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D.A., board in crosshairs of lawsuit

April 9, 2012

Art Maillet

Inyo County is facing a lawsuit associated with allegations that District Attorney Art Maillet wrongfully terminated his assistant without providing the proper employee reviews or explanations.
Attorney Will Richmond was hired as a temporary Assistant District Attorney on Oct. 5, 2010 before being brought on full-time as the Assistant D.A. on Jan. 1, 2011.
Generally, new hires, in accordance with state merit system, are kept on board in a probationary capacity for six months, at which time they are given a performance review by their department head, who makes the final determination of whether or not the employee is ready for the position.
Richmond claims that he was unlawfully fired Oct. 3, 2011 when Maillet eliminated him from the payroll without explanation, claiming that, since Richmond was a probationary employee, no explanation was necessary.
In his suit, Richmond claims that, per state merit system rules, his probationary period ended in June even though he never received an evaluation from Maillet. He names Maillet and the Inyo County Board of Supervisors as defendants in his lawsuit.
Inyo County Counsel Randy Keller said there appears to be a misunderstanding between Richmond and the county regarding the state merit system and the county’s own rules.
Keller said most county employees fall under the county’s own merit system, while a few are still comply with state standards. The ADA’s position is one that falls under the county rule, which mandates an evaluation, but does not specify when the evaluation must be completed.
According to the state rule, if an evaluation is not given by the end of the six month probation period, that employee is promoted to a permanent status. Keller said the county rule does not follow that guideline.
And even it did, Keller said “there was a review, but I don’t know exactly when it was.”
The case briefing filed at Inyo County Court states that the county claims Maillet did complete an employee review for Richmond, which was placed in his office. Richmond claims he never saw the review, and Maillet has since said the review has been lost. Regardless, “the county’s position is that the county has its own merit system that says you will get a performance review, but it doesn’t say when,” Keller said, adding that the county rules allow an extension of an employee’s probationary period with the consent of the county administrator.
Keller said County Administrative Officer Kevin Carunchio approved a request from Maillet to extend Richmond’s probationary period, as the D.A. claimed to be too busy working on a high-profile murder case to do the evaluation within the standard six months.
A former D.A. for Alpine County, Richmond says in his brief that Maillet contacted him about filling the assistant D.A. position, and stressed that his need was urgent, as former Assistant D.A. Mark Johnson had recently stepped down amidst allegations of unlawfully and maliciously releasing private information to local media about cases involving one of Maillet’s political opponents at the time.*
Richmond said he stepped down from his elected position in Alpine County and gave up his candidacy for another job to take the position in Inyo County.
Inyo County Court officials have said they will continue to hear information about the case through April before making a ruling on the allegations.
Inyo County is being represented in the case by Keller and attorney John Kirby.

*The Attorney General’s Office investigated the incident, ultimately declining to pursue the matter, according to Keller. However, the A.G.’s Office released a report of its findings to the county as part of its investigation of misconduct in the D.A’s Office. Two separate Public Records Act requests submitted to the county by The Inyo Register as far back as October 2011 were rejected by Keller on the grounds  that “the investigation relates to personnel matters regarding current and former employees of Inyo County. These matters are confidential and not subject to public dissemination.”
Keller nevertheless wished to stress “that the matter was appropriately addressed by the county.” In an initial telephone interview prior to the first Public Records Act request, he said of the A.G.’s report, “We saw it and took it under advisement.”
Further, independent legal counsel specializing in media law and consulted by The Inyo Register said the personnel exemption cited by the county as a reason for not releasing the report is discretionary, meaning it does not outright prohibit the county from releasing the report. In other words, according to the legal expert, the county can still release the report while redacting the information it feels violates employee privacy.
This was pointed out to Keller in the Register’s second Public Records Act request, which was still denied.
– Ed.

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