Friday, April 27, 2012
DA’s Office: ‘Improper Conduct’ Led to ADDA Victory
Unearthed E-Mails Reveal Ex Parte Communications Relating to Unions’ Grievances
By a MetNews Staff Writer
The Office of Los Angeles County District Attorney has produced fresh evidence that a 2011 finding by a county commission that the office engaged in unlawful union-busting activity was the product of a stream of improper ex parte communications between the prosecutors’ union and the commission’s executive director, Paul Causey, and between Causey and the hearing officer.
That evidence comes in the form of print-outs of e-mails. They are attached to a memorandum of points and authorities in support of a motion, filed late Wednesday, to augment the administrative record in a Los Angeles Superior Court writ proceeding aimed at overturning the commission’s determination.
The recently obtained e-mails, as well as ones come upon in 2010, are to and from Causey, chief administrator for the Employee Relations Commission (“ERCOM”). They stretch over the period from Oct. 6, 2008—when Causey told Kerrigan to “[h]old December 17 and 18 for a new highly politically charged case”—to March 17, 2011.
The District Attorney’s Office—referred to in Wednesday’s memorandum as “DAO”—is contending that throughout the time the proceedings were at the hearing stage, the Association of Deputy District Attorneys, which had been newly constituted as a union, engaged in ex parte communications with Causey. Causey relayed their messages, as well as his own instructions, to the hearing officer, Thomas Kerrigan, the office asserts.
“The Causey E-mails establish a shocking and pervasive pattern of improper conduct that goes to the heart of the issue of whether the DAO received a fair hearing in the underlying proceeding,” according to the memorandum, drafted by Jones Day attorney Brian D. Hershman.
Causey, now an inactive member of the State Bar, and Kerrigan, a former Irish American Bar Assn. president who has resigned from the State Bar with no charges pending, are former law partners.
Found in File
The DA’s Office became aware of ex parte communications having taken place when a Jones Day staff member in May, 2010, found printouts of a handful of e-mails inadvertently left in ERCOM’s file. The file had been turned over to the law firm so it could ascertain if it were missing any exhibits.
In one e-mail, Causey counseled Kerrigan to deny a continuance sought by the District Attorney’s Office on the basis of reasons the ADDA had mentioned to him privately, instructing that these reasons not be put on the record. Kerrigan obliged.
Causey passed on to Kerrigan comments from leaders of the ADDA praising his decisions, and forwarded observations from the ADDA website.
When the District Attorney’s Office sought all communications among the ADDA, Causey and Kerrigan. Kerrigan, on his own motion, quashed a subpoena for the e-mails. Causey—despite a request by the District Attorney’s Office that the evidence be preserved—wiped the e-mails from his computer.
More than 1,000 pages of communications—about 30 relevant to the ADDA’s grievance—were found on the county’s computer server in Norwalk. However, the Executive Office of the Board of Supervisors declined to release the evidence absent a court order.
Order by Jones
That order came on March 8 when Los Angeles Superior Court Judge Ann I. Jones denied a bid by the ADDA and Causey to quash a subpoena for the e-mails. Jones is slated to hear the May 24 motion to augment the record.
In the end, it will be up to the judge whether to let stand ERCOM’s July 25, 2011 decision ordering the District Attorney’s Office to cease transfers of deputies as retaliation for their union activities and, in particular, to return claimant Marc Debbaudt to handling felonies. The commission’s action was in the form of approving Kerrigan’s Nov. 10, 2010 56-page “Decision and Recommended Order.”
In it, Kerrigan declared:
“This case is almost anachronistic in its nature with undisguised acts so bold that they are almost without parallel in recently reported cases, continuing acts committed to destroy a labor union and damage the careers of senior deputies.”
Hershman Summarizes Evidence
Hershman says in the memorandum that “[n]ow that the e-mails have been produced, it has become apparent why Causey and Charging Parties fought so hard to keep these e-mails out of the DAO’s hands.” He provides this summary of what they show:
“•Causey played an integral role in the preparation of the underlying decision against the DAO and in favor of Charging Parties and otherwise actively participated in the decision making process;
“•Despite his active participation in the decision making process, Causey regularly engaged in improper ex parte communications with Charging Parties;
“•Despite his active participation in the decision making process, Causey advised and collaborated with Charging Parties as to how to defeat motions brought by the DAO and other third parties; and
“•Causey and Hearing Officer Thomas Kerrigan displayed an inappropriate bias against the DAO and District Attorney Steve Cooley, as evidenced by their offensive ad hominem attacks on Cooley and their prejudging of the evidence against the DAO.”
“In fact, as the e-mails establish, Causey and Kerrigan already were discussing how they could rule against the DAO over a year before the conclusion of the hearing and ten months before the DAO had an opportunity to present any of its own evidence.”
Role of Commissioners
In urging that the Superior Court quash the subpoena for the e-mails, the ADDA argued that its communications with Causey and his exchange of e-mails with Kerrigan were irrelevant since it is the commission that makes the actual decision, and there was no indication of any ex parte contacts with commissioners. However, in his Oct. 6, 2008 e-mail to Kerrigan, Causey said:
“[T]heoretically I have no control, it is up to the commissioners, well it is an open secret that the Commissioners for the most part just follow my recommendations. So far every thing I have recommended, which is on all the actions they take, they have followed.”
