DA Investigator Skaggs Reaches Settlement with Yolo County on Whistleblower Retaliation Suit

According to the suit, in 2008, Mr. Skaggs, a ten year veteran DA Investigator was placed on paid administrative leave pending the outcome of an administrative inquiry into allegations of misconduct.  Details of the discipline case were then disclosed to Dave Markss, Chief DA Investigator for Colusa County’s DA’s Office who sent the details of the conversation to no less than thirteen other Chief District Attorney Investigators.

In this month’s issue of the PORAC Newsletter, Sean Howell, attorney for Mr. Skaggs discusses the case and the difficulties involved.

According to Mr. Howell, Yolo County District Attorney’s Chief Investigator told

“Dave Markss, President of the California Association of D.A. Investigators, as well as a Davis police officer, about a discipline case against veteran District Attorney Investigator Randy Skaggs. Dave Markss told the chief investigators in several other counties about the confidential information he was given by Chief Martin.

At the time, Mr. Skaggs was the subject of an administrative investigation involving an off-duty teaching assignment. Martin’s disclosure effectively ended Mr. Skagg’s law enforcement career by foreclosing any possibility he could get hired in another county, regardless of the outcome of the disciplinary action.”

Mr. Howell cites Penal Code Section 832.5 that makes peace officer personnel record confidential and therefore agencies are prohibited from disclosing those records except pursuant to a court court or a pending criminal matter.

The settlement according to Mr. Skagg’s attorney had to overcome “exclusivity rule” for work place injuries.  As he suggests, courts have traditionally “not allowed recovery outside the workers’ compensation system for work-related personal injuries, even where those injuries were caused by the employer’s own misconduct.”

He continues:

“This “exclusivity rule” is based on a presumed “compensation bargain” between employer and employee by which the employer agrees to pay for work-related injuries and the employee gives up the wider range of damages potentially available in a personal injury claim. One exception to this rule is those injuries caused when the employer has engaged in intentional conduct outside its proper role in the employment relationship.”

Chief Martin has according to Mr. Howell admitted to the disclosure during the administrative appeal from the disciplinary action and has acknowledged that such release was a mistake, “although he blamed others for failing to keep his illegal disclosure a secret.”

Writes Mr. Howell,

“These principles allowed Mr. Skaggs to reach a settlement with Yolo County that resolved both the lawsuit and the companion disciplinary action. Had the parties been unable to settle, the County and the District Attorney would have faced a higher settlement demand and greater public scrutiny as the case proceeded in federal court.”

Despite these acknowledgments, Yolo County in their settlement agreement continues to maintain wrongdoing on the part of Mr. Skagg’s.  The allegations stem from the fact that Mr. Skaggs during POST training classes allowed students out of class early – what would seem to be a common practice in such classes – they further allege that he was reporting hours worked that had not actually been worked and falsified time cards.  Finanlly the accuse of him of improperly using his county vehicle to drive to that non-county job and utilization of county-issued credit cards to pay for the non-county job.  (As a note here, it seems odd that they would consider this a non-county job if the District Attorney’s Office is apparently reimbursing him for those hours and letting students out early is a somewhat standard practice.  From our standpoint it would seem that the county is taking a fairly minor indescretion and blowing it out of all proportions). 

Writes the statement from the County Board of Supervisors:

“As a result of these matters, it is felt that Mr. Skaggs’ ability to testify in future criminal cases on behalf of the Yolo County District Attorney’s office has been severely compromised. Under existing law, the District Attorney’s Office would be required to inform defense counsel in any case involving Mr. Skaggs that there was adverse information related to Mr. Skaggs’ credibility that could be used by the defense to impeach Mr. Skaggs’ testimony.”

The lawsuit by Mr. Skagg’s alleged that this discipline was retaliation for disclosure of exculpatory evidence.

“The Defendant have initiated retaliatory and frivolous administrative proceedings and actions against the Plaintiff, because he brought to the attention of the DA OFFICE, including the District Attorney, exculpatory evidence relating to other criminal investigations and prosecutions, and that thereafter the DA was forced to turn over evidence to defense counsel.”

