Ignoring the Constitution

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Waco, Texas – Constitutional officers of the County of McLennan made a cut and dried decision to contravene and abrogate the Constitution of the State of Texas last week by funding an appointive position with line item funds designated to pay the salary of an elected official.

A $55,000 per year contractual slot of criminal justice analyst created out of whole cloth for former Justice of the Peace Kristi DeCluitt, to be funded by money budgeted to paying the salary of an elected official, is now a legal reality, thanks to a timely transfer of emergency funds to make up the difference in what was left over from the judge’s salary fund.

That is a direct abrogation of the concept of Article 5, Section 18(c) of the Constitution of Texas. While neoconservative thinking denies that any one person has a right to an elected office, the Constitution enacted and ratified following Reconstruction holds that a public office belongs to We the People of the State of Texas, and not to elected officials who may from time to time pull a lever or push a button to redistrict or gerrymander elected officials out of the office to which they were elected.

It’s become a fiscal pattern that has led to a shortfall in income and expenditure, one that has twice forced a tax increase to the “roll back” rate, the maximum amount possible without causing a need for a public referendum.

It’s what passes for the kind of hardheaded fiscal responsibility espoused by the GOP, the Tea Party, and the neoconservative, madding crowd in American politics.

And only one person stood up and challenged authority, called them out on their baloney. In a clear and compelling argument, the Judge of the Precinct 6 Justice Court elected to office in the year 2006 to serve a term from 2007 to 2010, spoke up.

Randall Scott Gates, self-appointed “minister of irritance,” a man expelled from the McLennan County Tea Party by its executive committee, faced in 2006 the same dilemma as Judge DeCluitt when he won the Republican primary by four votes, Precinct 6 was eliminated by redistricting and reduction of the eight existing precincts to seven, and no Democratic opposition stood in the General election.

The only difference is that there was no offer of a salary for the period of the elected office – 2007-2010 – left to run. That money, $24,000, was spent on the appointive position of Jail Magistrate newly created for Gates’ defeated opponent, the incumbent, Raymond Britton. He held that appointed office for four years, until incoming Criminal District Attorney Abel Reyna pointed out early in 2011 that as the holder of three municipal judgeships at Moody, Riesel, and Bruceville-Eddy, he was in violation of a law that dictates only one emolument for any state public office by any given office holder.

Such a deal.

One may listen to an audio report of Judge Gates’ remarks here:

One may read a previous account of County Judge Scott Felton’s explanation given in 2013 of just how these transactions are accomplished and their ultimate implications:

http://downdirtyword.blogspot.com/2013/08/county-officials-aw-shucks-their-way.html

 

Because we let them…

 

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Click image for original size

By Randall Scott Gates, Minister of Irritance

A review of the agenda for Commissioners’ Court today, revealed a curious budget amendment. First thing noted was the paperwork was devoid of any signatures. Under the former County Judge, the signature indicated the proposal had at least gotten the once over from the County Auditor and someone who took responsibility for the proposal. Unfortunately, under County Judge Scott Felton, a new level of obscurity has been added, so now the absence of signatures is pretty commonplace.

The amendment proposes to take funds allocated for the salary of an elected official and re-allocate said funds to a “new” position. It also proposes to add some money from the emergency fund.

Salaries of elected officials are a little different. At budget time, there has to be a special and separate vote setting the salaries. If some portion of their compensation increases, they also have to run a notice in the newspaper.

So, what do you say? These salaries are special for the reason that statutory requirments prevent the court from blackmailing an elected official by messing with their money. This is not completely dissimilar to the way our former governor is jammed up right now, answering a felony indictment. Also, by eliminating the funds for the elected official, they are eliminating an elected constitutional office, which is prohibited by Article 5 Sec. 18C of the Texas Constitution. Before the voters amended the Constitution, the Commissioners’ Court could eliminate Justices of the Peace and Constables on a whim. The voters went to the polls and took that authority away from the Court when they voted in favor of amending the Texas Constitution.

The Texas Attorney General has ruled the Court has almost limitless authority to modify the budget. They can move money from the fuel budget to pay for a weekend getaway at a resort hotel. The reasoning is, as long as there is a record of a budgetary amendment, the voters can pass judgment on the action of the court. It is almost limitless because there is a limitation on reserve funds. The theory is these funds were represented to have been taken from the taxpayers under the premise of an emergency fund. The AG held that an emergency has to be declared in order to use “unencumbered” funds. No emergency has been declared, but the suspicion is they screwed up when they did the redistricting, Judge Kristi DeCluitt knew it, and blackmailed the Court with the threat of a lawsuit that would expose the screw-up.

Sec. 42.033. EFFECTIVE DATE OF BOUNDARY CHANGE. (a) A change in a county election precinct boundary takes effect on the first day of the first even-numbered voting year following the voting year in which the change is ordered.

You see, the first day of the first even numbered voting year would be 1/1/16. None of the turmoil was necessary. The law is very plain and not hard to understand. See, they were prevented by law from doing what they did. They all know it but decided the voters/taxpayers are so thoroughly indifferent no one would challenge them. Three people were directly affected. Constable Danny Tate who is now the park supervisor, Justice of the Peace Belinda Summers who is now the administrative assistant to Commissioner Gibson and Justice of the Peace Kristie DeCluitt who is now the new Criminal Justice Analyst. The kicker? None of the three positions were funded in the budget.  Imagine that.

Lack of transparency  is a huge political advantage. Jonathan Gruber

Your elected officials appreciate your indifference and inattention. Minister of Irritance

“We the people…”

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Waco cops roust marijuana smokers in drunken party involving McLennan Deputies (click on image for full size) 

Waco – A clear pattern of abuse and intimidation emerges as one reads the records of investigations leaked to The Legendary by an unknown informant in the Sheriff’s Office. These records have been confirmed by public information released by open records requests.

Cpl. Kim King had no idea what her boss was talking about. She just knew he was very, very angry, according to a statement given on February 19, 2014. The day was September 5, 2013.

