New allegations by former employees of the Bexar County probation department are a good reminder that the mounting legal fight against the agency isn’t all about the mellow yellow.
In early 2008, after the department contracted out its urinalysis drug testing to Victoria-based Treatment Associates, probation was awash in questions from probationers, criminal-defense attorneys, and judges about the sudden and suspiciously high number of positive drug tests being returned by TA. `See “Test Tube Maybes,” October 3, 2008.` Probation officers began challenging Treatment Associates’ performance, too, creating a high level of friction among the department’s administrators.
But it appears union-busting topped the to-do list for Chief Probation Officer Bill Fitzgerald and Director of Operations Kathy Cline.
According to former Bexar County probation IT Director Natalie Bynum, Cline kept a list of known and suspected union members she wanted out of the department. To weed them out and quash the union, she had Bynum meet her repeatedly during and after work to comb through employee email accounts.
“She wanted their computers monitored in order to find out if they were doing any union activities while on the job, also to see what was going on with the union,” said Bynum, who now lives in Arizona and spoke with the Current by phone. “We’d go to the bar and then we’d go back to work afterwards. It would be just us in the office, often-time.”
Bynum, a close confidant of Cline’s during her tenure, says she was motivated by curiosity since she was “not allowed” to speak with known members of the Central Texas Association of Public Employees, a division of the United Steelworkers. Cline and Bynum’s alleged searches weren’t limited to the “five to 10” employees targeted by Cline, either. Bynum told the Current this week that Cline also regularly tapped into her boss’s account to see if Fitzgerald was talking about her.
Neither Cline nor Fitzgerald returned repeated calls for comment.
Cline and Bynum’s snooping probably wasn’t illegal under state law, said Assistant Bexar County District Attorney Cliff Herberg. It really depends on the department’s policy manual. However, if it is proven that Cline was, in fact, seeking to suppress union activities, she and Fitzgerald could be in for a world of hurt. The U.S. Supreme Court has interpreted the First Amendment’s Freedom of Speech guarantee to include the freedom of association and the right to organize.
San Antonio attorney David Van Os, whose firm represents about 15 former probation department employees in three separate lawsuits against the department and top managers, said Bynum’s allegations didn’t come as a surprise.
“My clients have known for a long time about the anti-union attitudes of the upper management,” Van Os said. “And my clients have experienced retaliation for a long time, and my clients and I have suspected that there was surveillance of union activities for a long time.”
In an apparent attempt to put staff union members on notice in the early days of union organizing, Fitzgerald announced in December 2006 that all department employees would have to submit to “retention interviews” — in essence, reapply for their jobs.
The current president and most prominent member of the union, Sherri Simmonelli, sued Fitzgerald in March 2008, along with other union members, for workplace intimidation and harassment. But it was after she urged fellow probation officers two months later to stop using Treatment Associates for their drug tests that she was
terminated.
Former Assistant Chief Paul Kosierowski, who filed a federal lawsuit against the department last week for wrongful termination, believes his firing was partly motivated by union-related paranoia. In his suit, Kosierowski claims he stood up to Chief Fitzgerald over the retention-interview proposal, which ultimately failed. In the months that followed, Cline and Fitzgerald accused Kosierowski of being too close with unionizing employees and Fitzgerald demanded on several occasions that Kosierowski “disclose the nature and substance of his conversations with known members,” according to the complaint.
After Victoria-based Treatment Associates started returning a flow of bad drug-test results in February of 2008, Kosierowski sounded the alarm. It was not a popular stance for an administrator at the time. He was fired after returning from an extended medical leave in June 2008.
“`Treatment Associates` were not ready for this,” he told the Current this week. “I don’t think they understood the magnitude of what they were getting into … Their computers weren’t operational enough to handle what was happening. They didn’t have the capabilities to take the faxes that were starting to come over to them. They didn’t have the staff to field the phone calls for requests of information regarding the requests.”
Treatment Associates Director Jeff Warner also failed to return calls seeking comment, but sworn depositions collected by Van Os’s firm reveal how little stock Warner put in the complaints about erroneous results.
The urinalysis results that TA’s equipment provides are considered “preliminary” assessments, because the test can interpret substances like cold medicine, for instance, as methamphetamine. These misleading results are frequently referred to as “false positives,” and for this reason, paperwork from testing equipment used in Bexar County states that “a more specific alternate method must be used in order to obtain a more confirmed analytical result.”
