BELEN — At the end of a tense and heated special meeting Monday, the Belen City Council voted 3-1 to release a confidential investigation report regarding the police chief to the city’s auditor.
Robert Peixotto, managing member of Southwest Accounting Solutions, told the council if the city didn’t release the report to him, he would give the city a modified audit opinion, meaning the auditor was unable to obtain sufficient appropriate audit evidence on which to base the opinion.
The effect of a modified opinion could be devastating to a city in that municipalities who receive a modified audit opinion would not be eligible for state and federal funding.
Belen Mayor Jerah Cordova and City Manager Leona Vigil reminded the councilors during the meeting the city’s attorney has advised them on several occasions not to release the report, saying it could open the city up to a lawsuit for releasing protected personnel information.
The city recently paid Robert Caswell Investigation to conduct an investigation of BPD Chief Victor Rodriguez regarding complaints from numerous police officers. The investigation ultimately revealed the chief was absolved of the allegations brought against him.
“The auditor says that any documents he requests, he should get and then determine whether or not they are relevant to the audit and then to determine if its relevant to be placed in the city’s audit,” Cordova said during the meeting. “According to the auditor, because it was requested and not received, and he has been unable to review whether or not there is information significant in the report, we would get a modified audit.”
Vigil said she was asked several times by the auditor and other individuals to release the report to him, otherwise it would affect the audit.
“I did check with the attorney once again as to whether I could release the report, because I didn’t want to hurt the citizens of Belen,” Vigil said. “He said there was no way I could release it because I could personally get sued by everyone involved ...”
In an email to Vigil from the city’s attorney, Jun Roh, he wrote, “ ... the Mayor and City Council advise and direct the City Manager on the conduct of city activities, and therefore, they are the governing body of the City and the ‘clients’ whose communications are privileged, stated as attorney-client privilege.
“In order to obtain the consent from all of the governing body, the City must hold a regular or special council meeting to vote on the agenda; otherwise, you will be in violation of the Open Meetings Act. In addition, releasing personnel matters contained in the privileged information will subject the City to a potential lawsuit.”
Cordova said he had been in touch with the deputy state auditor about the issue, and said while she couldn’t provide an opinion, the city does have the ability to release the information if the council wishes to.
Councilor Ronnie Torres asked if it was normal procedure for an auditor to request personnel information while performing the audit into the city’s financial procedures.
“I don’t understand why they would come and ask for this kind of information, which has nothing to do with our finances,” Torres said. “It should have nothing to do with our personnel issues. To me, it should be none of their business. I have a very big issue for them to get involved in our personnel issues ... This looks like a witch hunt to me.”
Peixotto, who said he is conducting audits at nine or 10 different municipalities, said it happens during every audit.
“We go and test personnel records to make sure they are being paid properly ... When we do an audit, we assess risks at all levels,” Peixotto said. “We look at risks from tone at the top all the way to payroll ... to everything.
“And further, as far as seeing that there’s an IA report, that’s a huge interest to me as far as what risk is there in relation to possible liability to the financial statements, what risk of loss is there.”
The auditor claims when asked about the report, he was “blatantly lied to” about the report and the purchase order for the company who conducted the investigation into the police chief.
“If you want my opinion, you cannot restrict information from me,” he said. “I have never been restricted from information from a municipality ever before. The fact you restricted information from me is all it’s going to do is shine a big spotlight on this. The attorney general is going to be involved, the state auditor is going to be involved, and everything is going to come out.”
Councilor Wayne Gallegos told the council he had a conflict with this issue because he had been invited to both the entrance and exit audits conferences.
“Last week were put on notice we were going to have an exit conference and then we weren’t going to have one,” Gallegos said. “Then we were told there was certain information that had to be looked at, including financial liabilities the city was facing. The answer was given to them either by (the mayor) or Leona that we would not give them the report.”
Gallegos said he was told last week by the auditor they would have to sign off on documentation to release the information, but he refused. The councilor said he received an email from the auditor later that night saying the mayor and city manager agreed to release the report.
“I took it that it was already agreed that you were going to release it,” Gallegos said.
Both the mayor and city manager said they never agreed to release the report to the auditor.
Councilor David Carter said while he knows the council had the authority to vote on the issue, he thinks it’s a waste of the council’s time and it should have been done administratively.
“The auditors are held to a high degree of confidentiality,” Carter said. “They assess the risk of financial liability to the city regarding lawsuits.”
Peixotto said he feels the city is playing games with him and believes the administration is trying to hide something.
“There is something to protect and that’s personnel information,” Cordova told Peixotto.
Vigil told the council she would not release the information to the auditor unless the council voted to do so.
“I can’t do it on my own,” she said. “The citizens hold you to a higher standard, the citizens elected you, and you’re going to ruin their financials for the next five years? That’s a shame. Because you guys can’t get along, the citizens are the ones that suffer.”
Peixotto said he thinks if the governing body didn’t vote to give him the report, there is an appearance of a lack of transparency.
“If that’s how you wish to govern, that’s up to you,” he said.
Torres said Peixotto is putting the city in a tough position by asking them to go against the advice of their attorney.
Cordova said while he appreciated Peixotto giving the city time to address his concerns regarding the audit, this issue is important to the city, to the employees and to the citizens.
“The bottom line is this audit has been weaponized; it’s been weaponized by the people sitting next to me right now,” the mayor said. “I have read the findings, I have seen the false information in the audit. It’s important to me, it’s important to the city and it’s important to the public that we cut it out. That we stop weaponizing this audit because that’s what’s happening.”
Gallegos countered, saying that’s exactly how he feels.
“I feel the person here sitting the middle of us is the main culprit,” Gallegos said of the mayor, to which Carter said he agreed. “You’re pulling Leona’s strings, telling her what to do. If it goes your way, you’re all for it.”
“This is destructive,” the mayor said. “We’re in the middle of an election and I know things are heated.
“I’ve been blocked from every step of this process. I’ve had only one email from (the auditor) at the beginning of this, and we had one conversation because you had a question for me.”
Before the council voted on the issue, Chief Rodriguez said he was “extremely disappointed,” not in the council but the management. He said he has not seen the report, even though he was exonerated. He told the council while he doesn’t live in Belen, he’s not going to leave his position.
Councilors Gallegos, Carter and Frank Ortega voted to approve giving the auditor the report, while Torres voted against it.
After the meeting, Cordova told the News-Bulletin he will be filing an extensive complaint about the auditor’s violation of audit rules and norms with the state auditor.