Lt. Chris Eubank thrust himself into her office in the personnel and training department of McLennan County Sheriff’s Office headquarters. He “threw a copy of the…Organizational Chart on my desk and asked me who my direct Supervisor was…

I told him it was him. He said ‘That’s right’ and I need to know everything that goes on in this office. He said he was tired of hearing from other people about things going on in this office (Training and Personnel). I told him I didn’t know what he was talking about and he said the Chief Deputy (Matt Cawthon) came up to him and asked him what he thought about the results of the Jail Sergeant interviews…

Eubank said he looked like a fool because he didn’t know who was promoted to Jail Sergeant.”

She explained that Jail Division Captain John Kolinek told her to inform the Chief Deputy, “so that’s what I did. Eubank said he didn’t care what department the promotion was for, that I was to always inform him first. He told me I was to always utilize my chain of command and that I had no excuse because he had just given me a copy of the organizational chart.”

Thus chastened, she recalled, “I told him I understood and from that point forward I would always notify him and I did.” Not long after, she took advantage of an opportunity to make a lateral transfer to the Jail Division to take a job as an investigator there, reporting to Captain Kolinek. From the looks of her Facebook page, Cpl. King is the proud mother of a couple of boys. She learned her profession as a Peace Officer at McLennan County Community College after serving her country in the Armed Forces.

It wasn’t the first time she had been whipsawed from pillar to post in her duties. According to a lengthy statement given by Captain Shawn Lippe on February 17, 2014, she and Cpl. Matt Cunningham had an item to discuss with him regarding a background investigation on Cody Myers, who had applied for a reserve deputy position.

Lippe found it odd to learn that Deputy Ken Witt had disqualified the applicant based on his findings at McGregor Police Department. “I found this to be very odd due to the fact that Ken had called me on my cell phone approximately 3 weeks prior and stated that he just left the McGregor Police Department and everything looked fine.”

Intrigued, he paid a visit to the Personnel and Training Department. “Visibly upset,” Cpl. King “made the statement that I had no idea what goes on down there and what all they have to put up with, with Lt. Chris Eubank…” According to their conversation, Lippe learned that “it seemed like Ken only did the backgrounds on the people that Chris (Eubank) wanted to get hired.”

Lippe believed her because Sgt. Ben Toombs had earlier “stated to me personally that Ken personally told him that he (Ken) is doing the backgrounds on people that the administration wanted to be pushed through or on people that needed to be ‘hacked’ because the administration knew he would sign off on it. Ben requested that this information be kept confidential if possible due to fear of retaliation.” There is some evidence of a quid pro quo arrangement because an applicant with previous experience at the Hewitt Police Department named Danny Powell was not hired to work at the jail. Ken Witt had been slated to handle that investigation, as well, and statements show there was confusion as to whether Cpl. King or Deputy Witt should handle the inquiry.

Cpl. King said it all started when a personnel evaluation on a rookie patrolman named Cody Blossman was changed. “At one point Chris (Eubank) came to Personnel and began screaming at her, stating that if he wanted to change Cody’s evaluation he can. Chris accused her of spreading rumors that got back to the civil attorney…”

A public information response shows that Blossman’s evaluation after 6 months on the job showed a mediocre rating of 5.6 out of a possible 10 points, nothing unusual for a new hire still learning the tricks of the trade. When the documentation was changed over Eubank’s signature, he had received a glowing 7.75 points, complete with hyperbolic and superlative descriptive comments.

Corporal Ben Burch recalled in a statement given on February 27, 2014, that on a day off, he got a call from Eubank regarding a conversation he had with another officer about Blossman’s evaluation being changed. “Another deputy had been questioned by the county attorney about the employee evaluations being changed by upper management. Lt. Eubank informed me that he thought I was ‘stirring up shit’ and that he “thought I was leaking information to the other side of the lawsuit.”

Burch referred to a federal civil suit in which nine deputies sought money damages after being dismissed or demoted by the new Sheriff, Parnell McNamara. Mike Dixon, a private attorney retained by the Commissioners’ Court advised settlement of the dispute when he learned of the entanglements of then Lt. Eubank with employees over the evaluations and TCOLE records of present and former employees. The suit was reportedly settled by an attorney retained by an errors and omissions insurance carrier, with McLennan County admitting no wrongdoing for a gross sum of $2 million, $375,000 of which was paid as a deductible from a “contingency” account of the General Fund.

Corporal Burch denied leaking any information. “Either you or Lionel are lying and the Sheriff and the Chief Deputy are pissed,” Eubank told him. “…I will find out which one of you is lying and recommend termination for whichever one of you is lying.”

“I was uncomfortable with this conversation and feared reprimand or loss of my job in spite of having been truthful with Lt. Eubank,” said Burch. “…I was asked by my superior officer to document this incident.”

The smoking gun appeared when Captain Kolinek ordered the termination of Spencer Rowell, a Jail Deputy who became involved in a drunken dispute with a trio of marijuana smokers in the parking lot of a student apartment complex near Baylor University following a beer bust in a fellow employee’s apartment. That is consistent with the original reprimand removed from the personnel file, telling how, in an intoxicated condition, he showed his badge and threatened to take legal action. Statements on Waco Police Department DASHCAM recordings, received in a public information response, support the finding.

When Cpl. King received the resulting paperwork from his supervisor, Capt. John Kolinek, she automatically submitted an electronic copy of an “F-5” General Discharge report to the state licensing board, the Texas Commission on Law Enforcement. Eubank later told her that “per the Sheriff,” she should change the document and destroy the original. She couldn’t bring herself to do that, knowing it is a criminal offense to do so. She left the paperwork with him after making a backup copy. Eubank later asserted in a notarized statement that he shredded the document. Former Chief Deputy Matt Cawthon recalls that he had agreed to allow the deputy to resign rather than be terminated, but “I didn’t agree to have his F-5 destroyed.”

In a lengthy interview process, we learned that though the elected official at a law enforcement agency may wish to change the F-5 statement of “discharge of a licensee,” the original is a permanent record and must not by law be destroyed. According to a highly placed source, “Any person who is under investigation or has been let go over alleged misconduct cannot be discharged in other than a General Discharge.”

