3 afENNEL BOARD

October 26,2010

Lupe Zamora (c/o Paul Harris) 10600 N. Trademark Parkway, Suite # 405 Rancho Cucamonga, CA 91730

Re: Lupe Zamora v. California Department of Fish and Game et a/. SPB Case No. 10-4286N; Whistleblower Retaliation Complaint

Dear Ms. Zamora:

The State Personnel Board (SPB) is in receipt of the whistleblower retaliation complaint you filed on or about October 21, 2010, in which you assert that you were retaliated against in your employment with the California Department of Food and Game (DFG) for making protected disclosures andlor refusing to obey an illegal order. Please be advised that your complaint does not comply with the Whistleblower Protection Act, California Government Code section 8547 et. seq. and SPB regulations pertaining to whistleblower retaliation complaints, set forth at California Code of Regulations, tile 2, section 67, et seq. Your amended complaint must:

be filed with and received by the SPB within one year of the most recent alleged act of reprisal;

clearly identify the protected activity in which you engaged (i.e. the substance of your report(s) of improper governmental activity (or each illegal order you refused . - to obey), thedate($) you reported the imprope; governmental activity ior refused to obey the illegal order), and the person(s) to whom you reported the improper governmental activity (or informed you would not obey the order in question));

include the name and business address of each individual and entity alleged to have committed retaliatory acts;

specify what relief andlor damages you are seeking against the department and any individually-named respondent(s) as a result of the alleged retaliation, and state the reasons why damages or other relief should be awarded against the individual@);

clearly identify the specific act@) of reprisal or retaliation alleged to have occurred (i.e. the date of the act(s) and the entity and/or person(s) responsible for it (them));

'AUL E. HARRIS, 111. Chief Counsel (SBN 180265) lHERRY MCPHEE, Staff Counsel (SBN 263232) iervice Employees International Union, Local 1000 0600 N. Trademark Parkway. Suite #405 :ancho Cucamonga, CA 91730 'el: (909) 466-5057 :ax: (909) 466-8249

ittome s for Appellant .UPE J..MORA

BEFORE THE STATE PERSONNEL BOARD

OF THE STATE OF CALIFORNIA

I the Matter of Appeal By. UPE ZAMORA, rom Dismissal.

) SPB Case No.: 10-4286 1 ) ) REQUEST FOR CHANGE OF VENUE

Appellant, ) ) ) )

y DEPARTMENT OF FISH AND ) AME for the STATE of CALIFORNIA. )

)

Respondent. i

Appellant, Lupe Zamora (hereinafter "Mr. Zamora" or "Appellant") hereby requests that the

learing scheduled for February 7,201 1 at 12:00 p.m. in Los Angeles be relocated to Rancho

Iucamonga for the same time and date. This case arises from Mr. Zamora's employment with the

Iepartment of Fish and Game in Nuevo California. Tl~ts . Appellant believes that Rancho

hcamonga is the appropriate venue for the parties and witnesses involved.

Respondent's counsel is not opposed to this request

Respectfully submitted, I

SEIU Local 1000

Attorneys for Appellant. LUPE ZAMORA

Debbie Turner

From: Green, Margie [MGreen@SEIUlOOO.org] Sent: Thursday. October 21.2010 10:33 AM To: Appeals Cc: McPhee, Sherry Subject: FW: Whistleblower Complaint Zamora - SPB Case No. 09-6782

Attachments: Whist001 .PDF

KB) Attached is Whistleblower Complaint for case referenced above

- - - - - Original Message----- From: scanRC@calcsea.org [mailto:scanRC@calcsea.orgl Sent: Thursday, October 21, 2010 3:07 ?m To: Green, Margie Subject: Whistleblower Complaint Zamora

Please open the attached document. It was scanned and sent to you using a Xerox Workcentre Pro.

Sent by: Guest [scanRC@calcsea.orgl Number of Images: 4 Attachment File Type: PDF

Workcentre Pro Location: Rancho Cucamonga Device Name: XEROX 275

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PAUL E. HARRIS. 111. Chief Counsel (SEN 180265) SHERRY MCPHEE. Staff Counsel (SEN 263232) Service Emolovees Interni~tional Union. Local I(WO 10600 N. ~rk l&ark Parkway. Suite #405 Rancho Cucamonga, CA 9 1730 I : (909) 466-5057

Attorneys for Appellant LUPE ZAMORA

,UPE ZAMORA,

v.

- I . I ,

i0:1 N .. . .

BEFORE THE STATE PERSONNEL BOARD q-+.: ,'-? -g 4.2:

OF THE STATE OF CALIFORNIA .- ,Li

r.3 c2

) SPB Case No.: (whistleblower) to be &signed I ) SPB Case No.: 09-6782 ) (Appellant's Appeal of Dismissal) )

) ) FIRST AMENDED WHISTLEBLOWER

By DEPARTMENT OF FISH AND ) COMPLAINT 3AME for the STATE of CALIFORNIA. )

) and 1

Scotto Sewell, and

! )

Eddie Kono )

NATURE OF COMPLAINT

The Department of Fish and Game ("DFG) retaliated against me, Lupe Zamora, Seasonal

Aid, with the Department of Fish and Game. as a result of my having reported improper

governmental activities that include my report that Scott Sewell. Wildlife Habitat Supervisor 11 of

DFG. was improperly receiving substantial gifts from a lessee of state property. Since reporting

these issues, I was terminated from DFG. The entity and persons that have retaliated against me are

as follows: Department of Fish and Game, Scott Sewell, Wildlife Habitat Supervisor 11, and Eddie

Kono, Regional Manager of DFG.

STATEMENT OF FACTS

1. I'have been a Seasonal Aid with the Department of Fish and Game since approximately

1993. After being off for four years due to an on the job injury, I returned to work in

2007, worked 2008 and 2009. As a seasonal aid 1 am familiar with the prohibition

FIRST AMENDED WHISTLEBLOWER COMPLAINT

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m panlch spies y!% iodaa auoH aaiqi Llalcw!xo~ddc au ahc8 oumg .JW '6007: 'ZZ l!idv

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.sa!n!lod 9aa

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~o anueida~sc s,llamas noss ..IW pa~lodail .AI!A!I~~cIu~~u.I~A~~ iadoidw~~o . . suod9.1

ssnss!p 01 saw!] ald!llnw aw pallea angle s,~oi!pnv alcls aql woij Ley .SYL)S-ZS~

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'3Ja ql!~ ssau!hnq 13npuoa oqm qlqnd aqi jo siaqiuaul wail ~1114 . . Xu!ldanac )su!1:31:

' X. The rctaliation for my reporting of improper governmental activity contin~~ed when on or

about December 30,2009, Mr. Kono called me and stated something to the effect of. "You

no longer work for DFG. Scott Sewell doesn't have a job for you."

9. It is my belief that 1 was fired by Mr. Sewell and Mr. Kono in retaliation for reporting Mr.

Sewell's improper activities to Mr. Kono and the State Auditor.

10. It is also my belief that Mr. Kono approved of Mr. Sewell's initial termination of me in

October 2009 because he failed to take any action to correct the improper personnel action

and further retaliated against me.

I I . In the years before I reported Mr. Sewell's improper governmental activities, I was always

welcomed to return to work for DFG and had never been told not to return. My

performance has always been satisfactory.

12. Mr. Sewell's business address is Department of Fish and Game 17050 Davis Road,

Lakeview, CA 92567.

13. Mr. Kono's business address is Department of Fish and Game 3602 Inland Empire Blvd.

Ontario, CA 91764.

14. A complaint has not been filed with the Office of the Inspector General.

111.

DAMAGES

1. I am requesting that no further retaliation and/or retribution be taken against me.

2. I am requesting all back pay and benefits owed to me as a result of my termination,

including interest.

3. I am requesting compensatory damages.

4. 1 am requesting $25,000.00 in emotional distress damages as a result of the stress, anxiety.

and depression that I experienced as a result of the above-listed retaliatory actions.

5. 1 am requesting any other remedy the State Personnel Board deems appropriate.

FlRST AMENDED WHlSTLEBLOWER COMPLAlNT

1v.

DISCIPLINARY ACTION REOUESTED

1. I am requesting that disciplinary action be taken against Scott Sewell, Wildlife Habitat

Supervisor 11, for those reasons set fonh in Sectio~l 11. Paragraphs 2 ,3 .7 and 9. Mr. Sewell

should be terminated for taking bribes in exchange for leasing public land. Mr. Sewell's

business address is Department of Fish and Game 17050 Davis Road. Lakeview, CA

LJ2567.

2. 1 am requesting that disciplinary action be taken against Eddie Kono, Regional Manager

of DFG. for those reasons set forth in Section 11, Paragraphs 5 . 8 . 9 and 10. 13.Mr. Kono

should be demoted to a nonsupervisory position because he can not be trusted to perform

the duties of a supervisor. Mr. Kono's business address is Department of Fish and Game

3602 Inland Empire Blvd. Ontario, CA 91764.

v.

SWORN STATEMENT

I declare, under penalty of perjury under the laws of the State of California that the foregoing

; trueand correct to the best of my knowledge and belief.

FIRST AMENDED WHISTLEBLOWER COMPLAINT

VI.

LIST OF SUPPORTING MATERIALS

1. Attached hereto as Attachment 1 is a true and correct copy of receipts showing substantial

gift cards accepted by Mr. Sewell.

2. Attached hereto as Attachment 2 is a tnle and correct copy of my October and December

2009 calendar wherein I made notes regarding events relating to this whistleblower

complaint.

3. Attached hereto as Attachment 3 is a true and correct copy of my notes showing that I

spoke with Kay on September 16,2009.

4. Attached hereto as Attachment 4 is a true and correct copy of an Agricultural Lease

Agreement between Mr. Bruno and DFG.

declare, under penalty of perjury under the laws of the State of California that the foregoing is true

nd comect to the best of my knowledge and belief.

' FIRST AMENDED WHISTLEBLOWER COMPLAINT

ATTACHMENT I

233 W. Markham St. Perris.CA92571 C o ~ M o D ~ s g a4.F Fa (951, (951) 940-182 940-ISM j ,

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(951) 940-1836 . . . 233 W. Markham St

Penis. CA 92Vl COMMODITIES &LY Fa I)S1, (951)910-1562 (Uklm ; . - . ! .. :.:

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ATTACHMENT 2

ATTACHMENT 4

AGENCY : Department of Fish and Game NUMBER : AL-2008-01-R6 PROJECT : San Jacinto Wildlife Area

AGRICULTURAL LEASE: San Jacinto Wildlife Area - 71 1 Acres

AGRICULTURAL LEASE:

This LEASE, entered intoOctaber 27,2008 by and between the State of California, acting by and through the Department of Fish and Game, hereinafter called State, and William V. Bruno and Nicholas V. Bruno called Lessee;

WITNESSETH:

The parties hereto. for the consideration hereinafter expressed, do agree as follows:

1. That the State, in consideration of the payment or rent hereinafter specified to be paid by the Lessee and the covenants and agreements herein contained. does hereby lease, demise, and let unto Lessee Ulat certain property situated in the County of Riverside. State of Califomla. excepting therefrom all areas heretofore reserved therefrom for wildlife habitat development programs, consisting of 71 1 acres for the growing of agricultural m p s and more particularly described and delineated in that certain map and description entitled San Jacinto Wildlife Area Agricultural Lease and marked Exhibii 'A", which is attached hereto and incorporated by reference and made a part hereof.

2. The term of the Lease shall be for three (3) years commencing October 27. 2008 and terminating on the last dav of Se~tember. 201 1.

3. In lieu of rental payments, the Lessee will be required to provide custom tractor work, including discing, seeding, mowing, land leveling and/or mutually agreed upon equivalent work necessary to accomplish the restoration of wildlife habitats on the San Jadnto Wildlife Area (SJWA). Lessee work will be performed on a per acre basis and will be subject to the expenditure of the agreed upon annual Lease value. All Lessee work will be accomplished pursuant to the direction of the Area Manager, SJWA. in lieu of tractor work, Lessee will be required to make improvements and repairs to the San Jacinto Wildlife Area.

4. Lessee shall, in addition to all other sums agreed to be paid by him under this Lease. pay any and all taxes, possessory interest taxed, water charge taxes, and water surcharges levied or assessed on Lessee by proper governmental authority during the term of this Lease or any extension thereof. Lessee will use the existing irrigation well and water transport facilities located on the property and will be responsible for maintenance and repair of all pumping facilities and water transport faciliies during the Lease term. Lessee agrees to pay all costs of water, SCE, or other cost as relate to Lessee agricultural use. State shall not be responsible for the replacement of any pumps, pumping facilities or water transport facilities during the Lease term.

5. Lessee and any and ail agents and employees of Lessee shall act in an independent capacity and not as officers or employees of the State., Nothing

conta~ned herein shall be construed as constituting the parlies herein as partners.

This Lease is made upon the express condition that the State is to be free from all liability and claims for damages by reason of any injury to any person or persons, including Lessee, from any cause or causes whatsoever while in, upon, or in any way connected with the premises during the term of this Lease or any occupancy hereunder, except those arising out of the sole negligence of the State. Lessee agrees to defend, indemnify, and save harmless the State of California from ail liability, loss, cost, or obligation on account of or arising out of any such injury.or loss, however occurring. Lessee further agrees to provide necessary Workers Compensation Insurance for all employees of Lessee upon said premises at the Lessee's own wst and expense.

The parties hereto agree that either party may terminate this Lease at any time during the term hereof by giving notlce to the other party in writing thirty (30) days prior to the date when such termination shall become effective.

Lessee shall not assign this Lease in any event and shall not sublet the leased premises or any part thereof and will not permit the use of the leased premises by anyone other than the Lessee without prior written consent of the State.

By entry hereunder, Lessee accepts the premises as being in good order, condition, and repair and agrees that on the last day of the term, or sooner termination of this Lease, to surrender up to State the leased premises with any appurtenances or improvements in the same conditlon as when received, reasonable use and wear thereof and damage by act of God or by the elements excepted.

Lessee agrees that in no event shall State be required to perform any maintenance on or make repairs or alterations to the leased premises of any nature whatsoever. Lessee agrees to keep the leased premises in good order and condition at his sole wst and expense. Lessee does hereby waive all right to make repairs at the expense of the State as pmvlded in Sectlons 1941 and 1942 of the Civil Code.

No dumping of refuse by Lessee is permitted in any area of the leased premises, and Lessee shall not commit or suffer to be committed any waste or nuisance upon the premises; and Lessee agrees not to cut or remove any trees or brush thereon except as approved in writing by the State in advance, and Lessee further agrees that he shall at all times exercise due diligence in the protection of the leased premises against damage or destruction by fire or other cause.

All livestock brought or kept upon the premises shall be free from disease. Lessee agrees to immediately bury or remove any livestock which may die or be killed on said premises.

Lessee will provide for a representative, available to respond within 24 hours, to any problems on the San Jacinto Wildlife Area lease area. This may include problems with livestock movement or irrigation systems on the areas as a result of this Lease.

14. Lessee shall furnish a Certificate of Insurance to the State with amounts of public liability insurance of not less than $1,000.000 per occurence for bodily injury and property damaged combined naming the State of Califomla, its officers, agents, and employees and servants as additional insured insofar as operations under this agreement are concerned. It is agreed that the State shall not be liable for the payment of any premiums or assessments on the insurance coverage required by this paragraph. The Certificate of Insurance shall pmvide that the insurer will not cancel the insured's coverage without thirty (30) days prior written notice to State. Lessee agrees that the insurance herein provided for shall be in effect at all times during the term of this Lease. In the event said Insurance coverage expires at any time or times during the term of this Lease, Lessee agrees to provide State at least thirty (30) prior to said expiration date, a new Certificate of Insurance evidencing insurance coverage as pmvided for herein for not less than the remainder of the term of the Lease or for a period of not less than one (1) year. In the event Lessee fails to keep in effect at all times insurance coverage as herein provided, State may, in addition to any other remedies it may have, terminate this Lease upon the occurrence of such event. The insurance certificate should be mailed to B~ar tment of Flsh and Game, Attention: Terri Willlams, 4665 Lampson Ave. Suite J. Los Alamitos, CA 90720.

15. Lessee shall, at his sole cost and expense, comply with all of the requirements of all municipal, state, and federal authorities now in force, or which may hereinafter be in force, pertaining to the premises.

16. During continuance in force of thls Lease. there shall be and is hereby expressly resenred to the State and to any of its age~cies, contractors, agents. employees, representative. or licenses, the right at any and all tlmes. and at any and all places, to temporarily enter upon said leased premises for survey, inspection or any other lawful State purposes.

17. This Lease is subject to all existing easements and right of way. Sfate further reserves the right to grant additional public utility easements as may be necessary and Lessee hereby consents to the granting of any such easement The public utility will be required to reimburse Lessee for any damages caused by the construction work on the easement area.

18. Lessee agrees not to interfere, in any way, with the interests of any person or persons that may presently. or in the future, hold oil. gas, or other mineral interests upon or under said leased premises. nor shall Lessee in any way interfere with the rights of ingress and egSess of said interest holders.

19. It is further agreed and understood by the Lessee that the herein demised premises and every part thereof shall be subject to use for public recreation including, but not limited to, public hunting, publish fishing, camping, and picnicking under applicable laws of the State of California and rules and regulation of the State Fish and Game Commission and that the State of California, its officers, agents, and employees shall not be responsible for damages to livestock or property or injuries to persons which may arise fmm or be incident to such use and occupation of said premises. The Lessee, and

others cla~ming under him, shall have no r'ght to hunt or fish on the demised premises except in accordance with the California Fish and Game regulations.

