Lupe Zamora's State Personal Board case

7/29/2019 Lupe Zamora's State Personal Board case

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3afENNELOARD

October 26,2010

Lupe Zamora (c/o Paul Harris)10600 N. Trademark Parkway, Suite # 405Rancho 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 complaintyou filed on or about October 21, 2010, in which you assert that you were retaliatedagainst in your employment with the California Department of Food and Game (DFG)for making protected disclosures andlor refusing to obey an illegal order. Please beadvised that your complaint does not comply with the W histleblower P rotection Act,California Government Code section 8547 et. seq. and SPB regulations pertaining towhistleblower retaliation complaints, set forth at California Code of Regulations, t i le 2,section 67, et seq. Your amended complaint must:

be filed with and rece ived by the SPB within one year o f the most recent allegedact of reprisal;

clearly identify the protected activity in which you engaged (i.e. the substance ofyour report(s) of improper governmental activity (or each illegal order you refused-to obey), hedate($) you reported the imprope; governm ental activity io r refusedto obey the illegal order), and the person(s) to whom you reported the impropergovernmental activity (or informed you would not obey the order in question));

include the name and business address of each individual and entity alleged tohave com mitted retaliatory acts;

specify what relief andlor damages you are seeking against the department andany individually-named respondent(s) as a result of the alleged retaliation, and

state the reasons why damages or other relief should be awarded against theindividual@);

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



'AUL E. HARRIS, 111. Chief Counsel (SBN 180265)lHERRY MCPHEE , Staff Counsel (SBN 263232 )iervice Employees International Union, Local 10000600 N. Trademark Parkw ay. Suite #405:ancho Cucamonga, C A 91730'el: (909) 466-5 057:ax: (909) 466-8249

ittome s for Appellant.UPE J..MORA

BEFORE THE STATE PERSONNEL BOARD

OF THE STATE O F CALIFORNIA

I the Matter of Appeal By.

UPE ZAMORA,rom Dismissal.

) SPB Case No.: 10-42861)) REQUEST FOR CHANGE OF VENUE

Appellant, ))

)

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

)

Respondent. i

Appellant, Lupe Zamora (hereinafter "Mr. Zam ora" or "A ppellant") hereby requests that the

learing scheduled fo r February 7, 2 01 1 at 12:00 p.m. in Los Angeles be relocated to Ranch o

Iucamonga for the sam e time and date. This case arises from Mr. Zamora's employm ent with the

Iepartment of Fish and Gam e in Nuevo California. T l ~ t s . ppellant believes that Rancho

hc am on ga 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 Ap pellant.

LUPE ZAMORA



DebbieTurner

From: Green , Margie [MGreen@SE IUlOOO.org]Sent: Thursday. October 21.2 010 10:33 AMTo: AppealsCc: McPhee, SherrySubject: F W : Whistleblower Complaint Zam ora - SPB Case N o. 09-6782

Attachments: Whist001 .PDF

KB )Attached is Whistleblower Complaint for case referenced above

- - - - -Original Message-----From: [email protected] [mailto:[email protected]: Thursday, October 21, 2010 3:07 ?mTo: Green, MargieSubject: Whistleblower Complaint Zamora

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

Sent by: Guest [[email protected] 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 26 3232)Service Emolovees Interni~tionalUnion. Local I(WO

10600 N. ~ r k l & a r k Parkway. Suite #405Rancho Cucamonga, CA 91730I : (909) 466-5057

Attorneys for A ppellantLUPE ZAMOR A

,UPE ZAMORA,

v.

- I . I ,

i0:1

N .. .BEFORE THE STATE PERSONNEL BOARD q-+.:

,-?

-g 4.2:

OF THE STATE O F CALIFORNIA.- ,L i

r3 c2

) SPB Case No.: (whistleblower) to be &signedI) SPB Case No.: 09-6782) (Appellant's A ppeal of Dismissal)

))) FIRST AMENDED WH ISTLEBLOWER

By DEPA RTMEN T O F FISH AND ) COMPLAINT3AM E for the STATE of CALIFORNIA. )

)and 1

Scotto Sewell,and

!)

Eddie Kono )

NATURE O F COMPLAINT

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

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

governmental activities that include my report that Sc ott Sewell. Wildlife Habitat Superv isor 11of

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

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

as follows: Departm ent of Fish and Game, S cott Sewell, W ildlife Hab itat Supervisor 11, and Ed die

Kono, Regional Manager of DFG.

STATEMENT OF FACTS

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

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

about Decem ber 30,2 00 9, Mr. Kono called me and stated something to the effect of."You

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

9. It is my belief that 1was fired by Mr. Sewell and Mr. Kon o in retaliation for repo rting M r.

Sewell's improp er 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

Octobe r 2009 because h e failed to take any action to correct the improp er personnel action

and further retaliated against me.

I I . In the years before I reported Mr. Sew ell's impro per governme ntal activities,I as always

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

performa nce has alwa ys been satisfactory.

12. Mr. Sew ell's business address is Department of Fish and Gam e 1705 0 Davis R oad,

Lakeview, CA 92567.

13. Mr. Ko no's b usiness address is Department of Fish and Gam e 3602 Inland Em pire Blvd.

Ontario, CA 91764.

14. A com plaint 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 ag ainst me.

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

including interest.

3. I am requesting compensatory damages.

4 . 1am requ esting $25,000.00 in emotional distress dama ges as a result of the stress, an xiety.

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

5. 1 am requ esting any other remedy the State Personn el Board deems app ropriate.

