Dunn Is No Whistleblower, Lawsuit Is ‘Baseless’

Tuesday, November 18, 2014

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Dunn Is No Whistleblower, Lawsuit Is ‘Baseless’—State Bar Board

By KENNETH OFGANG, Staff Writer

Ousted Executive Director Joe Dunn never claimed to be a whistleblower prior to last Thursday, when he sued the State Bar and alleged that he was terminated for exposing misconduct in the Office of Chief Trial Counsel, State Bar trustees said.

“The lawsuit filed by Mr. Dunn is baseless and falsely suggests that the termination decision was motivated by the receipt of letters from attorney Mark Geragos stating that unnamed whistleblowers had complaints regarding State Bar officials and operations,” the board said Saturday in a statement. “The November 3 and 5 letters from Mr. Geragos to the State Bar did not, however, identify the Executive Director as one of the unnamed whistleblowers. (In fact, one of the allegations in the November 5 letter from Mr. Geragos alleged that the Executive Director’s staff was shredding documents.).”

The board said it was “bewildering” that Dunn, as head of the organization’s day-to-day operations, could claim the status of a whistleblower. The board—which notified Dunn on Nov. 7 that it was terminating his contract, effective in 30 days, although the decision was not made public until Dunn filed his complaint in Los Angeles Superior Court—also disclosed that it had been in settlement discussions up until Wednesday with attorney Howard Miller, a partner at Girardi & Keese and former State Bar president, acting on Dunn’s behalf.

“During our entire negotiations with Howard Miller, which concluded the evening of November 12, Miller never once claimed that Dunn was a whistleblower,” the board’s statement said.

Dunn claims that Chief Trial Counsel Jayne Kim filed an internal complaint after he discovered that she was falsifying records in order to create an appearance that the organization was more successful than it actually was in eliminating a backlog of disciplinary cases. He also accuses State Bar President Craig Holden, a named defendant in the suit, of wanting the executive director’s chair for himself.

Conflicts Alleged

The former legislator also contends that the organization retained the law firm of Munger, Tolles & Olson LLP and paid it hundreds of thousands of dollars to investigate Dunn even though a retired state Supreme Court justice—identified in one of Geragos’ earlier letters to the board as Edward Panelli, now a private judge—was willing to lead the probe pro bono.

The decision to hire Munger Tolles, Dunn alleged, was the product of a “close personal and professional relationship” between Trustee Miriam Krinsky and Bart Williams, one of two Munger Tolles partners who headed the investigation.

In his letter of Nov. 3, Geragos said the hiring of Williams and his firm involved “some very disturbing conflicts, as well as a lack of disclosure to the Board.”

He cited a published court opinion showing that Krinsky and Williams were co-counsel in a case more than 20 years ago when they were both assistant U.S. attorneys. He also claimed that Krinsky worked with Williams to secure office space at Munger Tolles two years ago for the L.A. County Citizen’s Commission on Jail Violence, of which Krinsky was executive director.

Holden Friday made public an email from Krinsky seeking to clarify her relationship with Williams.

‘Never Socialized Together’

Krinsky said she and Williams informed the board in October, while the Dunn probe was ongoing, that they knew each other from the U.S. Attorney’s Office, which has “close to 200 prosecutors in the Criminal Division alone,” but that they “have never socialized together” and “never tried any cases nor did any investigations together.”

Krinsky, who left the office in 2002 after 10 years as head of the Criminal Appeals Section and headed the General Crimes Section before that, explained that her name routinely appeared on appellate briefs when she was in charge of appeals, and that there are many published decisions “that share my name,” even though she played no more than a general supervisory role with respect to most of the cases.

“While I don’t recall the particular 20+year old case referenced in the Geragos letter, it is likely to either be one where my name simply appeared on the brief in my capacity as Appellate Chief or one where I stepped in to do the oral argument,” she explained.

As for the jail violence commission, Krinsky explained that the commission received a number of offers of free office space—including an offer from Dunn to situate itself at the State Bar’s Los Angeles offices—but accepted Munger Tolles’ proposal because the commission’s general counsel, former federal prosecutor Richard Drooyan, was a partner and had a “daily presence” there. It was Drooyan who reached out to the firm, she said, saying she had “no idea if Bart Williams was involved in the discussions regarding the office space in that Rick Drooyan handled that matter internally with his own MTO partners.”

Krinsky added that she was not part of the board’s “working group that selected MTO after an RFP process.” Her role, she said, came about after the firm was hired and was limited to working with Gwen Moore—a former state Assembly member and public member of the board—“to secure a fee cap for the second phase of the MTO work, in accordance with the scope of work and budget previously approved by the Board.”

In its statement Saturday, the board also sought to clarify the relative responsibilities of Holden and Deputy Executive Director Robert Hawley.

In its cryptic announcement of Dunn’s departure Thursday, the board said it had “directed President Craig Holden and Deputy Executive Director Robert Hawley to exercise immediate executive oversight of the State Bar on an interim basis.”