State expressly reserves the right to the use of the herein leased propelty, in any manner, provided such use does not unreasonably interfere with the use of the Lease herein granted.

All notices herein provided to be given, or which may be given, by either party to the other shall be deemed to have been fully given when made in writing and deposited in the United States mail, certified and postage prepaid, and addressed as follows: to Lessee at 233 W. Markham Street, Perris, CA 92571 and to the State, do Department of Fish and Game, 1416 Ninth Street, Sacramento. CA 95814, and also to the Area Manager in charge of San Jaclnto Wildlife Area, Department of Fish and Game, P.O. Box 1254, Lakeview, CA 92567. The address to which the notices shall or may be mailed as aforesaid to either party, shall or may be changed by written notice given by each party to the other as hereinbefore provided, but nothing herein contained shall preclude the giving of any such notice by personal service.

In the event of the breach by Lessee of any of the covenants herein contained on the part of the Lessee to be kept and performed. it shall be lawful for the State to enter into and upon the leased premises, and every part thereof, and to remove all persons and pmperty therefrom, and to enjoy the leased premises as in the first and fonner estate of the State, anything to the contrary herein contained notwithstanding.

If action be brought by the State for the recovery of any rent due under the provisions hereof, or for any breach hereof, or to restrain the breach of any agreement contained herein. or for the recovery of possession of said premises. or to protect any rights given to the State against Lessee, and if the State shall prevail in such action, then Lessee shall pay to the State such amount as attorney's fees in said action that the Court shall determine to be reasonable. which shall be fixed by the Court as part of the wsts of said action.

Lessee agrees that it will not dlscrimlnate against any employee or applicant for employment because of race. color, religion, ancestry, national origin, sex, age or physical handicap. Lessee agrees to take affirmative action to ensure that applicants are employed. and the employees are treated during employment, wthout regard to their race. color, religion. ancestry, national origin. sex, age or physical handicap. (See California Government Code Sections 12920-12994 for further details).

Lessee agrees and understands that the primary purpose of the State's ownership and occupancy of the herein demised and leased premises is for wildlife conservation purposes, and Lessee agrees not to commit waste or damage the wildlife habitat.

This agreement contains any and every representation,' promise, and agreement made by the parties hereto in the negotiation thereof.

Time is of the essence of this Lease agreement 4

28. The State will not be responsible for losses or damages to personal property, equipment or materials of the Lessee and all losses shall be reported to the State upon discovery.

29. The State will not be liable for any debts or claims that arise from the operation of this Lease.

30. The terms of this Lease and covenants and agreements herein contained shall apply to and shall bind and insure to the benefit of the heirs, representatives, assigns and successors in interest of the parties hereto.

IN WITNESS WHEREOF, thls agreement has been executed by the patiis hereto as of the date first hereinabove written.

STATE OF CALIFORNIA DEPARTMENT OF FISH AND GAME

LESSEE

BY kfl2aLLcaf~ A

William V. B N ~ O

By A d d , s d.", Nicholas V. Bruno

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

Lupe Zamora

Appellant: Lupe Zamora

Respondent: Fish and Game

Human Resources: K. Wroten 1416 9th Street Sacramento, CA 95814

Case No. 10-4286

Notice of Time and Place of Informal Hearing

Appellant's Representative: SElU - Rancho Cucamonga, Local 1000 10600 Trademark Pkwy North, Suite 405 Rancho Cucamonga, CA 91730 Attn: Sherry McPhee Respondent's Representative: Fish and Game - Legal 1416 9th Street Sacramento, CA 95814 Attn:

DATE: TIME: LOCATION: 0210711 1 12:OO PM State Personnel Board - 320 West Fourth Street, Conf. RM 38

Los Angeles, CA 9001 3

The new Regulations are effective and apply to this case. See: htt~:llwww.s~b.ca.sovNVorkArealshowcontent.as~x?id=6324

Please take notlce that the abovecaptioned matter has been set for an Informal Hearing before a Hearing O f f k , the person appointed and authorized by the State Personnel Board as its representative to hold and conduct the Informal Hearing in the matter.

Each named respondent is required to serve on the complainant and the State Personnel Board at least 10 calendar davs ~ r i o r to the informal hearinq, a written response to the complaint specifically addressing the allegations contained in the complaint which is signed under penalty of perjury.

Each party to these pmceedings is entitled, but not required, to be represented by counsel at his or her own expense. inquiries may be directed to www.aDwalaca.aov. Requests for continuances are discouraged due to time frames set forth in Government Code section 19683(a) and Cal. Code of Reg., Title 2, section 56.5(a). Complaining parly may waive time frames in writing. Failure of a party to appear at the hearing will result in a Notice of Findings being issued without hislher input.

PROOF OF SERVICE i declare that I am a resident of or emoloved in the CwnlY of Sacramento, Caiifornia. I am over the aoe of 18 vears and not a oartv to the within entitled cause. The name and address of my business is thi~aiifornia ~tate~ersonnel ~ o a m : 801 Capitol Mail, ~acraminto, caiiornia 95814, 1 amreadily famiiiar with the ordinary practice ofthe business of collecting, p m s i n g and depositing correspondence in the United States Postai Service and that the correspondence will be deposited the same day with postage thereon fully prepaid On the date shown below, I served the above-entitled document on each of the above parlies by placing a true copy for collection and mailing in the United States Postai Service following ordinary business practices

I declare under the penalty d perjury that the foregoing is true and correct

Executed on December 15, 2010 at Sacramento, California

Joely Walker

cc:

State Personnel Board. Appeals Division, 801 Capitol Mall . Sacramento, Califamia 94244-2010 (916) 653-0544, CALNET 453-0544 FAX (916) 6546055. CALNET 454.6055

This facility is accessible to persons with disabilities. If you need a sign language interpreter or translator, call TDD (916) 654-2360

Rev. 9/9/2010

stronger Together

YVONNE R. WALKER President

M. CORA OKUMURA Vice Freserldent

and Serierary-Treasurer

JIM HARD Vice President

for Organ,zmg/Representation

KATHLEEN 6. COLLINS Vlce President for Bargaining

SERVICE EMPLOYEES INTERNATIONAL UNION

I0600 Trademark Pkwy N.

Suite 405

Rancho Cucamonga

CA 91730

1909) 466-5044

1909) 466-5060 (fax)

www.se1u1000.org

Tel: (909) 466-5057 Fax: (909) 466-8249

December 8,2010

Van T. Nguyen State Personnel Board 801 Capitol Mall Sacramento, CA 958 14

RE: SPB Case No. 10 -4286~ Lupe Zamora - Second Amended Whistleblower Complaint

Dear Mr. Nguyen:

Mr. Zamora's enclosed Second Amended Whistleblower complaint ("SAWC") is being submitted electronically to appeals@spb.ca.gov for filing.

Below are corrected addresses for service of the Second Amended Complaint on the individually named defendants (also corrected in the SAWC):

1. Scott Sewell Dept. of Fish & Game

2. Eddy Konno Dept. of Fish & Game

. . * -

The original and three copies are being sent to SPB via U.S. Mail.

F&qh Sherrv cPhee

Enclosures

cc: Catherine Kennedy, Senior Staff Counsel, DFG

BEFORE THE STATE PERSONNEL BOARD

OF THE STATE OF CALIFORNIA

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) SPB Case No.: 10-4286N

PAUL E. HARRIS, Ill. Chief Counsel (SBN 180265) SHERRY MCPHEE, Staff Counscl (SBN 263232) Service Employees International Union, Local 1000 10600 N. Trademark Parkway, Suite #405 Rancho Cucamonga, CA 9 1730

ORIGINAL Tel: (909) 466-5057 Fax: (909) 466-8249 I

L. . ~... - Attorneys for Appellant LUPE ZAMORA

j ) SECOND AMENDED ) WHISTLEBLOWER COMPLAINT 1

$ By DEPARTMENT OF FISH AND GAME for the STATE of CALIFORNIA, )

and

l 7 I NATURE OF COMPLAINT

18 I The Department of Fish and Game ("DFG) retaliated against me. Lupe Zamora. Seasonal

24 supervisor Eddy Komo, DFG. u

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26 I STATEMENT OF FACTS

Aid, with the Department of Fish and Game, as a result of my having reported improper

governmental activities that include my report that Scott Sewell, Wildlife Habitat Supervisor I1 of

DFG, was improperly receiving substantial gifts from a lessee of state property. Since reporting

these issues, I was terminated from DFG. The entity and persons that have retaliated against me are

as follows: Department of Fish and Game, Scott Sewell, Wildlife Habitat Supervisor 11, and his

27 I 1. I have been a Seasonal Aid with the Department of Fish and Game since approximately

28 1993. After being off for four years due to an on the job injury, I returned to work in

SECOND AMENDED WHISTLEBLOWER COMPLAINT I

2007. worked 2008 and 2009. As a seasonal aid I am familiar with the prohibition

against accepting gifts from members of the public who conduct business with DFC.

2. On or about September 16,2009.1 called the State Auditor whistleblower hotline at (800)

952-5665. Kay from the State Auditor's office called me multiple times to discuss my

rcports of improper governmental activity. I reported Mr. Scott Sewell's acceptance of

substantial gift cards (valued at over $2,000) from a lessee of public land in violation of

DFG policies.

3. During my conversations with Kay, of the State Auditor's office, I reported that on or

about February 24,2009, Bill Bruno, a firmer, leasing public land, was giving gift cards

to Mr. Sewell. My report with Kay included the following information: Mr. Bruno gave

me approximately two $500 Home Depot gift cards to give to Mr. Sewell. M;. Sewell

instructed me to put these gift cards on his desk. I also reported to Kay that on or about

April 22,2009, Mr. Bruno gave me approximately three Home Depot gift cards valued at

about $400 each to give to Mr. Sewell. I reported to Kay that I then heard Mr. Sewell

instruct Mr. Bruno over the telephone not to give the cards to anyone but him.

4. 1 also reported to Kay of the State Auditor's office that on or about May 18, 2009, I

witnessed Mr. Bruno open up his wallet and ask Mr. Sewell how much money he needed

this time. I reported that Mr. Sewell responded by stating something to the effect of,

"No. no. Not here, let's take it down to my house."

5. Sometime between August 7,2009 and October 23.2009.1 reported Mr. Sewell's

improper governmental activities to his supervisor, Eddy Konno, and told him that Mr.

Sewell was receiving Home Depot gift cards from Mr. Bruno. Mr. Konno told me that he

would take care of it and instructed me not to tell anyone.

6. Prior to October 29,2009, Mr. Sewell was aware that I had reported his improper

governmental activities. Game Warden, Kyle Chang, Thomas Trakes and Dirk Holt have

penonal knowledge of this.

7. On or about October 29,2009, I was terminated from DGF in retaliation for reporting Mr.

Sewell's improper governmental activities to his supervisor and the State Auditor. On or

about October 29,2009, Mr. Sewell called me and said something to the effect of, "You're

SECOND AMENDED WHISTLEBLOWER COMPLAINT 2

no longer working for DFG. It's not from me hut from a higher power. You will never

work for DFG anymore. You are not welcome if you step on the wild life grounds."

8. The retaliation for my reporting of improper governmental activity continued when on or

about December 30. 2009, Mr. Konno called me and stated something to the effect of,

"You no longer work for DFG. Scott Sewell doesn't have a job for you."

9. It is my belief that I was fired by Mr. Sewell and Mr. Konno in retaliation for reporting

Mr. Sewell's improper activities to Mr. Konno and the State Auditor.

10. It is also my belief that Mr. Konno approved of Mr. Sewell's initial termination of me in

October 2009 because he failed to take any action to correct the improper personnel action

and further retaliated against me.

I I. In the years before I reported Mr. Sewell's improper governmental activities, I was always

welcomed to return to work for DFG and had never been told not to return. My

performance has always been satisfactory.

12. Mr. Sewell's business address is Department of Fish and Game 17050 Davis Road,

Nuevo, CA 92567 and P.O. Box 1254 Nuevo, CA 92567.

13. Mr. Konno's business address is Department of Fish and Game

78078 Country Club Dr. #lo9 Bermuda Dunes, CA 92203.

14. A complaint has not been filed with the Office of the Inspector General.

111.

DAMAGES

1. I am requesting that no further retaliation andlor retribution be taken against me.

2. I am requesting all back pay and benefits owed to me as a result of my termination,

including interest.

3. I am requesting compensatory damages.

4. I am requesting $25,000.00 in emotional distress damages as a result of the stress, anxiety,

and depression that I experienced as a result of the above-listed retaliatory actions.

5. 1 am requesting any other remedy the State Personnel Board deems appropriate.

SECOND AMENDED WHISTLEBLOWER COMPLAINT 3

IV.

1)ISCIPLINARY ACTION HEOUESTED

1 . I am requesting that disciplinary action be taken against Scott Sewell, Wildlife Habitat

Supervisor [I , for those reasons set forth in Section 11, Paragraphs 2.3.7 and 9. Mr. Sewell

should be terminated for taking bribes in exchange for leasing public land. Mr. Sewell's

hi~siness address is Department of Fish md Game 17050 Davis Road, Nuevo. CA 92567.

2. 1 am requesting that disciplinary action be taken against Eddy Konno, for those reasons set

forth in Section 11. Paragraphs 5.8.9 and 10. 13. Mr. Konno should be demoted to a

nonsupervisory position because he can not be trusted to perform the duties of a

supervisor. Mr. Konno's business address is Department of Fish and Game

78078 Country Club Dr. #lo9 Bermuda Dunes, CA 92203

v.

SWORN STATEMENT

I declare, under penalty of perjury under the laws of the State of California that the foregoing

tnle and correct to the best of my knowledge and belief.

ated: / e

SECOND AMENDED WHISTLEBLOWER COMPLAINT 1

CASE NAME: Lupe Zamora - SPB Case No. 10-4286N

I am a citizen of the United States and a resident of the County of San Bernardino, California. 1 am over the age of eighteen (18) years and not a party to the above entitled action. My business address is 10600 Trademark Parkway North, Suite 405, Rancho Cucamonga, California 91730

I am familiar with the Service Employee's International Union practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a United States mailbox at the close of each day's business.

On December 8,2010 1 served the following:

SECOND AMENDED WHISTLEBLOWER COMPLAINT

[XI (BY MAIL) placing a true, copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Rancho Cucamonga, California, addressed as set forth below.

(original and three copies) SPB Appeals

801 Capiatol Mall Sacramento, CA 995814

(one COPY)

Catherine Kennedy Department of Fish and Game

1416 Ninth Street Sacramento, C A 95814

[XI (BY ELECTRONIC MAIL) TO: SPB Appeals - Auueals~sub.ca.eov

[I (BY OVERNIGHT DELIVERY) by placing a true copy thereof enclosed in a sealed envelope, with delivery fees paid or provided, and placed in the designated receptacle for such overnight miil, addressed as set forth below. In the ordinary course of business, mail placed in that receptacle is picked up that same day for delivery the following business day.

[I (BY PERSONAL SERVICE) by delivering by hand and leaving a true and correct copy with the person at the address set forth below.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on December 8, 2010, at

, Rancho Cucamonea, California.

801 Capitol Mall Sacramento CA 95814 I 866-844-8671 1 w w spb ca gov Governor Edrnund G Brown Jr

TRANSMITTAL SHEET

smc~hee(53seiu1000.org Linda McAtee, Presiding Appellant's Representative Administrative Law Judge

SPB Appeal's Division

Catherine Kennedy, ckennedv@dfq.ca.sov January 11,2011

URGENT [XI FOR REVIEW PLEASE COMMENT PLEASE REPLY PLEASE RECYCLE

NOTESICOMMENTS:

If& r ~ e ~ ~ ~ q u e s t i o n s a 6 o u t this 0 r i i p h . w umtuctAmt NarieJammayat altpe&@sp6.ca.gov andi& (1) tlie ht name oftlie uppellint, (2) uppekt ' s case d e r , (3) rihte o f h t i n g $wiry; (4) a return p b num6et; and(5)yow cumrat fqnum6m wliere ligdc- may 6e sent

ORDER GRANTING CHANGE OF VENUE

Hearing Date and Time 21711 1 at 12:OO P.M. ALJ: None

Requesting Party Appellant

GRANTED: [XI DENIED: OTHER:

..

(Zamora)

ORDER

On December 20,201 1, in the matter of the appeal by Lupe Zamora, SPB Case Number 10-

4286, the Appellant's representative submitted a request to Change the Venue of the Evidentiary

Hearing from Los Angeles to Rancho Cucamonga.

The request is hereby GRANTED. Appellant's hearing shall take place as previously noticed

on February 7,201 1 at 12:OO p.m. The location shall be changed to the State Personnel Board,

10390 Commerce Center Drive, Suite C-180, Rancho Cucamonga, California 91730. No formal

Hearing notice will follow.

IT IS SO ORDERED.

DATED: January 11,201 1

Linda McAtee Presiding Administrative Law Judge State Personnel Board

11 Catherine Kemedy, 166910 1 Senior Staff Counsel

11 BEFORE THE STATE PERSONNEL BOARD

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l /I OF THE STATE OF CALIFORNIA

Department of Fish and Game 1 4 1 6 9 ~ ~ t r e e t Sacramento, Caliiornia 95814 Televhone: (916)654-3821

9 I/ In the Matter of Appeal by ) SPB Case No. 10-4286

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I ) RESPONDENT'S OPPOSITION TO ) WHISTLEBLOWER RETALIATION ) COMPLAINT 1 ) Hearing Date: February 7,201 1 ) Time: 12:OO p.m.

