Parties in Espinoza arbitration spar over “insubordination”

Attorneys representing both sides in the arbitration hearing of fired Kyle police sergeant Jesse Espinoza spent much of the day today wrangling over just what constitutes insubordination, the reason given for Espinoza’s "indefinite suspension."

The only facts mutually agreed upon are these: (1) Espinoza’s close friend and associate, Dr. Glen Hurlston, filed a federal lawsuit against, among others, the City of Kyle and its police chief Jeff Barnett; (2) immediately after the lawsuit was filed, the then-Kyle City manager sent a memo to all department heads to ensure city employees immediately report to the city attorney whether they had any contract whatsoever with Dr. Hurlston; (3) Espinoza was aware of the city manager’s edict; and (4) over a period of about the next two years, Hurlston and Espinoza were in regular contact by e-mail, test messages or phone calls and actually took trips together and Espinoza reported none of these instances to the city attorney.

Attorneys defending the city for firing Espinoza claim that refusing to report any one or all of these contacts amounted to insubordination. Espinoza and his attorneys argue, however, that upon receiving the written instructions issued by the city manager, Espinoza immediately sent an email to the city attorney’s office acknowledging that he had previous contacts with Dr. Hurlston and if the city attorney wanted to seek any information about those contacts, he should simply call Espinoza on his police department-issued wireless phone. He said the city attorney never followed up with him, but that was the attorney’s fault, not Espinoza’s and because he did follow the city manager’s specific instructions, he had not committed an act of insubordination even by continuing to have multiple contacts with Hurlston that were never reported.

Having described all this, however, may be completely irrelevant although it was argued over ad nauseam during this, the third day of the civil service suit Espinoza has filed to reverse his dismissal, because these events all happened outside the very small window that envelops civil services cases, which proscribe that civil service violations must be dealt with within 180 days of their commission. The city counters this argument by claiming that these situations, even though the overwhelming majority of today’s testimony dealt with them, were not actually the reasons Espinoza was fired; the actual reasons had more to do with a set of documents assistant city manager James Earp ordered Espinoza to surrender, but that Espinoza never did turn over to the city. Those documents include a copy of a check for $5,000 Hurlston gave Espinoza, copies of checks Espinoza wrote after cashing Hurlston’s check, information about a trip Espinoza and his wife took to San Antonio where they reunited with Hurlston and a copy of call details and text messages for a period between 11 p.m. Feb. 3, 2015 and March 3, 2015.

"Isn’t it a fact that up until the time (an independent private investigator hired by the law firm representing the city) prepared his report after he concluded his investigation that at no time did you provide any of the documents that were required of you to be provided by this directive from Mr. Earp?" Bettye Lynn, the attorney representing the city asked Espinoza.

"Yes, ma’am," Espinoza responded. "I didn’t have a copy of the check from Glen."

Lynn: "But you had the other items and you could have obtained a copy of your check from Dr. Hurlston, couldn’t you?"

Espinoza: "No, ma’am, you ordered me not to talk to him."

Lynn: "Well, if you had needed to have gotten the check from Dr. Hurlston you certainly could have asked (the private investigator) to produce it, couldn’t you?"

After Espinoza’s attorney Grant Goodwin objected on the grounds Lynn’s question called for speculation, hearing examiner Dr. Paula Ann Hughes simply asked Espinoza if he had provided the investigator with a copy of the check Earp demanded.

Espinoza: "No, I didn’t."

Lynn: "Would you agree that providing these documents would not have resulted in a threat to your safety or well-being? You were not facing immediate bodily harm, were you, sir/"

Espinoza: "No."

Lynn: "Are you aware of the definition of insubordination/"

Espinoza: "Yes, ma’am.:

Lynn; "There’s one excuse for not following a direct order. Do you know what that is? One excuse is that it’s a threat to your safety. You would get hurt."

Hearing examiner Hughes: "That’s not the only excuse. It’s one excuse."

Lynn (to Espinoza): "There was no threat to your safety or your getting hurt by turning over these documents, wouldn’t you agree?"

Espinoza: "Yes, ma’am."

Lynn: "Another excuse might be it would violate a law. You never told (the private investigator) the request was illegal or invalid?"

Espinoza: "I think my legal counsel responded to ths one."

Lynn: "And you had no legal reason in terms of fear of criminal prosecution to cooperate fully and turn over these documents."

Espinoza; "I didn’t trust the city."

Later in his testimony, Espinoza claimed three witnesses who testified against him Monday — Bill Sinor and city council members David Wilson and Becky Selbera — and one of Tuesday’s witnesses, Samantha Bellows, all lied about him on the stand and claimed he was conducting a legal investigation when Mayor Todd Webster awoke suddenly one weekday morning to find Espinoza standing in his living room.