After 5 years of silence, Acosta speaks about confidentiality agreement
by David Crowder
Posted on August 24, 2009
Editor's note: Today's story about Emma Acosta is the first of three parts scheduled to run on consecutive days. The series is based on exclusive interviews with Acosta covering aspects of her history and experiences as a city department head that she was prevented from discussing by a five year confidentiality agreement that expired in June. NPT posted document reviews on the agreement in 2005: March 2, 2005 and March 15, 2005. The agreement also can be viewed by clicking here.
District 3 City Rep. Emma Acosta is only the second former career city employee and department head to be elected to City Council, but she is the first person known to have left the city with a confidentiality agreement to keep her quiet.
Signed May 25, 2004, that agreement marked the end of a rocky relationship between Acosta, then director of the city’s Solid Waste Department, and the city’s top officials about whom she was barred from saying anything negative for five years.
The five years are up.
“I kept my word,” Acosta told Newspaper Tree. “I kept quiet for five years.”
The agreement referred to all city officials but specifically named five, former Mayor Joe Wardy, former Chief Administrative Officer James Martinez, former Public Works Director Ed Drusina, former assistant city attorneys Marvin Foust and Terry Garcia. [Newspaper Tree altered this paragraph at 5 p.m. Monday to correct a reference to Terry Garcia]
Acosta retired with a $90,000-a-year pension, which was significantly more than the pension she normally would have been entitled to upon retiring after 29 years with the city at her regular salary.
The confidentiality agreement was to last five years from the date of her May 26, 2004 physical departure or a date at the end of June when she had used all of accrued leave and the city was no longer paying her.
Two months after Acosta signed her confidentiality agreement, a lawyer in the city attorney’s office, left City Hall with what is believed to be only the second confidentiality agreement a departing city employee has been pressured to sign.
Former Assistant City Attorney Michael Moffeit later confessed that he had sold his silence for several thousand dollars he received in the form of additional paid administrative leave he would never have gotten without signing.
In both cases, the punishment for a breach of the agreement was $10,000, for which the city would have the right to sue and collect.
Acosta’s agreement also gave her the right to file a claim or lawsuit against the city for $5,000 in damages if Wardy or two of his executive assistants, Martinez, then City Attorney Lisa Elizondo, violated the agreement by making “any gratuitous derogatory remarks regarding Ms. Acosta, including comments regarding her aptitude, management skills, employment, any internal or external investigation of the Solid Waste Department and/or retirement form the city.”
Former city Rep. Paul Escobar called the extra cash and benefits paid to Acosta and Moffeit “hush money,” and joined other council members in condemning confidentiality agreements for public employees in general and the deals given to Acosta and Moffeit, in particular.
Mayor John Cook and members of the city attorney’s office and City Council have told Newspaper Tree that Acosta and Moffeit are the only departing city employees ever asked to sign confidentiality agreements by the city.
Acosta also signed a severance agreement in which she agreed to never apply for a job with the city, which has caused some people to wonder whether running for City Council and being elected violated that agreement.
Leticia Chavez became one of them while watching the election melee between Acosta and the former District 3 city Rep. Alexandro Lozano this spring.
He raised questions about Acosta’s history with the city and the Solid Waste Department, about her residency and about the fact that Acosta would, if elected, be getting paid for serving on the council while receiving a pension from the city.
“My biggest question was why, if Mr. Lozano is making these allegations, she didn’t address them and tell the voting public,” Chavez said. “Then, I see she is under this gag order.
“I kind of felt like we’re electing a person, and we can’t know about her past. While she was director, there were questions about the landfill and her involvement in the Villafam deal. You fight fire with fire, so why doesn’t she come forward and come clean? But with the gag order, she can’t.”
During Acosta’s tenure as department head, Hector Villa was indicted and later convicted for defrauding the city out of hundreds of thousands of dollars by falsifying disposal records of the Household Hazardous Waste Program, which his company, Villafam Contracting Services, was hired to run.
Since Acosta won the election, Chavez said she is no longer concerned about some of the petty questions, such as Lozano’s allegation that Acosta didn’t really live in District 3 when she won the special election of 2008.
But Chavez still wants to hear from Acosta about the major issues behind the confidentiality agreement.
“What were the circumstances of her retiring?” Chavez said. “It was obviously not voluntary. My biggest question is what with all those issues going on, the confidentiality, the settlement and terms of the agreement, it seems the intent was for her to go away and not come back.
“My question is, does she feel there is a conflict of interest? Does she feel there is a moral issue not that she’s back getting this pay and benefits as an official?
“If not, if she feels no conflict or no issue, then it’s a question of ethics. Isn’t it an obligation for her to answer all these issues?”
Acosta wasn’t anxious to answer a lot of questions about her tenure as director of the Solid Waste Department for five years and her final days with the city.
But after several requests from Newspaper Tree – and the suggestion that a story would be written with her cooperation or without it – Acosta agreed to a request for an extended interview and follow up questions.
For starters, Acosta’s severance agreement bars her from ever again seeking employment with the city. And she says she hasn’t.
“I’m not an employee of the city, I am an elected official, an employee of the people of this community,” she said.
She said she discussed the situation with her lawyer and added that no one at City Hall, particularly the city attorney or Human Resources Department, has challenged her right or ability to serve on City Council.
But the question isn’t settled on everyone’s mind.
One member of City Council, city Rep. Carl Robinson, questions the distinction Acosta draws between working for the city and working for the voters.
“What’s the difference? She’s on the payroll,” he said.
End of part 1,
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