Maverick County Commissioners Court approves Legal Action against former Audit Firm
By: Jose G. Landa, Copyright 2015, Eagle Pass Business Journal, Inc.
Maverick County Commissioners Court unanimously approved to authorize Legal Counsel to proceed against former Maverick County Independent Auditing Firm of Leal & Carter, P.C., Certified Public Accountants, of San Antonio, Texas, and issued an Order requesting the state District Judges to investigate Maverick County Auditor Fidencio Ortiz and remove from office at their special meeting held on Monday, February 9, 2015, at Commissioners Court in Eagle Pass, Texas, expanding their investigation of Maverick County’s auditor situation.
At their February 9, 2015 special meeting, Commissioners Court went into Executive Session to discuss four agenda items, including consultation with attorney, discussion, and possible action regarding litigation with former Independent Auditor Leal & Carter, P.C., Certified Public Accountants. Upon a lengthy closed session, Commissioners Court returned into Open Session and County Commissioner of Precinct 1 Gerardo “Jerry” Morales made a motion: “I motion that we direct our Legal Counsel to proceed as directed in Closed Session.” County Commissioner of Precinct 3 Jose Luis Rosales seconded the motion and County Judge David R. Saucedo called the motion for discussion. There was no discussion in open session. County Commissioners Court unanimously approved Morales’ motion.
Although Commissioners Court failed to publicly state what authority they have given Legal Counsel to proceed with against former Maverick County Independent Auditing Firm of Leal & Carter, P.C., it is believed they have authorized Legal Counsel to proceed to make a legal demand against Leal & Carter, P.C., for some type of legal claims for professional negligence or malpractice during their tenure as Maverick County’s Independent Auditing Firm based on past discussions at earlier Commissioners Court meetings.
Current Maverick County Auditor Fidencio Ortiz, appointed by District Judges Amado J. Abascal, III, and Cynthia Muniz on September 24, 2012, is a former employee of Leal & Carter, P.C. for over 20 years. Leal & Carter, P.C. served as Maverick County Independent Auditing Firm before current Independent Auditing Firm of Martinez, Rosario & Company, LLC, was hired. In past meetings, Milo Martinez of Martinez, Rosario & Company, LLC, has noted that there are many deficiencies in Maverick County’s past financial record keeping and management and that the previous Independent Auditing Firm, Leal & Carter, P.C., had issued Auditing Opinions regarding Maverick County annual financial audits during their tenure while Martinez, Rosario & Company, LLC has refused to give a clean Auditing Opinion of their 2010, 2011, and 2012 Maverick County Audits. Martinez is still working on the County’s 2013 Independent Audit.
Although Ortiz was a former employee of Leal & Carter, P.C., he may have not done or been responsible for Maverick County’s Independent Audits during his former firm’s Independent Audits of Maverick County.
Maverick County Commissioners Court’s investigation and differences with County Auditor Ortiz are expanding beyond the contemplated scope approved by Commissioners Court and there are considerable time, energy, labor, and money being expended in this political fight between Commissioners Court and County Auditor Ortiz.
What is also left unclear by Commissioner Morales’ vague motion is which Legal Counsel has been authorized “to proceed as directed in Closed Session.” Is it Maverick County General Counsel Poncho Nevarez or Mariliza Villalpando Williams of the Nevarez Law Group or is it Special Legal Counsel Luis R. Vera, Jr. of San Antonio, Texas whom was hired to represent and defend Maverick County and Commissioners Court’s legal rights against County Auditor Fidencio Ortiz. Morales’ motion does not state which legal counsel. Generally, Maverick County’s General Counsel would handle any possible legal claims on behalf of Maverick County against any third party such as Leal & Carter, P.C. If it is Special Legal Counsel Luis R. Vera, Jr., taxpayers question if Commissioners Court are expanding Vera’s limited special counsel role and responsibilities. If so, this may have additional legal costs to County taxpayers. But since Commissioners Court were extremely vague and lack of transparent in their action, taxpayers are left wondering just what exactly did they authorize and which legal counsel did they authorize.
Another Executive Session agenda item discussed was no. 3 regarding consultation with legal counsel concerning issuing an Order to District Judges to investigate and remove County Auditor Fidencio Ortiz.
