City officials are asking that the appeals of three Fort Worth officers fired in an overtime scandal be tossed out after the trio voluntarily surrendered their peace officer licenses in January to avoid federal prosecution.
In three motions filed with the Civil Service Commission on March 26, Assistant City Attorney Elizabeth Dierdorf argues that the appeals of former officers Marcus Mosqueda, Ron Wigginton and Tahwana Zavala are now moot because the three are no longer licensed peace officers.
Dierdorf said the former officers could be awarded back pay only if they were reinstated to their former positions. Without a peace officer license, she argues, the officers can not be reinstated.
Terry Daffron Porter, who is representing Mosqueda and Wigginton in their appeals, says the license surrender shouldn’t affect their cases.
“They felt tremendous pressure, and they felt bullied by the feds,” Porter said, explaining why they surrendered their licenses. “These guys have gone through five years of hell. They went through state charges and the public humiliation, then everything gets dismissed and then the feds decide to pick it up.”
Porter says she believes if the officers win their appeal, a hearing examiner could still award them back pay for the time between when they were fired and when they either surrendered their licenses or were awarded their jobs back — equivalent to about four years of lost wages.
She said she also believes the officers could be reinstated to a non-sworn position within the department.
Matt McConahay, who is representing Zavala in her appeal, said in an email that the city attorney’s argument for tossing out the appeals is a “ridiculous claim” and that the “City deems itself above the law and simply disregards the interests of justice, and seeks to prevent itself from paying these officers what they deserve.”
Federal charges pending?
The Star-Telegram has confirmed that four other officers implicated in the scandal also relinquished their Texas peace officer licenses earlier this year in exchange for avoiding federal prosecution.
Only two officers — James Dunn and Maurice Middleton — refused. Neither had been charged federally as of Wednesday.
A spokeswoman with the U.S. attorney’s office has said she could not comment on whether prosecutors plan on filing federal charges against the two officers or have dropped their cases.
Defense attorney Reagan Wynn, who is representing Dunn, said he has not received word from the U.S. attorney’s office whether his client will be charged in the case.
“I have not received a final word one way or the other,” Wynn said. “The last communication I had indicated that the investigation was pending.”
Fort Worth City Attorney Sarah Fullenwider said in an email that the city could not speak for the U.S. attorney’s office.
Fullenwider did say, however, that city attorneys will be asking the hearing officer to set hearing dates for Dunn and Middleton’s appeals.
The two officers’ appeals had previously been on hold because of the threat of federal charges. That hearings are being requested by the city could be indicative that no federal charges are expected against the two officers.
State charges dismissed
Mosqueda and Wigginton were among six officers who were fired in December 2010 after being accused of falsifying government records to collect overtime under a federal grant program. Another three officers implicated in the investigation resigned or retired.
The investigation began after traffic supervisors reviewed the ticket books of officer Herman Young, who had gone on leave, and noted inconsistencies and blank entries in times logged on the tickets.
At the department’s request, the FBI and the U.S. Transportation Department’s inspector general joined the investigation because the grant involves federal money, which is then distributed by the state.
Federal authorities initially passed on filing charges, deferring to the state.
Eight of the officers — Young, Mosqueda, Wigginton, Dunn, Middleton, Robert Peoples, James McDade and Jonathan Johnson — were indicted on state charges of tampering with a governmental record and theft by a public servant. Patrick Aguilar was never charged after agreeing to relinquish his peace officer’s license.
Prosecutors, however, dismissed the charges in January 2014, announcing new information had “been revealed that affected the viability of the prosecution.”
A month later, in February 2014, the police department fired Zavala, who some attorneys have alleged was protected by a supervisor during the initial investigation into overtime scandal. The Tarrant County district attorney’s office said Zavala would not face state charge because the statute of limitations had run out.
In December, outgoing Fort Worth Police Chief Jeff Halstead, in an interview with the Star-Telegram, blamed the charges’ dismissal on the “significant delay” in the prosecution’s movement of the cases.
Prosecutor Dave Lobingier, who has since retired from the district attorney‘s office, disputed the chief’s claim and revealed that the charges had been dismissed because evidence showed that the city was using an illegal ticket quota system.
Even with the dismissal of state charges, the threat of federal charges continued to hang over the officers for more than a year, prompting a hearing examiner to put on hold any appeals filed by the fired officers.
Earlier this year, however, seven of the officers — Wigginton, Zavala, Mosqueda, Young, Peoples, McDade and Johnson — voluntarily relinquished their Texas peace officer licenses.
“It was a diversion agreement with the U.S. attorney’s office,” said Jim Lane, the attorney for Peoples. “In exchange for [federal officials] not going forward with their investigation or any possible criminal proceedings, we agreed to relinquish their peace officers licenses. And that’s exactly what happened.”
Greg Westfall, Wigginton’s defense attorney, said he and his client decided it would be better to give up the license than depend on the federal statute of limitations for prosecution running out.
“I don’t think we were bullied. All of us but two made the decisions — our clients made the decisions — to go ahead and relinquish their license and no prosecution would ever occur,” Westfall said. “Whether or not the prosecution would have been successful, only time would tell.”
Mike Ware, who represented Young, said that because his client had retired from the police department, “he had no use for his peace officers license.”
Defense attorney Lance Evans, who is representing Middleton — one of the two officers who refused to give up their licenses — did not return messages seeking comment.
Wynn said Dunn’s decision not to give up his license was simple.
“Officer Dunn has asserted his absolute innocence of any criminal wrongdoing since he was first involved in this investigation and he has not wavered from that position,” Wynn said.
Deanna Boyd, 817-390-7655