FlRST AMENDED WHlSTLEBLOWER COM PLAlNT



1v.

DISCIPLINARY ACTION REOUESTED

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

Supervisor 11, for those reasons set f on h in Sect io ~l1. Paragraphs 2 , 3 . 7 and 9. Mr. Sewell

shou ld be terminated for taking bribes in exchange for leasing public land. Mr. Sew ell's

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

LJ2567.

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

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

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

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

3602 Inland Empire Blvd. Ontario, CA 91764.

v.

SWORN STATEMENT

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

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

FIRST AMENDED W HISTLEBLOWER COMPLAINT



VI.

LIST OF SUPPORTING MATERIALS

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

gift cards accepted by Mr. Sewell.

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

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 ,200 9.

4. Attached hereto as A ttachment 4 is a true and correc t copy of an Agricultural Lease

Agreement between Mr. Bruno and DFG.

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

nd comect to the best of my knowledge and belief.

' FIRST AMENDED WHISTLEBLOWER COMPLAINT



ATTACHMENT I



233W.Markham St.Perris.CA92571 C o ~ M o D ~ s g4.F Fa951,951)940-18240-ISM j

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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 - 711Acres

AGRICULTURAL LEASE:

This LEASE,entered intoOctaber 27,2008 y and betweenthe 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 considerationof the payment or rent hereinafter specified to bepaid by the Lessee and the covenants and agreements herein contained. doeshereby lease, demise, and let unto Lessee Ulat certain property situated in the

County of Riverside. State of Califomla. excepting therefrom all areas heretoforereserved therefrom for wildlife habitat development programs, consisting of 711acres for the growing of agricultural m p s and more particularly described anddelineated 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. 2008and terminating on the last dav of Se~tember. 011.

3. In lieu of rental payments, the Lessee will be required to provide custom tractorwork, including discing, seeding, mowing, land leveling and/or mutually agreedupon equivalentwork necessary to accomplish the restoration of wildlife habitatson 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 ofthe Area Manager, SJWA. in lieu of tractor work, Lesseewill 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 thisLease. pay any and all taxes, possessory interest taxed, water charge taxes, and

water surcharges levied or assessed on Lessee by proper governmentalauthority 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 watertransport facilitiesduring 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~nedherein 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

al l liability and claims for damages by reason of any injury to any person orpersons, 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 ofCalifornia from ail liability, loss, cost, or obligation on account of or arising out ofany 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 timeduring 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 leasedpremises or any part thereof and will not permit the use of the leased premisesby 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 anyappurtenances or improvements in the same conditlon as when received,reasonable use and wear thereof and damage by act of God or by the elementsexcepted.

Lessee agrees that in no event shall State be required to perform anymaintenance on or make repairs or alterations to the leased premises of anynature 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 and1942 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 nuisanceupon 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 Lesseefurther agrees that he shall at all times exercise due diligence in the protection ofthe 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 publicliability insurance of not less than $1,000.000 per occurence for bodily injury andproperty 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 writtennotice to State. Lessee agrees that the insurance herein provided for shall be ineffect at all times during the term of this Lease. In the event said Insurancecoverage expires at any time or times during the term of this Lease, Lesseeagrees to provide State at least thirty (30) prior to said expiration date, a newCertificate of Insurance evidencing insurance coverage as pmvided for herein fornot 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 otherremedies it may have, terminate this Lease upon the occurrence of such event.The insurance certificate should be mailed to B ~ar tment f Flsh and Game,Attention: Terri Willlams, 4665 LampsonAve. SuiteJ. Los Alamitos, CA 90720.

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

16. During continuance in force of thls Lease. there shall be and is hereby expresslyresenred to the State and to any of itsage~cies, ontractors, agents. employees,representative. or licenses, the right at any and all tlmes. and at any and allplaces, to temporarily enter upon said leased premises for survey, inspection orany other lawful State purposes.

17. This Lease is subject to all existing easements and right of way. Sfate furtherreserves the right to grant additional public utility easements as may be

necessary and Lessee hereby consents to the granting of any such easementThe public utility will be required to reimburse Lessee for any damages causedby the constructionwork on the easement area.

18. Lessee agrees not to interfere, in any way, with the interests of any person orpersons 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 wayinterfere with the rights of ingress and egSess of said interest holders.

19. It is further agreed and understood by the Lessee that the herein demisedpremises and every part thereof shall be subject to use for public recreationincluding, but not limited to, public hunting, publish fishing, camping, and

picnicking under applicable laws of the State of California and rules andregulation of the State Fish and Game Commission and that the State ofCalifornia, 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~mingunder 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.

Al l 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, andaddressed 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 JaclntoWildlife 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 toeither 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 thegiving of any such notice by personal service.

In the event of the breach by Lessee of any of the covenants herein contained onthe part of the Lessee to be kept and performed. it shall be awful for the State toenter into and upon the leased premises, and every part thereof, and to removeall persons and pmperty therefrom, and to enjoy the leased premises as in thefirst and fonner estate of the State, anything to the contrary herein containednotwithstanding.

If action be brought by the State for the recovery of any rent due under theprovisions 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 shallprevail in such action, then Lessee shall pay to the State such amount asattorney's fees in said action that the Court shall determine to be reasonable.which shall be fixed by the Court as part of the ws ts of said action.

Lessee agrees that it will not dlscrimlnate against any employee or applicant foremployment because of race. color, religion, ancestry, national origin, sex, age orphysical 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 forfurther details).