Upon returning into Open Session, County Judge David R. Saucedo opened up the agenda item and proceeded to read a prepared Order to be issued to District Judges Amado J. Abascal, III, and Cynthia Muniz.
“ Whereas, the County Auditor may be removed if after a dual investigation by the District Judges and if it is found that the County Auditor has committed official misconduct, is incompetent to faithfully discharge the duties of the office of the county auditor; Whereas, Maverick County Commissioners Court approved a resolution on January 12, 2015 upon the following omissions and incompetence of the County Auditor;…Whereas, the County Auditor continues to serve and District Judges have failed to investigate the County Auditor based on the above findings as Maverick County continues to suffer damages based upon omissions and incompetence of the County Auditor. Now, therefore, being ordered by the Commissioners Court of Maverick County, Texas that this Order be presented to the District Judges and the District Judges perform their statutory obligations pursuant to section 84.009 of the Texas Local Government Code and investigate the County Auditor which includes the above mentioned omissions and the continuing education requirements pursued under section 84.0085 of the Texas Local Government Code and have the County Auditor removed immediately and replaced with an auditor that meets the following qualifications a competent accountant with at least 2 years’ experience in auditing a county, thoroughly competent in public business details, a person of a questionably good moral character and intelligence , this order on this date of February 9, 2015,” read Judge Saucedo.
Judge Saucedo asked for a motion and Commissioner Morales made the motion to accept the Order and approve it while Commissioner Roberto Ruiz seconded the motion. There was no discussion on the agenda item and motion. Judge Saucedo called it for a vote and it was approved unanimously by Commissioners Court.
Commissioners Court approved the Order to District Judges Abascal and Muniz requesting them that they investigate and remove County Auditor Ortiz pursuant to the authority vested in them by Section 84.009 of the Texas Local Government Code. The Order will be presented to District Judges Abascal and Muniz for their consideration. In a past meeting, Special Legal Counsel Vera advised Commissioners Court that if the District Judges fail to act, Commissioners Court may seek Mandamus legal relief in the Texas Fourth Court of Appeals in San Antonio, Texas against the District Judges should they fail to act on their Order. There is a possibility that Commissioners Court may expend taxpayers monies in filing a petition for mandamus relief against District Judges Abascal and Muniz in the Texas Fourth Court of Appeals in San Antonio.
Texas law clearly authorizes the District Judges to appoint, terminate, and remove a County Auditor, not Commissioners Court. Texas law provides a checks and balances of a County government’s budget with Commissioners Court approving the County Budget and the County Auditor authorizing the expenditures within the County Budget. The County Judge is the Chief Budget Officer of a County Budget, according to Texas law.
The current dilemma between the County Judge-led Commissioners Court and County Auditor reflects a philosophical and political fight concerning Maverick County’s financial budget and spending.
Prior to County Auditor Fidencio Oritz’s appointment in September 24, 2012, Maverick County’s financial and accounting record keeping and management was very poor and deficient as documented by current Independent Auditor Milo Martinez of Martinez, Rosario & Company, LLC, and the County underwent through the largest corruption investigation by the U.S. Federal Bureau of Investigation and Texas Rangers, which resulted in over 30 persons indicted for corruption, kick-backs, bribery, and fraud involving Maverick County public construction contracts including three former County Commissioners. Many of these defendants were charged in federal court and have plead guilty to their charges and will be sentenced this month.
Consequently, Maverick County’s annual audits since 2010 to the present have been very difficult to prepare and organize and as a result of the poor record keeping the Independent Auditing Firm has not issued a clean opinion for 2010, 2011, and 2012 County Audits. Meanwhile, state and federal agencies require Maverick County to present their annual audits in order to qualify for grants and loans for public infrastructure and social services programs. The inability of Maverick County to present timely and clean annual audits to state and federal agencies is costing taxpayers millions of funds for much needed public projects and programs. In addition to not being able to qualify for state and federal funding right now, Maverick County has lost two large grants during the past two years, one for $1 Million and another for $580,000, requiring that Commissioners Court de-obligate (return) the funds back to the state or federal government.
One taxpayer commented that instead of Commissioners Court and the County Auditor fighting with each other, they should sit down and work together to get Maverick County’s financial audits and budgets straightened out and stop costing taxpayers millions of lost funding.
