Matters of Confidentiality
by NPT Staff
Posted on March 2, 2005
Background on the City of El Paso's Confidentiality Agreement with Ms. Emma Acosta:
On May 25, 2004, the City of El Paso entered into a Confidentiality Agreement with Ms. Emma Acosta. Ms. Acosta, a longtime employee of the City, was the director of the City's Solid Waste Department at the time that this agreement was signed. Ms. Acosta also signed a "Release of All Claims" on May 25, 2004, apparently in conjunction with the Confidentiality Agreement. According to Ms. Acosta's Release of All Claims, her letter of retirement was also submitted to the City on May 25, 2004.
The Confidentiality Agreement and Release of All Claims establish a number of points of agreement between the City and Ms. Acosta:
• Through the Release of All Claims, Ms. Acosta agreed to "release, acquit, and forever discharge the City of El Paso, Joe Wardy, Jim Martinez, Ed Drusina and the City's officers, employees, directors, agents, servants, attorneys and insurers" from all claims in exchange for a new salary and a retirement package of $90,000.00 per year. (Mr. Drusina was the Deputy Chief Administrative Officer over the Solid Waste Department at the time these documents were created.)
• Also pursuant to the Release, Ms. Acosta withdrew a charge of discrimination, which she had filed against the City of El Paso's Solid Waste Department as Charge No. 361-2004-01668. References to the Age Discrimination in Employment Act of 1967 infer that the charge was one of age discrimination.
• Ms. Acosta agreed to "not apply for employment at, with, or by" the City of El Paso in the future.
• Ms. Acosta agreed to "keep the terms, amount, and fact of this Agreement confidential."
• Ms. Acosta is prohibited for five years from making negative statements about the Solid Waste Department and from making any comments about conversations with the Mayor, Jim Martinez, Ed Drusina, Terry Garcia and Marvin Foust. Ms. Garcia and Mr. Foust are Assistant City Attorneys, both of whom have since been reassigned to El Paso's Municipal Court as Municipal Prosecutors.
• On behalf of Mayor Joe Wardy, Jim Martinez, City Attorney Lisa A. Elizondo and Executive Assistants Laura Uribarri and Adrian Ocegueda, Jim Martinez agreed that these individuals may not "make any gratuitous personal derogatory remarks regarding Ms. Acosta, including comments regarding her aptitude, management skills, employment and internal or external investigation of the Solid Waste Department and/or retirement."
• A violation of the Confidentiality Agreement by the individuals named above grants Ms. Acosta a right to institute a claim against the City of El Paso for $5,000.00 in liquidated damages. However, a violation by Ms. Acosta grants the City a right to institute a claim against Ms. Acosta for $10,000.00 in liquidated damages.
Of note is the question of authority for Mr. Martinez to execute such a confidentiality agreement on behalf of the City and those named individuals, as Mr. Martinez was acting in his capacity as Interim Chief Administrative Officer, not as an attorney. NPT therefore has submitted an Open Records Request to seek the document granting Mr. Martinez the authority to enter into such an agreement on behalf of the City of El Paso. The authority to enter into agreements, including settlement agreements, is normally made in the form of a motion approved by City Council. Mr. Martinez is now on the City staff as an assistant City Attorney, while Ms. Acosta is a candidate for City Council Representative for District 7, a position currently held by Ms. Vivian Rojas.
Background on the City of El Paso's Confidentiality Agreement with Mr. Michael Moffeit:
On July 20, 2004, Mr. Michael Moffeit signed a document entitled "Confidentiality Agreement". Mr. Moffeit was an Assistant City Attorney hired upon the release of longtime Assistant City Attorney Laura Gordon. Mr. Moffeit also signed a "Release of All Claims" on July 20, 2004.
The Confidentiality Agreement and Release of All Claims establish a number of points of agreement between the City and Mr. Moffeit:
• Through the Release of All Claims, Mr. Moffeit agreed to "release, acquit and forever discharge the City of El Paso, Joe Wardy, Jim Martinez, Lisa A. Elizondo and the City's Officers, employees, directors, agents servants, attorneys and insurers" from all claims in exchange for a one-time payment of $5,250.00. This amount represents administrative leave from July 27, 2004 through August 16, 2004 (3 weeks). From the Confidentiality Agreement, Mr. Moffeit was also permitted to use one week of accrued sick leave. Thus, from the date of the Confidentiality Agreement and Release of All Claims, Mr. Moffeit was paid for four weeks, during which time he was either using sick leave or on administrative leave.
• Mr. Moffeit agreed to "keep all information related to terms and conditions of [his] employment and separation from the City of El Paso confidential". Mr. Moffeit also agreed to "keep the terms, amount, and fact" of the Agreement confidential.
• The Release of All Claims also includes a release of any claims based on the Age Discrimination in Employment Act of 1967, but does not note that Mr. Moffeit had filed any such claim.
• Mr. Moffeit is prohibited for five years from making "complaints or negative statements about" his resignation, the City Attorney or the Office of the City Attorney and from making any comments about conversations with city officials, the Mayor, the Interim Chief Administrative Officer, and the City Attorney.
• A violation of the Confidentiality Agreement by Mr. Moffeit grants the City a right to institute a claim against Mr. Moffeit for $10,000.00 in liquidated damages.
It is important to note that, in contrast to Ms. Acosta’s agreement, there is no signature by anyone from the City on the Confidentiality Agreement. In fact, there is no place for anyone from the City to sign the document titled "Confidentiality Agreement". It would seem that this document is not actually an "agreement" between two parties, as only one party has signed it. Also of note is the resemblance of these documents to Ms. Acosta's documents. In particular, the final paragraph of Mr. Moffeit's Release of All Claims includes references to "her choice," which it appears was an error not caught when using Ms. Acosta's documents as templates for Mr. Moffeit's situation. This could also be an explanation for the references to age discrimination in Mr. Moffeit's Release of All Claims.
More than 50 countries worldwide have Freedom of Information Acts. The United States has long protected a citizen’s right to access governmental records that don’t jeopardize national security. In Texas, the Public Information Act (PIA) mimics the national Freedom of Information Act (FOIA). Open records requests made through the City of El Paso are allowed for under the PIA. Newspaper Tree will regularly post documents on topics relevant to El Pasoans, in the belief that access to such information is protected and helpful to citizens in their political decision-making.
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