In a statement, John Beauchamp, the general counsel of the Texas Commission on Law Enforcement (TCOLE), the state peace officer licensing authority, wrote, “Primarily, the F-5 reports exist to protect the public from gypsy cops with disreputable employment histories, and as such are used by potential employing agencies to determine a law enforcement applicant’s fitness for employment. To illustrate the seriousness of an F-5 report, a TCOLE license is automatically suspended and subject to revocation after the holder receives a second dishonorable discharge.”

A number of statements given by colleagues say that they were told “per the Sheriff” or “per the Chief” (deputy) that they should take some action to reverse a previous decision. Reached for comment, Matt Cawthon says he can recall giving no such instructions.

In an exclusive interview given previously, Eubank confidentially pointed to his patrol vehicle, a white Ford SUV with more than 200,000 miles on its odometer, and said “I’m the only Sergeant driving one of these. The others drive the new black Chevrolet Tahoes, the ones that say ‘Your safety comes first’ in gold lettering…That’s because of Matt Cawthon.”

He now works deep nights, from dusk to dawn and every other weekend, supervising a shift of between five and eight deputies on patrol duties throughout McLennan County’s sprawling rural territory.
To read previous reports from these columns, follow these links:

http://radiolegendary.com/2015/01/sheriffs-office-mole-leaks-more-records/

http://radiolegendary.com/2015/01/local-deputy-sued-in-fed-court-for-excessive-force/

http://radiolegendary.com/2015/01/deep-nights-reflection/

http://radiolegendary.com/2015/01/bad-scene-at-building-10/

http://radiolegendary.com/2015/01/the-seven-eighths-you-know-its-there/

http://radiolegendary.com/2015/01/sheriff-demurs-in-records-request/

http://radiolegendary.com/2014/12/the-converse-of-not-prostituting-the-system/

http://radiolegendary.com/2014/12/records-support-finding-k9-officer-abused-dog/

http://radiolegendary.com/2014/12/ranger-levels-claim-of-tortious-interference/

http://radiolegendary.com/2014/12/top-cops-oppose-media-job-for-ex-chief-deputy/

Everything is legal – when no one is watching

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Jonathan Gruber, Obamacare consultant, on transparency… http://youtu.be/G790p0LcgbI

By R.S. Gates, Minister of Irritation

Why have a budget?

Though no line items are to be found in the current operations budget, McLennan County Commissioners have added three positions, a Park manager at Tradinghouse Lake; a field liaison representative for a road Commissioner’s precinct, and now a Criminal Justice Analyst to serve the court system. None of these salaried positions were included in the budget for the current fiscal year; no competitive announcement for hiring was advertised.

Mike Dixon, the private attorney retained to advise the County Judge and Commissioners assured the tribunal that their actions are entirely legal. And yet, Jim Mattox held a far different opinion during his tenure as Attorney General:

Accordingly, the only limitation would arise regarding unencumbered funds. We conclude that a commissioners court does have authority in the situation that you describe to re-allocate among the various precincts, some or all of the unencumbered money from the road and bridge fund previously appropriated to specific precincts and unexpended at the end of the year.

It is true that there is an emergency fund, commonly called a contingency fund. Mattox called it a slush fund, but let’s not split hairs. This fund greatly affects the credit rating of a county. The funds are for an expense that could not be reasonably foreseen at budget time. By law, the funds do not exist to satisfy the whims of the Court. Under the law, an emergency must be declared to expend the funds. Thinking emergency? Think the explosion of the West Fertilizer Company.

The most recent addition, the contract employment of Judge Kristi DeCluitt, who resigned her position as the elected Judge of Precinct 1, Place 2 Justice Court today to become a criminal justice analyst, was the result of many discussions and meetings in executive session, in each of which case, we made multiple inquiries of the County Judge, requesting information.

Each request for public information was met with more hurdles and roadblocks, but no responsive information. The last request, which we of The Legendary made just hours before the regular Tuesday morning court session on January 27, still contained no funding information.

The Request:

This is a request for the bookmark agenda. I am also requesting information that is in the possession of the office but not yet included in the bookmark agenda. The request also covers information that is public information but the office does not want to release to the public yet.

That probably should have been sufficient, but in the words of legislative consultant Jonathan Gruber, who advised members of the U.S. House of Representatives and White House officials on how to formulate the rules and language of Obamacare, “Lack of transparency is a huge political advantage.’”

Your elected officials appreciate your indifference and inattention.

For more in-depth coverage of the shenanigans of the Court, follow these links:

http://radiolegendary.com/2015/01/one-stone-two-birds/

http://radiolegendary.com/2015/01/j-accuse/

 

 

 

 

 

J’ Accuse. . . !

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Emile Zola, writer

McLennan County Commissioners, in defiance of case law, Attorneys General Opinions, and the very Constitution of the State of Texas, have conspired to deprive their constituents of an elected official – to what end?

So, I’m officially not a judge now. Someone used to addressing me as “Judge” asked me what they should call me now. Any suggestions other than “Your Majesty?” – Judge Kristi DeCluitt, Justice of the Peace, Precinct 1, Place 2

Six Shooter Junction – In their zeal, the County Commissioners have gone to elaborate lengths to save money by eliminating two constable’s precincts, thereby reducing the number of Justice Courts by two. They redistricted the lines of demarcation, and thereby created five new precincts in which three sitting judges occupied one duly constituted court.

One judge’s term expired on December 31, 2014, but in the case of Judge Krisi DeCluitt, there was an additional two years to run on her term of office. When reducing her near $60K salary to a mere $8K did not provide sufficient incentive for the judge to vacate her office, she hired an attorney and the counter offer was a new position as an analyst bring her to near the previous salary at $55K. News reports quoted Commissioner Ben Perry alluding to a threatened lawsuit. The court made two other “new” positions for former Constable Danny Tate as the supervisor of Tradinghouse Lake, and Judge Belinda Summers as field liaison for Precinct 2 Commissioner Lester Gibson.

