Attorneys question independence of probe into El Paso County Sheriff's Office

June 13, 2014 Updated: June 13, 2014 at 10:57 pm

Two attorneys representing employees of the El Paso County Sheriff's Office said they are concerned an investigation into possible wrongdoing by Sheriff Terry Maketa is not truly independent.

The El Paso County Commissioners commenced the investigation in May following allegations from three Sheriff's Office commanders that Maketa created a hostile workplace and had affairs with three female employees he then promoted. Commissioners encouraged any affected employees to speak to investigators, but the attorneys the investigation favors the county over employees.

"The people overseeing the investigation are defense attorneys whose job it is to say the county has done nothing wrong. It's a fox in the hen house" said Erin Jensen, an attorney who represents three sheriff's office employees. He has told his clients not to talk to investigators.

County commissioner Peggy Littleton said the commissioners have been briefed by the independent investigator and she has faith that it's a good process.

Ed Farry, another attorney representing Sheriff's Office employees, said he also has "serious concerns" about how the investigation is configured.

"If it is really going to be an independent investigation, it has to be transparent," he said.

Instead, he said, the private law firm of Sherman and Howard, which is overseeing the investigation, can choose what it releases.

"What if there is a witness that corroborates our claims 100 percent and they don't give them to us?" Farry said.

The investigation is set up like this: The county hired Sherman and Howard to represent it in the matter. Sherman and Howard hired the Mountain States Employer's Council to do the investigation. Mountain States is a not-for-profit organization that provides legal advice, human resources consultation, wage and benefit surveys and training and development for employees, managers and leaders, according to its website.

The structure could allow information gathered to be treated as confidential and not available to the public or other attorneys.

The county has a disincentive to share damaging information, private attorneys say, because the county could have to pay damages.

"There is no independence here," Jensen said. "The duty of the law firm is to protect the county. They can sweep everything under the rug."

That won't happen, according to assistant county attorney Diana May. In a letter to the private attorneys, she said the investigator is acting independently, and would report summaries of her findings directly to the commissioners, but omit names and details to protect employees who come forward.

"They will be briefed on the general findings by Sherman and Howard concluded from the investigation," May said in the letter. "At the conclusion of the investigation, the Board will not be informed who was interviewed and what the interviewee reported. Nor will they examine or review collected evidence."

Contacted by The Gazette, May declined to comment further. A spokeman for Mountain States said the organization does not comment on investigations.

The commissioners were briefed directly by the investigator this week, Littleton said.

"I certainly have the expectation that Sherman and Howard would not be a middleman between the independent investigator and the commissioners," she said. "If any red flags are waved that that is not happening, this commissioner will not allow that. The whole reason for having an independent investigation is to have confidentiality, transparency and information that was not filtered."

Maketa also appears to be influencing the investigation.

An email sent to Jensen shows the Sheriff's Office attorney is arranging interviews for the independent investigator.

"They know what she is doing and who she is talking to," Jensen said. "Why, if she is investigating the Sheriff's Office, are they involved?"

A Sheriff's Office spokesman said the office attorney is no longer arranging interviews.

When county information technology employees came to the Sheriff's Office last week to copy the hard drives of seven people involved in the investigation, an employee who did not want to be named for fear of retribution said he witnessed Maketa tell them to also copy hard drives belonging to Commander Bob McDonald and Sheriff's Office IT employee Tom Thieme.

"He told them to do it, and they did it," the employee said. "He suspects these guys of leaking the text messages about his affairs, and he wants to catch them. He has his own investigation hiding within the investigation."

A Sheriff's Office spokesman said, "Reasons surrounding the imaging of the hard drives you mentioned is part of the independent investigation and will not be released."


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