Saturday, it said:

“During this period of transition, Deputy Executive Director Robert Hawley will serve as Acting Executive Director. Craig Holden, who is serving as the 90th President of the State Bar and is a full-time practicing litigator, is a volunteer serving a one-year term as President that commenced September 13, and the Board has directed him to work closely with Mr. Hawley as Mr. Hawley performs the executive function for the Bar during this period of transition. Mr. Holden has expressed no interest in Mr. Dunn’s position and the Board is actively looking for an interim executive director.”

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State Bar Board of Trustees Statement in Response to Dunn ‘Whistleblower’ Lawsuit

The State Bar is responsible for maintaining professional and ethical standards for the legal profession in California, and the law requires the State Bar and its Board of Trustees to make protection of the public its highest priority. (Business & Professions Code Section 6001. 1.) Given this mission, maintaining a trusted executive staff is vital to the State Bar’s effective functioning.

On July 31, 2014, the Board received a complaint from a high-level employee raising serious, wide-ranging allegations about Executive Director Joe Dunn and certain State Bar employees. Another complaint followed in mid-August from another high-level employee. Given the Board’s fiduciary duty to protect the public, the Board took the complaints seriously, and hired a well-respected law firm to conduct an independent investigation into the complaints. The law firm of Munger Tolles & Olson (MTO) was selected by the Board’s incoming officers (President-elect, Vice President-elect, and Treasurer-elect) through a Request for Proposal (RFP) process. The officers concluded that MTO’s proposal would best enable this important work to be done in the most cost-effective, comprehensive, and timely manner and that the firm was also highly qualified to conduct the independent investigation. The full board approved the scope of work and budget for the MTO retention. MTO began the investigation in August. The Board held four meetings on these closed personnel matters in September, October and November. The first meeting was September 14, then October 17 and then October 30, with MTO present at a portion of each of these meetings.

MTO completed its investigation and presented its investigative findings to the board on October 17 and 30, 2014. The Board decided to schedule another meeting for November 7, at which time it could obtain advice from a public sector employment law firm. The November 7 meeting agenda was publicly posted October 28. Between these multiple meetings, as the investigation progressed, additional complaints were received against the Executive Director, and additional information was obtained.

After further discussion with counsel and consideration by the Board, at its November 7, 2014 meeting, the Board decided to notify the Executive Director that it was exercising its right under his employment agreement to terminate the Executive Director’s employment. At no time prior to November 13 was Joe Dunn ever identified as a whistleblower, and he never brought any such claims to the Board. Indeed, it’s bewildering to hear Mr. Dunn claim he is a whistleblower since as the executive who is head of the entire organization he is responsible for managing operations and the over 500 employees, and he only belatedly raised claims after he was given notice of termination of his employment agreement, and after a settlement discussion with his counsel at the Girardi & Keese firm reached an impasse on November 12. During our entire negotiations with Howard Miller, which concluded the evening of November 12, Miller never once claimed that Dunn was a whistleblower.

The lawsuit filed by Mr. Dunn is baseless and falsely suggests that the termination decision was motivated by the receipt of letters from attorney Mark Geragos stating that unnamed whistleblowers had complaints regarding State Bar officials and operations. The November 3 and 5 letters from Mr. Geragos to the State Bar did not, however, identify the Executive Director as one of the unnamed whistleblowers. (In fact, one of the allegations in the November 5 letter from Mr. Geragos alleged that the Executive Director’s staff was shredding documents.) Moreover, the letters were sent after the Board had authorized the investigation by MTO in August, after it received the MTO independent investigation report in October, and after the posting of the November 7th closed session agenda referencing the Board’s intent to discuss complaints against State Bar personnel. Finally, while the lawsuit alleges that MTO was hired based on the “recommendation” of a member of the Board who had a purported “close personal and professional relationship” with one of the lead partners at the firm, the Board member at issue had no involvement at all in the selection or hiring of MTO (that decision was made by the three Board officers) and her sole “relationship” with the attorney at issue stemmed from having been work-colleagues together in a 150-plus person government office fifteen years ago. Further, while the Complaint alleges that President Holden directed the ouster of Mr. Dunn, as Chair of the Board of Trustees, he presides over the proceedings, does not bring motions, did not make the motion to terminate Mr. Dunn’s employment agreement and did not vote on the matter. Rather, trustees brought the motions and a super-majority of the board voted to terminate Mr. Dunn.

Because this matter involves pending litigation and some confidential personnel issues, comment from the State Bar and its Board of Trustees is necessarily limited at this time. The Board of Trustees is committed to meeting its duties and responsibilities under the law and State Bar rules, and will release further information if doing so is consistent with those duties and the public interest.

The Board is continuing its analysis and consideration of the appropriate management/executive team structure in order to ensure that the important functions of the State Bar are carried out effectively, efficiently, and in a manner consistent with its obligations to the people of California. During this period of transition, Deputy Executive Director Robert Hawley will serve as Acting Executive Director. Craig Holden, who is serving as the 90th President of the State Bar and is a full-time practicing litigator, is a volunteer serving a one-year term as President that commenced September 13, and the Board has directed him to work closely with Mr. Hawley as Mr. Hawley performs the executive function for the Bar during this period of transition. Mr. Holden has expressed no interest in Mr. Dunn’s position and the Board is actively looking for an interim executive director.