Judge DeCluitt chose to accept a position as a Crime Analyst serving the Court to coordinate with mental health and veterans affairs officials to create new and improved means of adjudication of cases in the special populations of the homeless mentally ill and combat veterans who suffer from their combat-related stress issues.

Sounds great, but there’s a catch. The office belongs to the people of the State of Texas, and not the elected officials, and there’s a lot of law to back that statement up.

She resigned, accepted the terms of a contract for the position at $55,000 per year with eligibility for full benefits, the right to mediation coordinated by the federal court system if her employment is terminated, and certain stipulations as to her performance and principle mode of employment. 

The problem of the retaliatory elimination of justice courts and constables through redistricting had become so frequent in its occurrence by 1983 that a special election to amend the Texas Constitution to allow a sitting judge or a constable so serving to be compensated for the remainder his term. With that comes the ultimate responsibility to remain in the office.

If a judge is removed, the public is thereby deprived by unconstitutional authority of their elected official. Thus, Tex. Const. art. V, § 18(c) thereby stripped County Commissioners’ Courts of the power to eliminate a Justice Court without due observance of the law as to, the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.

According to the above cited Article and Subsection of the Texas Constitution, Under subsection (c), an order abolishing a precinct does not terminate the constable’s duty to serve the current term of office for which the constable was elected or appointed…

In a 2007 Attorney General’s Opinion solicited by then Chair of the House Committee on Criminal Justice, Rep. Chuy Hinojosa, Greg Abbot held that We conclude that abolishing precinct 6 did not terminate Brown’s duty under article V, section 18(c) of the constitution to serve as a constable in the new precinct in which he resided for the term to which he had been elected. Different “provisions of a Constitution which relate to the same subject-matter should be construed together and considered in the light of each other,” and effect must be given to each part. Collingsworth County v. Allred, 40 S.W.2d 13, 15 (Tex. 1931).

In a 1982 decision, Tarrant County v. Ashmore, the Supreme Court of Texas held that while article 2351½(c) was a constitutional means of removing officers from their positions, the procedures used by the Tarrant County Commissioners to accomplish that purpose in the present case were inconsistent with the officers’ property rights and rights of due process. As a result, the court held, the officers were entitled to recover from the county the salaries and benefits they would have earned had they been allowed to remain in office for their full terms. The court of appeals affirmed the judgment of the trial court. 624 S.W.2d 740. We reverse the judgments of the courts below.

In a minority opinion addressing a similar question regarding Randall Scott Gates, a candidate who won election to a Justice Court bench in an eliminated precinct at Moody, Texas, in 2006, Chief Justice Tom Gray of the 10th District Court of Appeals at Waco held that “Whoever receives the most votes wins the election.”

In a legal memorandum sought by the candidate, then District Attorney John Segrest noted that had the voters not gone to the polls and changed the law, the Ashmore  decision would have been the law of the land, “but they didn’t, and it isn’t.”

 

 

Sheriff’s office mole leaks more records

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I have listened in disgust to the lies that were spewed by Sgt. Eubanks (sic) and Cpl. Ballew during the most recent interview by the Legendary regarding this matter…Because of this, I have decided to send these documents…just in case you need more documented proof of the lies being told by Sgt. Eubank with every word uttered… anonymous source

Waco, Texas – Those who were at the meeting remember it clearly. McLennan County’s corporate attorney Mike Dixon spoke over the speakerphone during a conference call.

Sheriff Parnell McNamara and Chief Deputy Matt Cawthon had argued for fighting the allegations of a federal civil rights lawsuit in which 9 employees were either dismissed outright, or their pay and job responsibilities diminished. They alleged they were punished for backing the wrong candidate in the Republican Primary of 2012, a violation of their First Amendment right freely to speak and to associate with those of their choosing; the top management of the Sheriff’s Office differed. As at-will employees, they were no longer needed in their former capacities, working to serve retired Sheriff  Larry Lynch, and the recently-defeated opponent, former Chief Deputy Randy Plemons.

They were sure they could win the lawsuit because the plaintiff’s attorney had been able to discover certain personnel records that only served the defense interest by opening the door to a defense effort to cross examine witnesses for the plaintiffs about matters that would have otherwise been off the table.

Dixon advised County Commissioners not to do it as a “cost cutting” measure. In the conference phone call, according to anonymous sources, the lawyer gave a reason when prompted by the Sheriff. He said it was because of that “Chris Eubank s__t…” He sided with McLennan County’s defense representation supplied by the Texas Association of Counties. The settlement of $2 million, a $375,000 deductible for which was transferred from a “contingencies” line item from the General Fund, was to be considered much cheaper.

It was an enigmatic reference to we of The Legendary, until this weekend, when for the second time a deep undercover mole inside the Sheriff’s Office came forward with records that reveal in black and white exactly what “that Chris Eubank” – stuff – is all about. It shows that what Sgt. Eubank recently called a lie regarding his reportedly unauthorized disposal of a government document is actually quite true.

In the packet of information we received, the Sergeant makes a sworn, notarized statement to the effect that he did, in fact, tell an assistant who worked for him at the time  to withhold an official report of dismissal for misconduct or negligence.

In that particular transaction, he stated that he disposed of the permanent record of the event that was prepared for the state licensing bureau for peace officers, a report to the Texas Commission on Law Enforcement called a Form F-5, by shredding it. He earlier rebutted in a follow-up interview that statement, calling it a lie, when it was reported in these columns.

On 21 February 2014, he wrote in an official statement, “Later that day, Kim King brought the paperwork back up to my office and sat (sic) it on my desk and told me she did not know what to do with it. She left it on my desk. The paperwork that she left on my desk was the memorandum from Captain Kolinek with some papers either stapled or paper-clipped to it. This was the same paperwork that she had brought me earlier and said was a conflict if it was left in the file. At this time, I discarded the paperwork by shredding it.”