Lessee agrees and understands that the primary purpose of the State's

ownership and occupancy of the herein demised and leased premises is forwildlife 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 Stateupon discovery.

29. The State will not be liable for any debts or claims that arise from the operation ofthis 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, hls agreement has been executed by the patiishereto as of the date first hereinabove written.

STATEOF CALIFORNIA

DEPARTMENTOFFISH AND GAME

LESSEE

BY k f l 2 a L L c a f ~William V. B N ~ O

By A d d , s d.",NicholasV. Bruno



BEFORE THE STATE PERSONNEL BOARDOF THE STATE OF CALIFORNIA

Lupe Zamora

Appellant:

Lupe Zamora

Respondent:Fish and Gam e

Hum an Resources: K.Wroten1416 9th StreetSacramento, CA 95814

CaseNo. 10-4286

Notice of Time and

Place of Informal Hearing

Appellant 's Representat ive:

SElU - Rancho Cucamonga, Local 100010600 Trademark Pkwy North, Suite 405Rancho Cucamonga, CA 91730Attn: Sherry McPheeRespondent 's Representat ive:Fish and Ga me - Legal1416 9th StreetSacramento, CA 95814Attn:

DATE: TIME: LOCATION:

02107111 12:OO PM State Personnel Board - 320 West Fourth Street, Conf. RM38

Los Angeles, CA 90013

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 andauthorized 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 ro theinformal hearinq, a written response to the complaint specifically addressing the allegations contained in he complaint which is signedunder 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 bedirected to www.aDwalaca.aov. Requests for continuances are discouraged due to time frames set forth in Government Code sec tion19683(a) and Cal. Code of Reg., Title 2, sec tion 56.5(a). Complaining parly may waive time frames in writing. Failure of a party to appear a

the hearing will result in a Notice of Findings being issued without hislher input.

PROOFOF SERVICE

i eclare that I m a resident of or emoloved n the CwnlY of Sacramento, Caiifornia. I m over the aoe of 18 vears and not a oartv to the within entitled cause. Thename and address of my business is thi~ aiif orn ia ta te ~e rs o nn elo a m : 01 Capitol Mail, ~acraminto, aiiornia 95814, 1amreadily famiiiar with the ordinarypractice ofthe business of collecting, p m s i n g and depositing correspondence n the United States Postai Service and that the correspondence will be deposited thesame day with postage thereon fully prepaid On the date shown below, I erved the above-entitled document on each of the above parlies by placinga true copy orcollection and mailing n the United States Postai Service following ordinary business practices

Ideclare under the penaltyd perjury that the foregoing is true and correct

Executedon 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 interpreteror translator, call TDD (916) 654-2360

Rev. 9/9/2010



strongerTogether

YVONNE R. WALKER

President

M. CORA OKUMURA

Vice Freserldentand Serierary-Treasurer

JIM HARD

Vice Presidentfor Organ,zmg/Representation

KATHLEEN 6. COLLINS

Vlce President for Bargaining

SERVICE EMPLOYEES

INTERNATIONAL UNION

I06 00 Trademark PkwyN.

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. NguyenState Personnel Board

801 Capitol MallSacramento, CA 958 14

RE: SPB Case No. 10 -4 28 6 ~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 C omplainton the individually named defendants (also corrected in the SAWC):

1. Scott SewellDept. of Fish & Game

2. Eddy KonnoDept. of Fish & Game

. . * -

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

F&qhSherrv cPhee

Enclosures

cc: Catherine Kennedy, S enior Staff Counsel, DFG



BEFORE THE STATE PERSON NEL BOARD

OF THE STATE OF CALIFORNIA

I2

3

5

) SPB Case No.: 10-4286N

PAUL E. HARRIS, Ill. Chief Counsel (SBN 180265)SHERRY MCPHE E, Staff Counscl (SBN 263232)Service Employees Interna tiona l Union, Local 100010600 N. Tradem ark Parkway, Su ite #405Rancho Cucamonga, CA 9 1730

ORIGINAL

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

L . ~.. .

Attorneys for AppellantLUPE ZAMORA

j

)SECOND AMENDED

) WHISTLEBLOWER COMPLAINT1

$y DEPARTMENT OF FISH ANDGAM E for the STATE of CALIFORNIA, )

and

l 7 I NATURE OF COM PLAINT

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

24 supervisor Eddy Ko mo , DFG.

u

19

20

2 1

22

23

26 I STATEMENT OF FACTS

Aid, with the Department of Fish and Gam e, as a result of my h aving reported improper

governmental activities that include my report that Sc ott Sewe ll, 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 Gam e, Scott Sewell, Wildlife H abitat Supervisor 11, and his

27 I 1. I have been a Seasonal Aid with the Department of Fish and G ame 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 mem bers of the public who conduct business with DFC.

2. On or about September 16 ,20 09 .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 Sewe ll'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 w ith Kay, of the State Auditor's office, I reported that on or

about February 24 ,20 09 , Bill Bruno, a firme r, leasing public land, was giving gift cards

to Mr. Sewell. My report with Kay included the following information: Mr. B runo gav e

me approxim ately two $5 00 Hom e Depot gift cards to give to Mr. Sewell.M;. Sewell

instructed m e to put these gift cards on his desk. I also reported to Kay that o n or about

April 22,2 00 9, Mr. Bruno gave me approximately three Hom e 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 ope n up his wallet and ask Mr. Sewell how m uch money h e needed

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

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

5. Sometime between August 7,2 00 9 and October 23.200 9.1 reported Mr. Sewell's

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

Sewell was receiving Hom e 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 29,200 9, Mr. Sewell was aware that I had reported his improper

governmental activities. Gam e Warden, K yle Chan g, Thomas Trakes and Dirk Holt have

pen ona l knowledge of this.

