Trollin' ain't easy, but is banning John Foddrill, and others like him, unconstitutional? 

click to enlarge MICHAEL BARAJAS
  • Michael Barajas

As with most trolls, there are really two John Foddrills. Seated at a dining room table near his wife in their Northwest Side home this month, Foddrill was personable, calm, and at times even dryly funny. But just wait till he gets to his computer.

Every public official and journalist in town knows Foddrill's work well. They cringe, roll their eyes, and collectively hit their delete buttons each time Foddrill targets their inboxes. In recent years Foddrill has sent his increasingly nerve-rattling screeds far and wide, part of a crusade to expose what he considers to be a long trail of corruption at City Hall. The mission not only got him fired from his municipal job, he claims, but got him booted from the halls of local government. To date, no local, state, or federal law enforcement agency has been willing to open a file on his allegations, despite, or perhaps because of, his frequent venom-soaked email campaigns. In the past he's demonized nearly every politician, reporter, or local activist that has engaged him but failed to immediately champion his cause.

But Foddrill's real problem is one that has been hiding in plain sight, his tactics so off-putting that most would rather look the other way. The recipient of a sweeping criminal trespass warning from city officials, Foddrill is banned from stepping foot in City Council chambers, among other city-owned buildings. Upon threat of arrest, and a Class B misdemeanor punishable by up to 180 days in jail and a fine of up to $2,000, Foddrill's barred from City Hall and Municipal Plaza. He can't protest outside either building, nor can he attend Council or virtually any other local government meeting, including so-called "citizens to be heard" sessions where voters can air their complaints to local elected officials.

San Antonio Police Chief William McManus and City Attorney Michael Bernard appear to have used this power sparingly, signing only two such letters since 2009, according to city criminal trespass letters obtained through an open records request. But the bans, both against disgruntled former City of San Antonio employees, appear to follow no set protocol. City officials have yet to explain to either Foddrill, a former city telecommunications manager, or Michael Cuellar, a former SA Fire Department contract coordinator and criminal no-trespass warning recipient (full disclosure: Cuellar is the brother of former Current blogger DeAnne Cuellar), exactly why they were banned. Neither were given notice before the bans were issued nor is there any route within the city for them to appeal the decision. Cuellar was banned this summer soon after he began filing open records requests with the city, convinced he'd uncovered fraud and waste in the handling of fire department contracts.

For both Foddrill and Cuellar, the bans are indefinite, and "shall remain in effect until you are notified, in writing, by someone with authority to act on behalf of the City of San Antonio that these prohibitions have been lifted," according to their letters.

Both Bernard and McManus have declined to discuss the cases with the Current. Bernard refused to answer even general questions about how or why the city might choose to ban a citizen indefinitely.

"A Criminal Trespass Warning letter can be issued in direct response to a threat, threatening behavior, and/or harassment wherein repeated contacts by an individual are made thus creating an environment of fear," McManus wrote in a prepared statement. "Criminal Trespass Warning letters are typically issued when the behaviors previously mentioned are clear and obvious."

But while the courts have ruled government can put reasonable restrictions on time, place, and manner of free speech, a recent federal court decision against the City of Austin's criminal trespass policy proves San Antonio's tactics a clear unconstitutional overreach, civil rights watchdogs say.

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Foddrill's well-known and sweeping allegations of corruption and mismanagement of city funds didn't materialize out of thin air, and appear to have had at least some basis when he began his fight in 2006. Former Current editor Elaine Wolff (who, now with Plaza de Armas, has written about the city's criminal trespass policy) first gave Foddrill's allegations a full vetting in a 2008 story, examining how Foddrill, while with the city's Information Technology Services Department, tried to blow the whistle on billing irregularities in his department that led him to a multi-million dollar slush fund. Months after notifying supervisors of the problem, Foddrill says he was escorted off the premises, fired over claims of poor job performance. Still, Foddrill clung to the hope that a 2009 whistleblower lawsuit against the city would clear his name and ultimately lead to criminal investigations for all parties involved.

Foddrill never got his wish. And soon after losing his whistleblower suit, Foddrill began firing off lengthy affidavits loaded with allegations that city officials who testified in his whistleblower trial lied under oath. Local FBI, Bexar County Sheriff's and SAPD officials all disregarded his claims.

Then, in July 2009, Foddrill got a call from his family attorney, who was leaving police headquarters downtown. "He said, 'John, they've got a photo of you posted at the front desk,'" Foddrill recalled his attorney saying. Within hours, two SAPD officers showed up on Foddrill's doorstep, hand delivering his criminal trespass notice signed by Chief McManus (who Foddrill routinely refers to in letters, emails, and online comment threads as "McAnus") and City Attorney Bernard.

For a year, Foddrill says, he sent letters to the city asking for an explanation. "I hired an attorney, spent good money asking why, and they still haven't given a reply," he said. Foddrill also filed numerous open records requests with the city, seeking any documents outlining any internal policy or decision that led to his ban. His requests turned up nothing. An open records request the Current filed in mid October requesting similar documents largely came up dry.