Former Chief Deputy Matt Cawthon, a retired Texas Ranger, has alleged his actions constitute grounds for prosecution as a felony for tampering with an official document.  Reached for comment with this new revelation, he said that he agreed with the action of allowing the employee to resign instead of facing dismissal for misconduct because it was ultimately a decision for Sheriff Parnell McNamara. However, said Cawthon, “I didn’t tell him to shred the document. That is a felony crime.”

Such documents must remain in the department’s files, he explained. There are numerous other statements included, such as the one from Capt. Shawn Lippe, who stated in writing that Cpl. King told him in the presence of then-Chief Cawthon that “when Robinson PD came to look at Spencer’s file during a background check they did not get to see the IA (internal affairs) or any of the existing reports or statements made by Waco Police during that investigation due to Chris (Sgt. Eubank) having them removed from his personnel file.” He said he feels that is corroborated by the statement given by Investigator Kirby Culp of the Hewitt Police, who told him about “the prior existence of Hewitt PD disciplinary personnel files that had been deleted by Chris Eubank upon his promotion to supervisor, which gave him access to the files and their content to be deleted.”

He further stated that Cpl. King told he and Cawthon that Eubank had told her to shred the documents, not to show them to outsiders, and get rid of them because they “no longer exist.”

“I’m not getting handcuffs put on me because of him,” Cawthon allegedly said.

This incident is said to have disgusted Capt. Steve Smith to the extent that he walked off his job at the Sheriff’s Department with the intention of turning in a resignation, stayed away for a week, then returned after the Sheriff and Cawthon persuaded him to come back to work.

It is not the only example of fellow officers complaining that Eubank intimidated them about various recommendations or lack thereof in the case of officers so disciplined or investigated, passed over the employment, or promotion.

In an evaluation, Capt. Smith stated though “Eubank has a strong work ethic,” he “has exhibited conduct that conflicts with the way this department expects supervisors to act towards subordinates. Specifically, he has tried to push through things that he wants done by threats and name dropping, and he has said and done things that have made employees fear for their job without having a basis to do so…”

The attorney Mike Dixon revised an extensive memorandum of complaint prepared by Capt. Smith, excising numerous references to violations of department policies. The new document supplied by the anonymous source is unsigned over the Captain’s typed signature.

In one case, Cpl. King, who now works as an investigator at the McLennan County Jail, told others who attended a school of instruction at a remote location with people who work at other area law enforcement agencies that she is supposed to report any unlawful orders to the top management of the department, and that even if the Sheriff of his Chief Deputy orders her to commit unlawful acts, she should tell them no.

The report is signed by Lt. Chris Eubank.

The anonymous note received late this week concludes, While I don’t always agree with your opinions, I think it is important that you have this information because you are the only outlet with the balls to expose the problems within government.

CORRECTION: We regret that a quote mistakenly identified Matt Cawthon saying he didn’t want to get handcuffs placed on him because of then-Lt. Eubank’s altering and destroying permanent employment records. The statement was actually made by Matt Cunningham, who had been assigned as Eubank’s assistant when he took the place of Cpl. Kim King, who had been reassigned to the jail as an investigator. 

In our next installment, we will examine the records of statements made by high-ranking officers, investigators and clerical staff alleging multiple similar incidents and the resulting intimidation they felt from Eubank at the time.

– The Legendary

One stone, two birds

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Six Shooter Junction – In the rambling, two-hour discussion  about what to do about one Justice of the Peace precinct with three judges, the corporate attorney batted cleanup on Tuesday morning.

Mike Dixon does legal work for the McLennan County Commissioners Court. He didn’t guide the redistricting plan that led to the messy situation of having to pay a fully qualified attorney with a years-long track record at her duties running a busy Justice Court.

That was politics.

He is taking care of the business of what to do about having to pay former Judge Kristie DeCluitt the insultingly minimal salary of $8,000 per year because she has a constitutional claim on the funds – and because the voters put her there until the year 2016 long before this tribunal of five chose to redistrict her precinct, then gave the nod to someone else when it came time to pick a loyal Republican to run unopposed in the general election.

Dixon advised they “kill two birds with one stone.”

The painfully obvious elephant in the room no one talks about is simple to behold. It’s that big, gray, smelly thing with peanuts on its breath and the long, long nose, the one over in the corner.

Though times are ridiculously hard and millions of Americans have been roaming the streets and highways homeless now for years under conditions that have driven them crazy with drugs and alcohol, turned them into criminals because they have no place to go and no prospect of finding one, the hounds have succeeded in finding a way to cut their numbers locked up in the county jail from an average of 400 per month back in 2010 to an average of 100 five years later.

How? The Mental Health-Mental Retardation officials of the State of Texas finds them through referrals by jailers and cops, judges and social workers, then arranges for substance abuse treatment, hospitalization, close community supervision – and the like.

Came the question, and it’s a hard one. Commissioner Ben Perry, an ex-cop with a head for figures, put it mildly. “If we decide tomorrow to ramp up…?”

Where will the money come from? Grants? Where? Obviously, anyone with a head for figures knows that millions more will soon come spilling out onto the streets to commit the crime of having nowhere else left to go – soon. Some say it will be sooner than you think.

The social worker answered him readily, saying the money is there, it’s just a matter of Washington cutting it loose. It always has been. One thing is for real, it costs seven times more to incarcerate a mentally ill person than it does a normie.

“It’s a huge issue…” said Tommy Thompson, “because this is not just a McLennan County issue; it’s a huge issue nationwide.” There are plans all over America to get people with nowhere left to go off the streets.

Perry did a rapid calculation and determined that at the rate events are unfolding for homeless people with a hitch in the way they think and react to reality, people with “lost lives,” that’s $2 million a year.

And then Steve Hernandez, the veterans representative, took front and center, said he’s been working on the problem of diverting from the court system veterans who had to react normally in the context of the insanity of war in order to survive – and now are labeled as crazy because they don’t seem quite normal to people who were not there and have no idea what they went through to make it home alive. How, exactly, could they ever be normal? Avanti, saith the Centurion.

Funding has always been the problem. What to do?