LUF'EZAMORA

Appellant,

j Place: ~ a n c d o Cucamonga DEPARTMENT OF FISH AND GAME, )

II Respondent

17 1 1 T O THIS BOARD, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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RESPONDENT'S OPPOSITION

Respondent Depnrtment of Fish and Game ("DFG') hereby submits its Opposition to

Appellant Lupe Zamora's Whstleblower Retaliation Complaint pursuant to Title '2 California

Code of Regulations Section 67.5 (SPB Rule 67.5) and requests that the matter be dismissed for

failure to state a valid cause of action. For the reasons set forth below and based on the

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supporting declarations, Respondent will be able to prove that Lupe Zamora cannot meet his

burden of proof that he was retaliated for reporting improper activities as the San Jacinto

Wildlife Area and this action must be dismissed. Assuming arguendo that the State Personnel

2 I I demonstrate with clear and convincing evidence that Mr. Zamora suffered no nfaliation. I

5 11 The DFG utilizes seasonal aides to work on its many wildlife and hatchery areas. As the I G name suggests, seasonal Aides are temporary or seasonal employees of the Department who are i I 9 1 I with DFG would be from January through September with the months of October, November 1

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limited to working 1500 hours per calendar year. Lupe Zamora (Appellant) was appointed as a

Fish and Wildlife Seasonal Aide in January 2007'. The usual pattern of Appellant's employment

13 1) season. Mr. Zamora had never been formally separated from DFG and could be recalled to work 1

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1 4 . with DFG at any time. II 3 i 11 S~~bsequect lo that notification, Mr. 2mnora repeatedly asked boil1 Mr. Sewell and Mr. 1

and December being off from work. In or about the end of September2909, Scott Sewell, I

Wildlife Habitat Supervisor 11 and second-line supervisor of Mr. Zamora, audited Appellant's

hours andtold Mr. Zamora that he had reached his cap of 1500 hours aud sent him home forlthe

16 Sewell's supervisor - Eddy Konno for an admission or written documentation that he had been I I I

:..

17 terminated from employment from DFG. Both Mr. Sewell and.Mr. Konno repeatedly informed I I 18 Appellant that lie was not fued or terminated from DFG. Sewell and Konno did state to Zamora i i I

Branch. These subsequent telephone conversations occurred after September 2009. (See I

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22 paragraph 6 of Sewell Declaration and paragraph 8 of Konno Declaration). i I 1

something to the effect of ''there was no need for his services at this time." However, this

statement was made d e r consulting with a representative from DFG's Human Resources

I I RESPONDENT'S OPPOSITION

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25 ' Mr. Zamora had previously worked for DFG as a seasonal aide fiom June 1993 tlrough May 2003 when he was separated from DFG. He had a break in service until January 2007 when he was reappointed as a Fish alld Wilbliie

i TechnicIan Seasonal Alde. I

2 ( 1 standard practice to put something in writing after the end of an employee's regular season. Mr. I 1

3 Elms told Konno that it was not standard practice at DFG when a season ended. (See paragraph I I In addition, Mr. Konno consulted his acting supervisor David Elms to ask if it was

6 /(misuse of the Home Depot Gift Cards to anyone. It was only in December 2009 that Mr. Konno I

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7 received a voicemail message from Lupe Zamora wherein Appellant stated something to the I I I

8 of Konno Declaration). At no time during any discussion in or about August, September or

October 2009 with either Mr. Sewell or Mr. Konno did Appellant state that he had reported the

8 effect that he was the one who blew the whistle. (See Paragraph 9 of Iconno Declaration.) This I1 9 1 I declaration came long after his season was ended and after November 2009 when he filed a 1

10 Notice of Appeal with the SPB asserting that he had been dismissed for whistleblower I I I

The Califomia Whistleblower Protection Act (Government Code section 8547.8) protec

1 7 ( 1 employee to file a complaint with the SPB to seek remedies for retaliation. (See G o v e y I 15

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18 11 Code Sections 8547.8 and 19683.) I

stzte employees from suffering retaliations or reprisals for reporting improper govemmm

activity as defined in section 8574.2. The Whistleblower Protection Act authorizes a stat

1 9 / lu order to prevail on his complaint, MI. Zamora must prove k e e things: (I) h 4 20 participated in a protected activity; (2) that he suffered an adverse employment action; and (3 i I

facie elements of an employment retaliation case; See also i n Re Holte (1994) SPB Dec. No. 9

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that the adverse employment action was due to his participation in the protected activity. (Se

Flait v. North America Watch Company (1992) 3 ~ a l . ~ p p . 4 " 467, 476 for the general prim

RESPONDENT'S OPPOSITION I

2 4 Respondent filed a Motion to Dismiss the Appeal of a Notice of Dismissal on the grounds that Appellant was not entitled to an evidentiaiy hearing under (Title 2 California Code of Regulations Section 282.). This matter was

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1 a p e d oo December 2,2010and SPB Chief Adminishative Law Judge granted the Motion to Dismiss. (See Exhi.bi "A.' to Declaration of Catherine Kennedy.)

1 Whistleblower Retaliation defense by failing to establish a causal connection between hi

complaint to the Inspector General and the California Department of Transportations advers

action against him.)

Appellant must prove that he participated in a "protected" activity pursuant t

I Government Code section 8547.2 (d) which "...means any good faith communication tha 1 discloses or demonstrates an intention to disclose information that may evidence (1) an imprope 1

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(Ibid.)

Appellant requests as part of his remeily both monetary' damages and for disciplin

governmental activity or (2) any condition that nlay significantly threaten the health or safety 04

employees or the public if the disclosure or intention to disclose was made for the purpose of

remedying that condition." and that he suffered an adverse employment action because of this

participation. Government Code section 8547.8(e) requires that he prove his case by a

preponderance of evidence. At which point, the Respondent has the opportunity to prove by a

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I/action to be taken against both Scott Sewell and Eddy Konno This request requires ths 9

clear and convincing standard that the alleged employment action would have occurred for

ligitmmte, indepe~ldent reason even if appellant had not engaged in the protected ? ;.

Appellant prove that he suffered damages and that there is enough evidencc to warrani

disciplinary action to be taken against his supervisors. I 111.

LEGAL ARGUMENTS

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A. Appellant Fails to Meet His Burden of Proof

Lupe has declared that he reportedwhat he believed was improper government activities

committed by his direct supervisor Scott Sewell to the Bureau of State Audits. If Mr. Zamora

did report such a ccomplaint it would con?litnte a protected activity under the Whistleblower

RESPONDENT'S OPPOSITlON

7 1 ) cards to purchase supplies and equipment for the Wildlife Area. As is common at various lands I

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Act. However, merely reporting the activity would not be enough. Mr. Zamora needs to prove

that someone at DFG knew it was he who engaged in the protected activity. In this case, there is

clear evidence that Mr. Sewell, Mr. Konno nor Mr. Olvera, Region 6 Administrative Officer, did

not have knowledge that Mr. Zamora participated in any protected activity at the time his season

ended in September 2009 or even in the subsequent months.

The alleged misdeed that was complained about centered on the use of Home Depot gift

1 that the usage was outsjde of the normal or routine procurement process and wanted Kollenbon~

to discuss the matter with Komo without stating who told him about the situation. (See

paragraph 3 of Kollenborn Declaration.) Accordingly, Kollenbom spolce to Konno about the

practice without divulging the name of the complaining employee -Thomas Trakes. Lupe

Zamora's name was not mentioned nor dld Lupe Zamora speak independently with Konno. (See

paragraph 4 of Kollenborn Dec!aration and paragraph 4 of Konno Declaration.) Konno

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1 1 RESPONDENT'S OPPOSITION I

owned and managed by DFG, there existed an Agricultural Lease with a farmer. The lease at

issue was entered into with William and Nicholas Bruno in October 2008 (See Exhibit B

attached to Sewell Declaration). This lease allowed for "in-kind" service by the lessees to be

applied against the annual rental requirements. Specifically, the lease allowed for the lessee to :

make repairs around the Wildlife Area. (See paragraphl2of Sewell Declaration.), Consistent with

both the existing practice and his understanding, Sewell did accept Home Depot cards from the

lessee to use towards maintenance of the Wildlife area and its buildings. (See paragraph 13 of

Sewell Declaration).

Concern over the practice of using the gift cards was raised to Eddy Konno in late July or

early August 2009. However, it was not LupeZamora who raised the concern. In the

summer of 2009, DFG employee Thomas Trakes told Habitat Supervisor I Steven Kollenbom

about the usage of the gift cards and how he was uncomfortable using them because. he perceived

3 11 contacted Sewell to inform him of the complaint and order him to cease the p~actiee. At that I

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immediately investigated the situation. He promptly contacted his supervisor, Chris Hayes to

discuss the lease agreement and determine whether or not gift cards could be used. Konno also

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9 / / Konno of his alleged invoivement until Decemba 2009 (See Paragraph 7 of Konno I

time, he did not tell Sewell who made the complaint because he did not know who at the

Wildlife Area made the complaint. (Paragraphs 5 and 6 of Konno Declaration). Sewell stopped

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l1 /I In support of his complaint, Appellant asserts that Warden Kyle Chang knew in October *

using the g& cards. Komo determined that Sewell was not engaged in any improper behavior

and therefore did not instigate any disciplinary actions3. Konno later learned that Trakes was the

person who contacted I<ollenborn. There was no evidence that Zamora attempted to inform

12 2009 that Zamora had told Sewell and Konno that he had discussed the matter with the Bureau o I I

i s I / . B. No Adverse Employment Action Occurred I

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is / I The California Supreme Court in Ymmria r L 'O~eai USA, Inc. (2005) 36 Cal. 4 1028, i

State Audits. However, Chang's recollection is that it was not Zamora who told him about the

use of the gift cards, but Thomas Trakes. (See Paragraph 5 of Chang Declaration)

17 1 1 11 38 discussed what constitutes an "adverse" working employment action in a "retaliation" /

21 11 "[allthough a mere offensive utterance or even a patte~n of social slights by either the employer I

is

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l2 II or co-employees cannot be viewed as materially affection the terms, conditions, or privileges of

case. The court adopts a broad standard to include, not only termination and demotion, but also

those actions which "are reasonably likely to adversely and materially affect an employee's job

performance or opportunity for advancement in his or her career." However the Court states,

23 1 ( employment" (Ibid). I

RESPONDENT'S OPPOSITION

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l 5 Ifthere was any type of audit done, no one has contacted Sewell, Konno, Kollenbom, Warden Chang, or Regional Manager Kim Nicol. (See Declarations attached)

(without actually having ever received any type of formal dismissal action) in November 2009.

(See Exhibit "B" of Kennedy Declaration) Just because Zamora argues he was terminated does

not create an actual legal termination. No matter how broadly a court looks to what constitutes

an adverse employment action, there still has to be an actual action.

C. No Causal connection Exists

Assuming arguendo that Appellant can show that the conclusion of his regular season

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Lupe Zamora has not been terminated from the Department of Fish and Game. (See

Declarations of Sewell, Konno, Olvera, and Smith.) His normal season ended in September

2009. Subsequently, he was assured on numerous occasions by both Konno and Sewell that he

was not terminated. Instead of following his normal pattern of contacting the Wildlife Area in

December to set dates to come back to work, Zamora filed a notice of an appeal of dismissal

22 I1 Instead the only evidence that Zamora ever said anything to Konno was a telephone

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is simehow an "adverse" employment situation, he still has to show-that there was a causal

connection between engaging in the protected activity and the communication by Sewell and

Konno that his season ended in September and October of 2009. In order to make this causal

connection, Zamora has to prove that Konno and Sewell knew it was Zamora who made the

complaint. The only evidence ofthis is Zamora's own self-serving testimony. There is no othe~

evidence that indicates that Zamora told Sewell and Konno in September or October 2009.

Indeed, contrary evidence exists which clearly proves that it was Trakes who told Kollenbom

about the situation. This is confirmed by the testimony of Kollenbom, Konno and Warden

Chang. No one remembers that Zarnora mentioned anything of his alleged whistleblowing at

that time.

I I RESPONDENT'S OPPOSITION I

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voice-mail message in December 2009. Again, this self-sewing, after the fact, message was that

Zamora identifying himself as the whistleblower. Clearly, this message was an attempt to make

a case of retaliation after the November 2009 appeal was filed when no such case existed at the

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time his season ended. Such an attempt to manufacture a case when none existed is consistent

with his repeated requests to for some type of "admission" or witing stating the reasons he was

terminated. (See paragraph 8 of Konno Declaration.)

There was nothing to prevent him from coming back to work for the DFG. Respondent

anticipates that Zamora will argue futility as a reason not to request to be put back to work for

the 2010 season. Such a request fails for two,main reasons. The first is the repeated requests for

confirmation of his termination after September 2009 and the repeated reassurances of both

supervisors that he was not terminated. (See Declarations of Konno and Sewell.) The second is

the fact that he has a pendingworkers compensation claim for an injured knee. It is unclear

whether or not he could actually perform the physical labor required of a Seasonal Aide on a

wildlife area. (See Declaration of Dwight Greene.) Indeed, it is more likely that he did not

request to be put on for the 2010 season due to pursuing his workers compensation injury and not

because he had any reason to believe that he was fired.

C. Legitimate ~us iness Reason

DFG hac! a legitimate business reason for notifying Zamora that his services or season for

2009 were over in September 2009. Zamora was not a permanent full time civil servant with

DFG as defined in Government Code section 18528. Instead, he is a seasonal employee or

tempormy employee as defined in Government Code section 18529.

Pwsiiant to ilrticle VTI, section 5 of the California Constitutioi~, Zamora was limited to

how many hours he could work in any calendar year. That section specifically states: "A

temporary appointment may be made to a position for which there is no e&ployment list. No

person may serve in one or more positions under temporary appointment longer than 9 months in

12 consecutive months." Zarnoralaew this due to his long-history as a seasonal employee with

DFG (See Paragraph 1 of Statement of Facts in Zamora's complaint). Governor

Schwarzeneggsr's Executive Ordzr SS-3-09 extended the furloughs to three days per month until

RESPONDENT'S 0PPOSITIC)N

I , . . .

1 June 30,201 0. That adjustment did affect when Zamora' season ended in September 2009 but

2 . only by a few days. (See Sewell Declaration).

I 3 IV. ~ CONCLUSION 4

5 Respondent requests that Lupe Zamo

6 dismissed in its entirety for the reasons stated above

7 damages pursuant to his complaint. In addition, Re

8 be brought against DFG employees Eddy Konno or Scott Sewell as no grounds exist under

9 Government Code section 19572 which warrant disciplinary actions against them.

1 0 Dated: /k7/// 11

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..L. S-.. . . . . . . . . . . . - .

SESPONUENT'S OPPOSITION

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BEFORE THE STATE PERSONNEL BOARD

OF THE STATE OF CALIFORNIA

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In the Matter of Appeal by

LUPE ZAMORA

Appellaot,

Catherine Kennedy, 166910 Senior St& Counsel Department of Fish and Game 141 6 9" Street Sacramento, California 95814 Telephone: (916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@dfp..ca.~ov

) SPB Case No. 10-4286 1 ) D E C W T I O N OF KYLE CHANG IN ) SUPPORT OF OPPOSTION TO ) WHISTLEBLOWER COMPLAINT I

VS. ) Hearing Dates: February 7,201 1 ) Time: 12:00 p.m.

DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucamonga I

Respondent

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I, KYLE CHANG hereby declare to the following:

1. 1 am over the age of 18 years and not a parly to this action. 1 am employed as a

Fish and Game Warden with the Law Enforcement Divjsion ofthe Department of Fish and

Game (DFG). I make this Declaration based on personal knowledge and if called as a witness

could testify to the contents herein.

2. 1 have been employed with DFG since 1999. As a Fish and Game Warden, I m

peace officer as deiined in Penal Code 830.2(e). Warden duties involve, but are not limited to,

administering and enforcing fish, wildlife, and habitat protection laws, rules, and regulations;

conducting investigattons with full participation in surveillance, interviewing witnesses,

DECLARATION OF KYLE CHANG I N SOFPORT OF RESPCINDENT'S OPPOSTION TO WHTSTLEBLOWER RETALIATION COMPLAONT

- 1 ! I

~~- - .. - . , ~p

Department of Justice. Wardens may also be required to take action in crimes of a general

nature, including violations of Penal, Vehicle, Health and Safety Codes, and others to preserve

and protect all public health and safety. This may include arresting armed and dangerous felons,

arresting drug traffickers and seizing related evidence, stopping and arresting drunk drivers,

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a 11 taking emergency action to preserve life in traffic or other accidents, and participating in 1

searching for and ka!&g custody of physical evidence, se~zing illegal fish, wildlife, and

equipment connected with violations, securing and serving search wanants, making arrests and

testifying in court; coordinating cases with the district attorney, attorney general, and the

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Homeland Security efforts on State lands and waters.

3. I am assigned as the Fish and Game Warden for the Hemet District which

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" the Wildlife Area. I cannot remember the exact date. X4y understanding of the purpose of the II I

includes but is not limited to the geobraphicd area where S w Jacinto Wildlife Area. I am

personally acquainted with the DFG employees who work at the San Jacinto Wildlife Area,

including Soott Sewell, Thomas Trakes, and Lupe Zamora due to the fact that the Wildlife k e a

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is within my patrol region.

4. In Octobcr 2009, I was requested to meet with Scott Sewell and Thomas Trakes at

20 11 Trakes and Scott Sewell were present. Lupe Zamora never showed up to the meeting or wildlife1

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meeting was that Lupe Zamora had been let go for the 2009 season and he was upset about it.