7. On or about October 29,2 009 ,I was terminated from D GF in retaliation for reporting Mr.

Sewe ll's improper governmental activities to his supervisor and the State Auditor. On o r

about Octob er 29 ,20 09 , Mr. Sewell called me and said something to the effect of, "You're

SECOND AMENDED W HISTLEBLOWER COMPLAINT

2



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

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

8. The retaliation for my reporting of improper governmental activity continued when o n o r

about De cem ber 30. 2009, Mr. K onno called me and stated something to the effect of,

"You no longer work for DFG. Scott Sew ell doe sn't have a job for you."

9. I t is my belief that I was fired by M r. Sewell and M r. Konno in retaliation for reporting

Mr. Sew ell's improper activities to Mr. K onno and the State Auditor.

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

October 200 9 because he failed to take any action to correct the improper personnel action

and further retaliated against me.

I I . In the years befo re I reported Mr. Sewell's improp er governmental activities, I was always

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

performance ha s always been satisfactory.

12. Mr. Sewell's business address is Department of Fish and Ga me 17050 Dav is Road ,

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

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

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 req uesting that no further retaliation andlo r retribution be taken against me.

2. I am requ esting 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 requ esting $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. 1am requesting an y other remedy the State Personnel Board deems appropriate.

SECOND AMENDED WHISTLEBLOWER COMPLAINT3



IV.

1)ISCIPLINARY ACTION HEOU ESTED

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

Supervisor [ I , for those reasons set for th in Section 11, Parag raphs 2 . 3 . 7 and 9. Mr. Sewell

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

hi~ sine ss ddress is Department of Fish m d G ame 17050 Davis Road, Nuevo. CA 92567.

2. 1am requ esting that disciplinary action be taken against Eddy Konno, fo r those reasons set

forth in Section 11. Parag raphs 5 .8 .9 and 10. 13. Mr. Konno should be dem oted to a

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

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

78078 Country Club Dr. # lo 9 Bermuda Dunes, CA 92203

v.

S W O R N S T A T E M E N T

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

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

ated: /e


1



CASE NAME: Lup e Za mo ra - SPB Ca se 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 Cucam onga,California 91730

I am familiar with the S ervice Employee's International Union practice whereby the mail

is sealed, given the appro priate postage and placed in a designated mail collection area. Eachday'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:


[XI (BY MAIL) placing a true, copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid in the United States mail at Rancho Cucamonga, California,

addressed as set forth below.

(original and thre e copies)

SPB Appeals801 Capiatol M all

Sacramento, CA 995814

(one COPY)

C a t h e r i n e K e n n e d y

D e p a r t m e n t of F is h a n d G a m e

1416 N i n t h S t r e e t

S a c r a m e n to , C A 95814

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

[I (BY OVERNIGHT DELIVERY) by placing a true copy thereof enclosed in asealed envelope, with delivery fees paid or provided, and placed in the designated receptacle forsuch overnight miil, addressed as set forth below. In the ordinary course o f business, mail placedin that receptacle is picked up that sam e day for delivery the follow ing business day.

[I (BY PERSO NAL S ER VIC E) by delivering by hand and leaving a true andcorrect copy with the person at the ad dress set forth below.

I declare under penalty of perjury under the laws of the State of California that theforegoing 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 pb ca go v Governor Edrnund G Brown Jr

T R A N S M I T T A L S H E E T

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

SPB Appeal's Division

Catherine Kennedy, [email protected] January 11,2011

URGENT [XIFOR REVIEW PLEASE COMMENT PLEASE REPLY PL EASE RECYCLE

NOTESICOMMENTS:

I r ~ e ~ ~ ~ q u e s t i o n s a 6 o u this0 r i i p h . w umtuctAmtNarieJammayat

altpe&@sp6.ca.gov andi& (1) tlieht name oftlie uppellint, (2)uppek t ' s case d e r ,

(3) rihte o f h t i n g$wiry;4) a returnp b um6et; and(5)yow cumratfqnum6m wliere

ligdc- may 6e sent

ORDER GRAN TING CHANGE O F 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 Number10-

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 7,2011at 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 11,2011

Linda McAteePresiding Administrative Law JudgeState Personnel Board



1 1 Catherine Kem edy, 1669101 Senior Staff Counsel

11 BEFORE THE STA TE PERSONNEL BOARD

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l /I OF THE S TATE OF CALIFORNIA

Department of Fish and Game1 4 1 6 9 ~ ~ t r e e tSacramento, Caliiornia 95814

Televhone : (916)654-3821

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

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I) RESPONDENT'S OPPO SITION 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 ucamongaDEPARTMENT OF FISH AND GAME,

)

IIRespondent

17 1 1 T O T HIS BOARD, ALL PARTIES AND THE IR ATTORNEYS O F RECORD:

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RESPONDENT'S OPPOSITION

Respondent Depnrtment of Fish and Gam e ("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 m eet his

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

Wildlife Area and this action must be dismissed. Assum ing arguendo that the S tate Personnel



2 I demonstratewith clear and convincing evidence that Mr. Zamora suffered no n faliati on. I

5 11 The DFG utilizes seasonal aides to work on its many w ildlife and hatchery areas. As the IG name suggests, seasonal Aides are temporary or seasona l employees of the Department who arei9 1 I with DF G would be from January through Septem ber with the months of October, Novem ber 1

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limited to working 1500 hours per calendar year. Lupe Zam ora (Appellant) wa s appointed as a

Fish and Wildlife Seasonal Aide in January 2007'. The usual pattern of Appellant's employmen t

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.II3 i 11 S~~bsequecto 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 11and second-line supervisor of Mr. Zamora, aud ited Appellant's

hours andto ld Mr. Zamora that he had reached his cap of 1500 hours aud sent him hom e forlthe

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

:. .