Pay Judge Kristie DeCluitt in the neighborhood of $50K per year – which is the approximate salary of a beginner baby lawyer hired by the DA’s office, according to Criminal District Attorney Abel Reyna, who chimed in, right on cue.

What will she do? Find the way to legally get people off the streets and out of the jails, no matter if they have problems the rest of we the people find unpleasant to behold. Before the years in law school, she took a Master’s Degree in law and health issues. It’s a personal passion of hers.

She wants a contract. They want her resignation before they will negotiate further. The upshot, they deferred all further action until they get a chance to “visit” with Judge DeCluitt. She did not return a phone call requesting a brief interview to determine her reaction.

Dixon reminded them. They created the problem. Listen to the story:

Local deputy sued in Fed Court for excessive force

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Sgt. Chris Eubank

Gatesville, TX – Jennifer Snoddy manages a condition involving chronic panic attacks with prescription medication, and when on the first day of December, 2012, she saw a suspicious person loitering at a neighbor’s house, she called the local police.

Patrolman Spencer Rowell of the Gatesville Police Department arrived in the middle of a shouting match between she and the person about whom she complained. According to a federal civil rights lawsuit, which alleges that police officers deprived she and her husband of due process of law and their civil rights, she told the suspicious person to “Shut up!” because he kept “yelling and threatening” her.

In a complaint filed November 18, 2014, in U.S. District Court at Waco, Mrs. Snoddy found “the responding officer was combative…from the beginning despite the fact that Mrs. Snoddy had called for assistance.” Rowell was employed as a jailer at the McLennan County Sheriff’s Office from January, 2013 until he either resigned or was fired in August of 2014 – the official record is unclear.

Rowell “put his hand in her face and yelled at her to stop,” the complaint states. She asked him why he did that. Rowell “unnecesssarily poked Mrs. Snoddy in the face and yelled, “I told you to shut up.”

As Officer Chris Eubank, who is now a patrol Sergeant for McLennan County Sheriff’s Office, arrived, Rowell was twisting her arm behind her back; Eubank allegedly grabbed her other arm. He once served as a Lieutenant in a division that looks after training, among other tasks, but turned in a resignation in March of last year before Sheriff Parnell McNamara persuaded him to remain employed. He then accepted a job as a sergeant in the Patrol Division, where he serves as a supervisor for “D” shift, a deep nights assignment involving 12-hour dusk to dawn work days, supervising a crew of as many as 8 men and as few as 5 on days when he is short-handed.

In the words of the federal civil rights complaint, “Despite the officer’s actions, Mrs. Snoddy did not become aggressive or hostile, but she simply continued to ask the officer why he was putting his hand in her face…

The two men threw Mrs. Snoddy onto the ground, injuring her back, and placed her in handcuffs.” Her 11-year-old son stood and watched. He ran inside and got his father out of the shower to see about his mother’s problems. Mr. Snoddy reportedly came outside “in minimal clothing,” and Eubank told him to “stop at the patrol car.” When he asked why his wife was under arrest, Eubank replied “sarcastically” that he would “find out later.”

The federal complaint alleges that’s when Eubank pulled out his TASER pistol and aimed it at Snoddy. “Without provocation and without warning,” Eubank shot Snoddy in the center of his chest and “continued holding the trigger” until the massive jolt of electrical current drove him to the ground. “Officer Eubank then stood over Mr. Snoddy, threatening to tase him again as they waited for the ambulance to arrive.” Eubank needed an Emergency Medical Technician to remove the barbed arrows embedded in Snoddy’s skin, according to the complaint.

When he got to the hospital, he found Eubank waiting for him there. He asked him why he followed the ambulance, and Eubank allegedly replied “that he was there to make sure he does not cause any trouble.”

Mrs. Snoddy claims she suffers from “two bulging discs” in her back as a result of being thrown to the ground. The officers released her at her home.

The suit alleges the officers tampered with evidence. Videotape of the arrest shows that the recording is “highly suspicious,” according to a forensic expert retained by the Snoddys to study its frames.

The expert witness reported that, “Several inconsistencies were noted. The L3 Communications Mobile Vision Recording systems are designed to automatically initiate recording upon acitvation of emergency alerts (lights, siren, etc)…The initial frame of both videos display active emergency lights on both vehicles with officers engaged with Snoddy on the ground. The fact that the video does not contain any of the events associated with the initial contact or tasing of Mr. Snoddy is highly suspicious.”

Though Police Chief Nathen Gohlke explained to attorneys conducting an investigation that the missing images were caused by “a downloading procedure that interrupted the recording,” according to the expert, “the examiner could not verify any available data or case evidence to support this claim.”

The complaint alleges a departmental violation because policy states that if any alternative to the use of the TASER may be found, officers should first try those remedies. “Here, Mr. Snoddy was already in complaince…Requesting information from law enforcement is not a cause for the excessive use of force.” Another provision demands that no TASER should be used if two or more officers are present, “unless the danger to the officers is such that physical restraint of the subject without the use of the TASER is too dangerous to the officers.”

An attorney from Beaumont, Texas, David E. Bernsen claims that excessive force may be proven to a jury by an injury “from the use of force that was clearly excessive to the need…” He further complains of an unreasonable seizure and false imprisonment without probable cause. “An arrest is a seizure…” of a person’s body. “Under the Fourth Amendment an arrest may only be made when a police officer has probable cause to believe that the person arrested has engaged in criminal conduct.”

The City of Gatesville is a co-defendant, according to Bernsen, because “The governmental entity adopted, or failed to adopt…promulgation of the policy by the City of Gatesville…with deliberate indifference to known or obvious consequences that violation of constitutional rights would occur and unconstitutional policy is the moving force behind the deprivation of the Plaintiff’s rights.”

