San Diego Auditor Eduardo Luna and then-deputy Chris Constantin engaged in misconduct and violated city policy when they sought to unmask employees who complained about them to city officials last year, an outside investigation released late Monday found.
But the investigation, along with a second one also released Monday, cleared the pair or found insufficient evidence against them on the more serious charges of tampering with a state investigation and retaliating against audit employees.
The city’s Audit Committee, which supervises Luna, ended its 10-month inquiry Monday when it took no public disciplinary action against Luna based on the reports.
“However, the committee did provide direction to the city auditor that he take action to make improvements within the [office],” a spokesman for committee chairman Kevin Faulconer said in a statement. “As has been the case since the Audit Committee was created, the committee will be reviewing the city auditor’s work through performance evaluations to ensure this happens.”
Constantin has already left the city — he accepted a job as finance director for Chico, Calif., two weeks ago.
Voice of San Diego has pushed for the release of the two investigations since December because the allegations involved the city’s official watchdog and their handling by the Audit Committee, the auditor’s oversight body. The investigations, which were completed by outside law firms, cost taxpayers more than $120,000.
Here’s a rundown what you need to know about the two reports, which are 59 and 51 pages long, respectively. You can read the full reports here.
What Do the Reports Say?
The auditor inquiry began last June after auditor employees complained that Constantin told them to lie to state investigators about a workplace injury and retaliated against employees and city department directors whom they didn’t like. The city hired an outside investigator, Judith Islas of the law firm Liebert Cassidy Whitmore, to look into the claims.
Islas’ report exonerated Constantin on all the allegations against him, and a related retaliation claim against Luna. Islas also uncovered a Facebook exchange between two audit employees revealing a desire to find a “smoking gun” against Constantin to push him out of the office because they disliked him.
“The desire of the complaining witnesses to allege misconduct against Mr. Constantin, the inconsistency in their stories, as well as their propensity to draw unreasonable and exaggerated conclusions and/or engage in pure speculation, impairs their credibility and makes their accounting of what took place unreliable and not credible,” Islas wrote.
The city ordered a second investigation, conducted by Daniel Gardenswartz of the law firm Solomon Ward Seidenwurm & Smith, after audit employees complained Luna and Constantin were retaliating against them for participating in the first investigation.
Gardenswartz couldn’t find sufficient evidence to back up the retaliation claims. But he said Luna and Constantin violated city policy and engaged in misconduct when they publicly disparaged the investigation and tried to find out who made the complaints against them. Gardenswartz relied on sworn statements from audit employees who said they felt afraid, threatened and intimidated.
“Rather than recognize these complaints as sincere, and agree to an outside, objective investigation of all issues within the [auditor’s office], Mr. Luna and Mr. Constantin speculated about the sources and improper motivation of the complaints, became incorrectly convinced that they came from outside of the [office], challenged the authority of the outside investigator, and — believing those efforts to have succeeded — sought to discover who raised the complaints and why,” Gardenswartz wrote.
In a separate investigation completed last July, the state cleared the auditor’s office of any wrongdoing in the workplace injury incident.
What Do Luna and Constantin Think About the Reports?
Luna and Constantin’s lawyer, former City Attorney Mike Aguirre, challenged the entire premise behind the investigations. Aguirre contends the probes encroached on the auditor’s independence, which was enshrined in the City Charter in 2008. Aguirre said the fact that a top deputy to former Mayor Jerry Sanders referred the complaints to the Audit Committee for review while Luna was performing critical audits of Sanders’ administration makes the entire premise of the probes suspect.
Aguirre was satisfied with the conclusion to Islas’ investigation, but said Gardenswartz ignored the charter, which he says allows Luna to uncover complaints.
Gardenswartz also relied on a sworn statement made by an auditor’s office employee that was never actually signed by the person making the statement, rendering it meaningless, Aguirre said. (Gardenswartz wrote in the report that the statement is accurate but went unsigned because the employee and his attorney waited too long to request changes.)
Aguirre said the process forced Constantin to leave the city, and brought on health problems for Luna.
“There was real damage done to the auditor’s office because of this,” Aguirre said.
What’s Next?
Constantin has left the city. The Audit Committee took no public discipline against Luna, but says it’s monitoring his performance.
But there are still major unresolved issues.
Luna has requested the city pay his nearly $40,000 legal bill.
And one of the audit employees who complained to the city, Ed Moreno, has filed a lawsuit against the city based on similar claims and allegations that he was harassed because he’s gay.
Both reports, which wrapped last fall, conclude that the morale within the auditor’s office was low and turnover was high.
“During the course of the investigative interviews, it was clear that many current and former OCA Auditors were dissatisfied and discontent with the general work atmosphere and management of the OCA,” Islas wrote.
The Bottom Line
This investigation took a long time — the workplace injury that started it all happened a year ago. It also cost a lot of money — the two outside law firms were paid the equivalent of 2,666 additional hours at city recreation centers. With Luna’s claim for legal bills and the pending lawsuit, the situation will likely drain the city of even more time and money.
Liam Dillon is a news reporter for Voice of San Diego. He covers how regular people interact with local government. What should he write about next?
Please contact him directly at liam.dillon@voiceofsandiego.org or 619.550.5663.
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