Espinoza ruling possible by March 1

Testimony in the Civil Service hearing of former Kyle Police Sgt. Jesse Espinoza ended today with Kyle’s police chief being the final witness and arbitrator Dr. Paula Ann Hughes informing the parties in the case she expects to hand down her decision by March 1.

Espinoza was dismissed from the force in May 2015 on charges of insubordination. This six-day hearing (four days in August and two this week) that ended today is Espinoza’s appeal of that dismissal. A similar hearing last year also reached this point, but the arbitrator of that one died of a heart attack before he could file a decision on the case. This hearing was much shorter than the first one because both sides were allowed to simply enter testimony on the record from the previous hearing instead of having to call many of the witnesses that testified in the earlier one.

Dr. Hughes said the deadline for the delivery of the official transcripts of this hearing will be Dec. 22. After that, both Grant Goodwin, the attorney representing Espinoza, and Bettye Lynn, the city’s attorney, will have until Jan. 22 to submit their closing arguments in the form of written briefs to Dr. Hughes, with the arbitrator promising to deliver her opinion to both sides some 38 days later.

Kyle Police Chief Jeff Barnett, summoned to the stand by Goodwin, was the only witness to testify today, Barnett testified he truthfully answered questions posed to him during a meeting with Assistant City Manager James Earp on Feb. 27, 2012. Earp was apparently following up on a complaint that had been filed against Barnett, who had only become the Kyle chief nine months earlier. Barnett also testified he never saw the complaint and was never told who filed the complaint or its allegations prior to that meeting with Earp. The specifics of the complaint were not made public during today's testimony either.

Goodwin tried unsuccessfully to pose questions of Barnett that seemed to be designed to show Barnett was not truthful during that meeting, but Lynne formally objected to most of Goodwin’s questions and Dr. Hughes sustained most of those objections.

"We’re here today to hash things out with the chief which would be very simple if he just put the answers on the record truthfully," Goodwin said at one point. "But we’re not getting there and we’re hiding behind a smokescreen of objections that are becoming simply argumentative."

But Dr. Hughes ruled "The reality is that this is a hearing for Mr. Espinoza, not a hearing for Chief Barnett."

Goodwin, however, was successful in entering into the record a letter Barnett authored suspending another Kyle police officer for five days for "untruthfulness." Goodwin’s motives appeared to be to show the disparity between a five-day suspension and an indefinite one for similar offenses. Goodwin managed to get that document into the record over the strenuous objections of Lynne, who argued such a comparison was invalid because the punishments were administered by two different police chiefs.

Espinoza hearing circles around 180-day rule

Ellis County Sheriff Charles Edge, who, in his role as interim Kyle police chief in 2015 indefinitely suspended Sgt. Jesse Espinoza from the department, testified today during the resumption of the civil service hearing Espinoza sought to win his job back that he felt he had the responsibility to investigate misdeeds Espinoza allegedly committed regardless of when they occurred.

The testimony is crucial because part of Espinoza’s case is that Civil Service regulations prohibit the punishment of a police office for actions that occurred 180 days before the application of said punishment. The city is arguing that Espinoza was not suspended for these misdeeds, but because he was "insubordinate" when asked about those incidents during a series of interviews conducted within weeks of his suspension.

The city rested its case following Edge’s testimony. Espinoza’s attorney, Grant Goodwin, called one witness as it began its case, but Goodwin was repeatedly frustrated from getting significant portions of that witness’ testimony in the record.

Edge was on the stand Aug. 17, testifying on behalf the city, when hearing examiner Dr. Paula Ann Hughes granted Goodwin’s request to postpone cross-examination until the hearing could resume following what has turned out to be a two-month-plus recess. Edge’s testimony today was part of that cross-examination.

Edge testified he wrote Espinoza’s letter of indefinite suspension based on three separate interviews he conducted with Espinoza, plus a series of interviews conducted by an investigator the city hired earlier to look into the case. Goodwin questioned Edge whether it was proper, under civil service rules, for him to question the police sergeant about incidents that allegedly occurred beyond the 180-day window.

"This is what I had been given as the event whatever date it occurred," Edge answered. ""I had the opportunity to talk to one of the individuals who was a party to that event. So I would want to ask a question about that event and get his perception. Fifty-three items coming at me. I get to ask him about all 53. If it turns out that 52 are just totally bad information, I’m not going to know that unless I talk to one of the parties involved in that incident. If it looks like somebody’s not telling the truth or two people just have two totally different, legitimate viewpoints of the same incident then I need to know that in order to make any decision on any possible discipline. So I will ask questions about an incident that happened before."

