This will be a two part article as we are waiting for clarification and additional information from the City of Leon Valley.
During the month of December, Leon Valley City Manager, Kelly Kuenstler, received numerous complaints from employees and a fellow City Council member against Bennie Martinez. Unsure of protocol Kuenstler contacted the Texas Municipal League (TML) for direction. The director of the TML advised Kuenstler to secure an outside investigator to create a pre-litigation report for the City of Leon Valley. It became necessary to hire outside legal counsel because one of the complainants against Martinez is the current City Attorney for Leon Valley.
In the Memo Regarding Authority to Hire Outside Investigator for Intercity Complaints attorney Ryan Henry outlined the duties and responsibilities of Kuenstler regarding the City of Leon Valley in her position as City Manager.
When employees of the City feel they have been harassed or if policies have been violated by another agent of the City they are obligated to file a complaint or report with the Director of Human Resources who will forward that complaint to the City Manager with a copy of the report being provided to the Mayor.
“The City Manager then became obligated to investigate and to appoint an investigating officer. The policy does not give the City Manager discretion but states he/she is to appoint an investigating officer whenever a report is generated. The reporting language in the policy, at first glance, may appear contradictory (i.e. report to HR Director but report to Mayor). However, a careful reading, utilizing principles of statutory construction, requires the harassment complaints be filed with HR or the City Manager and a copy of the complaint and the investigation report be provided to the Mayor.”
Kuenstler in her role as City Manager could not appoint the City Attorney to provide a report because she has filed a complaint. Therefore Kuenstler appointed Henry’s office to create the report.
The memo also specified that the Council Member Rodriguez only had the authority to bring a complaint stating Councilor Martinez violated the City of Charter by his conduct. She could bring a charge outside of Council for violations of sexual harassment and discrimination.
The memo further states “ The City Manager does not have the authority to discipline Councilmember Martinez in any respect. The City Manager may place an item on the agenda for the City Council to consider. See Charter §3.10(A). The City Charter mandates that, to be qualified to hold a position on the City Council, a member must be qualified under Charter §3.03. This requires the member to be compliant with the City Charter at all times. However, it is the City Council, as a body, which has sole and exclusive control over the qualifications of its members. See Charter §3.04. As a result, if the investigation reveals evidence to substantiate a claim of harassment or a Charter violation, the matter must be presented to the City Council for disposition.
During the City Council meeting on Tuesday night, April 2, Council met in executive session to discuss the pre-investigation report.
Denise Frederick, City Attorney
Alleges Councilor Bennie Martinez has created a Hostile Work Environment.
Dr. Catherine Rodriguez, Councilor
Alleges Councilor Bennie Martinez of Sexual Harassment/Hostile Work Environment; Charter Violation.
Brandon Melland, City Planner
Alleges Councilor Bennie Martinez created a Hostile Work Environment; Charter Violation.
Jo Ann Azar, City Police Officer
Alleges Councilor Bennie Martinez created a Hostile Work Environment.
Jorge Brenton, City Police Officer
Alleges Councilor Bennie Martinez created a Hostile Work Environment.
Yvonne Acuna, Public Works Utility Billing Clerk
Alleges Councilor Bennie Martinez created a Hostile Work Environment.
An additional complaint by Denise Frederick, City Attorney alleges Zoning Commissioner Larry Proffitt created a Hostile Work Environment/ Race Discrimination/Gender Discrimination/Retaliation.
Frederick maintains Martinez is a bully who does not respect the staff or her professional judgment. She does not have a problem with Martinez or any member of the City Council asking questions or wanting a second legal opinion on an issue but felt his actions in the way he goes about interacting with her is unprofessional and hostile. She further claimed he yells at her, intentionally tries to publicly humiliate her, attempts to act like a lawyer questioning her legal opinions openly, makes aggressive motions with his arms and fingers, and acts physically hostile from the dais overall.
She further maintained Martinez challenges everything she says, causing her to take time away from her other duties to prepare for other councilmembers. She believes Martinez monopolizes her and other staff’s time for his own benefit or the benefit of his friends.
