Friday, March 9, 2012
ADDA Loses Motion to Block Access to Causey-Kerrigan E-Mails
By ROGER M. GRACE, Editor
The Association of Deputy District Attorneys yesterday lost its bid to block the release of e-mails to the Office of District Attorney, documents which that office says might prove it was denied a full and fair hearing by a commission which found it had committed unfair labor practices.
Los Angeles Superior Court Judge Ann I. Jones denied the ADDA’s motion to quash a subpoena for e-mails exchanged by county Employee Relations Committee (“ERCOM”) Executive Director Paul Causey and the hearing officer, Thomas S. Kerrigan. She ordered compliance by April 1.
Print-outs of five e-mails reflecting an effort by Causey to apparently guide Kerrigan in finding in favor of the ADDA, a union, were inadvertently left in the ERCOM file and were spotted by lawyers from Jones Day, representing the District Attorney’s Office. In one e-mail, Causey urged Kerrigan to deny a continuance sought by the District Attorney’s Office, relaying concerns expressed to him privately by the ADDA, and cautioned him not to mention the reason in his ruling.
Jones observed that Causey had acted as a “conduit” between the ADDA and Kerrigan, expressing concerns over “improper ex parte communications.” She also made reference to “crazy conversations going on.”
The full extent of the communications between Causey and Kerrigan was not reflected in the papers filed in connection with the motion. Jones Day attorney Brian D. Hershman told the judge yesterday that “more than 1,000 pages” of electronic communiqués between the two were recovered from the county’s computer in Torrance, and “30 potentially material documents” were identified by the Chief Executive Office of the Board of Supervisors.
The e-mails were retrieved after Causey erased those that were on his computer notwithstanding being asked by the District Attorney’s Office to preserve them until the discoverability had been finally adjudicated.
Hershman said that once the “smoking-gun e-mails” were spotted in the file, “we wanted to know what else was out there.”
Significance of ‘Okay’
Attorney Richard A. Shinee of Green and Shinee, representing the ADDA, and Michael Thomas of Thomas & Thomas, appearing for Causey, argued that the District Attorney’s Office should have diligently pursued efforts at the administrative level to obtain the e-mails. Jones found that they had done so, relying primarily on Kerrigan’s utterance of “okay” in response to a question from Hershman.
At a hearing on June 16, 2009, Hershman, in attempting to adhere to an ERCOM rule, asked Kerrigan to issue a subpoena to Causey for the e-mails. The hearing officer told Hershman, according to the transcript:
“It says in the ERCOM rules that I issue subpoenas, but I do not.”
He also said:
“The appropriate thing, I think to do, if you want these documents from Mr. Causey and any responses he got from me, would be to subpoena them from him.”
When Hershman declared, “I have the subpoena and I’ll provide it to Mr. Causey,” Kerrigan responded: “Okay.”
Jones said: “ ‘Okay’ means that will work.”
The jurist recited that there was later a “derailment of the subpoena” by Kerrigan who struck it on his own motion, without a hearing, based on non-compliance with ERCOM procedures.
“Mr. Kerrigan knew exactly what was in those e-mails,” Jones noted.
She rejected the contention that the subpoena should have been sought from Causey, saying that he would be inclined to issue one to himself “when pigs fly.”
Shinee asked Jones to stay her order for 15 days to give him time to seek a writ, if his client wanted him to do so, and that she conduct an in camera review of the materials to weed out personal exchanges.
“I don’t want any private communications. I’m happy to have them redact it.”
Jones said that by ordering compliance by April 1, she was allowing enough time to seek a writ. She said she wanted Shinee to work with attorney Jennifer Mira Hashmall of Miller Barondess, LLP, who is representing the Executive Office of the Board of Supervisors, in redacting immaterial content. She instructed that any disputes over particular items be brought to her.
The judge set a status conference for May 2. She noted that a motion would have to be made by the District Attorney’s Office to augment the administrative record by adding the e-mails.
Where an absence of a fair hearing is alleged, Jones advised, “augmentation is allowed.”
District Attorney Steve Cooley said yesterday that the denial of the ADDA’s motion to quash could lead to turning previous rulings in the union’s favor “upside down” and signal the “beginning of the end” of its winning streak.
The ADDA has also scored victories in federal court.
Deputy District Attorney Hyatt Seligman, president of the ADDA, provided this retort, by e-mail:
“Mr. Cooley is desperate to set aside the egregious findings of his misconduct by ERCOM in this, his latest expensive fishing expedition, but the cat is already out of the bag and justice done, independently, in Federal court. There the County agreed to extend the permanent injunction against Mr. Cooley’s policy of antiunion harassment until he leaves office and to pay all of the union’s attorney fees of approximately $125,000. And it agreed to pay Marc Debbaudt $450,000, again corroborating the propriety of the ERCOM decision. Now Mr. Cooley is just wasting more taxpayer money to try and clean up the appearance of his mess, but the facts are the facts in the ERCOM transcripts for all to see. In the end, I am confident the ERCOM decision will be upheld, too.”
Action Against Causey
Cooley also said there have been internal discussions in his office as to whether Causey committed a criminal act in destroying evidence, but that a decision on what, if any, action should be taken was deferred.
“We decided to wait until today’s hearing,” he related.
He said a determination will be made after consulting with Jones Day and the Office of County Counsel.
Cooley mentioned the possibilities of reporting Causey to the State Bar for possible discipline, referring the matter to the Board of Supervisors for a personnel action, presenting evidence to the Office of Attorney General for a possible prosecution, or taking no action.
“All options are open,” he remarked.
Causey was reached on his cell phone but declined to comment.
The executive director went on inactive status on Feb. 1, but is still subject to bar discipline.
Kerrigan isn’t. The former Irish American Bar Assn. president resigned as a member of the State Bar on July 19, 2008, with no charges pending.
He is now a poet.
Hearing officers for ERCOM do not have to be bar members.
Seeking Administrative Mandamus
The District Attorney’s Office is seeking a writ of mandate overturning the July 25, 2011 action of the ERCOM commissioners, based on Kerrigan’s 56-page “Decision and Recommended Order,” issued Nov. 10, 2010.
The single unresolved claim was that of Deputy District Attorney Marc Debbaudt who claimed that he had been reassigned from handling felonies to Juvenile Court in retaliation for his union activities. (He is presently the group’s vice president.)
Cooley had testified that Debbaudt was shifted because of his outspoken public opposition to the office’s “third strikes” policy, and that he could not trust the deputy to implement that policy.
Kerrigan rejected that explanation and went on to find that Cooley had conducted a “deliberate and thinly disguised campaign” to trounce the union, adding:
“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.”
The Office of District Attorney was ordered to cease discriminating against union members, in general, and, specifically, to halt transfers as punishment for union activities. It was told to return Debbaudt to handling felonies and to reassess transfers of all other ADDA members since March, 2008, upon their request, within 60 days of the commission’s decision.
Copyright 2012, Metropolitan News Company