Citing attorney-client privilege, the city has contested a subsequent request by the Current for police and city attorney records related to Foddrill, Cuellar, and Raymond Galvez, who was banned from city convention, sports, and entertainment facilities offices, along with the city's employee parking lots, in 2010, according to city records. The city's letter contesting the release of records to the Attorney General calls Galvez a former city employee who was terminated for job performance. In its letter to the AG, the city also alleges "Mr. Cuellar enlisted the assistance" of the Current in seeking city records (the Current did not file the request on Cuellar's or anyone else's behalf).

From what little Foddrill has managed to gain through his requests to the city, it appears local police have never ruled him a violent threat.

By summer 2011, soon after Foddrill says he began emailing his usual screed to individual officers within SAPD, records show an SAPD sergeant with the San Antonio Regional Intelligence Center — the federal Department of Homeland Security-recognized "fusion center" where local, state, and federal law enforcement efforts coalesce — contacted SAPD's mental health unit requesting a threat assessment on Foddrill, since one had never been done in the past.

"Mental Health Detail is routinely asked to assist in cases involving a person who is passionate and at times fanatical about reaching out to high ranking officials from the City of San Antonio, the Police Department, FBI, NSA, among other agencies," an SAPD mental health sergeant wrote in one email Foddrill has obtained.

Authorities at the Intelligence Center, according to records, found no red flags when they ran a background check on Foddrill. "[H]e hasn't been shown to be violent, though he does appear to be highly intelligent," one SAPD sergeant with the Intelligence Center wrote. Despite no criminal record and no violent history, authorities still wanted an SAPD mental health evaluation, according to the email, due to Foddrill's "fixation and obsessive nature."

At around 10 p.m. on July 4, 2011, two plainclothes officers with SAPD's mental health unit knocked on the door of Foddrill's Northwest Side home. When nobody answered, they sought out Foddrill's neighbors.

"They asked if I knew if John had mental health problems, if he was bothered in the mind or something," said Guadalupe Carreon, Jr., who lives next door to Foddrill. The officers asked Carreon, his wife and his son if Foddrill had ever been violent, threatening, or if Foddrill kept guns in his home, Carreon says.

Carreon phoned Foddrill, who was inside caring for a wife recovering from neck surgery. Foddrill kept the cops outside his home for an hour before letting them inside.

The officers in their report noted being "unable to find a mental health issue involved, no crisis, and no signs of danger to self or others." They also wrote, "Mr. Foddrill is frustrated that no one will investigate what he considers to be misappropriation of funds by the City of San Antonio."

"[Foddrill] did not display any signs of mental illness nor was he a danger to himself or others," they continued. "[Foddrill] seemed to be very credible and had documentation to substantiate his accusations. He stated he was frustrated with his inability to reach anyone within the city to help him out. He has been without a job for approximately five years and feels the city is preventing him from being able to get employment elsewhere."

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The John Foddrill SAPD mental health officers met that night stands in stark contrast to the one downtown Councilman Diego Bernal encountered in the online world.

Soon after he took office in 2011, Bernal became the latest public official to openly engage Foddrill and hear out his claims. Via email, Bernal asked to see Foddrill's criminal trespass notice and other records related to his allegations. Foddrill would include replies like, "You realize that you are in the middle of a massive criminal conspiracy to hide three decades of police/public corruption."

Things went downhill quick.

After one nasty response, Bernal wrote Foddrill, "Got it. Thanks. Making a target out of someone who is willing to listen is impolite. Thanks." Foddrill sent more mass emails, claiming to have delivered complaints to the Bexar County elections department and the Secretary of State's office demanding a full investigation of Bernal's "illegal swearing-in." Bernal ultimately blocked Foddrill from his Facebook page. "In many ways it runs afoul of my open-government position, but once he started to attack other visitors to this page, he made the decision for me," Bernal wrote.

Foddrill's venom didn't end there. When local Occupy San Antonio protestors began organizing actions in the fall of 2011, Foddrill seemed a natural ally. But online communications soon broke down with Occupiers and activists claiming to be with the hacktivist collective Anonymous when they chose to ignore Foddrill's allegations against the city. More mass emails followed, ranting about "the masked little boys who lead the movement and their flock of sheep-like followers" who "find a need to protect corrupt city politicians." It's at that point Foddrill began circulating bizarre allegations that Bernal was colluding with Occupy and Anonymous activists to harass and threaten him, all in a concerted effort to keep the claims of fraud and corruption buried.

To Bernal, Foddrill is not your average disgruntled citizen.

Bernal says he's grown accustomed to folks like Jack Finger, a staple at Council meetings who regularly and aggressively launches into tirades against Bernal and other city leaders at the dais. "I'm used to that, I'm used to people sometimes screaming or sometimes berating me, I'm OK with that," Bernal said. "No matter how angry they get, if and when I see them outside Council, I know they don't like me but that's the end of it."

Bernal worries Foddrill is different. "My dealings with him have been very different because he's so unpredictable," Bernal said. Bernal says he couldn't reason with Foddrill, and that the more they communicated, "the increasingly angry and personal it became," he said. "I didn't know what to do with that guy," he said. "I really don't know what he's capable of, but he left me with the impression that it was more than I'm comfortable with."