Melland reported tensions between Councilor Martinez and himself over a dispute between Melland’s office and local businessman Mr. Anderson.
Melland contends he informed Mr. Anderson multiple times what was needed for permitting a specific property, including a SUP.
Mr. Anderson wanted to explore exceptions to the regulations. Melland asserts Martinez interjected himself into the situation and claims Melland did not adequately explain the situation to Mr. Anderson.
Melland also maintains Martinez is a bully who routinely yells at him from the dais and does not know if Martinez behaves this way intentionally or is merely a part of his personality. A specific example Melland stated that on November 20, 2018 during a City Council meeting Melland presented to Council possible changes to criteria for the Board of Adjustment (BOA). Martinez kept complaining the City was giving staff too much power and not following state law regarding the BOA.
Martinez was very hostile towards staff, kept aggressively pointing his finger at Melland and raising his voice. Melland stated Martinez had a concern staff is not telling businesses what they are really supposed to do before they appear before the Zoning Commission. Melland maintains City staff can do everything correctly and Martinez will not believe them.
Another issue between Melland and Martinez is the re-zoning of the St. John’s Church. At issue is the directive from Martinez to send notices to additional property owners outside the required 200 feet of proposed change.
Martinez became upset at a later February meeting when Melland did not calculate the opposition numbers from people outside the 200 foot boundary. Melland said he sent out the notices but did not calculate the responses outside the requirement of the law.
Martinez also demanded City staff prepare a matrix of other cities.
Melland believes Martinez’s actions are accusing him of not doing his job and are presented in a hostile manner intentionally designed to publicly humiliate him.
The November meeting referenced can be found at http://leonvalleytx.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1140
Officers Breton and Azar allege Councilor Martinez disagrees with the policy of wanding (using a handheld metal detector) those attending a council meeting, including city councilmembers, and city staff.
Both officers maintain that Councilor Martinez complies with the request unless he is able to “sneak” past them. The officers feel Martinez challenges their authority and degrades their performance in public and in front of the citizens. Martinez maintains the Police Chief exceeded his authority by implementing this policy and that policy decisions are the responsibility of Council.
Acuna feels uncomfortable with the constant visual inspection of her body in an obvious manner. She claims on two occasions Martinez attempted to look down her shirt, and he kept looking at her breasts when they were reviewing water bills.
Frederick claims during a Zoning meeting on December 11 Commissioner Larry Proffitt “got in her face” and stated she did not belong on the dais. Frederick claims the Chairman requested her presence at the meeting and for her to sit on the dais. She claims the hostility between her and Proffitt has continued.
She interpreted his comment that she did not belong here as a judgment of her race.
According to the report Dr. Rodriquez claims Councilor Martinez has made unwanted advances toward her on different occasions. These incidents included touching and unwanted glances.
In an interview with Henry, Councilor Martinez offered the following responses.
In regards to Frederick Martinez maintains Frederick is usurping power and trying to interject as an additional council member. He in fact has made statements in the past that Frederick “acts as the 6th council member”. According to Martinez, Frederick’s job is to sit down and be quiet until she is asked a legal question, otherwise, the City Council does not need to hear from the City Attorney. He believes Frederick is not a very good City Attorney and often gets the law incorrect. As a result, he does not trust her legal opinion. When asked for an example, he stated last year the City Council held an “illegal workshop” because the posting for such a workshop must be posted on the City’s website. Since that workshop was not posted on the website, he believes it was an illegal meeting. Martinez informed me he objected at a public meeting, but Frederick shut him down. He stated she later she privately told him she was wrong and that it should have been posted. Martinez believes it is his obligation to challenge Frederick’s legal opinions which he believes are incorrect. Martinez admitted he is not a lawyer but did provide me with an explanation of how he defended himself against a lawsuit in New Mexico. (This meeting was determined to be a legal meeting.)
Martinez disputes he treats Frederick any differently than other employees he does not trust, and he took offense to any indication his actions towards Fredericks are associated with gender or race.
