Bandera City Council continues to grapple with a troubled relationship between a peace officer and its police department. Though Police Chief James Eigner recommended termination for Officer Mario Hernandez nearly four months ago, council members refuse to take action because of legal formalities and a potential lawsuit.
Eigner first asked the council to terminate Hernandez during their regular May 5 meeting, due to numerous disciplinary issues. But between his possible protected whistle blower status and the fear of being sued, council members say their hands are tied.
Hernandez attended the meeting with an entourage of supporters and Univision Spanish Television. Hernandez said he did not rally the crowd, and was shocked by the turnout.
“I'm happy for the support. I'm here for them and they're here for me,” Hernandez said after the meeting.
Hernandez added that he believed Eigner was trying to have him fired because of possible involvement in an outside investigation of the police department.
“Insubordination is just an excuse, a reason to terminate me,” Hernandez said.
In an interview with the Bulletin after the meeting, Hernandez said he has been ostracized and treated differently than other officers on the force. He said he had to endure a rigorous interview process with the mayor, Eigner and the city administrator before being hired as a patrol officer when no other officer was required to do so, and was later passed over for a promotion.
Hernandez brought similar complaints against Bandera County, where he served as a deputy from Nov. 12, 2007 to April 24, 2009, when he was terminated. Accompanied by the League of United Latin American Citizens, he unsuccessfully disputed his dismissal before commissioners on May 14, 2009. He lodged a complaint with the Equal Employment Opportunity Commission; the EEOC issued a determination on Aug. 31, 2010 that it was unable to conclude that the information obtained established a violation of statute. On Nov. 23, 2010, he filed a lawsuit against the county in federal court for racial discrimination. The case is pending.
In court pleadings, Bandera County denied Hernandez's claim and said he was fired for legitimate reasons. Hernandez's disciplinary records with the Bandera County Sheriff's Office during his 18-month employment include unprofessional conduct for rudeness; failure to complete offense reports; failure to submit Magistrate Order for Emergency Protection; inappropriate or illegal handling of a juvenile defendant, for failing to properly issue a Miranda or magistrate warning; and inappropriate sexual conduct, for having sexual intercourse with a female complainant he met while on duty.
In a formal review, Hernandez's then-supervisor Lt. Allen Tucker wrote, “It is unfortunate, but I must conclude that I feel that Mario Hernandez should be terminated as a Bandera County Deputy, due to receiving multiple reprimands by different supervisors and [his] lack of improvement and basic understanding of laws and procedures.”
Eigner placed Hernandez on a 120-day probationary period after issuing him a letter of counseling on Dec. 12, 2010, that included rudeness and leaving his gun unattended in a public hallway of City Hall. Hernandez said he admitted leaving his gun unattended, but questioned being written up in December, one month after the November incident.
“At no time have I ever denied that mistake, however the disciplinary action that was taken related to that situation is suspect based on a long period of time that had lapsed,” Hernandez said in a Sept. 2 interview with the Bulletin.
Eigner said the write up was a comprehensive list of previous infractions that had compiled.
In May, Hernandez was reprimanded for insubordination after he was filmed looking through paperwork on Eigner's desk. Hernandez argued that he was not going through confidential items and casually thumbed through some papers on top of the desk,
From June to July, Hernandez was suspended for 30 days for mishandling of evidence, when he left an un-packaged bloody knife seized as evidence in a possible domestic abuse case in the back seat of his patrol vehicle. Eigner said the knife was discovered by another officer while he was loading a prisoner for transport.
“This was an egregious offense,” Eigner said. “He put my officers at risk, not to mention citizens. He is incompetent and dishonest.”
Not denying the mistake, Hernandez said other officers on the force had committed similarly egregious offenses without disciplinary action taken, and believes his reproach unjust.
“Considering the fact that Caucasian officers commit acts in the work place, which are far more concerned to the public than the issue I was written up for…I feel that my discipline was unfair and might be related to racism…,” Hernandez said.
At the time of Eigner's May 5 termination request, Hernandez had filed a complaint against the police department with the EEOC for discrimination. Hernandez said he requested mediation in December 2010. In April, the EEOC investigated Hernandez's claim after he and Eigner failed to reach a resolution, and on June 20 closed the investigation with no action taken. Hernandez said he was issued a “Notice-of-Right-to-Sue” at the end of the case.
According to the EEOC website, a “Notice-of-Right-to-Sue” is issued at the time charges are dismissed, usually after completion of an investigation.
“This notice gives you permission to file a lawsuit in a court of law. Once you receive a Notice-of-Right-to-Sue, you must file your lawsuit within 90 days,” the website states.
Last year, Hernandez contacted the District Attorney's office to report “several incidents” at the police dept., which he said he felt constituted violations of the law. The complaints were forwarded to the Attorney General's office.
