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2011-09-15

Showdown at ‘Oh, No’ Corral

By Judith Pannebaker BCC Editor

By a vote of 2-3, Bandera City Council failed to place police department personnel on paid administrative leave pending an investigation of alleged criminal activity. The decision left no doubt as to who is currently in charge of the municipality.

With just two hours notice, an emergency city council meeting was called Wednesday, Sept. 7, to deal with allegations that members of the police force were recording conversations in the municipal building, including executive city council sessions.

‘Charge is ridiculous’

During the meeting, both Chief Eigner and Lt. Neil McLean vehemently denied bugging the building. “That charge is ridiculous in its face,” Eigner said, adding all interviews and interrogations conducted by law enforcement officers are taped. “Everything in police work is recorded these days.”

The brouhaha began earlier that afternoon when, on the advice of counsel, Mayor Pro Tem Maggie Schumacher and a computer tech attempted to make a copy of the police department’s hard drive. As Schumacher explained, “We were afraid important information in the computers was being deleted.”

After learning about the intention, McLean summarily “threw (the computer tech) out of the office,” according to Schumacher. At that point, she called the Bandera County Sheriff’s Office and asked Chief Deputy Richard Smith to dispatch officers to city hall on a stand-by basis. McLean contacted Eigner who arrived at the police stationhouse at approximately 12:20 pm. Wednesday is normally the chief’s day off.

Then, according to Schumacher, Eigner escorted her into his office and allegedly said, “Even with your degree in political science, you won’t be elected dogcatcher after this is over. I won’t quit like Gene did. I intend to fight.” Eigner was referring to former City Administrator Gene Foerster who resigned in March.

After leaving Eigner’s office, Schumacher described an “in-your-face” confrontation with McLean. Several weeks ago, a similar confrontation occurred with McLean and this writer in the Bandera County Courier office. That incident concerned McLean’s demand for a letter previously sent to the Courier editor.

In an interview, Schumacher said, “McLean told Eigner we were looking for evidence, which we weren’t.”

Felony to bug building

Previously, Schumacher and the computer tech had discussed downloading McLean’s hard drive with City Secretary Linda Boshek. The meeting took place behind closed doors in the office of Municipal Judge Lynn Holt.

Interestingly, after Schumacher denied having used the word “evidence,” McLean supposedly said, “We have you on tape. We tape everything that goes on in this building.” She said Eigner supported McLean’s statement.

As Schumacher told city council, “The chief said, ‘This is a public building and no one can have any expectation of privacy’.” In fact, it is a felony to place recording equipment in a municipal or other public building unless a sign posted on the outside of the building informs visitors that they will be subject to audio and videotaping. Texas Rangers from San Antonio took photographs of the building’s exterior, confirming that the required notices were not posted.

After learning about the possibility that illegal recording devices might have been placed throughout the building, Schumacher consulted with Mayor Horst Pallaske and city attorney Barbara Boulware-Wells. Horst advised her that the allegation warranted calling an emergency meeting.

Eigner left the police station in a fit of pique at approximately 1:30 pm.

According to Schumacher, however, he returned a short time later to apologize for his behavior and that of McLean. She replied, “I think it’s a little late for that.”

Administrative leave

The emergency meeting was called to discuss putting the entire police department on paid administrative leave while an investigation into the possible bugging was initiated. All police officers were asked to report to city hall at 6 pm.

During the meeting, Schumacher related her experiences with Eigner and McLean to her colleagues on council, adding, “I think their behavior was inappropriate and showed a lack of professional ethics.”

Eigner defended his actions by saying Schumacher had misunderstood what McLean had said. “Lt. McLean was referring to a recording of the call Schumacher made to the sheriff’s office when she asked for assistance.”

It was not readily apparent whether McLean had referred to obtaining a copy of Schumacher’s call from dispatch or had an actual recording of the call she made to BCSO from the telephone of Mayor Horst Pallaske. Prior to the 6 pm meeting, McLean had contacted emergency dispatch requesting a copy of the tape of Schumacher’s call. Because the tape is part of an ongoing investigation, it was not released to him.

Additionally, McLean failed to explain how he had become aware of verbiage used - or not - during a closed door meeting.

‘Purpose of download’

During the emergency meeting, Eigner railed against city council making a copy of his department’s hard drive. “Maggie Schumacher made a statement that we were destroying evidence then she denied using that word. If they were looking for evidence, it would require a warrant.”

Tag teaming the interrogation with the chief, McLean added, “Is there a reason why I wasn’t informed that my police server was being downloaded?” He demanded that Schumacher tell him “the purpose of the download.”

Both Eigner and McLean indicated that sensitive information on the department hard drive should not be available to non-law enforcement personnel. However, while still a civilian, Kendall Wells was given free access to the police department computers, Eigner told the Courier in an earlier interview.

Stopping the browbeating of Schumacher, city attorney Monte Akers advised both Eigner and McLean, “She’s not on trial here. City council has ample authority to look into the computers of any employee.”

Recuse yourself!

In response, Eigner demanded that Schumacher recuse herself from voting on the matter. “I have a witness statement in which Mario Hernandez has said, ‘Maggie Schumacher is in my pocket and she supports me completely in my effort to get rid of Chief Eigner and Lt. McLean’.” Hernandez, who has had his own problems with Eigner, immediately denied the statement.

Under the Texas Open Records Act, the Courier has requested a copy of the witness statement.

Hernandez attended the meeting at the request of City Secretary Boshek. Witnesses confirmed that Eigner approached him, ordering him to leave. “I told him I wasn’t leaving. I had been told to come to the meeting,” Hernandez said. “The chief asked me who invited me and I told him the city secretary. Then he just walked away.”

“An allegation has been made of electronic bugging of city hall, especially executive sessions,” Akers said. “These allegations of alleged criminal activity violate Section 16.04 of the Texas Penal Code. They may be found to be completely groundless. An investigation may take a week or just a half day.” He indicated the investigation would be conducted by the sheriff’s office or other law enforcement agencies.

Coup de grâce

Prior to the vote, Eigner delivered his coup de grâce, saying, “I’ve contacted an attorney with the Texas Municipal Police (Association).” He intimated that if the agenda item were approved he would file a federal lawsuit for retaliation, adding, “I don’t make idle threats.”

In an interview, TMPA Field Representative Dick Brock said the association does not provide legal defense for terminated law enforcement officers who are suing the entity that terminated them. “An officer in that situation would be responsible for hiring his own attorney,” he said.

As Brock explained, the TMPA provides a defensive legal plan for member officers. “The TMPA would provide an attorney if an officer wanted to appeal his termination. Also, the officer could petition the TMPA board for funding to pursue a lawsuit - but there is no guarantee his request would be granted.”

‘Gone by now’

Most of the public speakers supported Eigner and McLean. “Don’t abandon them,” one person entreated. Others decried what they perceived as city council micro-managing the police department.

Former city council member Lynn Palmer said she wanted a police officer at her house in “three or five or six minutes, not the 20 minutes it would take for a county deputy.”

In the end, only Schumacher and Councilman Binky Archer voted in favor of placing the police force on administrative leave with pay; Councilmen Nancy Montgomery, John Hegemier and Brandi Morgan cast “nay” votes.

Montgomery indicated that no evidence of bugging supported putting the officers on administrative leave.

As Hegemier explained, “We could have suspended them, but if an investigation turned up nothing, we would have looked foolish. Besides, if any bugs were there, they’re gone by now.”