He had requested a meeting with Scott Sewell who was uncomfortable meeting with Lupe

Zamora and asked for me to attend. I went to the Wildlife Area and recollect that both Thomas

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DECLAPATION OF KYLE CfIANG IN SUPPORT OF RESPONDENT'S OPWSTION TO WHISTLERLOWER RETALIATION COMPLAONT

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5. At some point in the fall of 2009,I learned that there was an allegation of

inappropriate use of gift cards. I have reviewed the statement made in paragraph 6 of the

Appellant's Second Amended Whistleblower Complaint which states: "Prior to October 29,

25 2009, Mr. Sewell was aware that I had reported his improper governmental activities, Game

11 hnn either Thomas Trakes or Scott Sewell and riot Lupe Lamora I have m howledge as to I 2

( 1 whether or not Scott Sewell knew who reported the activities or when he learned of the matter on I

Warden, Kyle Chang, Thomas Trakes and Dirk Holt have personal~knowledge of this." I cannot

a&matively testify to this fact. My recollection is that I lamed about the gift card allegations

5 1 or before October 29,2009. I

Area, Mr. Sewell or Mr. KOMO. TO the best of my knowledge, and apart from this case, I am I

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5. I have never been contacted by an investigator or representative fiom the Bureau

of State Audits, the California Highway Patrol, the California Department of Justice, the

Governor's Waste Watchers, the coyty district attorney's office, DFG's Internal Affairs Unit or

the local law enforcement offices regarding the allegations of misuse, bniny, mnBful

acceptance of gifts of the Home Depot gift cards in connection with the San Jacinto Wildlife

1 5 1 1 above is true and correct. -. 1

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unaware of any pending administxative, civil or criminal matters pending~egarding the

allegations of Mr. Zamora

I declare under penalty of perjury, under the laws of the State of California, that the

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DECLAWLTION OF KYLE CHANG IN SUPPORT OF RESPONDENT% OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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Date:

Place:

Catherine Kennedy, 1669 10 Senior Staff Counsel Department of Fish and Game 1416 9"' Street Sacramento, California 95814 Telephone: (916)654-382 1 Facsimile: (916) 654-3805 Email: cltennedv@dfe.ca.eov

1 1 BEFORE THE STATE PERSONNEL BOARD

I / OF THE STATE OF CALIFORNIA

9 In the Matter of Appeal by II ) SPB Case No. 10-4286

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LUPE ZAMORA j DECLARATION OF SCOTT SEWELL IN ) SUPPORT OF OPPOSTION TO

Appellant, ) WHISTLEBLOWER COMPLAINT >

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I VS. ) Hearing Dates: February 7,201 1

) Time: 12:OO p.m. DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucamonga

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Respondent 1

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I, SCO'M SEWELL, hereby declare to the following:

1. I am over the age of 18 years and not a party to this action. I am employed as a

Wildlife Habitat Supervisor Il with Region 6 of the Department of Fish and Game (DFG). I hav

been employed with DFG since 1998. I make this Declaration based on personal knowledge and

if called as a witness could testfy to the contents herein.

2. As part of my duties as a Wildlife Habitat Supervisor 11, I am assigned the

management of the San Jacinto Wildlife Area (Wildlife Area). I directly supervise Tom Trakes,

Wildlife Habitat Supervisor I and on-site manager of the Wildlife Area. I am the second-line

supervisor of Lupe Zarnora. There are 5 full time employees at the Wildlife Area. The Wildlife

DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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Area hires seasonal employees to augment the services rendered by the permanent employees.

The number of seasonal employees hired changes upon the needs of the Wildlife Area. The

number has varied during the time I have supervised the area from no seasonal employees to two

employees. Currently, there are no seasonal employees working at the Wildlife Area.

3. Lupe Zamora is employed with the DFG as a Seasonal Aide. This is a seasonal

position with DFG. Mr. Zamora's usual pattern of employment with DFG would be from

January through September with the months of October, November and December being off

from work. This was the pattern of work in 2009.

4: In or about September 2009, I became awarethat Mr. Zamora had reached his

work hour cap of 1500 hours. On or about September 25,2009, I informed Mr. Zamora that his

2009 season with DFG was ending. I did not terminate his empIoyment with DFG and to my

knowledge Mr. Zamora has not been officially separated from DFG employment.

5. Attached hereto as E h b i t "A" is a true and correct copy of the corrected

September 2009 timesheet signed by both Mr. Zamora and me. September 28,29, A d 30,2009

were furlough days required by the Governor's Executive Order.

6. Subsequent to my September 25,2009 meeting with Mr. Zamora letting him

know that his season for 2009 had ended, I spoke to LaPezra Smith, the DFG Personnel

Specialist for Region 6 about Mr. Zamora'scircumstances. Upon her advice, I communicated to

Mr. Zamora the next week that "his [Zamora's] services are no longer needed at this time" in

response to his second accusation that I had terminated his employment with DFG. Such a

statement was consistent with my understanding that Mr. Zamora's season had ended for the

year and he could not work until the next calendar year.

7. Mr. Zamora had requested that he come to the Wildlife Area to meet with me to

discuss the situation. I had some concerns for my safety so I requested DFG Warden Kyle

Chang to meet me at the Wildlife Area to act as a witness and be available should there be any

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problems. The meeting was scheduled for in' early October 2009, approximately one week after

the September 25,2009 meeting with Mr. Zamora. Mr. Zamora failed to show up at this

subsequent meeting. Warden Chang was present, as well as Wildlife Habitat Supervisor I,

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Thomas Trakes and Dirk Holt.

8. I had no knowledge in September 2009, that Mr. Zamora had "blown the whistle"

or reported any alleged wrongdoing on my part or Mr. Konno's. It was only subsequent to his

filing an appeal with the State Personnel Board that I learned Mr. Zamora was alleging that he

claimed that he had reported alleged misdeeds to anyone at the State Auditor's office or that he

alleged that he was terminated in retaliation for having been a whistleblower.

9. In past years, Mr. Zamora would approach me at the end of December or

beginning of January to arrange for the start date of the next seasonal employnlent. This

arrangement worked due to the fact that Mr. Zamora's contact information in DFG records

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would not always be accurate to allow me to call him to reschedule bim. At no time since

September 2009 has Mr. Zamora requested to return to his seasonal job.

10. Prior to promoting to my cment position as a Wildlife Habitat Supervisor I1 in

2008, I was the Wildlife Habitat Supervisor for the Wildlife Area. I served in that capacity from

2005 until 2008. In both of these positions, my duties included managing the actual resources on

the Wildlife Area. Management of the resources includes, but is not limited to, overseeing the

hunting season which runs mual ly from September to February, the upkeep and maintenance of

the buildings and grounds, procurement of equipment, entering intoappropriate contracts, and

overseeing the Agriculture Wildlife Fanning Lease.

11. Upon my arrival at the Wildlife Area, a different agricultural lease was in place at

the Wildlife Area with a different lessee. The current lease with William and Nicholas Bruno

was entered into by the parties in October 2008. I was not part of the negotiation or signing of

the lease agreement. I was provided with a copy of the lease agreement once it was approved.

DECLAARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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1 (See Agricultural Lease Attached as Exhibit "B." The lease agreement provided by Appellant as I I I I ~ttachrnmt 4 was missing the final page which memorialized the value of the lease agreement.) I

5 1 ) services ara broadly captured through out the lease agreement Specifically, paragraph 3 states: I

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6 1 1 "In lieu of payments, the Lessee will be required to provide custom tractor work, I

12. Various paragraphs under the lease agreement require that the Lessees, William

and Nick Bruno, perform ;-kind services in lieu of paying rent. The nature of the in-kind

9 I the San JacintoWildlife Area (SJWA). Lessee work will be performed on a per I

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acre basis and will be subject to the expenditure of the agreed upon annual Lease I

including discing, seeding mowing, land leveling and/or mutually agreed upon

equivalent work necessary to accomplish the restoration of wildlife habitats on

11 I I value. All Lessee work will be accomplished pursuant to the direction of the Area I

1 1 Paragraph 4 requires in pertinent part that the: "Lessee will use the existing irrigation I

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I I well and water transport facilities located on the property and will be responsible for I

Manager, SJWA. In lieu of tractor work, Lessee will be required to make improve-

ments and repairs to the San Jacinto Wildlife Area."

1 1 13. My understanding based both on practice preceding my promotion and I 1'

l9 ( 1 assignment as a habitat supervisor to the Wildlife Area and discussions 1 had with other DFG /

maintenance and repair of all pumping facilities and water transport facilities during the Lease

term."

20 1 I employees, including my direct supervisor, Eddy Konno, was that the in-kind services could I 21 1 include the lessee paying for parts, equipment and services for repairs needed op the Wildlite 1 Z2 A r e The value of the purchase of the parts and equipment and in-knd service were an off-set 1 23 / 1 against the annual rent. In order to facilitate the purchase of parts and equipment needed to keep / 24 the Wildlife Area and its buildings in repair, it was suggested and I agreed to have the Brunos I I

DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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purchase a Home Depot Gift Card to use to purchase needed supplies for the Wildlife Area and

off-set the amount against the rental obligation under the lease.

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14. Expenses paid for upkeep and maintenance under the lease agreement included

purchases of supplies needed to put in large piping, culverts, roofs, wells and water pumps, roofs

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9 for my own personal gain. I never opened my wallet to accept case nor was it my practice to I I I

and maintenance on state-owned employee housing. Some of the necessary supplies were

purchased using the Home Depot Gift Cards. Record keeping for the purchases were kept by the

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Lessee and used by DFG to value the in-kind rental off-sets.

15. At no time, did I accept bribes, money or gifts from William or Nicholas Bruno

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l4 / / State Audits, the California Highway P a o l , the California Department of Justice, the I

meet the Brunos' at my state-owned house. Business with the Brunos was usually conducted at

the Wildlife Area's office.

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16. Apart from discussing these allegations with my supervisors and DFG legal

counsel, I have never been contacted by an investigator or representatwe from the Bureau of

18 1 1 17. In or about late July or emly Aumst 2009, I had a conversation with my I

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l9 11 Supervisor. Eddy Konno regarding the use of the Home Depot cards. He indicated that be had 1

Governor's Waste Watchers, the county district attorney's office or the local law enforcement

offices. To my knowledge, and apart from this case, there are no pending administrative, civil or

criminal matters pending regarding the allegations of Mr. Zamora.

20 /I received a complaint dom someone about the use of the cards and instructed me to stop using 1 them. He did not tell me who had made the complaint to him. I immediately stopped the use of I

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the Home Depot cards per his instructions.

19. It was only in the late Spring or early Summer in 201 0, that I was attending a sta

meeting and Thomas Trakes indicated that he was the person who complained internally about

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DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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01~/25/2011 11: 40 7603590709 Cb FISH & W E - I W A PAGE

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the use of the Homc Depot cards. Mr. Trakes is still emgo$ as a Habitat Supnvioor I at the

Wildlife Area. 1 declare undm penalty of pqury, under the laws of the State of Califmia, that the

above is true and

Date: 6117r

naceqlAi k e f o ~ a

DECLARATION OF SCOTT 9EWE.LLIN SUPPORT OF OPPOSTlON TO WHISTLEBLOWER RETALIATION COMPLAONT - 6

EXHIBIT A

EXHIBIT B

a. . S r a t e a f ~ a - The ARNOLD SCHWARZ-

DEPARTMENT OF FISH AND CAME htto~llwww.dfa.ca,aov 141 6-Nfith Street CC- : 5Z-b.114 Sacramento, CA 9581 4

November 14,2008

Wtlliam V. Bruno Nicholas V. Bruno

Subject: Lease AL-2008-01-R6

To Whom It May Concern:

Enclosed is your copy of the executed grazing lease for the San Jacinto Wildllfe Area (SJWA). Should you have any questions, please contact the local representalihe, Terri Williams, at 562.596.4215.

Sincerely,

Eric R. Dockter Analyst Business Services

cc: Teni Williams Region 6

Endosure

" AGENCY : Departn 'f Fish and Game NU, R : AL-2008-01-R6 PROJECT : San Ja~Int~Wildlife Area

AGRICULTURAL LEASE: San Jacinto Wildlife Area - 711 Acres

AGRICULTURAL LEASE:

This LEASE, entered into October 27, 2008 by and between the State of California, acting by and through the Department of Fish and Game, hereinafter called State, and William V. B N ~ O and Nicholas V. Bruno called Lessee;

WITNESSETH!

The parties hereto, for the consideration hereinafter expressed, do agree as follows: I I

1. That the State, in consideration of the payment or rent hereinafter specified to be paid by the Lessee and the covenants and agreements herein conta~ned, does hereby lease, demise, and let unto Lessee that certain property situated in the County of Riverside, State of California, excepting therefrom all areas heretofore reserved therefrom for wildlife habitat development programs, consisting of 71 1 acres for the growing of agricultural crops and more particularly described and delineated in that certain map and description entitled San Jacinto Wildlife Area Agricultural Lease and marked Exhibt "A", which is attached hereto and incorporated by reference and made a part hereof.

2. The term of the Lease shall be for three (3) years commencing October 27,2008 1 and terminating on the last dav of Seotember, 2011. ~

3. In lieu of rental payments, the Lessee will be required t o provide custom :ractor work, including disclng, seeding, mowing, land leveling andlor mutually agreed upon equivalent work necessary to accomplish the restoration of wildllfe habitats on the San Jacinto Wildlife Area (SJWA). Lessee work will be performed on a per acre basis and will be subject to the expenditure of the agreed upon annual Lease value. All Lessee work will be accomplished pursuant to the direction of I

the Area Manager, SJWA. In lieu of tractor work, Lessee will be required to make improvements and repairs to the San Jacinto Wildlife Area.

Lessee shall, in addition to all other sums agreed to be paid by him under this Lease, pay any and all taxes, possessory interest taxed, water charge taxes, and water surcharges levied or assessed on Lessee by proper governmental authority during the term of this Lease or any extension thereof. Lessee wlll use the existing irrigation well and water transport facilities located on the property and will be responsible for maintenance and repair of all pumping facilities and water transpo~ facilities during the Lease term. Lessee agrees to pay all costs of water, SCE, or other cost as relate to Lessee agricultural use. State shall not be responsible for the replacement of any pumps, pumping facilities or water transport facilities during the Lease term.

5. Lessee and any and all agents and employees of Lessee shall act in an independent capacity and not as officers or employees of the State. Nothing I

.- .- . , mntainec ' ein shall be construed as cot . ding the parties herein as .. .. partners.

6. This Lease is made upon the express condition that the Sfate-is to. be free from all liability and claims for damages by reason of any injury to any person o r persons, Including Lessee, from any cause or causes whatsoever while in, upon, or In any way connected with the premises during the term of this Lease or any occupancy hereunder, except those arising out of the sole negligence of the State. Lessee agrees to defend, indemnify, and save harniless the State o f California from all liability, loss, cost, or obligation on account of or arising outof any such injury or loss, however occurring. Lessee further agrees to provide necessary Workers Compensation Insurance for all employees of Lessee upon said premises at the Lessee's own cost and expense.

7. The parties hereto agree that either party may terminate this Lease at any time during the t e n hereof by giving notice to the other party in writing thirty (30) days pnor to the date when such termination shall become effective.

8. Lesses shall not assign thls Lease in any event and shall not sublet the leased premises or any partihereof and will not permit the use of the leased premises by anyone other than the Lessee without prior written consent of the State.

9. By entry hereunder, Lessee accepts the premises as being in good order, condition, and repair and agrees that on the last day of the term,, o~ sooner terminailon o i this Lease, to surrender up to State the leased premises wiKany appurtenances or Improvements in the same condition as when received, reasonable use and wear thereof and damage by act of God or by the elements excepted.

10. Lessee agrees that in no event shall State be required to perform any maintenance on or make repairs or alterations to the leased premises of any nature whatsoever. Lessee agrees to keep the leased premises in good order and condition at his sole cost and expense. Lessee does hereby waive all right to make repairs at the expense of the State as provided In Sections 1941 and 1942 of the Civil Code.

11. No dumping of refuse by Lessee Is permitted in any area of the leased premises, and Lessee shall not commit or suffer to be committed any waste or nuisance upon the premises; and Lessee agrees not to cut or remove any trees or brush thereon except as approved in writing by the State in advance, and Lessee further agrees that he shall at all times exercise due diligence in the protection of the leased premises against damage or destruction by fire or other cause.

12. All livestock brought or kept upon the premises shall be free from disease. Lessee agrees to immediately bury or remove any livestock which may die or be

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killed on said premises. I

13. Lessee will provide for a representative, available to respond within 24 hours, to any problems on the San Jacinto Wildlife Area lease area. This may include problems with livestock movement or irrigation systems on the areas as a result of this Lease.

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14. Lessee shall rurnish a Certificate of lnsurance to the State with amounts of public liability insurance of not less than $1,000,000 per occurrence for bodily injury and property damaged combined naming the.State of California, its officers, agents,.. . and employees and servants as additional insured insofar as operations under this agreement are concerned. It is agreed that the State shall not be liable for the payment of any premiums or assessments on the insurance coverage required by this paragraph. The Certificate of lnsurance shall provide that the insurer will not cancel the insured's coverage without thirty (30) days prior written notice to State. Lessee agrees that the insurance herein provided for shall be in effect at ail times during the term of this Lease. In the event said insurance coverage expires at any time or times during the term of this. Lease, Lessee agrees to provide State at least thirty (30) prior to said. expiration date, a new Certificate of Insurance evidencing insurance coverage as provided for herein for not less than the remainder of the term of the Lease or for a period of not less than one (1) year. . .In the event Lessee fails. to keep in effect at all times insurance coverage as herein provided, State may, in addition. to any other remedies it may have, terminate this Lease upon the occurrence of such event. The insurance certificate should be mailed to De~artment of Flsh and Game, Attention: Teni Williams, 4665 Lampson Ave, Suite J, Los AJamitos, CA 90720.

