Thursday, December 3, 2009
Page 1
Officer Hearing Union Grievance Blasts Cooley’s Failure to Appear
Says Administrative Proceedings Not Stayed by ADDA’s Pending Federal Suit
By SHERRI M. OKAMOTO, Staff Writer
Los Angeles District Attorney Steve Cooley was a no-show yesterday at an administrative hearing into complaints of anti-union animus, prompting Employee Relations Commission hearing officer Thomas Kerrigan to make a negative inference as to what Cooley’s testimony would have been.
Kerrigan’s first question once the hearing began shortly after 10 a.m. was to inquire why Cooley was not present. He later said it was “outrageous that the chief law enforcement officer of this county is evading his subpoena,” and opined that Cooley “has thumbed his nose at this agency” by his “failure and refusal” to testify.
The hearing was based on allegations by the Association of Deputy District Attorneys; its President Steve Ipsen, who unsuccessfully challenged Cooley in the last election; and its Vice President Marc Debbaudt, a onetime Los Angeles Superior Court candidate, claiming violations of the Los Angeles County Employee Relations Ordinance.
The ordinance prohibits the county from refusing to bargain in good faith with representatives of certified employee organizations and from interfering with the formation of any employee organizations.
Prosecutors Union
The association, which bills itself as the largest prosecutors union in the country, was certified as the collective bargaining unit for the county’s deputy district attorneys in March 2008. It filed suit Oct. 30 in the U.S. District Court for the Central District of California, accusing Cooley and senior managers of violating the First Amendment by retaliating against the union’s supporters and members.
Counsel for the District Attorney’s Office—Manning & Marder, Kass, Elrod, Ramirez LLP’s Trevor Grimm and Michelle Ghaltchi, and Deputy County Counsel Julie Dixon Silva—had sought a stay of the proceedings in light of the pending federal lawsuit.
Grimm argued that the complainants had invoked federal jurisdiction over the dispute by filing the 42 U.S.C. § 1983 claim, which divested the commission of jurisdiction. He contended that the evidence adduced at the hearing would violate the federal discovery rules and that a federal judgment would “subsume, or perhaps moot any finding” by the commission.
In light of the hearing scheduled in the federal proceedings on Dec. 28, Grimm said, 26 days was a “reasonable and relatively short” period of time to delay the administrative matter.
But Kerrigan dismissed the jurisdictional arguments as “nonsense,” saying the federal court would not be deciding if the office had committed an unfair labor relations violation.
“The fact that the same facts are involved in both cases in not controlling,” Kerrigan opined. “This is a case involving a Los Angeles county ordinance, and the federal case is involving Title VII….It’s as simple as that.”
‘Punishment’ Mentioned
After he declined to stay the proceedings, Kerrigan then addressed Cooley’s absence, opining that the district attorney had been “evading” the proceedings and that “there has to be some sort of punishment in this case.”
Kerrigan emphasized that the commission has the ability to issue subpoenas and compel a person’s attendance. “Cooley knows that,” Kerrigan said, “but I think he has problems understanding that.”
The hearing officer noted that some “very damning” testimony had already been introduced and if that testimony were believed, then there has been “an impermissible bias against the union in violation of the law.”
He found he was “pretty much in a position now where I either have to make a negative inference, which I will do, or discredit all of the [district attorney’s] witnesses,” although he said he would make a decision as to discrediting other witnesses when he issued his final recommendation.
If the commission finds that the District Attorney’s Office or its members have engaged in an unfair employee relations practice in violation of the county ordinance, the commission has the authority to direct the offending party to take appropriate corrective action.
Debbaudt said that the negative inference would mean that the hearing officer would take as true the evidence that Cooley “is punishing people because he doesn’t like the union.”
The deputy district attorney insisted that the reason Cooley has failed to testify in the proceeding is because “he is afraid of being examined on the evidence that exists.”
Counsel for the ADDA in the federal suit, Montana attorney Matthew G. Monforton, commented that “the same D.A. who routinely requires witness to risk retaliation by testifying in gang cases can’t muster the courage to testify in a simple administrative hearing.”
He posited that the question why Cooley would not appear to discuss his alleged policy of discriminating against union members “ answers itself.”
Ipsen and Debbaudt represented themselves at yesterday’s hearing, with Encino attorney Richard A. Shinee of Green & Shinee representing the union.
Counsel for the District Attorney’s Office declined to comment after Kerrigan’s ruling, but a spokesperson from the office issued a statement which denied Cooley has “ignored the employee relations hearings or is disrespectful of the process,” calling such accusations “inappropriate and untrue” since the office and its counsel have been participating in the administrative proceedings since April.
The statement further stated that the District Attorney’s Office would not provide any further witnesses for the administrative hearings “[u]ntil there is a ruling from the federal court on jurisdiction.”
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