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Cock of the walk 

Sheriff Maketa is under investigation, but all of us are exposed

Media reports that El Paso County Sheriff Terry Maketa had improper relationships with subordinates — to include sexual relations — upended the community last month and prompted county commissioners to order an investigation that's been only vaguely explained.

County Attorney Amy Folsom has refused to detail the scope of that investigation, its purpose, who specifically is being interviewed, when a report will be delivered, or how much it will cost.

"It ... is the role of the investigators [to determine] what facts are founded or unfounded," she says in an interview. She later adds in an email, "Simply put, until the investigation is complete, it is premature to speculate exactly how it will be used."

Assistant County Attorney Diana May adds, "They will take whatever time they feel is appropriate."

What they'll find, of course, is anybody's guess. But it's pretty clear that if claims of sexual harassment and a hostile work environment created by that harassment can be proved, the county could be on the hook for a lot of civil liability. Money, in other words.

Sexual harassment cases in other states have led to judgments exceeding $100 million (see sidebar). Such a hefty award might not happen here, but the county has budgeted only $3.2 million this year for this type of liability.

Meantime, what happens to Maketa? He's refused to resign, and commissioners can't fire him. Could there be criminal charges filed against him, or others? Will taxpayers fund his legal bills after he leaves office under term limits in January? Will he collect his pension if he's convicted of any crimes or found culpable in a civil lawsuit? How much of the liability is his?

The Independent published "Star treatment" in March 2010, a cover story outlining Maketa's apparent favoritism of two female employees and dubious handling of a male detective's felony arrest. But the county commission didn't act until it received a seven-page complaint from three commanders in mid-May, alleging Maketa has had multiple affairs with subordinates, and that they've known this for years but not gone public for fear of losing their jobs. All three were put on leave by Maketa in May.

The commanders also filed a complaint with the Equal Employment Opportunity Commission, a federal agency that monitors compliance with and enforces laws related to discrimination and harassment in the workplace. They allege Maketa "grants considerable favorable treatment to female subordinates with whom he has sexual relations," including promotions, pay raises and leave, while treating those who rebuff his advances with disfavor.

The claims

At press time, the county had received seven claims arising from Maketa's alleged misconduct. Three are notices of claim, forerunners to civil lawsuits in state district court. Those came from Deputy Cliff Porter and former Sgts. Emory Gerhart and Charles Kull.

Porter alleges Maketa and Undersheriff Paula Presley tried to influence whom he, as a delegate, would support for sheriff at the 2014 Republican County Assembly, although an audio recording of his meeting with Maketa and others seems to dispute his account, according to media reports. Gerhart and Kull allege a "pattern of harassment" for their support of Bill Elder, the only candidate to win a spot on the ballot at the assembly. They also claim Maketa accused them of stealing an internal affairs file purportedly about Elder, who worked at the Sheriff's Office years ago, and then, after receiving their resignations, contacted the Fountain city manager saying neither should be hired there.

On a separate track, Cmdrs. Rodney Gehrett, Robert King and Mitch Lincoln filed their EEOC claims last month. (A fourth employee who hasn't been identified also filed an EEOC claim recently.)

An EEOC claim is generally a precursor to a federal civil lawsuit alleging constitutional violations. The EEOC reviews it and investigates; if a violation is not found, the EEOC issues a letter to the employee, which gives permission to file a lawsuit. If a violation is found, the EEOC tries to broker a voluntary settlement with the employer. If a settlement isn't reached, the agency will decide whether it will file a lawsuit, or issue a right-to-sue letter to the employee.

When it comes to sexual harassment, that's defined as actual, attempted or alleged unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature that causes injury, or when made a condition of employment, or when it creates an intimidating, hostile or offensive work environment.

"If your boss is pressuring you to have sex and you feel you have to do it to keep your job, then you would have a claim," says Diane King, an employment lawyer in Denver, speaking in general terms and not about any specific case. "If you're in a consensual relationship and you break up and then the boss harasses you, you may state a claim." But if the person willingly participates or "welcomes" such advances, she adds, "then you don't have a claim."

The Gazette reported May 23 that other female employees of the Sheriff's Office weren't promoted if they rebuffed Maketa's advances, but didn't name them.

Civil cases require the plaintiffs to prove, by a preponderance of the evidence, that their claims are true and that the defendant is responsible. It's a lower standard of proof than is used in a criminal case, in which each specific element of any crime must be proven to a jury or a judge beyond a reasonable doubt.

As for possible criminal charges, local media have reported the FBI is looking into Maketa's department. But there's been no indication what they're looking for. Fourth Judicial District Attorney Dan May says his office is "reviewing" information it's been given, but won't elaborate.

The alleged lovers

Potential future claims are likely to cite Maketa's relationships with three women: Comptroller Dorene Cardarelle, dispatch trainer Tiffany Huntz and Presley, all of whom have denied anything sexual with the sheriff.

In 2010, the Independent reported that Maketa hired Cardarelle in February 2007 as a budget analyst at $51,396 per year, and in July 2007 promoted her, with a bump in pay to $79,239. In January 2011, she was given additional duties and saw her pay shoot to $95,208. She currently is paid $101,995, records show.

Hundreds of emails represented by a source as having been obtained from the county computer system, and first reported by the Gazette, suggest Maketa carried on a long-running affair with Cardarelle. In a late-night exchange on Jan. 25, 2009, an email from Maketa's account reads, "I love that feeling of just before I slide in and once I am in, but nothing makes it more euphoric that [sic] to be looking into your eyes as I slide in and out."

Two days later, an email from Cardarelle's account says shes in the relationship "for true love!"

In December that year, Maketa wrote, "For the last two and a half years, I truly felt and believe you were my first and only true love, friend and soul mate in the very essense [sic] of those words."