Bettye Lynn, the attorney representing the city, asked Edge on re-direct whether Espinoza would even be fit to return to service with the KPD. Edge said Espinoza has been issued a "Brady Letter," and according to the U.S. Supreme Court ruling Brady v Maryland (1963) prosecutors in a criminal proceeding are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity. The issuance of a Brady letter officially designates an officer as one having such a sustained record.

When Lynne asked Edge about the specific requirement of a Kyle police sergeant, Edge read from a list that said a sergeant must be able to testify in civil, traffic and criminal proceedings, parole board hearings and to give depositions.

"Would all those be under oath?" Lynne asked Edge.

"Yes," the sheriff replied.

"In your experience if a person has been untruthful in his or her career in law enforcement, hypothetically, are they going to be able to meet this particular essential job function of a police officer?" Lynne asked.

"No," Edge replied.

One of the issues around Espinoza is the allegation that he somehow conspired with Louisiana anesthesiologist, Dr. Glenn Hurlston, to get Kyle Police Chief Jeff Barnett fired.

Goodwin asked Edge whether he "had any facts to support that Jesse Espinoza provided information or support to Glenn Hurlston."

"No, sir," Edge admitted, but added a few minutes later that, upon an examination of Espinoza’s phone records "I concluded they were constantly talking back and forth."

The hearing is scheduled to resume tomorrow with Goodwin calling his second witness.

Espinoza labeled “an embarrassment to his profession”

The former acting Kyle police chief who conducted his own investigation into the performance of former police sergeant Jesse Espinoza testified today he ordered Espinoza’s indefinite suspension because he viewed Espinoza as insubordinate, unethical and "an embarrassment to his profession."

That testimony came from Ellis County Sheriff Charles "Chuck" Edge during the fourth and final day before an extended recess of the civil service arbitration Espinoza sought in his attempt to be re-instated by the Kyle Police Department. The hearing is scheduled to resume "some time in October."

"Sergeant Espinoza committed acts in both an official and a private capacity which tended to bring reproach, disgrace and embarrassment to his profession and the police department," Edge testified.

Edge said he was "happily retired" when the Kyle City Council authorized his appointment as a temporary police chief to oversee an investigation of Espinoza, who was charged with wilfully disobeying orders by refusing to produce documents demanded by the city and by ignoring instructions from the city manager to report any and all contacts with an individual who had filed a federal lawsuit against the city and Police Chief Jeff Barnett. Edge appeared to be the final witness the city plans to call in the hearing. Because his testimony extended so late into the afternoon, hearing examiner Dr. Paula Ann Hughes said Espinoza’s attorneys could delay their cross examination of Edge until the next session and then recessed the hearing until "a future date." When asked a few moments later when that future date might be announced, she said, because of previous commitments made by everyone involved in the hearing that extend through September, it would most likely be "some time in October."

Edge said his investigation, which consisted of reviewing the investigation of a private investigator, as well as a series of interviews he personally conducted with Espinoza and others involved in the matter, proved to him the following:

• Espinoza never complied with an order issued by assistant city manager James Earp to turn over documents, including a check for $5,000 from someone who had filed a lawsuit against the city, money the city characterized as a "gift," but Espinoza called a "loan," and that failure to comply with this order constituted an act of insubordination.
• Whether the $5.000 was a gift or a loan was irrelevant; the acceptance of the check in whatever guise, especially from someone suing the city, constituted a violation of Kyle’s ethics code and police department policy.
• That Espinoza acted in conjunction with and at the direction of Dr. Glen Hurlston, the Louisiana anesthesiologist who filed the federal lawsuit, in a concerted effort to get Barnett dismissed from his position as Kyle police chief and that such actions by a subordinate constituted insubordination.
• That while Hurlston claimed the $5,000 was a gift to Espinoza to help defray the costs of his child’s medical expenses, receipts uncovered during the investigation revealed the money was never used to pay medical costs.
• Espinoza was insubordinate during his interviews with Edge by refusing to directly answer questions Edge claimed required simple "yes" or "no" answers and that when asked to defend his own actions would instead "go on a rant" about the bad actions of others, usually Chief Barnett. "It was never his fault, always someone else’s," Edge said of Espinoza’s answers to questions, which he described as "arrogant and disrespectful responses."
• Espinoza willfully violated standard police procedures in the manner in which he entered the home of then city council member (now mayor) Todd Webster and although that offense occurred outside the 180-day window for prosecuting civil service offenses, Espinoza lied about the incident during his interviews with Edge. Espinoza told Edge he was responding to a call for service, although Edge’s investigation could uncover no record of such a call in the police department’s records. Edge’s investigation also revealed Espinoza’s shift on that particular day had ended more than two hours before the incident took place and, thus, Espinoza was off-duty when it took place.
• That while Espinoza denied spreading any "rumors" about an alleged extra-marital affair involving Webster and former council member Samantha Bellows, he did admit he conveyed those allegations to other people without being able to produce any evidence to substantiate the allegations and that just by conveying allegations he couldn’t prove, whether or not they were called "rumors," was a dereliction of duty and displayed "a lack of good moral character."

