Thursday, February 23, 2012
Page 7
PERSPECTIVES (Column)
A Battered Cooley Dusts Himself Off, Seeks to Thrash Assailant
By ROGER M. GRACE
Los Angeles County District Attorney Steve Cooley has faced various adversaries through the years. At present, he’s at loggerheads with a poet.
Cooley’s foe, who is also a playwright, goes by the name of T.S. Kerrigan. I assume he employs “T.S.” to link his image to that of a literary luminary.
He used another moniker—Thomas S. Kerrigan—in practicing law. Kerrigan, a graduate of Loyola Law School, was admitted to practice in California in 1965 and was the 1999 president of the Irish American Bar Association.
On July 19, 2008, he resigned from membership in the State Bar. No charges were pending; he just wanted to devote his time to poetry.
And why are these two Irishmen, Cooley and Kerrigan, in a brawl?
Kerrigan, acting as a hearing officer for the county Employee Relations Commission (“ERCOM”), in 2010 found valid the contention of a deputy DA, Marc Debbaudt, that he had been transferred to a less desirable assignment as retaliation for his union activities. Although grievances had been filed by the union—that is, the Association of Deputy District Attorneys—and by other deputy DAs involved with that union, all of those grievances had been dropped by the time Kerrigan made findings and recommendations as to Debbaudt’s beef. Nonetheless, Kerrigan proclaimed wide-ranging union busting activity on Cooley’s part, slammed him for it, and fashioned broad relief. The commission adopted Kerrigan’s recommended decision.
Now, Cooley is now on the offensive. Through his counsel, he is contending in a writ action that Kerrigan received improper ex parte communications while the ERCOM proceedings were in progress, and acted on the basis of them.
The DA’s Office has obtained some e-mails, not intended for its eyes, sent to ERCOM Executive Director Paul Causey relating to the grievances. In the writ petition, this assertion is made:
“[O]ver the course of the proceedings, ADDA, Mr. Debbaudt and/or their counsel engaged in multiple ex parte communications with ERCOM’s Executive Director concerning issues in the case, and the substance of those communications was passed on to the Hearing Officer himself.”
The DA’s Office wants additional evidence. It has subpoenaed “[a]ll documents reflecting or referring to communications between ERCOM Executive Director Paul Causey and Thomas Kerrigan” in connection with the deputy DAs’ grievances. It has also subpoenaed “[a]ll documents reflecting or referring to communications between ERCOM Executive Director Paul Causey, on the one hand, and Steve Ipsen, Marc Debbaudt, Richard Shinee or any other attorneys who represented the [deputy DAs]…on the other hand…from September 2008 to the present.”
Causey has moved for an order quashing the subpoenas or for a protective order.
The motion is slated to be heard March 8 by Los Angeles Superior Court Judge Ann I. Jones.
Representing Causey is Michael Thomas, of the Glendale law firm of Thomas and Thomas. His memorandum of points and authorities argues that discovery is not normally permitted in an administration mandamus proceeding, that leave of the court is required, and that leave should be denied if the documents could have been sought earlier or if production would breach the deliberative processes privilege. Thomas also asserts that if the subpoenas are not quashed, an in camera inspection should be undertaken to avoid disclosure of documents that would intrude upon the privacy interests of Causey or Kerrigan.
ADDA attorney Richard A. Shinee has filed a joinder in the motion to quash, arguing that any communications between Causey and Kerrigan or between Causey and filers of grievances “are irrelevant” because only the commission “holds the power to issue decisions and orders.”
Cooley received some hard blows from Kerrigan, reflected in news coverage.
A Dec. 3, 2009 MetNews article reports:
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.
….
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.
….
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.”
A Nov. 10, 2010 article in the Los Angeles Times begins:
Los Angeles County Dist. Atty. Steve Cooley waged an illegal anti-union campaign in which he and his staff harassed and unfairly disciplined union officers, a county hearing officer has decided in a labor dispute.
In a sharply worded decision issued Wednesday, Thomas S. Kerrigan found that veteran prosecutors with outstanding evaluations were transferred to less desirable assignments in retaliation for their union work.
The conclusions follow more than a year of legal wrangling at the county Employee Relations Commission between Cooley and the Assn. of Deputy District Attorneys.
In testimony earlier this year, Cooley denied any anti-union feelings but said he had a personal dislike of some union officials, particularly the association’s former president.
Kerrigan concluded that Cooley’s explanations “were false and clearly pretexts” for conducting a “deliberate and thinly disguised campaign” aimed at destroying the union.
“This case is almost anachronistic in its nature with undisguised acts so bold,” Kerrigan wrote, “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.”
A 35-page writ petition, drafted by former Court of Appeal Justice Elwood Lui, now a lawyer for Jones Day, accuses Kerrigan of improprieties. With paragraph numbers excised, here’s a portion of what it says:
Throughout the proceedings. Charging Parties and their counsel engaged in multiple ex parte communications with ERCOM’s Executive Director concerning issues in this case, and the substance of those communications were reported to the Hearing Officer himself.
Most significantly, in at least one of these instances it appears the information communicated to the Executive Director ultimately provided part of the basis for the Hearing Officer’s ruling on a contested matter.
