In November 2020, whistleblowers alerted San Diego County about problems in its public defender’s office. The warning came two years before a jury awarded millions in damages to an ex-employee earlier this month in his wrongful termination suit, KPBS has learned.
At least two whistleblowers filed complaints with San Diego County’s watchdog arm, the Office of Ethics and Compliance (OEC), according to sources close to the county.
The whistleblowers echoed an accusation from former deputy public defender Zach Davina, who brought the wrongful termination suit against the county. Davina, who is gay, said he was asked during his tenure review hearing in September 2020 whether he was too flamboyant and animated, and whether his clients’ cases were harmed as a result.
Earlier this month, a San Diego Superior Court jury found Davina had been discriminated against for his gender expression and experienced retaliation from supervisors. The jury awarded him $2.6 million in lost wages and emotional suffering.
One of the whistleblowers also indicated that Sherry Stone, a supervisor in the office, violated conflict of interest rules. Stone sat on both Davina’s and ex-deputy public defender Michelle Reynoso’s tenure review panels.
Stone appeared on those panels after she had learned that both Davina, Reynoso along with other deputy public defenders, had complained about racially insensitive comments Stone allegedly made to a lawyer in the office. They asked that she be demoted and receive diversity training.
Reynoso has also filed an unlawful termination lawsuit against the county. In addition to complaining about Stone’s comments to a colleague, Reynoso alleges she was discriminated against because of her work with Black Lives Matter during her private time. Her trial is scheduled for February.
County spokesman Mike Workman told KPBS in an email that the OEC did investigate the whistleblower complaints against the public defender’s office. But he said the probe was suspended after the county learned that two of the three fired deputy public defenders intended to sue.
“Once litigation begins, it is not uncommon for whatever investigation is in process to be put on hold, which is what the county essentially did, and that's because the litigation process itself has a whole different set of rules for finding out what happened,” said San Diego legal analyst Dan Eaton.
The first whistleblower complaint was filed on Nov. 5, 2020, and the second the next day, according to sources. Lawyer Chris Ludmer, who represents both of the fired deputy public offenders, said he notified the county three weeks later that litigation was pending. Ludmer said the OEC never contacted either Davina or Reynoso for interviews about the whistleblower complaints.
However, the OEC did forward the complaints to public defender management, according to testimony at Davina’s trial. Angela Bartosik, a supervisor involved in the firings, wrote a letter to the OEC saying the complaints were unfounded, according to the testimony
That conclusion was based on an internal HR report signed by Public Defender Randy Mize. Mize admitted during Davina’s trial that he signed the report knowing it contained false statements from his supervisors.
County officials refused to answer a number of questions regarding their investigation, including when it was opened, how many people were interviewed before it was put on hold, and whether it had to be deferred because of the lawsuits.
“I’ll bet 10 to 1 that the decision to put the investigation on hold was dictated by the lawyers in the litigation or lawyers for the organization,” said Stephen Gillers, a New York University law professor. “This sounds very much like what lawyers would say. `Don’t do anything further. We don’t know how it will impact the litigation. We will get back to you.’”
Gillers said in cases where the alleged harm — discrimination, harassment and retaliation — is illegal and can still affect daily work life, an employer is obligated to investigate. This is true even if lawsuits have been filed, he said.
“Because the concern of the organization is to make sure that things are being done properly whatever the legal fallout in an organization,” he said.
Gillers added that the pressure only intensifies on a workplace to investigate when jurors, like in Davina’s case, agree with a plaintiff that an employer did discriminate and retaliate. The jury also found that the county did nothing to prevent the discrimination and retaliation against Davina.
“The heat is on and they have an affirmative obligation to figure out what is going on that persuaded a jury to award a multi-million dollar verdict,” Gillers said.
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Whistleblowers alerted San Diego County about alleged poor treatment of employees in its public defender office in late 2020. That was two years before a jury awarded $2.6 million dollars to an ex-employee earlier this month in his wrongful termination suit. Then, for our weekend preview, we have a Oaxacan festival, piano music, palm trees, and some Scandinavian art.