Huntz, meanwhile, was hired as a dispatcher in July 2004 at $35,976 and has seen her salary rise to $64,791, despite being the subject of at least three Internal Affairs investigations. One in 2008 alleged "serious violations" of policies and procedures for using the sheriff's emergency communications system to play a prank, according to records obtained by the Indy under state disclosure laws. Huntz also was investigated for running a sex toy business and for posting her nude pictures on websites, the Indy reported in 2010.

According to the emails between Huntz and Maketa in 2008, the sheriff guided her through an IA process that found Huntz had "depart[ed] from the truth," an offense for which employees can be fired.

"I have already discussed this with the undersheriff. He will be watching for it," Maketa wrote to Huntz on March 17, 2008. He goes on to advise her what to write in her appeal.

"Stop into my office tomorrow after you appeal," Maketa wrote on March 19, 2008. "And I know it will all work out." The two also made plans to have a beer. Since then, Huntz has been promoted twice.

Presley started at the Sheriff's Office in 1985. Since Maketa was elected sheriff in 2002, she's been promoted three times, most recently to undersheriff in 2012. Since Maketa's been in office, her pay has risen from $76,244 a year to $114,755.

The investigation

Sherman & Howard, a nationwide law firm with offices in Colorado Springs and Denver, is in charge of the county investigation. The firm has hired Mountain States Employers Council — a nonprofit that provides legal advice, human resources consultation, wage and benefit surveys and other services to its 3,000 employer members. Mountain States likely will help interview employees about what happened, who was involved, and whether any policies and laws were violated, says Whitney Traylor, a Denver attorney who's conducted sexual harassment investigations for corporate and public clients.

Some say the decision to hire Mountain States casts doubt on whether the investigation is truly independent, because Mountain States represents employers and tends to be employer-friendly.

As part of the investigation, county officials seized several computer hard drives from the Sheriff's Office on June 3, according to news reports, and Presley confirmed to the Indy she began a medical leave on June 4.

Traylor says one of the purposes of such an investigation is to evaluate the client's — the county's — legal exposure. "The primary purpose of the report is to find out what happened," he says. "Then you make decisions accordingly."

He adds that the county might consider questions like: How many wrongs have been committed? Should new policies on sexual harassment and discrimination be adopted? Should employees undergo additional training in those areas?

(Although Sherman & Howard is focusing on employment issues, not potential crimes, Traylor says if evidence of crimes arises, the law firm would report those findings.)

El Paso County carries insurance that pays up to $1 million on claims involving public officials' employment practices, minus the county's $250,000 deductible. It also has set aside $29 million in the 2014 budget for various types of claims. But most of that, $26.8 million, is earmarked for health, disability and unemployment insurance. Only $3.2 million is designated for risk and workers compensation.

This coverage approach is termed self-insurance, because most claims are paid by the county with taxpayer money. But as former county commissioner and government critic Douglas Bruce says, "What if they have five claims and each of them is awarded $10 million, and the county is self-insured? Being self-insured is a euphemism. You're uninsured. What happens if they don't have the money?"

A provision in the state constitution allows commissioners to impose a tax increase to fund court judgments, but only if those judgments, the county's pension obligation and general obligation bond payments exceed total revenue. For that provision to apply would require judgments to exceed $270 million in one year.

That's unlikely, especially since some court actions carry caps preventing multimillion-dollar awards. But federal cases brought under certain circumstances have no caps, says King, the employment attorney.

Asked what happens if the judgments approach or exceed $270 million, Folsom replies by email, "This question is much too speculative to begin to answer.People must be reassured that it is very early in the investigation and lawsuits, if any, take time to go through the court process. Further, even in the event of adverse judgments, numerous appellate options exist. It would be inappropriate to comment at this time on such an unlikely event."

Traylor says if the Mountain States investigation turns up bad news, "at least [the county] would know." But don't look for the county to reach out to alleged victims, he says. "You wait for them to contact you," he says. "They may actually not pursue it." Sometimes lawyers will approach the employer seeking a settlement before filing a lawsuit, he adds.

The fallout

Attorney fees alone could cost county taxpayers hundreds of thousands of dollars. Besides Sherman & Howard working on the county's behalf, famous criminal defense attorney Pamela Mackey of Denver has been hired at Maketa's request by the county, at $250 per hour, to represent the sheriff. That engagement will continue, if necessary, even after Maketa leaves office due to term limits in January, "to the extent that the representation involves what happened during the performance of his duties as sheriff," county spokesman Jennifer Brown says.

The county has no statutory requirement, however, to fund attorney fees for Maketa to defend himself on criminal charges, she notes.

It's unknown how high the legal bills will go, but commissioners must approve any expenditure over $25,000. Actions on the Sherman & Howard and Mackey retention agreements is expected in coming weeks.

If a civil judgment is entered against Maketa himself, $60,000 in equity of his house is exempt from attachment by court orders, says attorney and former city councilor Randy Purvis. The same is true of Maketa's pension; it's protected from a court order, even if he's convicted of a crime, according to rules and laws governing the El Paso County Retirement Plan.

Maketa's benefit will come to roughly $5,700 a month for life after he leaves office in January, based on retirement plan rules, and he can start drawing monthly payments immediately upon his leaving office.

On May 31, Maketa issued a video to his staff in which he says he feels "embarrassed and humbled" over allegations of his misconduct. "I engaged in inappropriate behavior in the past and when confronted about that behavior, I denied it thereby compounding the problem by not being candid," he says in the 3½-minute video.

He doesn't identify what behavior he's talking about, so whether his vague admission makes it easier for employees and ex-employees to collect damages is anyone's guess.

zubeck@csindy.com

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