He believes that under the Charter the City Attorney works for the City Manager and not the Council and this should be changed.
He believes the City Council is getting only one side of any given issue. Martinez may not be aware of the ethical issues involved or that the City Attorney’s obligation and duty is to the entity, not to any one individual. See Tex. R. Prof. R 1.12.
Martinez believes the citizens are his boss and he answers only to them. He states Kuenstler, as the City Manager, is an employee of the City Council and by conducting this investigation, has flipped the accountability.
In regards to Melland, Martinez openly admitted he does not trust many City employees and Brandon Melland is no exception. Martinez believes Melland evades his questions, “talks in circles”, and does not answer honestly. As a result, Martinez stated he wants to support the citizens against Melland. Martinez believes he has the duty and responsibility to question staff and support the citizens. Martinez also believes the City must be “business friendly” and admitted to having several conversations with Kuenstler, in her role as the City Manager, Melland, and his predecessor (as well as staff) regarding how and when they are supposed to be business friendly.
Martinez admitted one reason he does not trust Melland is because of information provide to him by “Bobby” Anderson and some issues involving Mr. Morehouse and an industrial park. Martinez believes Melland provided Anderson the wrong information which prevented the certificate of occupancy from being timely issued for the business. Martinez believes if Melland was business friendly, Melland should have told Anderson or Morehouse and walked them step-by-step through the process. Martinez was not shy about the fact he does not like the way Melland operates the Planning Department and admitted to telling Melland that his staff were wrong for not being “business friendly” as Martinez believes the term to mean.
Martinez believes Melland defied the City Council’s directive by posting notices of the zoning change to the St. John’s Church beyond the two hundred (200) foot boundary, but not calculating opposition in the extended boundary. Martinez insists Melland was instructed to run the calculations. Martinez admitted to requesting information on a matrix of other cities and RLUIPA2 and was dismayed when you told him staff was too busy. However, he denied the request was an order. Martinez stated he only sought information but also admitted he did not know if the City staff had a matrix of other cities already. He did not think it would be difficult to get or create.
Martinez responded about the Azar and Brenton complaints by saying Martinez stated he has nothing against Officer Azar. He states he knows she was just following orders when wanding people. However, he disagrees the Chief of Police should have the ability to make policy by implementing wanding. He believes if the Chief feels wanding is required, he should have come to the City Council and asked for a policy.
Martinez made it a point to emphasis that he is not opposed to safety policies or procedures. And, if he fully understood why the wanding was necessary, he may have even voted in favor of it at a council meeting. However, the Chief never requested a policy and believes this is just another example of the staff taking over the City. Martinez believes it is important to insist on the City Council being the one to implement policy but agreed Officer Azar had no ability to disobey the Chief’s orders to wand. He denied ever giving Officer Azar any direct orders in regard to the sign posting about the wanding protocol and reiterated that he always complied with the request to wand. He stated he never tried to sneak past the officers to avoid being wanded.
In response to the Acuna complaint, Martinez offered he recalled the time he went to discuss the water rates with her but disputed ever attempting to look down her shirt. He also recalled going to judge door decorations over the Christmas holiday in 2018, but once again denies he ever leered at her or tried to look down her shirt. When asked why he believes Acuna would file a complaint, Martinez stated he suspects the City Manager, put her up to it. Martinez could not add anything further on the subject.
Martinez claims he never touched Councilor Rodriguez except to shake her hand. He never used any comments or language that could be misinterpreted as a sexual advance.
When asked why Rodriguez would interpret his actions in the manner alleged, he stated the only thing he can think of is that Rodriguez and Councilman Jordon are aligned politically and friends. Martinez agreed that he and Jordon have very different philosophical views of the way the City should be run and the way to go about fulfilling their respective roles as council members. He believes the actions are politically motivated. However, Martinez also believes Councilmembers Jordon, Alcocer and Rodriguez give the City Manager whatever she wants. As a result, he believes the City Manager is actually the one behind all of the complaints.