15. Lessee shall, at his sole cost and expense, comply with all of the requirements of all municipal, state, and federal authorities now in force. or which may hereinafter be inforce, pertaining to the premises.

16. During continuance in force of this Lease, there shall be and Is hereby expressly reserved to the State and to any of its agencies, contractors, agents, employees, representative, or licenses, the right at any and all tlmes, and at any and all places, to temporarily enter upon said leased premises for survey, inspect~on or any other lawful State purposes.

17. This Lease is subject to all existing easements and right of way. State further reserves the right to grant additional public utility easements as may be necessary and Lessee hereby consents to the granting of any such easement. The public utility will be required to reimburse Lessee for any damages caused by the construction work on the easement area.

18. Lessee agrees not to interfere, in any way, with the interests of any person or persons that may presently, or in the future, hold oil, gas, or other mineral interests upon or under said leased premises, nor shall Lessee in any way interfere with the rights of ingress and egress of said interest holders.

19. It is further agreed and understood by the Lessee that the herein demised premises and every part thereof shall be subject to use for public recreation including, but not limited to, public hunting, publish fishing, camping, and picnicking under applicable laws of the State of California and rules and regulation of the State Fish and Game Commission and that the State of Caiifornia, its officers, agents, and employees shall not be responsible for damages to livestock or property or injuries to persons which may arise from or be incident to such use and occupation of said premises. The Lessee, and

, others ck g under him, shall have no right aunt or fish on the demised premlses except in accordance with the California Fish and Game regulations.

20. State expressly reserves.the right to the use of the herein leased property, in any manner, provided such use does not unreasonably interfere with the use of the Lease herein granted.

21. All notices herein provided to be given, or which may be given, by either partyto the other shall be deemed to have been fully given when made in writing and deposited in the United States mail, certified and postage pre-paid, and addressed as follows: to Lessee at 233 W. Markham Street. Perris, CA 92571 and to the State, do Department of Fish and Game, 1416 Ninth Street, Sacramento, CA 95814, and also to the Area Manager In charge of San Jaclnto Wildlife Area, Department of Fish and Game, P.O. Box 1254, Lakeview, CA 92567. The address to which the notices shall or may be rnaiied as aforesaid to either party, shall or may be changed by written notice given by each party to the other as hereinbefore provided, but nothing herein contained shall preclude the giving of any such notice by personal sennce.

22. In the event of the breach by Lessee of any of the covenants herein contained on the part of the Lessee to be kept and performed, it shall be lawful for the State to enter into and upon the leased premises, and every part thereof, and to remove all persons and property therefrom. and to enjoy the leased premises as in the first and former estate of the State, anything to the contrary herein contained notwithstanding.

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23. If action be brought by the State for the recovery of any rent due under the provisions hereof, or for any breach hereof, or to restrain the breach of any agreement contained herein, or for the recqvery of possession of said premises, or to protect any rlghts given to the State against Lessee, and if the State shall prevail in such actlon, then Lessee shall pay to the State such amount as attorney's fees in said action that the Court shall determine to be reasonable, which shall be fixed by the Court as part of the costs of said action.

24. Lessee agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, sex, age or physical handicap. Lessee agrees to take affirmative actlon to ensure that applicants are employed, and the employees are treated during employment, without regard to their race. color, religion, ancestry. national origin, sex, age or physical handicap. (See California Government Code Sections 12920-12994 for further details).

25. Lessee agrees and understands that the primary purpose of the State's ownership and occupancy o f the herein demised and leased premises is for wildlife conservation purposes, and Lessee agrees not to commit waste or damage the wildlife habitat.

26. This agreement contains any and every representation, promise, and agreement made by the parties hereto in the negotiation thereof.

27. Time is of the essence of this Lease agreement. A

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I

I I 11 BEFORE TEE STATE PERSONNEL BOAlZD

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Catherine Kemledy, 16691 0 Senior Staff Counsel Depa~lment of Fish and Game 1416 9"' Skeet Sacran~ento, California 958 14 Telephone: (916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@dfg.ca.~ov

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i l7 1 1 I, LaPEZRA SMITH, hereby declare to [he following: 1

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1. I an1 o v a the age of 16 years and not a party to this action. 1 am employed as

Personnel Specialist with the Department of Fish and Game (DFG) assigned to Iiegion 6. I have

bee11 em]iloyed by DFG since 2000 and have bean with Region 6 since 2008. I make this

Declaration based on personal knowledge and if called as a witness couild testify to the contents

OF TI-IE STATE OF CALIFORNIA

In the Matter of Appeal by ) SPB Case No. 104286 1

LUPE ZAMORA ) DECLARATION OF LaPEZRA SMITH IN ) SUPPORT OF MOTION TO DISMISS

Appellml, 1 ) Hewing Dates: February 7,201 1

VS. ) Time. 12.00 p.m ) Place: Rancho C~~camollga

DEPARTMENT OF FISH AND G M , ) )

Respondent

I I herein. I

DECLARATION OF LaPEZRA SMITH 11.1 SUPPORT UF OPPOSITION TO WHISTLEBLOWER RETALIATION COMPLAINT

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2. As pa11 of my duties as a Personnel Specialist, I regulwly access the State

Controller's Office (SCO) computer system to review the employment information of DFG . . . . , . _. , ".l______l,._....- .. _ ... " -

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en~ployees. 1 an1 personally faniliar witli tlie codes used by the SCO's systwn 011 its pj~lldt i ts

oi6'Employee History Summary."

3. I reviewed the "Employee Histoiy Sunimary" for Lupe Zamora. My review of h

employee history indicates illat he has never bee11 termincited with the DFG. It is customary for

Seasonal Aides with DFG to rernain ail einployee witli DFG fortlie portion of tlie year that they

are not actively working because'their "season" has ended and not be formally terminated. Tbis

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allows them to resume their work as a Seasonal Aide in the next yeor. (A bile and correct col~y

of Lipe Zamora's Employee I-listory Sunnnnry is anached hereto as "Exllibil A.')

4. As the Personnel Specialist assigned to Region 6,1 iegularly receive inquiries -

from field stnfflocated ilxo~~ghout Region 6 regarding personnel issues. Such incluiries could

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include questions from supervisors regarding how Inany hours a subnrdi~~ate seasolla1 employee

had worked, how to till out time-sheets, leave time, and eniployment status.

5 . In Octnbcr 2009,l recall receiving a telephone call lorn S C O ~ Sewell geiierally

1 4 recluesting informati011 about tlie employmne~it of seesonal employees 1?r11e11 theseason is over. I l"Wh I do i~ot recall specifically what I said, l understand that Scott Sewell statesthat I advised

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" Place: .4ds (?1.&JV

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DLCLARATIOIJ OF LaPEZHA SMITB I N Sr.iP!?Ol?T OF OPP0SITIC;N TO MHISTLEBLOWEK RETALIAT.lOk1 CC:MPLE-II\l': I

I-Qiln

ibecol lec t ion that seasonal eniployees cannot extend their working situatio~~ beyoilci their normal

soas011.

I declare under penalty of perjury, under the laws of the Slate of California, that the

to tell the en~ployee "there is no work at Lhis time" in response to 11% ir~quir)~ about what to

tell employees after their season had ended. Sucli advjce would be consistenl wit11 my

EXHIBIT A

sge: 1 Document Name: untitled - EMPLOYEE HISTORY SUMMARY PAGE 01 OF 02

iSA# 571-66-0938 NAME ZAMORA , LUPE R HISTORY SPB EFF DATE TRAN AGY-UNT-CLAS-SER SPB AGENCY ENT DATE PSD REF # TYPES ID

- 08/01/10 350 565-602-0790-905 FISH & GAME 08/19/10 102319999 B C 1 07/01/10 350 565-602-0790-905 FISH & GAME 07/08/10 101899999 B C 1 1 - 07/01/09 350 565-602-0790-905 FISH & GAME 07/06/09 091879999 B C 1 01/30/09 350 565-602-0790-905 FISH & GAME 02/10/09 090419999 B C 1 I ' 07/01/07 GEN 565-601-0790-905 FISH & GAME 08/26/07 072389999 B 1

I ' 01/10/07 A02 565-602-0790-905 FISH & GAME 01/31/07 FG0310006 BAGH D I 1 07/01/03 GEN 565-602-0790-905 FISH & CAME 08/20/03 032329999 B 1 11 05/08/03 SO1 565-602-0790-905 FISH & GAME 05/09/03 FG1290003 F IJ 1 08/31/00 GEN 565-602-0790-905 FISH & GAME 09/06/00 002509999 B C 1 I - 01/13/00 565 565-602-0790-905 FISH & GAME 03/03/00 020630001 C I 1

1 - - 01/01/00 120 565-602-0790-905 FISH & GAME 02/10/00 020410502 1 - 07/01/99 GEN 565-584-0790-905 FISH & GAME 10/16/99 992899999 B 1 - 04/01/99 GEN 565-584-0790-905 FISH & GAME 04/20/99 991109999 B C 1 - 01/31/96 505 565-584-0790-905 FISH & GAME 05/15/96 021360028 H 1

01/01/96 MSA 565-584-0790-905 FISH & GAME 05/15/96 021360028 B 1 . . . . . . . . . . . . . . . . . . . . . . . . . 1 - H I S T O R Y T y p E s- - - - - - - - - - - - - - - - - - - - - - - - - - A = APPT C = EMP C O W E = REEMP COND G = APPT CERT I = GEN PAYROLL 1 B = SALARY D = SERVICE F = SEPARATION H = RETIREWENT J = SEP PAYROLL

I SELECT DETAIL SELECT HISTORY TYPES: - - - - - - - - - - - OR MANUAL AUDITS -

I

I / BEFORE THE STATE PERSONNEL BOARD

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II OF THE STATE OF CALFORMA

Catherine Kennedy, 166910 Senior Staff Counsel Department of Fish and Game 1416 9Ih Street Sacramento, California 95814 Telephone: (91 6)654-3821 Facsimile: (916) 654-3805 Email: clcennedvmdf~.ca.eov

1 ( In the Matter of Appeal by ) SPB Case No. 10-4286

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; DECLARATION OF KIMBERLY NICOL ) IN SUPPORT OF OPPOSTION TO ) WHISTLEBLOWER COMPLAINT .\

LUPE ZAMORA

Appellant,

l7 I I I, KIMBERLY NICOL, hereby declare to the following:

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J VS. ) Hearing Dates: February 7,201 1

) Time: 12:OO p.m. DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucamonga

Respondent )

2 o 11 ~ ~ ~ l a r a t i ~ ~ based on personal knowledge and if called as a witness could testify to the contents

18 1. I am over the age of 18 years and not a party to this action. I am employed as thf

Regional Manager of Region 6 of the Department of Fish and Game (DFG). I make this

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herein.

2. I have been employed with DFG since 1981 and held numerous positions within

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DECLARATION OF KIMBERLY NICOL I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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DFG including Fishery Biologists, Associate Biologist, Environmental Scientist, Staff

Environmental Scientist, Senior Environmental Scientist, Environmental Program Manager,

25 Acting Wildlife Branch Chief, and was promoted to Regional Manager in August of 2010. As

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DECLARATION OF KIMBERLY NICOL I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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Regional Manager, my duties include being the final decision maker in Region 6 for

management decisions including but not limited to, the implementation and management of the

programs and policies for the management of natural resources including DFG owned wildlife

areas, ecological reserves, and hatcheries. As part of my duties of Regional Manager, I am the

ultimate decision maker for Region 6 regarding the supervision of regional staff and personnel,

regional contracts, and leases.

3. The previous Regional Manager for Region 6 Curt Taucher briefed me on all

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pending legal and personnel matters during my transition period into my current position as

Regional Manager. At no time was there ever a mention of a previous or current audit or

investigation into allegations of theft, bribery, or acceptance of inappropriate or illegal gifts at

the San Jacinto Wildlife Area or involving Wildlife Habitat Supervisor 11, Scott Sewell or his

supervisor Senior Environmental Scientist, Eddy Konno. I had no notion that there was even a

pending State Personnel Board matter until late August or early September 2010.

4. I have never been contacted by an investigator or representative from the Bureau

of State Audits, the California Highway Patrol, the California Department of Justice, the

Governor's Waste Watchers, the county district attorney's office or the local law enforcement

offices. TO my knowledge, and apart from this case, there are no pending administrative, civil 01

criminal matters pending regarding the allegations of Mr. Zamora

5. Based on my knowledge of the facts presented so far in this case, my own review

of the matter, my understanding of the statutes and rules regulating state civil service employees

actions, and in discussion s with appropriate staff and managers in DFG's Human Resources

Branch, it is my opinion that there was no wrong-doing on the part of Eddy Konno or Scott

Sewell which warrants disciplinary actions on the part of DFG. Had I believed that there was

sufficient evidence to warrant disciplinary proceedings against MI. Konno and Mr. Sewell

6 11 BEFORE THE STATE PERSONNEL BOARD

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/I OF THE STATE OF CALIFORNIA

Catherine Kemledy, 16691 0 Senior Staff Counsel Department of Fish and Game 141 6 9"' Street Sacramento, California 95814 Telephone: (91 6)654-3821 Facsimile: (91 6) 654-3805 Email: ckennedv~,dfr.cn.eov

In the Matter of Appeal by ) SPB Case No. 10-4286

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I; JOSEPH OLVERA, hereby 'declare to the following: . . . . . I

LUPE ZAMORA j DECLARATION OF JOSEPH OLVERA ) SUPPORT OF OPPOSTION TO

Appellant, ) WHISTLEBLOWER COMPLAINT

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1 8 I / I I am over the age of 18 years and not a party to tl~is action. I amemployed as the I

I vs. ) Hearing Dates: February 7,201 1

) T ~ m e , 12:OO p.m. DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucamonga

) Respondent

2 4 I/ management for the region including, but not limilcd to, personnel issues and theproces3ing of I

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Administrative Officer IIJ in Region 6 of the Department of Fish and Game (DFG). I make this

Declaration based on personal lmowledge and if called as a witness could testify to the contents

herein.

2. I have been employed with DFG for 22 years. For the last 16 years, I have been

the Administrative Officer for Region 6. I am responsible for all of the administrative

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DECLARATION OF JOSZPH OLVERA I N SUPPORT OF OPPOSTION TO WHISTLCBLOWER RETALIATION COMPLAONT

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DECLARATION OF JOSEPH OLVERA IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAOMT

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contracts for Region 6. As part of my dities, I often serve a s the contact person in the region for

any outside investigations, audits or other formal inquiries.

3. I am familiar with DFG employee Lupe Zamora and his employment histoly with

DPG as a Seasonal Aide at the San Jacinto Wildlife Area. Iwas aware in September 2009 that

his season for 2009 was over due to the fact he had reached the maximum amount of hours that a

seasonal employee can work for the Department. It is my recollection that Mr. Sewell informed

Mr. Zamosa that his season ended in or about the end of September 2009. This was not unusual

as Mr. Zamora's pattern of employment with DFG was to work from January through September

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i n any given calendar year.

4. I have never been contacted by an investigator or representative from the Bureau

of State Audits, the California Highway Patrol, the California Department of Justice, tKe

Governor's Waste Watchers, the county district attorney's office, DFG's Internal Affairs Unit o:

the local law enforcement offices regarding the allegations of misuse, bribery, wrongful

acceptance of gifts of the Home Depot gift cards in connection with the San Jacinto Wildlife

Area, Mr. ~ e w e l l o r Mr. Konno. Even if I was contacted by someone from these offices, it h e

been my experience that the outside investigator does not divulge the name of the person who

filed the complaint with the investigating agency.

5 . I did receive n telephone message from an anonymous caller in December 2009

stating that there was a problem at the San Jacinto Wildlife Area. I did not recognize the voice

and have no idea who the person was. There was no contact information.

6. I first learned of the actual complaint of the misuse of the Home Depot cards fron

Curt Taucher in January 2010. At that point, I contacted Eddy Konno and discussed the

Agricultural Lease. It is my understanding that the lease was written by former DFG employee

Thomas Paulek.

Home Depot cards or that he accused Scott Sewell of misdeeds, bribery, or the wrongful

acceptance of gifts.

I declare under penalty ofperjury, u d e ~ the laws of the State of California, that the

above is true and correct.

Date: //2q /LO/ 1

'4. . . Place: Los A/itim 3 Callfomla

DECLARATION OF JOSEPH OLVERA IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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3 1 1 Sacramento. California 95814

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Catherine Kennedy, 166910 Senior Staff Counsel D e p q e n t of Fish and Game 14169 Street

I1 BEFORE THE STATE PERSONNEL BOARD

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Telephone: i916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@dfg.ca.aov

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I, STEVEN KOLLENBORN, hereby declare to the following:

I. I am over the age of 18 years and not a party to this action. I am employed as a

Wildlife Habitat Supervisor I in Region 6 of the Department of Fish and Game (DFG). I make

this Declaration based on personal knowledge and if called as a witness could testify to the

contents herein.