As such, the lawsuit alleges, a violation of the couple’s Fourth Amendment rights to be safe from unreasonable seizure in the absence of a probable cause constitutes a violation of the Civil Rights Act, Title 42 of the United States Code § 1983, because the two police officers acted under color of state law and failed to establish a probable cause for their actions while altering evidence and “covering up the criminal and/or wrongful activities of Defendant Eubank and Defendant Rowell…”

The defendants have answered the complaint with the claim that they enjoy immunity from prosecution and that “…Defendants allege Plaintiffs’ own actions are the sole cause of Plaintiffs’ damages and demonstrate that Defendants’ actions are not the cause of the damages.”

If the case is tried in U.S. District Court, in their verdict, a jury will decide the question of qualified immunity as to the facts; and if they hand down a finding for the plaintiffs, assess the claims of actual money damages; pre-judgment and post-judgment interest; statutory attorney’s fees and expenses; punitive and exemplary damages against Officers Eubanks and Rowell “in an amount to be determined and as allowed by the Court;” costs of court; and “such other relief as the Court deems just and equitable including appropriate.”

Attorneys Roy L. Barrett and Joe Rivera of the Waco law firm of Nahan, Howell, Smith & Lee, PLLC, are representing the two officers and the City of Gatesville.

Local governments are covered by errors and omissions insurance to pay attorneys to defend against torte claims in the courts. Sheriff Parnell McNamara and McLennan County settled a federal lawsuit filed by 9 deputies of the department who were either dismissed, or demoted, their pay diminished, when he assumed command of the 350-person work force of professional peace officers, jailers, evidence technicians and clerks in January of 2013.

The reported settlement cost the insurance carrier $2 million in an amalgamation of damages, attorney’s fees and court costs, a $375,000 deductible of which was raised from a contingency fund of the yearly budget.

Deep nights’ reflection

The famous filing cabinet

Deep nights “D” Shift  Corporal Joseph Ballew poses beside the famous filing cabinet where he had K9 “Ace” try to jump as his shift supervisor, Sgt. Chris Eubank looks on

In a wide-ranging audio interview, two patrol supervisors previously involved in an investigation over a K9 training  incident refuted nearly every finding made that led to a reprimand for one and a pay grade change for the other.

Former Lt. Chris Eubank denied he ever had any responsibilities in the training of K9 handlers, and no duties in background clearance of prospective recruits to the McLennan County Sheriff’s Office. In blunt language, he maintained that allegations made by two Division Captains that resulted from an investigation carried out by two lieutenants are lies, and that the source of his woes is none other than retired Texas Ranger Matt Cawthon, who resigned as Chief Deputy, effective the  first of October.

He told The Legendary that at one point early in 2014, he had decided to resign rather than face a schedule change that would have found him working every weekend and all nights as a Lieutenant. When Sheriff Parnell McNamara persuaded him to stay employed at his Department, he accepted a job as a Sergeant Patrol Supervisor on “D” shift, which lasts from 6 p.m. to 6 a.m. on the days he works, with every other weekend off.

Eubank says he never threatened the job tenure of Kim King, a former training assistant at the Sheriff’s Office who now works as a Jail Investigator. He denied ever telling her to destroy any part of a personnel file on a former corrections officer named Spencer Rowell whom Jail Captain John Kolinek dismissed for misconduct. His explanation is that Sheriff McNamara reversed that decision and allowed Rowell to resign, at the behest of Chief Deputy Matt Cawthon.

“There was an F-5 (Texas peace officer licensee separation form), but it wasn’t final…,” he said.

Both he and Cpl. Joseph Ballew, who maintains he never left his job as a corporal in the Patrol Division, where he once worked as a apprehension and drug detection dog handler; he simply remained at work in the position of Patrolman when the department reassigned the K9 function to the Organized Crime Division.

He reiterated a previous press report that he accepts full responsibility for his actions leading to a written reprimand for having a dog named “Ace” attempt to jump to the top of a 5-drawer file cabinet in the Patrol Office at the Sheriff’s headquarters on 901 Washington  Ave.

“He’d done it before,” he explained. He also went into great detail about why and how such an exercise is very practical due to certain requirements in clearing attics and overhead crawl spaces in certain buildings.

Ballew also defended his training methods of firing a cap pistol at his dog. He said it is neither teasing, nor tormenting the animal, and defended his reasoning by explaining it is a form of conditioning the animal to remain calm in the face of gunfire.

Both agreed that it would be fair to characterize the actions of Sheriff Parnell McNamara as a personnel adjustment involving the reclassification of various officers; both said they are happy with the changes, and are filled with praise for the first-term Sheriff.

Here is a rare opportunity to examine the interior politics and motivations behind the actions of two career law men:

Bad scene at Building 10

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THE GIRL, THE PIPE, THE BADGE, AND THE PAPERWORK…

Six Shooter Junction – The more questions you ask, the more questions you have.

The stories come tumbling out of laconic case notes and the blocky grids of official McLennan County Sheriff’s Office report form like flash-frozen pre-cooked meals; through every twist and turn, there is one dynamic, aside from bland flavor and placid narrative, that is constant.

The difference in what written policy and procedure dictates and has been supported by senior command staff members in their investigations differs wildly from what official response actually took place in response to some very outrageous occurrences.

In at least one case, an official record of an officer’s dismissal for official misconduct and placing the department in legally perilous waters went unremarked when a Lieutenant destroyed the official record and replaced it with an altered version that was 180 degrees out from reality – a felony crime.

As one seasoned professional lawman said, “The principle applied is screw up, move up.”

First things first. In the land of the blind, the one-eyed man is King, and all officers of the law carry a hand cannon on their hip; most sport a belly gun that doesn’t show. Just like climbing ladders if you’re a roofer or a painter, he who never goes aloft has zero percentage of risk to fall off a ladder, a building, or a scaffold.

Carry a gun every day, day in, day out, when you get a coffee, go to the bathroom, sit in an office chair, get in and out of the car, arrive at the house, get up in the morning, stop off to get milk and bread and a six-pack, or anything else you do, and the probability of an accidental or negligent discharge increases exponentially.

At least two Division Captains have experienced just such an emergency. Capt. John Kolinek, the Jail chief, and Capt. Bubba Colyer, the chief of criminal investigations, have both had just such unhappy experiences. The record shows that Colyer received a verbal reprimand, and an order to report to the firing range for two hours of training on the proper techniques of loading and firing the 1911 Government Model .45 semiautomatic ACP.