17 terminated from employment from DFG. Both M r. Sew ell and.Mr. Konno repeatedly informedII18 Appellant that lie was not fued or terminated from DFG . Sewell and Konno did state to Zamorai I

Branch. These subsequent telephone conversations occurred after September 2009. (See I1 9

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2 2paragraph 6 of Sewell Declaration and paragraph 8 of Konno Declaration).i 1

something to the effect of ''there was no need for his se rvices at this time." How ever, this

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

I RESPONDENT'S OPPOSITION

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25' Mr. Zamo ra had previously worked for DFG as a seasonal aide fiom June 1993tlrough 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

iTechnicIan Seasonal Alde. I



2 ( 1 standard practice to put something in writing after the end of an employee's regular season. Mr. I1

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

6 /(m isu se f the Home Depot Gift Cards to anyone. It was only in December 2009 that Mr. Konno I

4

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7 received a voicemail message from Lupe Zamora wherein A ppellant stated something to theI I8 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.) ThisI19

1Ideclaration came long after his season was ended and after November 2009 w hen he filed a

110 Notice of Appeal with the SPB asserting that he had been d ismissed for whistleblowerI I I

The Califom ia Whistleblower Protection Act (Governmen t 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 yI15

16

18 11 Code Sections 8547.8 and 19683.) Istzte employees from suffering retaliations or reprisals for reporting improper govemmm

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

19 / lu order to prevail on his complaint, MI. Zamora must prove k e e things: ( I ) h420 participated in a protected activity; (2) that he suffered an adverse employment ac tion; and (3i

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. (S e

Flait v. North America Watch Company (1992) 3 ~ a l . ~ p p . 4 "67, 476 for the general prim

RESPONDENT'S OPPOSITION I2 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 was25 1 a p e d oo December 2,20 10an d SPB Chief Adminishative Law Judge granted the Motion to Dismiss. (See Exhi.bi

"A.' o 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 IGovernment Code section 8547.2 (d) which "...means any good faith communication tha1discloses or demonstrates an inten tion to disclose information that may evidence (1) an imprope1

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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 significan tly threaten th e 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 tha t 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 opportun ity to prove by a

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I/action to be taken against both Scott Sewell and Eddy Ko nn o This request requires th s9

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

ligitmmte, indepe~ldent eason 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. I111.

LEGAL ARGUMENTS

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A. Appellant Fails to MeetHis Bur den of Proof

Lupe has declared that he reportedwha t he believed was improper governm ent activities

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

did report such a ccomplaint it would con?litnte a protected activ ity und er the Whist leblower

RESPONDENT'S O P P O S I T l O N



7 1 ) cards to purchase supplies and equipment for the W ildlife Area. As is com mon at various lands I

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Act. However, merely reporting the ac tivity 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 tha t Mr. Sewell, Mr.Konno nor M r. 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 H om e Depot gift

1 that the usage was outsjde of the normal or routine procurement process and wanted Ko lle nb on ~

to d iscuss the matter with K om o without stating who told him about the situation. (See

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

practice without divulging the name of the complaining employee -Thom as 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. Th e lease at

issue was entered into with W illiam and Nicholas Bruno in October 2008 (S ee Exh ibit 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 allow ed for the lessee to :

make repairs around the Wildlife Area. (See paragraphl2o f Sewell Declaration.), Consistent with

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

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

Sewell Declaration).

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

early August 2009. How ever, it was not Lu peZ am ora 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

1 1contacted Sewell to inform him of the com plaint and order him to cease the p~ ac ti ee .At that

I

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2

immediately investigated the situation. He prom ptly contacted his supervisor, Chris Ha yes to

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

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9 / / Konno of his alleged invoivement until De cem ba 2 00 9 (See Paragraph7 of Kon no

I

time, he did not tell Sewell who made the complaint because he did not know w ho a t the

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

6

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

using the g& cards. K om o determined that Sewe ll was not engaged in any improper behavior

and therefore did not instigate any disciplinary actions3. Konno later learned that T rake s 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 B ureau oI

i s I / . B. No Adverse Employment Action Oc curre d I

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i s / IThe California Supreme Court in Ymmriar L ' O ~ e a iSA,nc. (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 1138 discussed what constitutes an "adverse" work ing employment action in a "retaliation" /

2 1 11 "[allthough a mere offensive utterance or even a pa tt e~n f social slights by e ither the emp loyer I

is

19

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l2 IIor co-employees cannot be viewed as mate rially affection the terms, conditions, or privileges of

case. The court adopts a broad standard to include, not only termination and dem otion, but a lso

those ac tions which "are reasonably likely to adversely and m aterially affect an employee's job

perform ance or opportunity for advancement in his or her career." However the C ourt states,

23 1 ( employment" (Ibid). I

RESPONDENT'S OPPOSITION

- 6

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



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

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

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

an adverse employm ent action, there still has to be an actual action.