Proffitt offered the following response to Fredericks’ complaint. He recently experience the loss of his wife and the date of the incident happened on his wife’s birthday, the first since her death, and he was emotional and not on his game.
He also was not aware the Chairman of the Zoning Commission had requested the City Attorney’s attendance and that she sit on the dais.
Proffitt complaint by Fredericks
Although it seems Mr. Proffitt has not fully resolved his issue with the City Attorney attending the meetings, the complaint does not meet the requirement of discrimination based on race or gender.
Complaints against Martinez
As to the complaints in general only Council has the authority to take action against Councilor Martinez in response to his actions with Councilor Rodriquez and in determining if he did violate the City Charter.
The employees were correct in filing their complaints with the City Manager.
As to the hostile work environment claims, the complaints by Frederick, Melland, Officer Azar and Officer Breton against Martinez did not include any protected classifications. Frederick did list gender and race within the complaint but not as a motivating factor. While, factually, it is clear Martinez can be aggressive, loud, and forceful, his actions apply equally across all classifications. It is certainly within the realm of reason for Frederick, Melland, Officer Azar and Officer Breton to interpret Martinez’s actions as hostile. Martinez’s behavior, especially that observed on video during the council meetings, can be interpreted as verbally abusive at times. However, such cannot form the basis of a hostile work environment claim under labor laws. No protected classifications were listed as the cause or form the basis of the complaints; therefore, the complaints are not sustained.
Acuna’s complaint against Martinez is in a limbo state as certain facts and actions can only be determined by the City Council. Acuna’s complaint does list one of the protected classifications (i.e. gender) as the motivation behind the behavior. However, asserting a protected classification is not enough for a hostile work environment claim and Acuna must establish that the frequency or severity rose to a level which impacted her ability to work. As a result, the decision to hold a public hearing under §3.12 of the Charter to consider Acuna’s complaint rests with the City Council.
In regards to Councilor’s complaint against Councilor Martinez the complaint cannot be sustained or listed as unsubstantiated factually by the investigation. It must be presented to the City Council for a factual determination on 1) whether the allegations occurred, 2) whether the actions found, if any, constitute a violation of §3.08 or §3.09, and 3) if a violation occurred, what remedy the City Council wishes to employ.
Those filing the complaints about Charter violations asserted that at different times, factually, Martinez gave them direct orders (or what they interpreted as orders) and violated §3.09 of the City Charter. Specifically, Martinez:
- Ordered Melland to create a matrix and collect documents which did not exist in the City records. Such was outside the scope of the City Council directive for extended notice;
- Instructed Crystal Caldera to perform certain tasks regarding AV Equipment when Martinez was complaining about BARCOM as the IT support. This stems from an audio problem and apparent skype failure at a council meeting. Various emails indicate Martinez was attempting to get involved on the ground-level and giving direction directly to City staff. In an email dated October 29, 2018, City Manager Kuenstler requested he not give direction to City staff. Martinez stated that BARCOM had not done the proper tests and that he was trying to be helpful by inquiring into the tests;
- Intentionally undercutting police authority in front of the public in order to disrupt policy operations when wanding individuals entering City Hall for meetings; and
- Intentionally undercutting Melland’s authority in public in order to disrupt the Community Development Department, at an operational level.
During last night’s Council meeting Council members (Mayor Riley, Councilors Jordan, Edwards, and Alcocer) met in executive session to receive advice from legal counsel regarding the complaints regarding Councilor Martinez and the investigative report prepared by the Law Offices of Ryan Henry, PLLC. No action was taken during executive session and at the conclusion of the meeting Mayor Riley announced the investigation would continue.
When asked after the meeting if there is a timeline for the conclusion of the investigation and a result, Mayor Riley, said “There is not one available at this time.”
Ryan Henry said, “I have been told to be prompt but there is no timeline available at this time.”
The second part of this article will detail possible future action and possible remedies Council could impose on the situations. When responses have been received to the open records request and clarifications have been provided we will post the second part.