An Oct. 27, 2008 e-mail from Causey to Kerrigan starts out:
“Tom: Two more cases have been consolidated with the Deputy District Attorney case you have set for Dec. They all involve charges that the DA has retaliated against the Union officers and its Board Members by transferring them to outlying assignments far away from their homes after the Deputy DAs voted to go union. Surely no one could believe that public servant such as the DA would do such a thing!!!! (Just a little satirical comment.)”
Causey’s contact with ADDA members and giving advice to Kerrigan as to how to rule are reflected in a November 19, 2008 e-mail saying, in part:
“I am only giving my opinion and of course you can do what you want The union has not filed any response to the motion for a bill of particulars. You may want to wait until you get their response because otherwise if you deny any portion of the Motion for a Bill of Particulars without any objection first being made, it may make you look like you are pre-disposed in favor of the union. I just spoke to the Union officer and he said he is going to e mail you an opposition to the motion….
“As for the merits of the bill I have finally looked at it….It looks to me like it should be granted in part and denied in part.”
In an e-mail of Nov. 24, 2008, Kerrigan advises Causey of three rulings he intends to make, then queries: “What do you think?”
Kerrigan Protests Interference
Kerrigan at one point became weary of having Causey direct him.
Causey sent him an e-mail on June 19, 2009, to which there was appended a recital from the ADDA website of testimony by Deputy District Attorney Rob Dver concerning alleged comments by Cooley. Commenting on the testimony, Causey said:
“It is not often you have a smoking gun like this in a case involving large organizations.”
On June 23, Causey told Kerrigan:
“As the evidence is shaping up, you have extreme union animus plus three punished high union officers, (and Dver punished for supporting the union), [for the DA’s Office] to show facts that the transfers would have happened without the union existing, and without them being so active In the union, and then convince the HO [hearing officer] that the proffered reason for the transfers was not a pre-text is, it seems to me, as they say in Arkansas, ‘A long tough row to hoe.’ ”
Kerrigan on June 23 shot back this protest:
“It is rare that I have a client does the research for me, outlines the critical issues, states the applicable legal authorities, and even suggests what my findings and conclusions should be. I am amazed to have so much of the work done for me through your good offices.
“However, I remain the trier of fact, I believe, and I have some problems with Mr. D’s testimony. Moreover I find a couple of your arguments puzzling, and am stuck in the old ways of making no determination until I have heard all of the evidence.”
Causey responded the next day:
“I was merely making observations on facts which I assumed to be true and applying my ‘vast knowledge’ of ERCOM and NLRB law. If you find my ‘arguments’ (they are not arguments, merely observations) puzzling perhaps it is merely because I am a complex, strange and puzzling person. As they say ‘an enigma wrapped up in a condom.’ (Or is it ‘conundrum’?)”
The umbrage Kerrigan took was short-lived.
On February 10, 2010, Causey wrote: “Tom: I don’t want to micro manage your case, but the case is so controversial I just want you and ERCOM to be like Caesar’s wife if possible—and that is why I offered my comments.” Within minutes, Kerrigan responded: “Paul, [¶] What are you possibly talking about? We’re a team, working together to kick ass. I rely on your comments and suggestions.”
Kerrigan on June 26, 2009, told his former law partner that he had “a suspicion that there will a mountain of evidence against the DA ….”
A June 30, 2009 e-mail from Causey to Kerrigan instructed:
“[I]t is the county’s policy to encourage its employees to unionize. So County policy is to encourage the organizing efforts of the ADDA., not discourage them. That means that ERCOM laws are to be interpreted through the prism of ‘we like and want unions to organize our employees.’ ”
Causey told Kerrigan in an e-mail of March 3, 2010 of a visit from ADDA representatives who were “flouting on a cloud” in light of a victory against Cooley in federal court.
On April 28, 2010, Causey wrote:
“Mr. Cooley is very fearful that this case and in particular his actions of anti unionism and disregard of a subpoena may damage him in his campaign for Attorney General. It might be picked up by his opposition and blown up even bigger or at least he fearful it might. In other words this case is now moving into the political arena where no attack on an opponent (which they view you to be) is too low to make, nor no distortion to tenuous to twist and distort. Also Cooley is angry at you personally for the way you cross examined him in front of several reporters instead on deferring to his weaseling about his failure to appear and the inherently improbable assertions that [then-ADDA President Steve] Ipsen was not a good DA despite all his Outstanding ratings signed by Cooley.”
The following day, Causey remarked: “I have just read the Metro news. The heading should have been Kerrigan grills Cooley (until his goose is cooked).”
On Nov. 7, 2010, with election returns showing that Cooley has lost his bid for the post of attorney general, Kerrigan send to Causey an e-mail headed, “The Ballad of Steve Cooley.” It read:
“Hang down your head, Steve Cooley,
“Hang down your head and sob.
“Hang down your head, Steve Cooley,
“Stuck in the same old job.”
Discovery of E-Mails
Papers filed by Hershman have recited that e-mails were found by his office in the ERCOM file in June, 2010. However a May 25, 2010 e-mail from Causey reflects that the discovery had already occurred:
“Tom: Dick Shinee [attorney for the ADDA] told me that there was an e mail from me to you in the exhibits, and Herschman [sic] is now set to make a big deal out of my comments. I looked through the exhibits and removed some things but this somehow escaped notice. I am not too worried….[W]e will cope.”
Causey yesterday declined comment.
Copyright 2012, Metropolitan News Company