How My Lawsuit Got Dismissed

Transcription

1 How My Lawsuit Got Dismissed Before a classified employee may file a civil action with superior court he must exhaust certain administrative remedies. When the Civil Service Commission denied me a hearing on the whistleblowing, we were free to file in superior court. My attorney, Mike Aguirre, was ecstatic, since all my administrative remedies had been exhausted, and I was denied a hearing, we could go directly into court and file a lawsuit. Although he would deny it, this was the best case scenario for him to make money. Working on a contingency fee, my settlement figured to be in the high hundred thousands or more. To make sure that Internal Affairs had completed its investigation, Aguirre contacted Coca again, asking if his investigation was complete. Coca said it was. Aguirre drafted a lawsuit but he thought before he could file in federal court, he had to file a complaint with the California Dept. of Labor. Being Aguirre, he decided to send the draft of the lawsuit to the San Diego Union Tribune. The UT posted the lawsuit on its online version of the story for everyone to read. This was a huge mistake. It showed SDCERA, the County, and Civil Service, our cards. Commissioner Krauel sent a letter (attached) to us and SDCERA that at my employment termination appeal hearing starting on December 8th, she would allow me the opportunity to present evidence that I was a whistleblower. The reason for hearing the evidence was that when we filed our whistleblower lawsuit in court, SDCERA could file a motion to dismiss based on res judicata, that the evidence had already been heard in administrative court (the civil service hearing) and ruled against me. Res judicata means you don't get to start over once you have lost a case in another court. At the time I had no idea what res judicata was or what the SDCERA, the county, and civil service was up to; but later, after talking to experienced attorneys, it was obvious to them the strategy. What Aguirre should have done is counsel me to drop my termination appeal. As you probably know, all classified government employees that are fired have the right to appeal the termination, but they don t have to. Aguirre should have seen what SDCERA, the county, and civil service was up to. There was no other explanation for Krauel to send a letter with the following paragraph: Aguirre did attempt to take some action though. He protested Krauel as my hearing officer based on her ruling at the November 3 rd civil service hearing where she ruled I was not a whistleblower. Aguirre argued that Krauel, and civil service, should be disqualified from the hearing because they had already formed an opinion and were biased against me. SDCERA vigorously opposed the disqualification. It was argued at the first day of the termination hearing on December 8 th, and to no one s surprise, Krauel would not remove herself from the hearing.

2 Not allowed in the hearing was anything from the unemployment hearing or what Judge Miller ruled. Also not allowed to be debated or contested was the letter of reprimand I got in September 2009 for forwarding an from Partridge to David Deutsch, the former CEO. The letter had nothing in it about SDCERA, only philosophical investment strategies and research papers from well-known investors. Partridge had not yet been hired by SDCERA and was not registered with the SEC. The letter ended up in the hands of the San Diego Union Tribune. I got reprimanded for forwarding it. I was the only one reprimanded even though at least two other people in investments also forwarded it. SDCERA was using it as my second offense for releasing SDCERA data without permission. Brian White, the CEO, was on the stand the first day of the hearing. This not your typical court room, just a small room right off the cafeteria in the county building with a couple of tables and chairs. It is crystal clear to me early on that this is not going to be a hearing like you see in state or federal court rooms. Krauel even makes the statement that she is not obliged to follow the rules of evidence. At points during the day Krauel will interrupt Aguirre and tell him what questions to ask and how to proceed in his cross of White. In couple of instances, Aguirre asks White a question and Krauel will respond with an answer before White. At the end of the day, after we adjourn for the day, White, Rice, Plevin, and another guy from Rice s law firm stay in the room with Krauel and Harron after we leave. At my unemployment hearing no one from either party was permitted to be with Judge Miller without the other party. Over the next five days, we see Krauel talking to SDCERA s team during breaks, lunch, and after the hearing adjourns for the day. December 9, the second day of the hearing, Partridge is on the stand all day and things really get crazy with Krauel. One hour and twelve minutes into the hearing we take a break. Harron is the one who is working the tape recorder (no court reporter). When we break he leaves the tape recorder going. Aguirre and I are in the room discussing our strategy and how we are going to approach Partridge when we start cross. This is a privileged client-attorney conversion and it is being taped without our knowledge. When we gather to restart the hearing, Harron presses the button to restart the recording but what he actually does is stops the recording. Sometime before we break for lunch, I think about an hour before lunch, Aguirre starts his cross of Partridge. I have pulled a bunch of exhibits to impeach Partridge, which Aguirre does. When we break for lunch, Harron goes to stop the recording and immediately notices that the recording was never started. This is clearing evident when looking at the log of the recording (attached). He starts it and stops it five seconds later. He knew, Krauel knew, and the staff of civil service knew, right then that the testimony of Partridge after the first break up to lunch was not recorded, but they did not tell us. After lunch Aguirre continued to impeach Partridge. Aguirre starts to impeach Partridge about comments he made at a board meeting in December 2010 concerning the difference in performance of Hoisington s actual returns and the predicted returns in an Albourne model. Krauel interrupts Aguirre before Partridge can respond. Aguirre asks her not to interrupt in his cross examination and Krauel continues saying, we have already been through this. Partridge made the statement to the Board that the spreads in the 10 year and 30 year treasuries was the reason for the dispersion in the actual returns from the predicted. The problem was that the report