Specifically, the Executive Director suggested in an email to the Hearing Officer that a request for continuance filed by the District Attorney’s Office should be denied based on information that “the union” apparently had communicated to the Executive Director on an ex parte basis—i.e., that the union did not yet have its first contract and it was “very alarmed” about the possibility that a dissident group might seek decertification. The Executive Director, however, cautioned the Hearing Officer against mentioning these “additional reasons” in his actual ruling.
The Hearing Officer subsequently denied the requested continuance and, consistent with the Executive Director’s warning, did not mention the “additional reasons” in his ruling,
Additionally, other e-mails reflect conversations in which Charging Parties and/or their counsel informed the Executive Director on an ex parte basis that they were “impressed,” “astounded” and “elated” with certain comments the Hearing Officer had made with respect to a contested issue concerning ERCOM’s jurisdiction.
One of the e-mails describes an incident where Mr. Ipsen, ADDA’s president at the time, took the Executive Director to a parking lot to show him an “exotic Italian sports car” that Mr. Ipsen owned, and then let the Executive Director drive the car around the lot.
Another e-mail attaches a communication the Executive Director had received from ADDA that provides an update regarding ADDA’s federal lawsuit against the County and details the various actions taken by the County and the District Attorney that ADDA believed constituted violations of their members’ right to freedom of association.
Thus, on multiple occasions, the Hearing Officer received information from Charging Parties and/or their counsel through improper ex parte communications.
The writ petition charges that Kerrigan told a reporter for the Los Angeles Daily Journal that he did not consider Cooley’s testimony, in progress, to be credible; that he took potshots at Cooley’s lawyers; and that he announced he was drawing a “negative inference” from the fact that Cooley did not testify when initially scheduled and disregarded all of the DA’s evidence. It asserts:
“[A]lthough Charging Parties were allowed thirteen days to present their case-in-chief, the Hearing Officer threatened to preclude the District Attorney from calling further witnesses after allowing him only three full days to present its case (interrupted in large part by constant speaking objections from Charging Parties and lengthy colloquies between counsel and the Hearing Officer), and ordered the District Attorney to provide an “offer of proof as to what each of the District Attorney’s remaining witnesses will say.”
Causey readily acknowledges in an interview that he received communications from lawyers in the case, but says he sees nothing wrong with that. He’s an administrator, not a decision-maker, he notes.
“During the course of a case, a long case like this, people come in and talk to me about the case,” Causey says, adding: “Both sides do.”
As to e-mails, he relates:
“I received e-mails from every attorney that was involved in the case.”
Did he forward any of those e-mails to Kerrigan?
“I don’t recall,” he responds. “I doubt it.”
But he does not deny passing on to Kerrigan what he was told in the communications.
“I talked to Mr. Kerrigan about developments in the case,” he says.
Causey tells me he sees no merit to the writ petition, remarking:
“They’re just trying to find some basis to get the hearing officer’s decision overturned and they’re seizing on the fact that I’ve had conversations with the hearing officer.…There’s nothing improper about talking to the hearing officer about the case.”
Causey says the hearing officers tend to “ask my opinion” on matters, and he gives it—reminding them that they are not bound by his views.
(It might be wise for them not to routinely dismiss his views, however; he appoints the hearing officers. Kerrigan, by the way, used to be his law partner. He estimates that was “15 to 18 years ago.”)
The executive director insists that the only ex parte communication that would be improper would be one to members of the commission, who are those ones who decide the cases.
Causey is delightfully candid. I have the impression that he truly believes that there is nothing wrong with lawyers for one side seeking to enlist his support for a position, and then, if he’s persuaded, passing along his insight to the hearing officer.
I do think he has a rather crimped view of due process. Consider these hypotheticals (based on fact situations that are highly unlikely to occur):
What if a lawyer talked with Los Angeles Superior Court Clerk/Administrator John Clarke about the pressing need for production of documents in a particular case, Clarke conveyed the pitch to the discovery referee in the case, and the referee determined, on the basis of what Clarke told him, that disclosure should be compelled? Under Causey’s reasoning, all this would be OK because the judge, not the referee, makes the actual call.
If an appellant’s lawyer conveyed to Second District Court of Appeal Clerk Joseph Lane non-public information as to why there should be a reversal, Lane passed on the information to the research attorney who was writing the proposed opinion, and the research attorney took into account that information in fashioning an opinion that reversed, that, too, would be perfectly ethical, as Causey would see it. After all, the court, not the research attorney, makes the decision.
Yet, it is firmly established that due process requires neutrality in the adjudicatory process. Even if a final determination is made by a person who is truly neutral, the process clearly is skewed if what that unbiased decisionmaker has at hand, for approval or disapproval, was produced by a person influenced by matters privately communicated.
Rubber-stamping commonly occurs in all branches and at all levels of government, whether through laziness of persons vested with powers of final say-so or through the positing of trust in persons from whom the decisionmaker expects objectivity.
The three ERCOM commissioners meet once a month for a half day, according to Causey. They are appointed by the Board of Supervisors. How likely is it that they would rebuff a determination by the hearing officer—especially one who, like Kerrigan, had been a legal practitioner—or spurn the recommendation of their own CAO, Causey, who had been a labor lawyer for 30 years?
If e-mails between him and Kerrigan would not reflect improper conduct, why won’t Causey turn them over? “They contain all kinds of thoughts,” including discussions of law, he says.
“There’s nothing in these e-mails to hide, really. It’s privacy.”
Kerrigan declined to be interviewed.
Copyright 2012, Metropolitan News Company