2. I have been employed with DFG since 1998. I am responsible for all of the

OF THE STATE OF CALIFORNIA

In the Matter of Appeal by ) SPB Case No. 10-4286 1

LUPE ZAMORA ) DECLARATION OF STEVEN KOLLENBORN IN SUPPORT OF

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1 ) management of the unstaffed ecological reserves in the southern portion of Region 6.

Appellant, j OPPOSTION TO WHISTLEBLOWER ) COMPLAINT

VS. 1 ) Hearing Dates: February 7,201 1

DEPARTMENT OF FISH AND GAME, ) T i e : 12:00 p.m. ) Place: Rancho Cucamonga

Respondent

3. During the summer of 2009, I was contacted by DFG Thomas Trakes about some

concerns he had regarding how the San Jacinto Wildlife Area was being managed by Wildlife

DECLARATION OF STEVEN KOLLENBORN IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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Habitat Supervisor ll, Scott Sewell. I believe at that time Thomas Trakes had not yet been

promoted to his current position as Habitat Supervisor I at San Jacinto Wildlife Area. Mr.

I'rakes expressed concerns regarding the use of Home Depot gift cards to purchase supplies anr

tquipment. As I recall, Mr. Trakes believed the use of the Home Depot cards were not

ippropriate under the terms of the agricultural lease connected with the wildlife area. Mr. Trak

as seeking my help to contact Eddy Konno who was Scott Sewell's supervisor at the time. M

Crakes also requested to remain anonymous. Mr. Trakes indicated that I should expect to be

:ontacted outside of DFG to investigate the matter.

4. I promptly called Eddy Konno to discuss Mr. Trakes concerns regarding the use

~f the Home Depot & cards. I did not provide Mr. Konno with the name of the employee whc

iontacted me about the situation when I called him.

5. I have never been contacted by an investigator or representative from the Bureat

~f State Audits, the California Highway Patrol, the Califomia Department of Justice, the

?overnor's Waste Watcheri, the county district attorney's office or the local law enforcement

~ffices.

I declare under penalty of perjury, under the laws of the State of California, that the

bove is true and correct.

)ate:

California

DECLARRTION OF STEVEN KOLLENBORN IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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9 1 I In the Matter of Appeal by

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BEFORE THE STATE PERSONNEL BOARD ,

OF THE STATE OF CALIFORNIA

Catherine Kennedy, 166910 Senior Staff Counsel Department of Fish and Game 1416.9'~ Street Sacramento, California 95814 Telephone: (916)654-3821 Facsimile: (91 6) 654-3805 Email: ckennedv@,dfp.ca.aov

) SPB Case No. 10-4286

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l4 I1 Respondent

1 LUF'E ZAMORA ) DECLARATION OF CATHERME

) KENNEDY M SUPPORT OF OPPOSTION Appellant, ) TO WHISTLEBLOWER COMPLAINT

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VS. ) Hearing Dates: February 7,201 1 ) Time: 12:00 p.m.

DEPARTMENT OF FISH AND GAME, j Place: Rancho Cucamonga )

DECLARATION OF CATHERINE KENNEDY IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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I, CATHERINE KENNEDY, hereby declare to the following:

1. I am over the age of 18 years and not a party to this action. I am employed as a

Senior Staff Counsel with the Department of Fish and Game (DFG). I make this Declaration

based on personal knowledge and if called as a witness could testify to the contents herein.

2. Attached hereto as Exhibit "A" is a true and correct copy of SPB Order dated

December 2,2010 granting Respondent's Motion to Dismiss SPB Case No. 09-6782.

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3 Attached hereto as Exhibit "B" is a true and correct copy of the Notlce of Appeal

of Dismissal filed on behalf of Appellant dated November 19,2009.

I declare under penalty of perjury, under the laws of the State of California, that

the above is true and correct.

Date: January 27,201 1

Place: Sacramento, California

DECLARATION OF CATHERINE KENNEDY IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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. . .. . . .

801 Caplloi Mall Sacramenlo. CA 95814 1 866-844-8671 1 w.spb.ca.gov Governor Arnold Schwarzenegger

LUPE ZAMORA v.

DEPARTMENT OF FISH and GAME

Appeal from Termination of Limited Term Appointment and Whistleblower Retaliation

Complaint

Case Nos. 09-6782 & 10-4286

ORDER

This matter came on regularly before Linda K. McAtee, Presiding Administrative

Law Judge (PALJ), State Personnel Board (SPB), on December 2, 2010, at

Sacramento, CA.

Respondent, Department of Fish and Game (DFG or Respondent), was

represented by Catherine Kennedy, Senior Staff Counsel, DFG. 1 I

Appellant, Lupe Zamora, was represented by Sherry McPhee, Staff Counsel, I 1

Service Employees International Unron, Local 1000.

On October 7, 2010, Respondent brought a Motion to Dismiss Appellant's Appeal

from termination of his seasonal or limited term appointment and his Whistleblower 1

Retaliation Complaint.

Respondent's Motion to Dismiss asserts that, first, Appellant was never 1 I

terminated from his Seasonal Aide appointment and, second, is not entitled to appeal a

termination of a Seasonal Aide appointment pursuant to California Code of Regulations,

title 2, section 282 which states that a limited-term employee has no appeal from the

action.

Lupe Zamora Case Nos. 09-6782 & 10-4286

Page 2 o f 3

Pursuant to California Code of Regulations, title 2, section 63.1, subdivision (dl,

there 1s no r~ght to appeal a termination from a limited term appointment to the State

Personnel Board. The employing department is obligated to conduct Name Clearlng

Hearings when requested. Therefore, Appellant does not have a r~ght to hearing before

the SPB on the asserted termination of his Seasonal Aide position.

On October 21, 2010, after the Motion to Dismiss was filed, Appellant filed a

Whistlebiower Retaliation Complaint with the SPB. That case has been assigned SPB

Case Number 10-4286. Because of the pending appeal from termination of the limited

term position, SPB Case No. 09-6782 and SPB Case No. 10-4286 were consolidated

for hearing and set for January 11, 12, and 13, 201 1 in Rancho Cucamonga, California.

Appellant's Whistleblower Retaliation Complaint was properly filed and will not be

dismissed by this order. Rather, his Complaint will be processed similar to all other

complaints filed with the SPB under the California Whistleblower Protection Act

Government Code section 8547 et seq., Government Code section 19683, and

California Code of Regulations, title 2, s.ections 56 et seq. Respondents' time to file a

written response to the Complaint shall be triggered by the setting of an informal

hearing. (See CA Code of Regs., tit 2, section 56.4, subd. (a) (2).)

The SPB will be in contact with Respondent and Appellant regarding the

Whistlebiower Retaliation Complaint

ORDER 1 4

Respondent's Motion to Dismiss the Appeal from the asserted termination ol I I

Appellant's Seasonal Aide position is GRANTED and that appeal is DISMISSED and I I

Lupe Zarnora Case Nos. 09-6782 & 10-4286

Page 3 of 3

will be processed for closure. The January 2011 hearing dates are vacated. The

Whistleblower Retaliation complaint shall proceed.

DATED: December 2,2010

Linda K. McAtee Presiding Administrative Law Judge State Personnel Board

1 DECLARATION OF M A I L ~ ~ G

1 DEPARTMENT REPRESENTATIVE COPY

I In the Matter of the Appeal by: Lupe Zamora Case No. 09-6782

Legal Office: Fish and Game - Legal 141 6 9th Street Sacramento, CA 95814

I Attn:

I Appellant: LuDe Zamora

Personnel Officer: Fish and Game Human Resources: K. Wroten 1416 9th Street Sacramento, CA 95814

Appellant's Representative: SElU - Rancho Cucamonga, Local 1000 10600 Trademark Pkwy North, Suite 405 Rancho Cucamonga, CA 91730 Attn: Sherry McPhee

(See Attached Documents)

I, the undersigned, say and declare that at all times herein mentioned 1 was a citizen of the United States, over the age of eighteen years, and not a party to the above entitled proceeding; that I was employed in the County of Sacramento, State of California, and that my business address was 801 Capitol Mali, Sacramento, California. On the date shown below, I sewed the attached ORDERon each of the State agencies and persons hereinafter specified by placing true copies thereof in separate envelopes respectively addressed to said State agencies and persons named herein.

Sa~d addresses were the last known addresses of specified agencies and persons. Each envelope was then sealed and deposited in the United States mail, at Sacramento, California, with postage thereon fully prepaid. On said date there was delivery service by United States mail at each of the places so addressed or there was regular communication by United States mail between said place of mailing and each of the places so addressed.

I declare under the penalty of perjury that the foregoing is true and correct.

Executed or) December 02, 2010 at Sacramento, California.

Tamara Lacey

cc:

RECEIYFD c,'cc 0 :' 2013

MFIE OF THE GTNERX LdUNa ,~p/ifl~,,',NI OF FISH CE(D GM

SEIU,LOCAL 1000, CTW.0 CLC

NOTICE OF APPEAL OR 'P.ETITIoN i : 5EIU . . - smnberrmgmw . . &re Personnel Uonrd Dopl: of Ptaonncl Admlnistrnlion

1515 "St Smt l , Suile 400 801 Capitol Msli Sncramenlo. CA 95814 Sncramero. CA 95814

0 Adverse Action o t 0 AulomnlicResignetion (AWOL)

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I I 1 hereby nppal orptlilion h e ate^^ action on.bll gmunds permitre* by isw. I nquesl a hearing at the cariiesr cpnvenicnl lime. I I I haw nulhotjvd lhc SElU Locsi 1000, loacr M my exclusive nprestnlativc and agent in rhis muler. Pita? ac d coprcs of all nolices lo at the following oddasi: . . , ' ,

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Oaklund. CA 94612 Loa Angels, CA 9WIO Rancho Cuoamonba CA 91730 i

I hereby authorize SElU ~ o o n l 1000 lo review nnd obtsin copics Of my pcrsonncl and dcparlmcnlni fiics &d any olhcr documcnrs pertnining lo n ~ y cur. >

. . i ' I agree to the Slaamcnl of Rightsand l~es~onribi l i l ies on the reverse side of rhis form and agree to coop~ra lc wirh SEIU Local

I I 1000 in preparing my case. i I I I

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Catherine Kennedy, 1669 10 Senior Staff Counsel Department of Fish and Game 1416 9Ih Street Sacramento, California 95814 Telephone: (916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@df~.ca.gov

BEFORE THE STATE PERSONNEL BOARD

OF THE STATE OF CALIFORNIA

In the Matter of Appeal by

LUPE ZAMORA

Appellant,

) SPB Case No. 10-4286 1 ) DECLARATION OF DWIGHT GREENE ) SMITH IN SUPPORT OF OPPOSITION Tc ) WHISTLEBLOWER RETALIATION ) COMPLAMT

vS. j ) Hearing Dates: February 7, 201 1

DEPARTMENT OF FISH AND GAME, ) Time: 12:00 p.m. ) Place: Rancho Cucamonga

Respondent

I/ I, DWIGHT GREENE, hereby declare to the following:

1 I 1. I a n over the age of I8 years and not a party to this action. I am employed as a

I1 Return to Work Coordinator in the Department of Fish and Game's Human Resources Branch.

I I I make this Declaration based on personal lmowledge and if'called as a witness could testify to

I I the contents herein.

I I 2. As a Return to Work Coordinator, I am one of two DFG employees who

I / coordinate and manage workers compensation claims filed by current and former DFG

11 employees. I have reviewed our files and the system maintained by State Compensation

DECLARATION OF DWIGHT GREENE I N SUPPORT OF OPPOSITION TO WHISTLEBLOWER RETALIATION COMPLAINT

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6 / / an AME, it is unknown whether or not surgery is needed or whether or not Mr. Zamora is fit to I

Insurance Fund (SCIF) and I am familiar with the pending workers compensation claim for knee

injuries filed by DFG employee Lupe Zamora.

3. A review of the claim indicates that this claim was filed in 2008 and that it has no

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7 / I perform his duties as a Seasonal Aide. 1

been accepted but not resolved because there is an issue of whether or not Mr. Zamora needs to

have knee surgery. Until there has been an examination by an "Agreed Upon Medical Expert" o

I I declare under penalty of perjury, under the laws of the 3tate of California, that the I / I

,,' /'

above is true and correct. /' ,,.,// ,'

Date: I - 25 - J ( /,/

,,.' /+ !

/' DWIGHT GREENE

DECLARATION OF DWIGHT GREENE I N SUPPORT OF OPPOSITION TO WHISTLEBLOWER RETALIATION COMPLAINT

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BEFORE THE STATE PERSONNEL BOARD

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1 1 In the Matter of Appeal by ) SPB Case No. 10-4286

Catherine Kennedy, 16691 0 Senior Staff Counsel Department of Fish and Game 1416 9"' Street Sacramento, California 95814 Telephone: (91 6)654-382 1 Facsimile: (916) 654-3805 Ernaik ckennedv@dfe.ca.gov

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I, EDDY KONNO, hereby declare to the following: I

I LUPEZAMORA ) DECLARATION OF EDDY KONNO

) IN SUPPORT OF OPPOSTION TO Appellant, ) WHISTLEBLOWER COMPLAINT

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l8 il 1. I am over the age of 18 years and not a party to this action. I am employed as a

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VS. ) Hearing Dates: Febqary 7,201 1 ) Time: 12:OO p.m.

DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucamonga . . . . . . . . , : . . . . . . . . . . . . . . . . . . . ) ;,,; , ; : . . 2 . . . . . . . , . .

Respondent . . . . . . . . . . . . . . . . . . , . . ;':.,. ).f ;:.: ..< ....'?.. . . . . . . . . . . . . , .

. , . , , ' I . . . I !

l9 Senior Environmental Scientist in Region 6 of the Department of Fish and Game (DFG). I make I I 2o

2 4 Marine Biologists, Wildlife Biologist, Staff Environmental Scientist, and was promoted to Senio II

this Declaration based on personal knowledge and if called as a witness could testify to the

contents herein.

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2. I have been employed with DFG since 1981 as a Seasonal Aide and became a

permanent employee with DFG in 1989. I have held numerous positions within DFG including

DECLARATION OF EDDY KONNO I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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25 Environmental Scientist in 2006. My current duties include management of DFG owned lands i 1

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1 1 3. I hired Scott Sewell to be the Wildlife Habitat Supervisor I1 for the San Jacinto

the southern portion Region 6. This includes the management of 2 DFG owned wildlife areas

including the San Jacinto Wildlife Area (Wildlife Area) and 17 DFG owned ecological reserves.

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Wildlife Area. He also supervises a second wildlife area under my supervision. I do not I I I

I supervise 17 permanent employees including my direct subordinate Wildlife Habitat Supervisor

I1 Scott Sewell.

1 (participate in the decisions regarding the hiring of seasonal employees on the wildlife areas and 1 8

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l2 1 1 said that he was uncomfortab1e with the arrangement with the use of Home Depot cards being I

did not participate in the decisions regarding the hiring of Mr. Zamora or the communication that

his seasonal employment had ended for the year.

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l3 1 1 used to purchase supplies for the Wildlife Area. According to Mr. Kollenborn, the employee's 1

4. In early July or early August 2009, I received a telephone call from DFG

employee Steve Kollenbom. Mr. Kollenbom stated that a DFG employee had talked to him and

1 1 discomfort came because that employee did not think the arrangement was normal procedure I 15

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1 9 Watchers, the county district attorney's office or the local law enforcement offices. To my I1 I

Mr. Kollenborn did not identify the employee who was making the complaint. Steve Kollenbom

indicated that the California Highway Patrol was going to investigate the complaint. To date, I

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have never been contacted by an investigator or representative from the Bureau of State Audits,

the California Highway Patrol, the California Department of Justice, the Governor's Waste

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DECLARATION OF EDDY KONNO I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

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knowledge, and apart from this case, there are no pending administrative, civil or criminal

matters pending regarding the allegations of Mr. Zarnora.

5. I called my supervisor, Region 6 Deputy Regional Manager Chris Hayes to

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determine how to handle the matter. We reviewed the Agricultural Lease Agreement and the

provisions for the "in-hd" work by William and Nick Bruno under the agreement. We

determined that it was better to give the lessees a list ofparts needed and have them buy the parts

24 I / with his request for a letter,

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DECLARATION OF EDDY KONNO I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

directly instead of providing the Home Depot cards. Receipts and other record keeping were

required to make sure that the value of the supplies/equipment was appropriately applied towards

the rental obligation.

6. In or about one day later, I informed Scott Sewell to stop using the Home Depot

cards because I had received a complaint from someone and had loolced at the lease agreement. I

did not inform him that the telephone call had come from Steve Kollenborn and at that time I

was still unaware of who had complained to Mr. Kollenbom.

7. Approximately two weeks after I told Scott Sewell to discontinue the practice of

using Home Depot gift cards, I learned from Wildlife Habitat Supervisor I, ~ h o m d Trakes that

he was the one who spoke to Steve Kollenborn. I confirmed this information with Steve

Kollenborn. I did not pass this information on to Scott Sewell. It is my understanding thatScott

Sewell did not know of Mr. Trakes spoke to Mi. Kollenborn about the gifl cards until late

springlearly summer in 2010 when Mr. Trakes admitted to the fact during a staff meeting. Mr.

Trakes continues to be employed with DFG in his role as the Wildlife Habitat Supervisor I at the

Wildlife Area.