3 was as of September 30, 2010 and the spreads happened in October and November of Aguirre requests a mistrial. Krauel asks for Plevin to comment. Of course, Plevin doesn t want a mistrial or Krauel removed and an independent hearing officer appointed. Krauel calls for a break so she can confer with her counsel, Harron. When we return Krauel simply says, mistrial denied. The problem is that now Partridge has had a chance to rehearse his response during the break. The hearing wraps early that day because Partridge has a flight to catch back to Houston. After he leaves there is a conversation about when we will resume and it is undecided but definitely after the Christmas holiday. After we adjourn, Aguirre and I go out in the cafeteria and Aguirre tells me he wants to talk to Harron about Krauel and her interrupting of his questioning of witnesses. Aguirre and Harron head over to a table in the corner of the cafeteria. I m sitting at a table in the cafeteria directly across from the hearing room and Krauel is in the room with White, Rice, Plevin, and another attorney from Rice s law firm. Someone closes the door to the hearing room. Now SDCERA s team is in the room with Krauel alone with the door shut. I m thinking, this can t be how the justice system in the United States works, I m totally screwed. The next week I contact Aguirre and tell him how disappointed I am in his preparation for the hearing. The binders he put together have only a couple of the really important exhibits and during the first two days of the hearing I had to pull documents from the binder I brought and run to the copier to have copies made for the hearing. Aguirre tells me to put together a list of questions and exhibits for Partridge when the hearing resumes. I call David Deutsch, the former CIO, and ask if he would like to help. Yes! So I ask Aguirre to get the cds of the hearing so we can review the testimony of White and Partridge. When I get the cds around December 15, a week after the meeting adjourned, I find a note that there is a gap in the tape. Aguirre immediately contacts the UT and the paper runs a story. We contact a computer forensics firm and request the laptop to see if the tape was erased. A pre-hearing date is set for January 4 to discuss the gap in the tape. Sitting with Krauel and Harron is an attorney from the San Diego county counsel s office. By now Aguirre has already talked to some of the staff at civil service and found out that Harron knew immediately that the recorder was not turned on. He wants a mistrial or disqualification. Krauel denies both. Aguirre wants time to go to superior court and argue for a mistrial. Denied again. Aguirre wants a computer forensics expert examine the laptop. County counsel refuses to let anyone examine the laptop. Krauel orders the bailiff to stand over Aguirre and keep him in line. Krauel says Partridge will be recalled to re-testify to the missing testimony on the tape. Plevin argues that Partridge should not be recalled because he had nothing to do with my termination and that this is not a whistleblower hearing. Krauel agrees and says that the hearing is about my termination only and not about whistleblowing, which contradicts her letter on November 28, Krauel decides that Partridge will be recalled but all witnesses going forward will only be asked questions about my termination, no questions about my whistlelblowing. On January 6 th I receive an from Patt Zamary, the head of staff in civil service. In the Zamary gives a date for the hearing to resume and that it will only be about my rule VII termination. I respond that it also covered my whistleblowing and attached the November 28 letter from Krauel. Zamary responds back that it is the rule VII discipline only and to contact my attorney with any questions. Later Aguirre s Zamary (and cc s me) also stating that it includes the whistleblowing. Zamary does not respond.

