counted between today and when the court makes its decision in the Hurlston suit.
This hearing was necessitated because the hearing examiner who heard Espinoza’s original appeal died before he could render a decision. Goodwin maintained he was denied the opportunity to properly cross-examine Barnett during that first hearing because the chief was accompanied by attorneys who objected to testimony that could conflict with the gag order.
Lynn tried to argue the gag order in the Hurlston suit was not applicable to the proceedings in Kyle because that lawsuit involved Barnett’s actions before he came to Kyle. Dr. Hughes said, however, she wasn’t sure the two could be separated that easily.
"I operate on the fact that I would like as clean a hearing as possible and that’s what I want to happen," Dr. Hughes said. "We don’t even know what Chief Barnett would testify to today if a gag order wasn’t in place and those attorneys weren’t there. We just don’t know. If we knew, we wouldn’t be having this conversation. And that’s where I see the limitations. He was limited before and he may say exactly the same thing or he may not. I don’t know that. That is the dilemma here."
"I must have the opportunity to make sure my client receives a fair hearing at a later date," Goodwin told the examiner. "We know from the last time we could not get a fair hearing. We know the limitations from what happened at the earlier hearing. We know we’re not going to be presented with our fair day in court if we proceed."
"You make some very good points," Dr. Hughes told Lynn, "but my interest is in a clean and fair hearing, and I don’t feel we can ignore the fact that Mr. Goodwin feels that he didn’t have as fair and clean access to Chief Barnett as he should have for the benefit of his client."
Although Lynn would not make a public statement after the ruling, Goodwin told me "I know eventually we will breach the issues, but today this was the correct decision based upon the playing field and wanting to make it fair for my client."
Today’s hearing was an appeal of Barnett’s decision in February 2015 to place Espinoza’ on administrative leave. He was later dismissed from the force by a police chief temporarily assigned to head the Kyle Police Department who said Espinoza was guilty of insubordination. Lynne hinted during the hearing the city might decide to press forward with the appeal of that dismissal decision because, she indicated, that would make any testimony concerning the Hurlston lawsuit and its gag order irrelevant.
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