C. No Causal connec tion Exists

Assuming arguendo that Appellant can show that the conclusion of his regu lar season

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Lupe Zam ora has not been terminated from the Department of Fish and Gam e. (See

Declarations of Sewell, Konno, Olvera, and Sm ith.) 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 norm al pattern of contacting the Wildlife Area in

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

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

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is s imehow an "adverse" employment situation, he still has to show-that there w as a causal

connection between engaging in the protected activity and the communication by Sewe ll and

Konno that his sea son ended in September and O ctober of 2009. In order to make this causal

connection, Zam ora has to prove that Konno and Sewell knew it was Zamora who m ade th e

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

evidence that indicates that Zamora told Sewell and Konno in September or O ctober 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 whistleblow ing at

that time.

I RESPONDENT'S O P P O S I T I O N I

2 3

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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 m ake

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



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

with his repeated requests to for some type of "admission" or w it in g stating the reasons he w as

terminated. (See paragraph 8 of Konno D eclaration.)

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

anticipates that Zamora will argu e futility as a reason no t to request to be put back t o work f or

the 2010 season. Such a request fails for two,main reasons. The first is the repeated req uests fo r

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 i s

the fact that he has a pending workers compensation claim for an injured knee. It i s 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 no t

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

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

C . Legitimate ~ u s i n es s eason

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

2009 were over in Sep tember 2009. Zamora was not a permanen t 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 ilr ticle VTI, section 5 of the California Constitutioi~ , amora was limited t o

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 appointm ent longer than 9 months in

12 consecutive months." Za rn or alae w 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 30,2010. That adjustment did affect when Zamora' season ended in September 2009 but

2 . only by a few days. (See Sewe ll Declaration).

I 3 IV.

~CONCLUSION

5 Respondent requests that Lupe Zam o

6 dismissed in its entirety for the reasons stated above

7 damages pursuant to his complaint. In addition, Re

8 be brought against DFG em ployees Eddy Konno or Scott Sewe ll asno grounds exist under

9 Government Code section 19572 which w arrant 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


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In the Matter of Appeal by

LUPE ZAMORA

Appellaot,

Catherine Kennedy, 166910Senior St& CounselDepartment of Fish and Game

1416 9" StreetSacramento, California 95814Telephone: (916)654-3821Facsimile: (916) 654-3805Email: [email protected].~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

IVS . ) Hearing Dates: February 7,20 1 1

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

I

Respondent

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z 425

I, KYLE CHANG hereby declare to the following:

1. 1am 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 o fthe Departmentof Fish and

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

could testify to the contents herein.

2. 1have 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 a re not limited to,

administering and enforcing fish,wildlife, and habitat protection laws, rules, and regulat ions ;

conducting investigattons with full participa tion in surveillance, interviewing witnesses,

DECLARATION O F KYLE CHANG I N SOFPORT OF RESPCINDENT'S

OPPOSTION TO WHTSTLEBLOWER RETALIATION COMPLAONT- 1

~~- - - . ~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 othe rs to pre serve

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 drunkdrivers,

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

searching for and ka!&g custody of physical evidence, se ~z in gllegal fish, wildlife, and

equipment connectedwith violations, securing and serv ing 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 S tate lands and waters.

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

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"the Wildlife

Area.I cannot remember the exact date. X4y understanding of the purpose of theII I

includes but is not limited to the geobraphicd area where S w Jacinto W ildlife Area. I m

personally acquainted with th e DFG employees who w ork at the San Jacinto Wildlife Area,

including Soott Sewell, Thom as Trakes, and Lupe Zam ora due to the fact that th e Wildlife k e a

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is withinmy patrol region.

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

20 11 Trakes and Scott Sewell were present. Lupe Zam ora neve r showed up to the meeting or wildlife1

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

He had requested a meeting with Scott Sewell who was uncom fortable 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

OPWSTIO N TO WHISTLERLOWER RETALIATION COMPLAONT- 2

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

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

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

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



11hnn ither ThomasTrakes or Scott Sewell and riot Lupe Lamora I havem howledge as to I2

( 1 whether or not Scott Sewell knew who reported the activities or whenhe learned of the matter onI

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

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

5 1 or before October29,2009. I

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

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5. Ihave 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, m nBful

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~egardinghe

allegations of Mr. Zamora

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

WA ENKYLEC-6

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DECLAWLTION OF KYLE CHANG IN SUPPORT OF RESPONDENT%

OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT- 3

Date:

Place:



Catherine Kennedy, 166910Senior Staff CounselDepartment of Fish and Game1416 9"' StreetSacramento, California 95814

Telephone: (916)654-382 1Facsimile: (916) 654-3805Email: [email protected]

1 1 BEFORE THE STA TE PERSONNEL BOARD

I / OF THE STATE OF CALIFORNIA

9 In the M atter of Appeal byII ) SPB Case No. 10-4286

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LUPE ZAMORA j DECLARATION OF SCOTT SEWELLIN) SUPPORT OF OPPOSTION TO

Appellant, ) WHISTLEBLOWER COMPLAINT>

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IVS. ) Hearing Dates: February 7, 20 1 1

) Tim e: 12:OO p.m.DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucam onga

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Respondent1

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I, SCO 'M SEW ELL, hereby declare to the following:

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

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

been employed with DFG since 1998. I make this Declaration based on persona l know ledge and

if called as a witness could te st fy to the contents herein.