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Michael Cuellar was issued his criminal trespass warning in late August. Cuellar says he was forced to resign from his position as a contract manager with the city's fire department in February after internal squabbles, though he claims he's legally unable to discuss the matter publicly. When he filed for documents justifying his ban, Cuellar in September got a reply saying, "There are no responsive records for this request. … The Communication and Public Affairs Department and Public Information Office cannot provide you any further assistance with your concerns about the Criminal Trespass Warning Notice Letter you received."

Cuellar appears to be following the trail blazed by Foddrill, papering City Hall with records requests, while flooding the inboxes of local officials and reporters with his long communiqués.

"I didn't know how else to pursue the matter except to just send all this stuff out there," Cuellar said in an interview this month. "I found myself doing the same thing as John … and I get the impression that's exactly what they want you to do. They want you to run around like a chicken with your head cut off, so you give off this perception and get drowned out." Cuellar insists his and Foddrill's tactics are a natural reaction to feeling helpless.

The city will, however, allow Cuellar back into Municipal Plaza for a pair of public meetings. The city's Ethics Review Board has agreed to hold open hearings on complaints Cuellar has filed over the city's handling of alleged kickbacks to city employees at the Alamodome and regarding a controversial Convention Center reconstruction contract.

All five men Cuellar has accused — Deputy City Manager Pat DiGiovanni; construction firm owner David Zachry; former Alamodome general manager Marc Solis; city downtown operations director Jim Mery; and Alamodome booking and services manager Michael Flores — have denied any wrongdoing in letters filed with the city. In one such letter, Zachry attorney Robert Newman labels Cuellar's behavior "harassing," citing the over 30 open records requests Cuellar's filed with the city within the past five months. Newman also cites Cuellar's criminal trespass warning as reason to reject his claims.

Although it didn't issue any punishment, the city's Ethics Review Board in October already ruled DiGiovanni "unknowingly" violated the city's ethics code for his part in awarding the Convention Center contract to a partnership that included Zachry Corp. As DiGiovanni headed a panel vetting Zachry Corp's bid for the contract, David Zachry, a board member of the downtown revitalization nonprofit Centro Partnership, was involved in discussions to hire DiGiovanni as Centro CEO.

Cuellar claims the board has yet to consider a provision of the city's ethics code requiring that contract bidders report potential conflicts of interest, something Zachry didn't do. Cuellar also claims in his complaint DiGiovanni used city time and resources while negotiating the new job at Centro, and he questions whether DiGiovanni ever cited his position overseeing the Convention Center bid selection process while interviewing with Centro.

DiGiovanni, who starts with Centro after the New Year, also oversaw operations at the Alamodome, where city employees were reprimanded for accepting free or discount hotel rooms in exchange for giving vendors free suites. DiGiovanni suspended Mery for three days, while another supervisor gave Solis a five-day suspension. Flores was given a written reprimand.

Cuellar's ethics complaint charges city officials should have handed their findings over to law enforcement to investigate any criminal wrongdoing. Officials also failed to seek an independent audit, which Cuellar claims is requisite for any allegations against top city officials. The Ethics Review Board is set to hear complaints regarding the Alamodome controversy December 17, while a hearing on the allegations against DiGiovanni and Zachry has been postponed for a later date.

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In September, Federal District Judge Lee Yeakel concluded that Austin's use of criminal trespass notices to disburse Occupy Austin protesters at city-owned property last year was unconstitutional, violating both rights to due process and free speech protection provided by the First Amendment.

There are key differences between Austin's policy and San Antonio's criminal trespass warnings. While Austin had a discernible, publicly available policy that banned protestors for one year, officials there weren't so restrained in who they targeted — police issued roughly 100 criminal trespass warnings during the city's Occupy protests, some for offenses like "provocative" or offensive language.

Notably, though, both men who sued the City of Austin, Rudy Sanchez and Kris Sleeman, had their bans lifted within months after contesting them. They charged forward with their lawsuit anyway, claiming the criminal trespass policy had a chilling effect on protest and free speech.

Jim Harrington with the Texas Civil Rights Project helped represent the protesters in their suit against the City of Austin. "I think the ruling is very clear," he said. "You can't summarily ban somebody without due process."

"I think what they're doing is clearly unconstitutional," Harrington said of San Antonio's tactics with Foddrill and Cuellar. "You can't indefinitely ban somebody from speaking to or contacting public figures.

"The First Amendment is designed to protect irritating, obnoxious, or troublesome speech. Once you let the government decide this is troublesome, or that's obnoxious, or whatever, you've left the door to abuse wide open."

"Plus," Harrington said, "You don't send a mental health unit at 10 o'clock at night on a holiday," referring to Foddrill's case.

Even though Harrington says he's troubled by San Antonio's policy, don't expect the Texas Civil Rights Project to champion the local cases. The organization has heard from both Foddrill and Cuellar, and has opted to stay away. Their flaws are too apparent, and their approach has grown too toxic to endorse.

"They're obnoxious," Harrington remarked. "But dealing with people like this, that's part of the benefit of being a public official."

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