And then we received the intelligence after the holidays that Sheriff Parnell McNamara delivered a written reprimand to Corporal Joseph Ballew for training his K9 partner, a drug detection dog, in an improper atmosphere, one that made him want to bite a fellow officer. We had to read it in a daily sheet published in the city. The Sheriff and the men connected with the incident had promised, but then reneged after making news in the daily. That happened in August, just before Ballew got an opportunity to receive a promotion and take advantage of an opportunity for different employment in a lateral transfer to a different division. Some say he was promoted because of his lack of proper supervision.

And then there’s the ill-fated beer bust that took place in an apartment located at 2826 S. University Parks Dr., Building 10 – an opulent venue for young, eligible men and women, many of them Baylor students, located a scant 1.8 miles from Baylor University, smack dab on a shuttle bus route that removes all need to fight for an on-campus parking place. This oasis is complete with a stand-in tanning booth, a work-out room, spacious elevated verandas with majestic evening shade views of the gumbo bottom land of the Brazos, plenty of parking, apartments the size of most homes at an average of 1,200 square feet, a number of swimming pools and spas; and did we mention the very pretty women who live there?

Don’t look for anything less than five bills per month for a furnished bacalaureate habitat.

Here’s the kind of place it is. One such lady wrote a critique of the ambience of The Grove by complaining on-line to prospective leaseholders that there is a certain type of resident who – ah – can’t be bothered to walk those last few steps to the dumpster and pitch the tremendous plastic garbage bags filled with beer cans the parties at their residences generate. They cheerfully leave them on the surface of the paved parking lot for the scavengers of aluminum who sell them at Lipsitz’s, located just down the road, to snatch up without having to actually dumpster dive for their fortunes. She says in her message that she can’t wait for her lease to run out so she and her partner can hunt up a better place to live.

Onwards.

On the evening of July 24, a quartet of corrections officers who work at the county lockup opened “several” 30-pack cardboard suitcases of brew, set up the beer pong game in the middle of the floor, went out for pizza, got back home and got into a brouhaha with a certain couple who came to rescue one of their number’s overnight date from the brawl. When Sabrina Guzman gave her distress call, Wade Carter and his girlfriend saddled up for the run from China Spring, arriving with a bowl of marijuana and an empty seat in the pickup. She and Stephen Clayton, a corrections officer, had words, and Sabrina decided it was time to leave. That’s when Spencer Rowell took it upon himself to confront Carter about his use of the yerba buena in public, and the disturbance got loud enough to attract the attention of the resident “courtesy officer,” Rick Flores of the Waco Police Department, who called Sgt. J.M. Allovio for backup.

In reading Sgt. Allovio’s remarks, one is reminded of the flickering fun of an acient Keystone Kops movie when he describes the catcalls and sarcastic snickers from the breezeway leading to the apartment, and how when Jail Lieutenant Mike Garrett arrived to investigate, the four of them who had stood by to observe the melee in the parking lot suddenly “fled” into Apartment No. 1037 and bolted the door. Allovio noted the nobody-in-here-but-us-chickens moment when he was forced to knock repeatedly to gain entry to the residence in order to let Sabrina visit the bathroom and retrieve her overnight bag.

What of the young man with the marijuana? The Waco P.D. confiscated his pipe and a small amount of green, leafy, herbaceous substance slated for the incinerator at headquarters, issued him a summons, and sent him on his way with the girls. But not before Clayton delivered an ill-tempered soliloquy from the balcony about how the “bitch” was trying to get him arrested, and Spencer Rowell visited the trio who sat in the idling Cowboy Cadillac in order to display his Sheriff’s Office credentials identifying him as a deputy.

That was a no no. But that wasn’t all. The department could have been exposed to civil litigation as a result of his intoxicated state while flashing his tin. And then, on July 21, he had pointed a TASER at an inmate locked up at the jail. Wrong. Use of force. After a thorough investigation, Jail Division Captain John Kolinek fired him, writing in a discharge memo, “Based on the above information, your conduct in this matter is unacceptable…I do not believe that it is in the best interest of this agency for you to remain employed at this time. Therefore, you are being terminated effective immediately.”

Deep Throat would have called it “the smoking gun.”

And yet, when one looks at the “F-5” report sent to the state’s alphabet soup certification commission, then called TCLEOSE (Texas Commission on Law Enforcement Officer Standards and Education), one learns that Rowell’s departure was voluntary. There is no nasty-gram to be found in his folder, other than the blistering dismissal from Kolinek.

And what of Stephen Clayton? After all, when his roommate Vince Otting arrived home following his visit to a barbecue at Hewitt, he found their apartment “trashed,” Clayton standing up tall and bellowing at him about “talking shit,” trying to get him fired, etc. Clayton even kicked his door, according to a report he wrote at the behest of Lt. Garrett, who summoned him back to the jail to write his impressions of the evening. Following our request, we received no further material on Clayton’s conduct and subsequent career at the McLennan County Sheriff’s Office.

And what of the famous Rowell file?

According to a highly placed official close to the investigation, the task of destroying its more pejorative contents and replacing them with bromides and euphemisms, fibs and fables, fell to Kim King, training assistant to Lieutenant Chris Eubank, Director of Training, who now serves as a sergeant in the Patrol Division. He resigned, but then decided to re-hire as a Sergeant, at the request of Sheriff McNamara. Eubank reportedly told Deputy King to lose the paperwork – or else. She would lose her job, for starters, etc., and other imprecations to that effect, according to the source, who refuses attribution, just in case more and better information may come his way.

It was kind of her dream job,” he recalls.

She just could not do it. She made a backup copy of the material, placed it in a “secret file,” and left it to Eubank to handle his own affairs when she took advantage of an opportunity to go to work as an investigator at the jail.

Somewhere down there, that file is to be found,” our man said. Furthermore, he saith not.

So mote it be.

 

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