8. After being told his season was over in September 2009, Lupe Zarnora contacted

me a few times. Initially, he asked why he was fired. I informed him that it was my

understanding that he was not terminated from employment with DFG but that his season was

over for the year. I believe that I used the same phrase that our HR representative instructed Scon

to use - "there is no work for you at this time." Subsequently, Mr. Zamora requested a letter

from DFG setting forth all of the reasons he was terminated. I confirmed with Chris Hayes that

DFG does not send out written documentation when a seasonal employee's regular season had

ended. I again informed Mr. Zamora that he was not fired and that I was not going to comply

1 /that h i was the one who was the "whistleblower." This was the first time I heard that Mr. I 1 9. In December 2009, I received a voice-mail message from Mr. Zamora asserting

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Zamora claimed to have participated in any way to bringing the Home Depot gift card concern

forward. It was well after his season had been terminated in September 2009 and after Mr.

Zamora filed his initial appeal with the State Personnel Board alleging retaliation.

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lo. At no time has Scott Sewell denied the Home Depot gift card arrangement that

was created as a means with the Lessee to fulfill his obligation to provide in-kind services under

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the Agricultural Lease. My review of the facts and documents concerning this arrangement and

my discussions with other DFG employees did not convince me that no bribery or illegal gifts

were being given to Scott Sewell nor was he soliciting them for personal gain. Although I

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instructed the use of the gift cards to cease, I did not see any grounds to Initiate disciplinary

proceedings against Mr. Sewell. 1

I declare under penalty of perjury, under the laws of the State of California, that the

above is true and correct.

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Date: 18 ,Taw / / PI/+ .

Place: 6e rwvJ4 , Callforma

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PROOF OF SERVICE

I hereby declare as follows:

I am employed in the County of Sacramento, State of California. I am eighteen years of

ge or older and am not a party to the within entitled action. My business address is: Departme1

f Fish and Game, Office of General Counsel, 1416 9Th Street, Sacramento, CA 95814

On January 27,2011, I caused to be served the following:

Respondent's Opposition to Whistleblower Retaliation Complaint; Declaration of Kyle Chang; Declaration of Scott Sewell; Declaration of LaPezra Smith, Declaration of Kimberly Nicol; Declaration of Joseph Olvera; Declaration of Eddy Konno; Declaration of Dwight Greene; Declaration of Catherine Kennedy

,y placing a true copy thereof in the manner set forth below and addressed as follows:

heny McPhee, Esq. EIU Local 1000 3600 N. Trademark Parkway, Suite 405 ancho Cucamonga, CA 91730

mail: SMcPhee@SEIUlOOO.org

tate Personnel Board ppeals Division 11 Capitol Mall icramento, CA 95814

ia Email: Appeals@spb.ca.gov

By Personal Delivery in a Sealed Envelope Addressed as Indicated

By Depositing in a Sealed Envelope Via Golden State Overnight Mail with Postage Full) d Paid Thereon and Addressed as Indicated

0 Via United States Postal Service Mail

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Via Facsimile Transmission at the Facsimile Number(s) Indicated

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in

801 Capitol Mall Saaamnto, CA95814 ( -71 I umw.8~5 ca gw Governorhkl Sehwacenagger

November 17,2010

John McCamman Thomas Gibson, Esq. 1416 Ninth Street, 12" Floor Sacramento, CA 95814

Re: Luw Zamora v. California De~artment of Fish and Game et. a/. SPB Case No. 10-4286N; Whistleblower Retaliation Complaint

Dear Mr. McCamman and Mr. Gibson:

The State Personnel Board (SPB) has received the enclosed amended whistleblower retaliation complaint filed by former Califomia Department of Fish and Game (DFG) employee Lupe Zamora against the DFG as well as its employees: Wildlife Habitat Supervisor II Scott Sewell and Regional Manager Eddie Kono. The SPB has determined that Mr. Zamora has met all necessary filing requirements as against DFG, Mr. Sewell, and Mr. Kono. Accordingly. we will review the matter pursuant to the provisions of Government Code sections 8547 et seq., and 19683, as well as California Code of Regulations, title 2, sections 67 et seq.

In addition to filing the instant amended complaint, Mr. Zamora has appealed his dismissal in SPB Case Number 096782. Because Mr. Zamora is alleging in his whistleblower retaliation complaint that DFG andlor its employees terminated him for making protected disclosures pertaining to improper governmental activities engaged in by DFG andlor its employees, the whistleblower retaliation complaint in SPB Case umber 10-4286 and the appeal of dismissal in SPB Case umber 09-6782 will be consolidated pursuant to California Code of Regulations, title 2, section 67.8.

Because Mr. Zamora is seeking remedies against Mr. Sewell and Mr. Kono, and they may be subject to liability if it is determined that they retaliated against Mr. Zamora, Mr. Sewell and Mr. Kono will have an opportunity to present evidence to the assigned administrative law judge, consistent with California Code of Regulations, title 2, section 67.8, subdivision (c). By this letter, the SPB is also notifying Mr. Sewell and Mr. Kono that a complaint has been filed against them and of their right to respond to the complaint.

During the course of the consolidated hearing, the Department will bear the burden of proving, by a preponderance of the evidence, those allegations contained in the Notice of Adverse Action (NOAA), assuming a NOAA was sewed, that led to Mr. Zamora's termination. Mr. Zamora will have the burden of proving, by a preponderance of the evidence that he has been retaliated against for having engaged in protected activities under the California Whistleblower Protection Act. Should Mr. Zamora meet his burden. the Department and Mr. Sewell and Mr. Kono will be required to prove, by clear and

Zamora Whistleblower Complaint November 17,2010 Case No. 10-4286 Page 2 of 2

convincing evidence, that they did not retaliate against Mr. Zamora as a result of his having engaged in protected activities.

You may contact Senior Staff Counsel Van Nguyen at the above-listed address or by calling (916) 653-1026 if you have any questions or concerns regarding this matter.

E X S ~ ~ N ~ Officer

Enolosures

cc: Lupe Zamora (do Sherry McPhee wlo enclosures) SElU Local 1000 10600 N. Trademark Parkway, Suite #405 Rancho Cucamonga, CA 91730

Scott Sewell Dept. of Fish and Game 17050 Davis Rd. Lakeview, CA 92567

Eddie Kono Dept. of Fish and Game 3602 Inland Empire Blvd. Ontario, CA 91764

PAUL E. HAKKIS. 111. Chief Cou~iscl (SHN 180265) SHERRY MCPHEE. Stal'f Counscl lSBN 163232) Service Employees International Union, I,ucal IMH) 1060() N. Trademark Pnrkway, Su~te W0.5 Rancho Cucamonea. CA 9 1730 Tcl: (909) 466-5057 Fax: (909) 466-8249

Altorne s for Appellant LUPE JAMORA

BEFORE THE STATE PERSONNEL BOARD

OF THE STATE OF CALIFORNIA

.UPE ZAMORA,

v.

) SPB Cose No.: (wl~istlcblowcr) to be assigned ) ) SPB Case No.: 09-6782 ) (Appellant's Appeal of Dismissal) ) ) ) WHISTLEBLOWER COMPLAINT

3y DEPARTMENT OF FISH AND 1 ;AME for rhe STATE of CALIFORNIA. )

) and )

;cotto Sewell. and

iddie Kono

NATURE O F COMP1,AINT

The Department of Fish and Game ("DFG") has retaliated against me after 1 reported that

;cot( Sewell. Wildlife Habitat Supervisor 11, was improperly receiving Home Depot gift cards and

ltller gifts from a lessee of state properly. Since reporting these issues, I was terminated from DFG.

11.

STATElMENT OF FACTS

I . 1 have been a Seasonal Aid with the Department of Fish and Game since approximately

1993,. After heing oft' for four years due to an on the job injury. I returned to work in

2007. worked 2008 and 2009.

2. As a seasonal aid I am familiar with the prohibition against accepting gifts from members

of the public who conduct business with DFG.

3. 011 or about February 24.2009.1 discovered that Bill Brnno. a farmer. leasing public land,

I was O W fnr ;tpprc~rirnatrly four years due to an on lhe job injury. WHISTLEBLOWER COMPLAINT

w:~s g i v i ~ ~ g gilt c:~rtls lo Mr. Scwcll. Mr. Bruno gnvc inc oppmxiinatcly two $500 t1o111c

Ikpot gilt cards to give to Mr. Sewcll. Mr. Scwell instructed me to put these gift cards on

his dcsk.

4. On or nhout April 22, 2009, Mr. Bruno gave me approximately three Home Depot gift

c;~rtls valued ;it ahout $400 cach to give to Mr. Sewell. I then called Mr. Sewel who

;~skctl to spcak to Mr. Bruno. I &uld hear Mr. Scwell tell Mr. Bruno not togive thecards

lo anyone hut 11i1n.

5. On or ;lhout Mny 18.2009. Mr. Bruno and his son went to the DFG office. I witnessed Mr.

R~.uno opcn up his wallet and ask Mr. Sewell how much money he needed this time. Mr.

Scwell stated something to the el'fect of, "No, no. Not here, let's take it down to my

house."

6. On or about August 7.2009.1 reponed to Mr. Sewell's supervisor, Eddie Kono. Regional

Manager of DFG, that Mr. Sewcll was receiving Home Depot gift cards from Mr. Bruno.

Mr. Kuno said that he would take care of i t and instmct'ed me not to tell anyone about it.

7. On or about September 16,2009.1 called the State Auditor whistleblower hotline at (800)

952-5665. Kay tmm the State Auditor's office called me multiple times. I reponed to

her the improper activities described above regarding Mr. Bruno and Mr. Sewell. I also

~rported that Mr. Sewell had directed me to work on private land during state time.

8. On or about October 29.2009. Mr. Sewell called me and said something to the effect of,

"You're no longer working for DFG. It's not from me but from a higher power. You will

never work for DFG anymore."

9. Mr. Sewell knew prior to October 29, 2009. that I was a whistleblower. Warden, Kyle

Chang advised Mr. Sewell not to fire me because I was a whistleblower.

10. On or about December 30.2009. Mr. Kono called me and stated something to the effect

of. "You no longer work for DFG. Scott Sewell doesn't have a job for you."

I I . I believe that I was tired by Mr. Sewell and Mr. Kono in retaliation for reporting Mr.

Sewell's improper activities to Mr. Kono and the State Auditor.

12. Mr. Sewell and Mr. Kono's business address is Department of Fish and Game

17050 Davis Road, Lakeview, CA 92567 and 3602 Inland Empire Blvd. 0ntario.CA

91764.

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13. A compi:~int has not been filcd with the Officc of the inspector General

111.

DAMAGES

1. I am requesting that no further retaliation andlor retribution be taken against me.

2. 1 am requesting all back pay and benefits owed to me rci a result of my lermination,

including interest.

3. 1 am requesting compensatory damages.

4. 1 am requesting any other remedy the State Personnel Board deems appropriate.

IV.

SWORN STATEMENT

I declare, under penalty of perjury under the laws of the State of California that the foregoing

is true and correct to the best of my knowledge and belief.

WHISTLEBLOWER COMPLAINT

PROOF OF SERVICE

CASE NAME: Lupf Zamora - SPB Case No. 09-6782

I am a citizen o f the United States and a resident o f the County o f San Bernardino, California. L arn over the age o f eighteen (18) years and not a party to the above entitled action. My business address i s 10600 Trademark Parkway North, Suite 405, Rancho Cucamonga, California 91730

I am familiar with the Service Employee's International Union practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a United States mailbox at the close o f each day's business.

On October 21, 2010 1 served the following:

WHISTLEBLOWER COMPLAINT

[XJ (BY MAIL) placillg a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Rancho Cucamonga, California, addressed as set forth below.

SPB Appeals 801 Capiatol Mal l

Sacramento, CA 995814

[XI (BY ELECTRONIC MAIL) TO: SPB Appeals - Ao~eaIs~sob.ca.eov

[J (BY OVERNIGHT DELIVERY) by placing a true copy thereof enclosed in a sealed envelope, with delivery fees paid or provided, and placed in the designated receptacle for such overnight mail, addressed as set forth below. In the ordinary course o f business, mail placed in that receptacle i s picked up that same day for delivery the following business day.

[I (BY PERSONAL SERVICE) by delivering by lland and leaving a true and correct copy with the person at the address set rorth below.

I declare undcr penalty of perjury undcr the laws o f the State of California that the foregoing i s true and correct and that this Declaration was executed on October 21, 2010, at Rancho Cucamonga, California.

I . . I ~~

< i?>

STATE f I'ERSONNEL i r i BDAKD

I 801 Capitol Mall Sacramento, CA 95814 ; 866-844-H67? j ~./\i,~/.s?t>.~;:i.$/fi!.~

LUPE ZAMORA v.

CALIFORNIA DEPARTMENT OF FISH AND GAME; EDDIE KONO; AND S C O T SEWELL

I

Whistleblower Retaliation Complaint I

Governor Edrnund G. Brown Jr.

Case No. 10-4286

NOTICE OF FINDINGS

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WHEREAS, the Executive Officer of the State Personnel Board has carefully

considered the Proposed Notice of Findings filed by the Informal Hearing Officer in the

above matter; and

WHEREAS, the Executive Officer is satisfied that the,findings of,fact and ,

conclusions.of law set forth in the Proposed Notice of Findings are correct; and

WHEBEAS, by said Proposed Notice of Findings -the Whistleblower Complaini is

DISMISSED.

,WHEREAS, Complainant may file a civil complaint with,the superior court

pursuant to California Code of Regulations, title 2, section 67.6, upon the receipt of this

Notice of Findings dismissing the Whistleblower Retaliation Complaint. 1 IT IS RESOLVED that the Proposed Notice of Findings is adopted by the I

Executive Officer'of the State Personnel Board as her Decision in the case, and that a

true copy of the Proposed Notice of Findings shall be attached to this Resolution for

delivery to the parties in accordance with the law, - -I ---- i

&&flu U NNE M. AMBROSE

~ x e c s i v e Officer

Lupe Zamora Case No. 10-4286

Page 1 of 14

LUPE ZAMORA v.

CALIFORNIA DEPARTMENT OF FISH AND GAME, EDDIE KONO, AND SCOTT SEWELL

I

Case No. 10-4286

Proposed Notice of Findings

Whistleblower Retaliation Complaint 1

This matter came on regularly for an Informal Hearing before Van T. Nguyen,

Senior Staff Counsel, State Personnel Board (SPB), on February 7, 201 1, in Los

Angeles, California. The matter was submitted at the conclusion ofthe hearing.

Lupe Zamora (Complainant), was present and represented by his counsel of

record, Sherry McPhee, Esq. of SEIU, iocal 1000. Caliiornia Department of ,Fish and

Game (DFG) employees 'Tom Trakes (Trakes) and .Dirk Holt (Holt) were also present

because Complainant had subpoenaed their attendance.

Respondent, California Department of Fish and Game (DFG or Respondent) and

individual Respondents Eddie Kono (Kono) and Scott Sewell (Sewell) were present and

represented by their counsel of record, Catherine Kennedy, Senior Staff Counsel, DFG.

Also in attendance on behalf of the Respondents was Kimberly Nicol. I David Danelski, a reporter from The Press-Enterprise attended the latter portion

of the informal hearing to observe the proceedings.

Complainant, a seasonal employee, asserts that he was retaliated against

because he reported that his supervisor, Sewell, was improperly accepting bribes of

Lupe Zamora Case No. 1 0-4286

Page2of 14

Home Depot gift cards from a lessee of land.' Complainant asserts that Respondents

retaliated against him by terminating his employment at the end of the 2009 season

because he reported the bribes.

Respondents assert that complainant did not make a protected disclosure and

was not subjected to retaliation. First, Respondents assert that Complainant never

+hq end of his 2009 season. Second, even if

le could not have -

terminated

hours for tt

believed in go,, faith that this was improper governmental activity. Third, Respondents

assert that they had no knowledge until after September ,2009 .that Complainant made

any complaints about the acceptance and use of gift cards. Fourth, he was never

~ + ~ ? r -. C i sent hin - , ' ome fc the season - . - - . . - . . when . . - - . . - he - . - - had - - - - reached 1500 *'

'BROCEDURALBACKGROBJND

On October 21, 2010, the SPB received Complainant's initial Whistleblower

Complaint (WC). On October 26, 2010, the SPB rejected the WC. On or about

November 11, 2010, Complainant submitted his Amended Whistleblower Complaint

(AWC). On November 17, 2010, the SPB accepted jurisdiction over the matter and

consolidated the AWC with Complainant's appeal from dismissal, SPB Case No.

DFG filed a motion to dismiss Complainant's appeal from dismissal on the I grounds that he was never terminated and had no appeal rights as a seasonal

' The DFG enters into contracts for the use of government property that-requires lessees to make rental - - - - - - - e + . + - - - - .- - . mymen& ,-bapermitslessees tomakeimerove-mmentstoth_e~ancl.inn!.ieu.o~. ~r!taL~_am-?nle~.- . -- - - . - ..- _ _ . -. : _ a I

Y

I Lupe Zamora Case No. '1 0-4286

Page 3 of 14

employee. On December 2, 2010, the SPB granted Respondent's motion. Thereafter,

the AWC was returned to the whistleblower informal hearing process.

On January 28,201 1, Respondents filed a Response to Complainant's AWC.

On February 7, 201 1, Val Iguyen, the SPB Investigating Hearing Officer,

conducted an Informal Hearing in this matter, consistent with California Code of

Regulations, title 2, section 67.5, subdivision (a). Sworn testimony at the hearing was - -- ----------.------.--A-

taken from Complainant, Trakes, Sewell, and Kono.

The issues to be resolved are:

I. Did Complainant state a cause of action under the California

Whistleblower Protection Act (CWPA)?