According to the claim,

“Following these actions by the Plaintiff, the DA OFFICE began treating him selectively, placing him on administrative leave, proposing to terminate him from the department and initiating various administrative proceedings against him. These actions pretextual, wrongful and in violation of the public policies of the Untied States of America, and were in fact done to retaliate against Plaintiff, and in violation of his constitutional rights under 42 USC § 1983 II (Fourteenth Amendment) and other constitutional rights.

Yolo County goes further, denying Mr. Skagg’s allegations and arguing that his denial claim is completely meritless.

“The County of Yolo strongly denies Mr. Skaggs’ allegations of any wrongdoing or improper treatment by the District Attorney or any employees in the District Attorney’s Office, and stands by District Attorney Jeff Reisig’s decisions in regard to employees of his office. Claims of retaliation by disgruntled former employees are completely meritless.”

According to the Yolo County:

“This settlement was reached solely to avoid the substantial expense and disruption of further litigation, and to allow the District Attorney’s office to resume its focus on effectively fighting crime for the benefit of the citizens of Yolo County.”

It is worth noting that this agreement was reached over the objections of the District Attorney.  It is also worth noting that Mr. Skaggs never admits wrongdoing in the settlement.

“While District Attorney Jeff Reisig disagreed with this decision and would have preferred to litigate the entire matter for the benefit of the District Attorney’s Office and its employees, the best course of action considering all of the circumstances was to conclude the settlement with Mr. Skaggs, which includes significant discipline, and to ensure that his resignation from Yolo County employment was obtained.”

For his part, Investigator Pete Martin has also retired, although he has been re-hired by the District Attorney’s Office in some capacity.

As the Vanguard explained back in the summer of 2009, the key issue involved Mr. Skagg’s disclosure of exculpatory evidence involving the Halloween homicide case and whether the District Attorney’s office withheld evidence of a gun flash test during that trial.  At that time, Dave Henderson with the District Attorney and Mr. Reisig was the Deputy District Attorney in charge of that case.  According to former Investigator Rick Gore, Mr. Henderson had to order Jeff Reisig to comply with the law and “discover the evidence.”  Mr. Reisig was accused of trying to withhold evidence from the court and the defense.

As the suit by Mr. Skaggs alleges:

[The defendants] have proposed to terminate him in retaliation for his actions which were in good faith. Claimant brought to the attention of the District Attorney at the time of the incident, the fact that Jeff Reisig failed to turn over exculpatory evidence that Claimant developed, to defense counsel. After Jeff Reisig was forced to turn the evidence over, the department began to treat Claimant selectively.

He has been placed on administrative leave pending the final hearing where the department has proposed to terminate him. This retaliation against him, as a “whistle-blower” has now ended in a baseless administrative and criminal investigation against him. Further, the actions of the County of Yolo and the Yolo County District Attorney’s Office are pretextual, wrongful, in violation of public policy of the United States of America and the State of California. These actions also violate the Constitution and laws of the United States and constitute a violation of 42 USC § 1983 and deprivation of the Claimant’s constitutional rights.

While Yolo County attempts to minimize the decision to settle, attorney Sean Howell argued in the PORAC article that this was a rather unique settlement. 

He concludes:

“While administrative investigations, disciplinary actions, and employee reprimands are, in most circumstances, a normal part of the employment relationship, the intentional dissemination of private personnel information to employees and outsiders who have no legitimate reason to know of it may exceed the known and inherent risks of the workplace. Thus, improper dissemination of private employee matters can feasibly serve as the basis for a civil suit against an employer, as was successfully done for Mr. Skaggs.”

The bigger question that Yolo County residents may wish to consider is that if Mr. Reisig indeed retaliated against an employee who forced disclosure of exculpatory evidence and succeeded in having that employee terminated in one form or another, does this continue to be a standard practice for the District Attorney’s office and if so, has he removed the possibility that future whistleblowers from within his department will step forward by both retaliating against this one and removing what would appear to be an honest and moral person from employment.

—David M. Greenwald reporting