2 . As part of my du ties as a Wildlife Habitat Supervisor 11, I am assig ned the

management of the San Jacinto W ildlife 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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Area hires seasonal employees to augment the serv ices rendered by the pe rmanent employees.

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

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

employees. Currently, there are no seasonal employees working at the W ildlife 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 m onths of October, November and Decem ber being off

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

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

work hour cap of 1500 hours. On or about September 25 ,200 9, I informed Mr. Zamora that his

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

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 28,2 9, A d 30,2 009

were furlough days required by the Governor's Execu tive Order.

6. Subsequent to m y September 25,2 009 meeting with Mr. Zam ora letting himknow 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 comm unicated 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 employm ent 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 mee t with m e to

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

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



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problems. The meeting was scheduled for in' early October 2009, approxima tely one week afte r

the September 25,2009 m eeting 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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Thom as Trakes and Dirk Holt.

8. I had no knowledge in September 2009, that Mr. Zam ora 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 S tate 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 o r that he

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

9. In past years, Mr. Zamora would approach m e at the end of Dece mber o r

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

arrangement worked due to th e fact that Mr. Zamora's contact information in D FG 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. Zam ora requested to return to his seasonal job.

10. Prior to promoting to my c m e n t position as a Wildlife Habitat Supervisor I1 in

2008, I was the Wildlife Habitat Supervisor for the W ildlife 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, oversee ing the

hunting season which runs m u a l l y from September to February, the upkeep and maintenance of

the buildings and grounds, procurement of equipment, entering intoapp ropria te contrac ts, and

overseeing the Agriculture W ildlife 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- 3. . - ~

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1 (See Agricultural Lease Attached as Exh ibit "B." The lease agreement provided by Appellant asIII~ t ta ch rn m t 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: I3

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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 agreem ent require that the Lessees, W illiam

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

9 I the San JacintoWildlife Area (SJW A). Lessee work will be performed on a per I7

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

1 1 Paragraph4 requires in pertinent part that the: "Lessee will use the existing irrigation I12

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I well and water transport facilities located on the proper ty 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 I1

l9 ( 1 assignment as a habitat supervisor to the WildlifeArea and discussions 1had with otherDFG /

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 I21 1 include the lessee paying for parts, equipmen t and services for repairs needed op the Wildlite 1Z 2 A r e The value of the purchase of the parts and equipm ent and in-knd service were an off-set 123 / 1 against the annual rent. In order to fac ilitate the purchase of parts and equipment needed to k eep /24 the Wildlife Area and its buildings in repair, it was sugges ted and I agreed to have the BrunosI





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2purchase 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 agreemen t 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 persona l gain. I never opened my wallet to accept case nor was it my practice toI 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 renta l off-sets.

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

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l 4 / / State Audits, the C alifornia 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 W ildlife 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 B ureau of

18 1 1 17. In or about late July or emly Aum st 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

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

offices. To my knowledge, and apart from this case, there areno pending administrative, civil or

criminal matters pending regarding the allegations of Mr. Zamora.

20 /I eceived a complaint dom omeone about the use of the cards and instructed me to stop using 1them. He did not tell me who had made the complaint to him. I immediately stopped the use o f I2

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the Home Depot cards per his instructions.

19. It was only in the late Spring or early Summer in 2010, that I was attend ing a sta

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

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

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the useof th e HomcDepot cards. Mr. Trakes is still emgo$ as a Habitat Supnvioor I at the

Wildlife Area.

1declare undmpenaltyof

p q u r y , underthe

lawsof the

Stateof

Califmia, thatthe

above is trueand

Date: 6117r

naceqlAie 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 95814

November 14,2008

Wtlliam V. BrunoNicholasV.Bruno

Subject: Lease AL-2008-01-R6

To Whom It May Concern:

Enclosed is your copy of the executed grazing lease for the San JacintoWildllfe Area (SJWA). Should you have any questions, pleasecontact the localrepresentalihe,Terri Williams, at 562.596.4215.

Sincerely,

EricR. DockterAnalystBusiness Services

cc: TeniWilliamsRegion 6

Endosure



" AGENCY : Departn 'f Fish and Game NU, R : AL-2008-01-R6PROJECT : San Ja~In t~W i ld l i ferea

AGRICULTURAL LEASE: San Jacinto Wildlife Area - 711 Acres

AGRICULTURAL LEASE:

This LEASE, entered into October 27, 2008 by and between the State o f Ca lifornia,

acting by and through the Department of Fish and Game, hereinafter called State , a nd WilliamV. B N ~ Ond N icholasV. Bruno called Lessee;

WITNESSETH!

The parties hereto, for the considera tion hereinafter expressed, do agree as fo llow s:

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, oeshereby lease, demise, and let unto Lessee that certain property situated in theCounty of Riverside, Sta te o f California , excepting therefrom al l areas heretoforereserved therefrom for wildlife habitat development programs, consisting of 711

acres for the growing of agricultural crops and more particularly described anddelineated in that certain map and description entitled San Jacinto Wildlife AreaAgricultural Lease and marked Exhibt "A", which is attached hereto andincorporated by reference and made a part hereof.

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

3. In lieu of rental payments, the Lessee will be required t o provide custom :ractorwork, including disclng, seeding, mowing, land leveling and lor mutually agreedupon equivalent work necessary to accomplish the restoration of wildllfe h abitatson the San Jacinto Wildlife Area (SJWA). Lessee work will b e performed on a

per acre basis andwill

b e subject to the expenditure of the agreed upon annualLease value. All Lessee work will be accomplished pursuant to the direction o fthe Area Manager, SJWA. In lieu of tractor work, Lessee will be required to makeimprovements and repairs to the San Jacinto Wildlife Area.

