2009-07-16

Deeming Hernandez’s hiring ‘awkward,’ county judge goes on offense with PD

By Judith Pannebaker

A chance meeting apparently led to an increasingly controversial conversation between County Judge Richard Evans and Bandera City Administrator Gene Foerster regarding the current professional status of former Bandera County Sheriff’s Office Deputy Mario Hernandez.

Bandera Police Chief Jim Eigner recently hired Hernandez as a reserve officer for the department. In past articles on Hernandez’s termination, the Bandera County Courier had reported that Eigner was holding Hernandez’s commission as a peace officer.

In April, Sheriff Weldon Tucker dismissed Hernandez from the BCSO. In turn, Hernandez filed an EEOC complaint, charging unlawful termination. Although an unsigned and un-witnessed report written by Lt. Allen Tucker in March cites a litany of reasons for his termination, Hernandez’s dismissal came just days after being observed taking pictures of a so-called county water rescue boat being housed at Sheriff Tucker’s home on a private ranch in Tarpley. The EEOC has so far sided with Hernandez, and, on June 2, served the sheriff and county officials with notice of a lawsuit.

Additionally, the office of the Texas Attorney General is investigating Sheriff Tucker, along with other members of his department, for alleged misuse of county property.

On Monday, July 6, Evans noticed Hernandez having lunch in a local restaurant. Hernandez, who holds an advanced peace officer’s certification, was wearing a Bandera PD uniform.
Later, the judge telephoned Foerster to ask him about Hernandez’s employment.

Describing the encounter during a Monday, July 13, interview, Evans downplayed the incident. “I merely asked Gene Foerster if he thought it was a good idea hiring Mario before the situation had been resolved,” Evans said, referring to the ongoing EEOC employment litigation.

However, Foerster and other city elected and appointed officials interpreted the call to mean the judge was suggesting they terminate Hernandez’s employment.

Evans denied the allegation, calling it “quite a leap.” He continued, “I told Foer that hiring Mario as a police officer while he is suing the county seems very strange to me.” At the same time, however, Evans admitted he had described Hernandez’s hiring to Foerster as “rubbing salt in the wound of the sheriff.”

Additionally, Evans expressed concern about potentially uncomfortable situations that might arise should the officer arrest a suspect and attempt to book him into the county jail. “It would be awkward and put Mario in close proximity with the sheriff,” Evans said. “It’s not illegal to hire him, but as a judge I think it would be awkward and would not enhance a working relationship (between BCSO deputies and city police officers). It could make a lot of tension.”

According to Foerster, Bandera City Councilmen do not have to approve officers hired by the police chief. “I note the officers’ names in my monthly report and as long as they are certified, they can serve in the department at the chief’s discretion.”
Foerster said reserve officers, such as Hernandez, save the city a lot of overtime pay. “We use reserve officers when regular officers are on vacation or on sick leave and always on holiday weekends at City Park,” he explained. “As I understand, the chief feels Mr. Hernandez is a good officer.”

According to Foerster, reserve officers log 24 hours of duty per month, but are not on the city payroll.

Describing his call to Foerster in more detail, Evans said, “I asked him if he thought it was a good idea to hire Mario as a reserve officer. Holding his commission is one thing, but I don’t think it was a good idea.”

Evans also said it did not consider the call inappropriate, noting that he did not make it as a county judge. However, when asked if the call removed him from a “neutral” position to that of apparently supporting the sheriff’s actions, Evans declared, “I don’t have to be in a neutral position when the county is being sued.”

Regretting the apparent misunderstanding, he added, “If I can’t, as a county judge, call the city administrator and ask questions, we will never get anything accomplished. I guess I’ll have to put everything in writing from now on.”

As a county judge, Evans performs certain judicial activities such as hearing Class A and Class B misdemeanor criminal cases that could include DWIs and assault family violence charges filed by city police officers. Municipal Judge Lynn Holt can only hear Class C misdemeanors.

The Texas Code of Judicial Conduct requires a judge to try to avoid the appearance of impropriety in all of the judge’s activities, and to conduct non-judicial activities so as to minimize the risk of a conflict of interest with his judicial obligations.

Although aware of Evans’ telephone call to Foerster regarding his employment, Hernandez declined to comment on the development on the advice of counsel. He did, however, admit to being proud to serve with the Bandera Police Department.