The city of Fort Worth destroyed information being sought by an attorney handling a fired IT manager’s whistleblower lawsuit, a city employee alleges in an affidavit.
The allegation was made in a memo sent to city officials Monday by Rabiah Memon, a senior IT programmer analyst with the city since May 2015.
That memo and an affidavit by the city employee is the subject of a motion filed Tuesday in Dallas County by Stephen Kennedy, the attorney for William Birchett, seeking a temporary restraining order against the city to prevent it from destroying evidence.
Birchett filed suit against the city of Fort Worth last week, alleging that he was fired in February in retaliation for reporting to officials that the city’s cybersecurity had been severely compromised and that, among other things, the city had lied about its compliance with FBI crime database regulations.
“It is my understanding that the city is supposed to protect and not delete any information that is related to Mr. William Birchett’s whistleblower case, however, unfortunately that has not been the case,” Memon wrote in the memo.
Assistant City Manager Susan Alanis told the city council the allegations were “not factual.”
“It is our belief that the City has complied with putting an appropriate legal hold on all pertinent records and the allegations are untrue,” she said in an email to the Star-Telegram.
A hearing on the matter is set for Thursday.
In a statement previously released by the city regarding the whistleblower lawsuit, the city stated Birchett was fired for failing to follow management directions and do the things reasonably necessary to bring the city into compliance. They said the city is now in compliance with all federal regulations and “is in line with industry practice for these protection measures.”
Kennedy is also representing Fort Worth Police Chief Joel Fitzgerald, who was fired by the city manager on Monday.
In her memo, Memon wrote that she was supposed to hand over evidence of Criminal Justice Information Services (CJIS) violations to Fitzgerald at 3 p.m. Monday, but that the chief was fired just before their meeting.
“I decided to submit the evidence and my concerns to you since Mr. Fitzgerald has been terminated,” she wrote in the memo, addressed to Alanis, Interim Police Chief Ed Kraus, and Dennis Shingleton, city councilman and vice chairman of the audit committee. “I also intend to provide this information to [the] Department of Public Safety, FBI, and any criminal or civil proceedings as crucial evidence.”
Memon alleged that the city has made no efforts to protect logs for individuals involved in the Criminal Justice Information Services audit.
“There are several individuals in IT who were part of the CJIS audit however it is my understanding that their license has been downgraded recently, and they were not put under litigation hold,” she wrote.
She said that included an employee who had served as project manager for the CJIS audit.
“City of Fort Worth should have put her account under litigation hold as she is a witness and has led the project for CJIS,” Memon wrote.
Instead of saving this evidence, Memon wrote, the employee’s license was downgraded, which which removes archives of instant messaging chats.
The change, according to Memon’s memo, occurred after the city had received a preservation request from Birchett’s attorney.
She alleges the city also downgraded the license of the employee who replaced Birchett.
The memo also includes an excerpt of an alleged November 2018 chat between Kevin Gunn, the city’s acting chief financial officer, and David Callahan, Memon’s supervisor, who is on administrative leave while the city investigates allegations of alleged sexual harassment or inappropriate conduct.
In the conversation, discovered by Memon while performing a past public information request, the two discussed the retention of instant messaging and text messages.
In his motion, Kennedy wrote that he sent six letters to the city between March 15 and April 11 demanding that it preserve evidence.
“Despite receiving six very specific letters instructing the City to preserve evidence, the affidavit of Rabiah Memon demonstrates that the City is actively working to do just the opposite,” Kennedy wrote. “The City is required to maintain evidence.”
He is asking the court to issue an emergency order that the city “preserve all evidence related to whistleblower claims” by Birchett, Ronald Burke and Fitzgerald.
Burke, Birchett’s former supervisor who was also terminated by the city, and Fitzgerald have not yet filed lawsuits against the city but are also being represented by Kennedy.