Warner, on the other hand, insists repeatedly in his deposition that there is no such thing as “false positives.” He blamed a broken camera for any bad results.
“The software that recorded what the camera took a picture of was broken. The test wasn’t broke,” Warner said under questioning. “The result of the test was recorded wrong by the camera, which in turn lied to the software, which in turn lied to the department about what the result of the test was, or misrepresented about the test. But the test was not wrong.”
In June of last year, the District Attorney’s office encouraged probation officials to submit a random sampling of TA’s lab results for confirmation to restore confidence in the system. They refused. Since then, the DA’s office has stopped prosecuting probationers solely on the results of an initial dirty urinalysis. Herberg said too many questions have been raised about Treatment Associates’ testing to trust the results. The District Attorney’s office is now investigating complaints that Treatment Associates employees accepted bribes for clean test results.
“We do not want somebody being arrested in a system we don’t have confidence in,” he said. Before the Treatment Associates contract and resulting fallout, there was enough confidence in Bexar County’s preliminary testing that prosecutors who threatened to order a confirmation test could often evoke a guilty plea. “Nowadays, when a `defendant` says, ‘I want a test,’ it’s like, ‘Ooh. Yeah. We better test it and see what this damn thing says.’ It’s like, ‘Uh oh,’” Herberg said.
Warner fought repeatedly against orders to ship off client samples for confirmation testing by GC/MS, or gas chromatography-mass spectrometry, the industry’s leading technology. According to Kosierowski, several requested samples were never returned or were lost in the mail.
According to documents released by Bexar probation and the testimony offered in deposition, Warner was angry about all the requests for confirmation testing TA received after he gained the contract with Bexar County. Under the terms of the initial contract, his company was solely responsible for the cost of confirmation tests — a provision TA later renegotiated to make the department bear the cost.
After one local judge requested four confirmation tests be done on a single probationer, Warner objected in an April 2008 email, saying: “I think this is the most ridiculous request I have ever seen. I have no intention of spending $80 to confirm four tests on the same person. Why anyone would want to do that in the first place, is beyond me. This is exactly the type of thing that we discussed as being a deal breaker.”
As reported by the Current back in February, a few court-ordered confirmation tests did make it through the mail during that troublesome period in 2008. Of 26 supposedly positive drug tests performed by TA, only eight were actually tainted by opiates, cocaine, or methamphetamine, according to the GC/MS reading.
Bynum told the Current that many of the so-called “false positives” were the result of mismatched data shipped by TA staff. She said at least one out of four test results had mismatched client numbers and client names or other data-entry errors. Kosierowski said he even saw one drug test come back with the probation officer’s name on the form rather than the probationer’s.
Cline stated in her deposition for Van Os that she relies on Treatment Associate’s Warner for advice on confirmation testing. And Warner, in his deposition, in no way equivocated:
“My recommendation is that you almost never need it,” he said.
That practice sets Bexar County apart. A Current investigation last year showed that Bexar County is the only large urban county that doesn’t offer confirmation testing by GC/MS to any probationer who denies drug use following a positive result on a preliminary test.
Although, like Kosierowski, Bynum was not given a reason for her 2008 termination, she has so far chosen not to take her complaint to court.
“I’m not sure I’m going to do anything about it,” she said. “I’m not looking to retaliate or anything. I guess that’s been the hard part for me. I don’t want to hurt anyone, but at the same time I want to help.”
But if Bynum had any question about the legality of what she and Cline were up to, Cline set her straight. “`Cline` in fact told me it wasn’t right. She actually said that: ‘We are not supposed to be doing this,’” Bynum said. “I guess it was hard for me to think it was illegal on my part, because I was doing what I was told by my boss … In hindsight, I think I should have come forward to the chief.”
Van Os said that it was doubly tragic that the department’s leadership, Cline and Fitzgerald, apparently focused on suppressing the union while drug-lab problems raged.
“They’ve got this obvious drug-testing scandal going on and they don’t put any effort into doing anything about that, but they put all this effort into intimidating employees about joining a union.
“The most important thing to … Fitzgerald and Cline and their top administration … is keeping employees down. That’s really what it comes down to.”