“I have been in touch [with the AG's office] and have spoken about the corruption that exists in the Bandera Police Department and specific criminal acts that I have knowledge and proof of,” Hernandez said.
Among the complaints, Hernandez said that evidence was mishandled at the Bandera Police Dept. that involved a peace officer's son removing marijuana from the evidence closet. According to Eigner, an arrest was made in the incident and the case was turned over to the county attorney's office. Since the suspect had no prior convictions, he received one-year deferred adjudication, a fine and mandatory drug counseling, according to Officer James Brantley.
Hernandez said he was unable to comment further on the other complaints.
Because of the nature of Hernandez's AG complaint, council members say he is protected from termination under the federal whistle blower statute. Attorney General Press Secretary Tom Kelley could neither confirm nor deny Hernandez's status.
“We'll decline any comment about that whatsoever,” Kelley said.
Asked whether he was aware of Hernandez's history with the Bandera Police Dept. and other law enforcement agencies he worked for, Councilmember John Hegemier said he had watched the video of Hernandez in Eigner's office, and was aware of Hernandez's troubles with the county.
Councilmember Nancy Montgomery said she did not wish to comment, but confirmed that she, too, had watched the video. Also deferring comment, Councilmember Binky Archer said she did not watch the tape.
“I knew some other council members had watched the tapes,” Archer said. “I did not feel it was necessary for all of us to watch it.”
Councilmember Maggie Schumacher could not be reached for comment.
Acknowledging Hernandez may be in a protected class under the Whistle Blower Act, Hegemier said the Texas Municipal League had retained an outside attorney. According to City Secretary Linda Boshek, the law firm McKamie Krueger, LLP is representing the city. Council met with attorney Mick McKamie during their Aug. 18 regular meeting to discuss the matter in executive session.
Councilmember Brandi Morgan said the next step was to have a meeting with the city's attorney and Hernandez to discuss his intentions - to sue the city or continue working as a peace officer in Bandera. She said she had thought about the possibility of settlement discussions, but felt many people would be against a settlement. She said she could understand their reasoning if Hernandez is “making a profession of filing lawsuits.”
Unable to comment further on the case, Morgan said it was “beyond [her] imagination that someone could get away with using and abusing the system,” and while she would not support it, the city could have to make a decision based on what is best for its financial state.
Hernandez said he has retained attorney Thomas J. Crane, of San Antonio, to represent him. He said he could not comment on future legal negotiations or potential settlements because he did not know how proceedings would unfold.
“At this time, I have visited with my attorney related to the unfair treatment related to race and retaliation related to my reports of corruption, however it is my hope that the city will correct the working condition related to personnel to make my work environment more favorable so it doesn't come to that point,” Hernandez said.
Hernandez's law enforcement career began in 1992, when he worked as a reserve officer with the Schertz Police Dept. Since then, he has worked for the Guadalupe County Sheriff's Office, Texas Lutheran Police Dept., Flores Police Dept., Houston Baptist University Police Dept., Atascosa County Sheriff's Office, Poteet Police Dept., Jourdanton Police Dept., Somerset Police Dept., Bandera County Sheriff's Office, and the Bandera Police Dept.
In documents procured from an open records request, Hernandez said he resigned from the Poteet Police Dept. after he was investigated, but not charged, for accidentally discharging his firearm at his residence while off duty. He said he resigned from the Jourdanton Police Dept. due to a contentious relationship between him and the police chief, whom he felt ostracized and constantly singled him out.
Eigner said Hernandez applied with the Bandera Police Dept. for a reserve officer's position in April 2009, which evolved into a paid officer's position almost one year later, on April 1, 2010.
“At that time I needed experienced reserve officers,” Eigner said. “He was interviewed by a committee comprised of myself, the mayor [Horst Pallaske], the city administrator [Gene Foerster, Ret.] and city secretary [Boshek]. His employment was then approved by city council.”
Council members at the time included Monica Halsey, Robert Koimn, Hegemeier, Archer and Schumacher.
Eigner said two applicants were interviewed following the same procedure, and Hernandez came out on top because of his extended experience. Eigner said he had Hernandez's employment information from the Bandera County Sheriff's Office, but he did not have his disciplinary records.
Hernandez's highest ranking thus far has been patrol officer, though he holds an advanced peace officer's license.
Hernandez said he wanted to remain employed with the Bandera Police Dept., and will continue to give his best effort to protect and serve the community.
“All I'm asking is to do my job without further retaliation or open racism within the workplace,” Hernandez said. “I'm just one person in this community who is trying to stand up and make sure we can have a good and honest police department and I would encourage any and all citizens to stand by me in that quest to make the city safe and free of corruption.”
The Bandera Police Dept. currently has six officers on the force, including Hernandez, and four reserve officers, three of whom are Hispanic, Eigner said. No other complaints against the department have been filed.
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