If so, did Respondents demonstrate that the alleged adverse employment

actions occurred-for legitimate, non-retaliatory reasons?

i3. If so, did Complainants prove that Respondents intentionally retaliated

against them?

FINDINGS

A preponderance of the evidence proves the following facts:

1. Complainant served as a seasonal aid with the DFG from 1993 to 2003. From

2003 to 2007, Complainant was off work due to an on the job injury.

Complainant returned to the DFC eas for tJ-

s e w -

A - ;easor-l ---I-. .- ? - . . - A :-Aa- 1-

Lupe Zamora Case No. 10-4286

Page .4 of 1 4

2, Trakes began with the DFG as a seasonal aid in '1994 and was promoted to

t,,".,, ,,,,,.,, ... ,,00. In April 2009, Trakes was promoted to Habitat

Supervisor I, his current position.

3, Sewell began with the DFG as a seasonal

Sewell was promoted to wildlife habitat ass is ta~~~. In 2005, Sewell was promoted

to Wildlife Habitat Supervisor 1. In 2008, Sewell was promoted to Wildlife Habitat

Supervisor It, his current position. In 2008, Sewell was Complainant's direct

supervisor and after Sewell's promotion in 2008, he was Complainant's second

line supervisor.

4. Kono began with DFG as a seasonal aid ir ..A. From 1985-'1988, Kono left the

DFG and worked for the federal government. In 1989, he returned to the DFG as

a marine biologist and in i390 served as an associate marine biologist, In '1 994,

Kono transferred to Region 5 and became a wildlife biologist. In 2001, Kono

transferred to the Palm Desert Area and served as an associate biologist. In

2004, Kono was promoted to staff environmental scientist. In 2006, Kono

became a senior environmental scientist. Kono was Sewell's direct supervisor.

imnlainar \hlnrk

1

awe, Comp!ajnay! - ' "r-

phone to make excessi personal calls. ; a result, Sewell took Complainant's .-

- Id- &

During the 2009 season -

cell phone away. .- - - - - - . .< - - . .

6. Although Complainant testified that Sewell treated him unfairly, Complainant

struggled to provide examples of any unfair treatment.

.,. . .. . .- .. . .. . - -- . . . -. - . .. +,* .-- - . . . - -.< . - - * , , . . . . ,

Lupe Zamora Case No. 10-4286

Page 5 of 14

DFG often included in its contracts with lessee- -' I--" '"-' '"ey could make

, ... .ieu of making rent:

2008, .. essees, . Home De

~ a v m e n t s . S ince at least

i t could be

used Wurchase materials fo ' "~e maintenance and improvement of the lands.

Trakes testified '"-' '"- -.;age aliu d ~ ~ ~ ~ t a n c e of the gift carAn -'ns well ' * iovB-

c ' ' lish

ictice from approximal - / On February 24, .2009, Complainant witnessed Sewell accept Home Depot gift

cards from a lesseen2 On April 22, 2009, and May 18, 2009, Complainant again ,

witnessed Sewell receive gift cards from the lessee. Complainant attached the

'DFG receipts for the gift cards to his whistleblower complaint. During the

summer of 2009, sewell ~ o r n p l a l ~ , ,

HOI+ Tnml Tr,nlrnc grid Tim Enrrl ICnrrl\ tn nn with him-tn Unmn nnnnt tn I Icn.thn

gift ;omplainant testified that the reason Sewell brought Complainant

with him was because Complainant was the most knowledgeable as to what

DFG needed in order to upgrade and maintain the lar "- "'̂ xdministered,

9, During the two shopping trips to Home Depot Complainant witnessed Sewell use

the gift cards to purchase electrical wire, lights, b-ol

other equipment needed for the wildlife area. The items were then delivered to

DFG's warehouse and Complainant confirmed that some of the lights were used

for the warehouse area.

'The lease with this particular lessee, effective from October2008 through September 201 1, required the

. . . . , lessee , , , , , to . make . , , . . - rental . . . . payments . . - or , make , , restoration ,.,., improvements . . . ..... to - the . - land . . . in . lieu . of rental . payments. . .. . . . . . . . ,

Lupe Zamora Case No. 10-4286

Page 6 of 14

lo* Trakes was unsure, but guessed that it was sometime in the summer of 2009,

u,,,,,,.,, ,, , w.,.w , ,,,, ..,. ~stigator. Trakes remembered that

at the time he was contacted, he was still a tractor labor operator. Accordingly,

this conversation with the state fraud investigator may have occurred before April

2009 when he was promoted to Habitat Supervisor I and not during the summer

11. The investigator asked Trakes whether he was aware that DFG was accepting -. - -- -. ---

gift cards and whether he felt that this practice was appropriate. Trakes told the

investigator that he was aware of the gift cards and '

believe that

12. Sometime after his promotion in April 2009, Trake 4f,the gift ~ - 1 w - 3

:f .

cards with Steven Kollenborn (Kollenborn) who was also a supervisor. In July or

August 2009, Kollenborn then raised tne issue .with Kono.

supervis ~ ,

the issue and considering that some of their emplovees were not comfortable .- -

with accepting gift cards, Kono and m d s .

m L I I ~ UDti--71+gi4 la*Ae. -u -#

Two weeks after speaking with Kollenborn, Trakes told

Kono that it was he who raised the issue with Kollenborn. Trakes did not suffer

any form of retaliation for admitting that he was the one who raised the issue with

Kollenborn.

14. Following Complainant's August 6, 2009, knee surgery for an earlier injury,

..- -- . - .a ..- ' Complainant was off work,for several weeks. Although Complainant claims that . - -

- - t - 4 - - - ---I---- --- -+ *.--.-I * --.- .--A- ,-..-I -..-- ...+.--_ ".*.. .*-*- .- __-- _* _ _ _ 3 * . . I _ _ _ _ _ I , . e _ _ _ . . . _ . _ *

I

Lupe Zamora Case No. 10-4286

Page7of 14

he did not work after August 6, Complainant signed a time sheet that confirmed

that he returned to work one week in late September 2009.

15, Complainant testified that on or about September 16, 2009, he contacted the

Bureau ( e Audi - -

srding Sewell's acceptance and u from

lessees of land.

16. At the end of September 2009, Sewell became aware that Complainant had . - .- - . - - . - -.. . .- - .- . . -. . . , - - - . . . - - - , . - - - . - . . -. - - . - . . - exhausted his 1500 hours as a seasonal employee and thus sent him home at

the end of September. At that time, Complainant accused Sewell of firing him.

Sewell stated that Complainant was not being fired L--+ ,-- -7ntinued

-- ... .. ., . ~ im . Cot ..,.- inant was bellig-. ?nt .1 angry.

'17. After September 2009, Complainant requested 'that :Keno and Sewell give him a

document confirming that he had been terminated. Both Kono and Sewell told

Complainant that he was not terminated, but simply had exhausted his 1500

hours for the year as a seasonal employee. The 1500 hours limitation includes

actual work hours, sick, and vacation time.

18. Thereafter, Complainant called Sewell and requested to meet with him "in

person, man to man" to discuss his termination. Sewell agreed to meet with

him, but arranged to have other DFG employees present at the meeting because

he felt uncomfortable meeting with Complainant alone.

19. Sometime in early October 2009, Trakes (serving as a supervisor), Holt, John ----- .- - .

Feinner (Feinner), Sewell, and Kyle Chang (Chang) came into work and a

I - i

spontaneous discussion regarding Complainant took place. Trakes revealed for

the first time-that he had been contacted by a state fraud-investigator.. Kyle then . - . . . - . . . . . . . - . . , . . . . . . . . - .

Lupe Zamora Case No. 10-4286

Page 8 of 14

walked away and said words to the effect that if this has anything to do with the

whistleblower thing, I do not want anything to do with it. This was the first time

Sewell had, heard the term whistleblower.

20. Complainant filed an appeal from termination with the SPB in early December

2009.

21. On December 23, 2009, Complainant left Kono a message stating that he was

the whistleblower regarding the gift cards. Kono had no knowledge that

Complainant had made such a complaint prior to this date.

22. On October 7, 2010, the DFG filed a motion to dismiss Complainant's appeal

from his termination, asserting that Complainant was never terminated. On

December 2,.2010, the SPB granted the DFG's motion to-dismiss Complainant's

appeal.

Credibility Determination

Because the testimony of Complainant and Respondents conflicted on some

points, it is necessary to make credibility determinations applying factors for determining

credibility, including witness demeanor; character of testimony; the extent of the

witness1 capacity to perceive and recollect matters about which she or he testifies; the

existence or nonexistence of bias, interest or other motive; statements made that are

consistent or inconsistent with prior statements or statements during the hearing; and

admissions of untruthfulness. (Evid. Code 5780, subds. (a), (b), (c), (f), (g), (h), (j) & . . - - - . - - . . . . . - -, . . . - ... . -- .. .

(k).)

Complai ;tirnon: ..--. self-serv ..., -..- ..- .

-contradict his F r ter iony when he believed it would -further- case. 2r instance, . . .. . , . . , , , . . . . . . . . . - . , . . , . . , . .

Lupe Zamora Case No. 10-4286

Page 9 of '1 4

Complainant testified that he did not work after August 6, but admitted that he signed

the September time sheet. After Complainant realized that the time sheet indicated that

he had worked the last week of September, Complainant attempted to discredit the

document by testifying that it was not his signature, even while admitting it looked like

his signature.

Throughout his testimony, Complainant made little to no eye contact and

generally was unable to explain discrepancies in his testimony. For instance,

Complainant could not explain why there were receipts for the Home Depot gift cards if

the gift cards were bribes. Similarly, Complainant could not explain why Sewell would

bring Complainant with him to use the gift cards if he intended to use them for his

.personal use.

Complainant initially testified that he did not know if the materials Sewell

purchased with the gift cars went back to DFG or where they went because ,they were

not present at DFG. However, Complainant later testified that after Sewell and

Complainant purchased the materials from Home Depot, they delivered the materials

back to the DFG warehouse. Complainant also admitted that he ,knew that certain lights

and other improvements were made using some of the Home Depot materials.

Trakes was present because of a subpoena. In contrast to Complainant,

Trakes's demeanor was relaxed and he made consistent eye contact throughout his

testimony. Trakes is found to be honest and credible.

@-.a@* "l+cy -

langua,, indicated-that he I L

was testif.ui.1 . .-.%~tJy. Sewell made eye contact throughout his testimony and he did

. . . . -. not hesitate when asked questions; Sewell is found to be honest and credible. - - , . , , ,

_ _ _ _ . _ _. . . _ . _ . __ ___- _-_ _ * . __ _ __ __ + _ ----I .- ^- ._- - .- *. . .- -. .- - ... - - -- - .- - - - -.. -. - - * -

Lupe Zamora Case No. 10-4286

Page 10 of 14

Kono's body language reflected some uneasiness with the process'of testifying,

but his testimony was consistent with the other witnesses and documents, Kono is

found to be honest and credible.

Accordingly, to the extent that Complainant's testimony conflicted with the other

witnesses1 testimony, the other witnesses' testimony will be credited over Complainant's

version of events.

PRINCIPLES OF LAW AND ANALYSIS

Elements of e Whistleblower Retaliation Complaint

In order to establish a claim for whistleblower retaliation pursuant to the

California Whistleblower Protection Act (CWPA), Complainant must demonstrate, .by a

preponderance of the evidence, that he made a protected disclosure; or refusedto obsy

an illegal order; that Respondent thereafter subjected him to an adverse .employment

action; and that a causal link exists between -the protected activity and the adverse

employment action. (Morgan v. Regents of Universify of California (2000) 88

~ a L ~ p p . 4 ' ~ 52, 69.)

1. Protected Activity

Here, Complainant asserted that on September 16, 2009, he reported to the

Bureau of State Auditors that Sewell was improperly accepting gift cards. Complainant

also asserts that sometime between August 2009 and October 2009, he reported to

Kono that Sewell was improperly accepting gift cards.

Government Code section 8547.2, subdivision (d) defines a "protected I disclosure" to mean:

, . . . - - .

Lupe Zamora Case No. 10-4286

Page 11 of 14

[Alny good faith communication that discloses or demonstrates an intention to disclose information that may evidence 1) an improper governmental activity or 2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.

To qualify for whistleblower protection, a complainant must have a reasonable

belief that his disclosure "evidences a violation of any law, rule, or regulation, or gross

pup--- rriismatrag~me n t F a g ross-waste-off iirids~an-abuse-of -alj t ho-fiv,or-8-s'ubfsta~tialTd

specific danger to public health or safety." (Langer v. Department of the Treasury (Fed.

Cir. 2001) 265 F.3d 1259, 1266 (citing 5 U.S.C. 5 2302(b)(8).)

A report to a higher authority to investigate a government official accepting bribes

generally constitutes a good faith intention to disclose an improper governmental activity

and therefore a protected activity. However, Complainaiit had knowledge of the

acceptance and use of the gift cards since at least February 2009. According to Trakes,

Complainant would have known of the acceptance of gift cards sometime in 2008.

However Cnrnnlainant - - A - efl-. . .- rep-. . .. ., _-. .-_,. _. ..., 3eptemb~. ,,,, , -. ,-,

his relatio~ iteriorated. This unexplained delay in reporting the

conduct indicates that Complainant's report WE

Am-:"- - -& !-.--I, - & L : ~ . Accordingly, Complainant's report did not demonstrate a

good faith effort to disclose improper governmental activity.

Additionally, Complainant could not reasonably have believed that Sewell was

the amounts paid by the lessee and given to Sewell. Bribes do not come with receipts.

. . . . - . . . . - Second, according to Complainant's own testimony, Sewell brought Complainant with ., . -. . . * . . .. ..- , . . . , . , . . . . - . . - . . . , , , . - , - + - i

Lupe Zamora Case No. 10-4286

Page 12 of '1 4

him to help Sewell purchase items for the wildlife habitat using the gift cards because

Complainant was the most knowledgeable regarding what needed to be purchased for

the structures and maintenance of the wildlife habitat. Third, Complainant drove with

Sewell as they delivered the items to the DFG warehouse, Fourth, the lessee would

have no need to bribe Sewell as the lease had already been entered into the previous

year and would continue to be effective for the next two years. Accordingly,

Complainant did not have a reasonable belief that his disclosure evidenced a violation

of any law, rule, or regulation when he contacted the Bureau of State Auditors.

Accordingly, Complainant did not meet his burden to demonstrate3hat he made a

protected disclosure. .

2. Adverse Employment Action

. .Even assuming that Complainant made a protected disclosure, Complainant's

case would fail because he did not suffer an adverse employment action. To be

actionable, a complainant "must demonstrate that he or she has been subjected :to an

adverse employment action that materially affects the terms, conditions, or privileges of

employment." (McRae v. Deparfment of Corrections and Rehabilitation (2006) .I 42

Cal.App.4th 377, 386) The complainant must show that the employer's retaliatory

actions had a detrimental and substantial effect on the complainant's employment.

(Akers v. County of San Diego (2002) 95 Cal.App.4th 1 441, 1 455.)

Complainant alleges that he was terminated. However, there is no evidence that

Complainant was terminated, Moreover, the evidence demonstrates that Complainant

had exhausted his 1500 hours for the year and was released for this reason.

. - . .. -Additionally, Complainant.testified ihat because of, his injury, he could not ha-ve returned . . *. .-. . - - ---- - . - . . .-.. - " - - . - - - . - - , . .... - .. - - -

Lupe Zamora Case No. 10-4286

Page 13 of 14

to work even if he had wanted to. Accordingly, Complainant did not meet his burden to

demonstrate that he suffered an adverse employment action.

3. Causal Nexus

Even assuming that Complainant had engaged in a protected activity and

suffered an adverse employment action, Complainant's case would still fail because

there is insufficient evidence of a causal nexus, To demonstrate a causal nexus, a

complainant must present evidence sufficient to raise the inference that the protected

activity was the likely reason for the adverse action, (Cohen v. Fred Meyer, Inc. (91h Cir.

1982) 686 F.2d 793, 796.) In order to establish a causal nexus, a complainant must

provide more than "mere allegation and speculation," (Nelson v. Prima Communij/

College (gth Cir. 1 996) 83 F.3d 1075, 1 081 .)

Here, Complainant has not demonstrated that Sewell or Kono Itnew that

Complainant had reported the improper use of the gift cards prior to Complainant being

released for the season in late September. Accordingly, neither Sewell or Kono could

not have sought to retaliate against Complainant for his alleged protected activity, As

indicated above, although Complainant testified that he disclosed to Sewell and Kono

that he was a whistleblower prior to September 2009, both individual respondents

denied this and their testimony is credited over Complainant's self-serving and

unsubstantiated testimony.

Additionally, although Trakes admitted to Kono that he was the one that raised - - - -. - - . . . . - . . .

the issue regarding the gift cards, he suffered no form of retaliation. There is no basis

to conclude that Kono would seek to retaliate against Complainant when he did not

retaliate against: Trakes for the identical conduct, - - - . . :-- - - . -- . . . .

Lupe Zamora Case No, 10-4286

Page 14 of 14

Finally, witness declarations established that Complainant was released from

service because he reached the 1500 hour cap for the year and not because he had

blown the whistle. Accordingly, there was insufficient evidence presented that

suggested a causal nexus between Complainant's alleged protected activity and any

adverse employment action,

CONCLUSIONS OF LAW

failed to establish that he engaged in a protected disclosure, suffered an adverse

employment action, or 'that there was a causal nexus linking the alleged protected

activity and any adverse employment action.

. QWDER

is DISMISSED,

L* DATED: March 2,201 1

/

- - Van T. Nguyen

'senior stan ~ounse l State Personnel Board