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Commission subpoenas whistleblower notes

Thursday, November 16, 2017 by Jo Clifton

The city’s Ethics Review Commission has sent a subpoena to Nathan Wiebe, chief of investigations at the Office of the City Auditor, demanding previously protected information, including the name of and allegations made by a whistleblower against Margo Frasier, Austin’s former police monitor. It has also demanded witness interview memos and recordings.

The auditor’s office has throughout its history been careful to protect the names of informants, fearing that revealing those names would have a chilling effect on future investigations. That has not changed.

However, the civilian Ethics Review Commission, which is charged with making decisions on complaints about city employees and members of commissions, has recently gotten subpoena power.

Although Wiebe has already provided about 4,000 pages of documentation about the allegation that Frasier used her city computer and city time to work on her secondary employment, the auditor’s office has not produced the name of the original informant or the names of witnesses auditors interviewed to back up the complaint. Wiebe has said he can prove the allegations without the use of those witnesses and intends to do so.

According to the subpoena, Wiebe is ordered to appear in the city attorney’s office at 3 p.m. on Friday with the requested documents.

He said Wednesday that he felt very strongly that producing the information will have a negative impact on his investigative work. He pointed out that the commission was acting on arguments made by Perry Minton, Frasier’s attorney, when they decided to order him to produce the names of the witnesses.

Minton told the commission on Nov. 8 that he must have witnesses’ names and recordings of their interviews in order to properly defend his client. Minton is a well-known criminal defense attorney and Frasier is a former sheriff of Travis County. Frasier retired from the city last December.

City Auditor Corrie Stokes told the Austin Monitor on Wednesday that she is not sure yet what she will tell Wiebe to produce.

During the Nov. 8 meeting, Minton told the commission that Frasier “was in a political situation with other elected officials in this town,” without explaining what that meant. “It was a known fight and I believe that she was targeted,” he said.

Minton also reiterated his argument that former City Manager Marc Ott and his deputy, Michael McDonald, knew that Frasier had secondary work and approved of her doing that work on city time. He also told the commission that he had recorded both Ott and McDonald and would play the recordings for them during a December hearing on the matter.

Wiebe told the Monitor on Wednesday that state law allows the city auditor’s office to protect witnesses and informants except when a subpoena is issued. Peter Einhorn, chair of the Ethics Review Commission, said Wednesday that he was not happy with the commission’s decision to subpoena the names of people previously protected. “That’s what the defense, Margo Frasier’s attorney, is wanting, and a majority of the commission agreed. I actually voted against that. I felt it was important to protect” the anonymity of witnesses, he said. “I do think there is a tendency for retribution for complaints.”

The Monitor attempted to contact three members of the commission who voted in favor of the subpoena, but two did not respond and a third said he would respond by email, but did not respond before press time.

Deputy City Auditor Jason Hadavi, who attended the Nov. 8 commission meeting, also argued against the commission requesting the names. He pointed out that according to the city’s most recent Listening to the Workforce Survey “over 40 percent of employees responded that they do not feel they can file a complaint without fear of retaliation.”

City employees may submit complaints anonymously through a form on the Office of the City Auditor’s website or by calling the office’s Fraud Hotline directly.

Photo by M.Fitzsimmons (Own work) [CC BY-SA 3.0 or GFDL], via Wikimedia Commons.

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