4 Over the next couple of weeks Deutsch and I put together a number of exhibits to impeach Partridge, including the documents about him switching products. On January 20, the hearing resumes and Partridge is the first witness. Krauel claims that most of the testimony missing on the tape was direct testimony between Plevin and Partridge. Aguirre argues that it at least half was cross by him. Krauel tells Aguirre that she remembers what happened that morning and it was direct, not cross. Plevin starts his direct only he is asking the questions that Aguirre asked Partridge back on December 9. Aguirre is livid and tells Krauel that there is no way this could happen in a courtroom. This goes on the whole morning, Partridge retestifying only with Plevin asking Partridge the questions Aguirre asked. At one point, Krauel tells Aguirre that she is allowing Partridge to re-testify for our benefit. When we finally get to do cross of Partridge, Plevin objects to all of the new exhibits that we have in our binder that were not in the binder back in December. The way the exhibits had worked up to this point was that each attorney moved to have them admitted, and the opposing attorney could agree or object. If objected, the attorneys would argue and Krauel would decide. Neither party got the opposing party s binder prior to December 8. Now Plevin is arguing that he never received the new exhibit early so he never had a chance to go over them with his clients. Krauel asked Todd Adams, who was a staff member in civil service, what the policy was, and Adams answered that they had always been admitted one at a time. Then Harron speaks up and says that the policy changed two months earlier and that all exhibits had to be admitted prior to the hearing. Krauel rules that none of the new exhibits can be used. At break, Aguirre and I are sitting at a table in the cafeteria and have clear view of the hallway. We see Krauel and White in the hallway having a one-on-one conversation for about 10 minutes. We both shake our heads, we are so screwed. After break, around the 2 hours and 54 minutes mark of the testimony, a person identified as a civil service staff member enters the hearing room and whispers something to Commissioner Krauel. Krauel then announces she asked staff to go back and listen to the December 9 th tape with the missing testimony and that they had located the part that Aguirre claimed was missing. Krauel says that the testimony of exhibits KKK and GGG are all over the tape. There is no way some staff member that wasn t at the hearing could know what testimony was there and what was missing. When we break for lunch, Krauel tells Aguirre that she wants to stress that his entire cross is on the tape. All anyone has to do is listen to the tape and will hear Plevin doing direct testimony with Partridge, Krauel calls a break, the tape continues and Aguirre and I are taped having a client/attorney privileged conversion, the tape stops, and starts again with Aguirre now doing cross of Partridge. It is obvious that Aguirre was well into his cross examination. After Partridge ends his testimony, Krauel announces that she is putting time limitations on all the testimony going forward. Aguirre will only get an allotted time to question each witness, and when the time was up, no matter if he was finished with his questions, the testimony would end. I wondered if I was really in a court proceeding in America.

5 On Monday, January 23 rd, testimony continued, first up was White resuming his testimony from December 8. After White, we were going to get our shot at Needle (asst. CIO), Cicalo-Aiken (head of HR), Maher (IT tech who put tracking software on my pc), and Coca (internal affairs investigator). Each one had time limits on their testimony. Coca admits that he copied and pasted what SDCERA gave him in his report. When he testified to this, I immediately looked at Krauel. I thought, now she will have to call for a mistrial. She had no reaction. (see transcript starting on page 245). VERY IMPORTANT: I was not the only whistleblower at San Diego County at this time. A woman named Gayle Powers also filed a whistleblower complaint. Internal Affairs recommended to Civil Service a hearing in her case but it was denied. Guess who the hearing officer was? Yep, Francesca Krauel. The civil service commission meeting in the article was a month after mine my final decision was announced in March 2012 (see April 4, 2012, article in the Union Tribune).