"Sergeant Espinoza conspired with and cooperated with Glen Hurlston in an attempt to get the City of Kyle to fire Chief Barnett," Edge testified, "Those acts of misconduct are evidence that Sergeant Espinoza, while on and off duty, failed to follow the ordinary and reasonable rules of good conduct and behavior."

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.

Hurlston may not appear during Espinoza hearing, but his words will

The attorney for fired police sergeant Jesse Espinoza made the surprise announcement today that Dr. Glen Hurlston, the embittered Louisiana anesthesiologist who played a key role in the events that culminated in Espinoza’s dismissal, won’t be called as a witness during the rehearing on the legitimacy of the firing, temporarily, at least, erecting a major obstacle in the city’s path to proving its case.

However, after an afternoon that featured a series "in-chamber" private conferences held by hearing examiner Dr. Paula Ann Hughes between Grant Goodwin, Espinoza’s attorney and Bettye Lynn, the attorney representing the city, Hughes announced she would allow Hurlston’s written testimony from the record of the first arbitration hearing to be entered in the record of this current hearing. Hughes had previously upheld Goodwin’s objections to entering the complete testimony into the record, but reversed course just prior to recessing the hearing for the day with Espinoza himself on the witness stand.

At one point Lynn was frustrated trying to demonstrate that part of Espinoza’s testimony today directly contradicted Hurlston’s testimony from the previous hearing, which never came to a conclusion because the hearing examiner in that instance died before he could render a decision. In the first hearing, however, Hurlston had testified before Espinoza took the stand, which gave the city the ability to highlight the differences in their testimony. But after Goodwin announced today he had no intentions of calling Hurlston as a witness this time, the only way Lynn could illustrate those differences would be to introduce Hurlston’s previous testimony, something that, at first, Hughes appeared reluctant to do.

At the heart of the city’s argument is the assertion that Hurlston recruited a willing Espinoza, who had bitterly opposed the hiring of Jeff Barnett as the city’s police chief, in what has been described as Hurlston’s personal vendetta to get Barnett fired as chief. The allegations revolve around the notion that after Hurlston filed a federal lawsuit against Barnett and the City of Kyle, the doctor gave Espinoza money and paid for vacations for Espinoza and his family in return for Espinoza providing Hurlston with damaging information he could use his a lawsuit. Espinoza did, in fact, testify today he told the city council at one point that Hurlston would agree to drop his lawsuit against the city if Barnett was fired.

Earlier in the day, former city council member Samantha Bellows testified she was "devastated" to learn that Espinoza, while a member of the Kyle Police Department, was spreading what she called "a vicious lie" that she was having an extra-marital affair with Mayor Todd Webster. She said when she learned of what Espinoza was doing, she filed a "formal complaint" against Espinoza on Jan. 24, 2015, with interim city manager James Earp.

She said that during one of her regular meeting with constituents she was asked "point blank" by one person "Are you sleeping with the mayor?"

"I laughed," Bellows testified, "because I thought he was joking. But it turned out he wasn’t. The citizen then told me he had been approached by a police officer in uniform who told him I was sleeping with the mayor and that’s the reason why my marriage had failed.

"It was something that was a little more than a hurt to the ego," she said. "It was devastating to me to think that someone was going around the community saying this and intimating that I had voted in certain ways because I was sleeping with someone, which I was not."

She testified that she categorized the rumor in her complaint as "a vicious lie. It’s malicious. It’s inappropriate. It’s unprofessional. Any other unflattering word I could find in the dictionary I would use in this situation."

She said she was especially alarmed by the fact that the rumor was being spread by a uniformed, sworn police officer.

"Kyle’s police officers have a lot of weight," she said.."And this was not just about me. I don’t have children who could also be damaged, but the mayor did. And I was friends with his children and I was a friend with the mayor’s wife and to have to explain to them what was going on was a horrific moment, extremely exasperating."