Lessee shall, in addition to all other sums agreed to be paid by him under thisLease, pay any and all taxes, possessory interest taxed, wa ter charge taxes, and

water surcharges levied or assessed on Lessee by proper governmentalauthority during the term of this Lease or any extension thereof. Lessee wl ll usethe existing irrigation well and water transport facilities located on the propertyand will be responsible for maintenance and repair of all pumping facilities andwater transpo~acilities during the Lease term. Lessee agrees to pay all costsof water, SCE, or other cos t a s relate to Lessee agricultural use. State shall notbe responsible for the rep lacem ent of any pumps, pumping facilities o r wa tertransport facilities during the Lease term.

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



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mntainec ' ein shall be construed as cot . ding the parties here in a s....

partners.

6. This Lease is made upon the express condition that the Sfate-is to. be free fromall liability and claims for damages by reason of any injury to any pe rson o rpersons, Including Lessee, from any cause or causes whatsoever while in, upon,or In any way connected with the premises during the term of this Leas e o r any

occupancy hereunder, except those arising out of the sole negligence of the

State. Lesse e agrees to defend, indemnify, and save harniless the Sta te o fCalifornia from all liability, loss, cost, or obligation on account of or arising outofany such injury or loss, however occurring. Lessee further agrees to providenecessary Workers Com pensation Insurance for all employees of Le ssee uponsaid premises at the Lessee 's own cost and expense.

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

8. Lesses shall not assign thls Lease in any event and shall not sublet the leasedpremises or any partihereof and will not permit the use of the leased premises

by anyone other than the L ess ee without prior written consent of th e 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~ soonerterminailon o i his Lease, to surrender up to State the leased premises wi K a n yappurtenances or Improvements in the same condition as when received,reasonable use and wear thereof and damage by act of God or b y the elementsexcepted.

10. Lessee agrees that in no event shall State be required to perform anymaintenance on or make repairs or alterations to the leased premises of anynature whatsoever. Lessee agrees to keep he leased premises in good orderand condition at his sole cos t and expense. Lessee does hereby waive all right

to make repairs at the expense of the S tate as provided In Sections 1941 and1942of the C ivil Code.

11. No dumping of refuse by Le ssee Is permitted in any area of the leased premises,and Lessee shall not commit or suffer to be committed any waste or nuisanceupon 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 Lesseefurther agrees that he shall a t all times exercise due diligence in the protection ofthe leased premises against damage or destruction b y 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

killed on said premises.

13. Lessee will provide for a representative, available to respond within 24 hours, toany problems on the San Jac into Wildlife Area lease area. This may includeproblems with livestock movem ent or irrigation systems on the areas as a result

of this Lease.

2



14. Lessee shall rurnish a Certificate o f lnsurance to the State with a mou nts of pu blicliability insurance of not less tha n $1,000,000 per occurrence for b od ily inju ry andproperty damaged combined naming the.State of California, its officers, agents,.. .and employees and servants as additional insured insofar as operations underthis agreement are concerned. It is agreed that the State shall n ot b e liable forthe payment of any premiums or assessments on the insurance coveragerequired by this paragraph. Th e Cer tificate of lnsurance shall pro vide that the

insurer will not cancel the insured 's coverage without thirty (30) days prio r writtennotice to State. Lessee agrees tha t the insurance herein provided for s hall b e ineffect at ail times during the t er m o f this Lease. In the event said insurancecoverage expires at any time or times during the term of this. Lease, Lesseeagrees to provide State at least thirty (30) prior to said. expira tion da te, a newCertificate of Insurance eviden cing insura nce coverage as provide d fo r h ere in fornot less than the remainder of t he ter m of the Lease or for a period o f not lessthan one (1) year. . .In the ev en t Les se e fails. to keep in effect at al l timesinsurance coverage as here in provided, State may, in addition. to a n y otherremedies it may have, terminate th is Lease upon the occurrence of s uc h event.The insurance certificate should be mailed to De ~a rtm ent f Flsh a nd Game,Attention: Te ni Williams, 4665 Lam pson Ave, Suite J, Los AJamitos, CA 90720.

15. Lessee shall, at h is sole cost and expense, comply with all of the requirements of

all municipal, state, and federal au thorities now in force. or which may hereina fterbe inforce, pertaining to the pre mises.

16. During continuance in force of his Lease, there shall be and Is hereby expresslyreserved to the State and to an y o f itsagencies, contractors, agents, employees,representative, or licenses, the right at any and all tlmes, and at any and allplaces, to temporarily enter up on said leased premises for survey, ins pe ct~ on rany other lawful State purposes.

17. This Lease is subject to a ll exis ting ease ments and right of way. State furtherreserves the right to grant additional public utility easements as may be

necessary and Lessee hereby consen ts to the granting of any such ease ment.The public utility will be required to reimburse Lessee for any dama ges c ausedby the constructionwork on the e asemen t area.

18. Lessee agrees not to interfere, in any way, with the interests of any perso n orpersons that may presently, or in th e future, hold oil, gas, or other mineralinterests upon or under said leased premises, nor shall Lessee in any wayinterfere with the rights of ingress an d egress of sa id interest holders.

19. It is further agreed and understood by the Lessee that the herein demisedpremises and every part thereof shall be subject to use for public recreationincluding, but not limited to, public hunting, publish fishing, camping, and

picnicking under applicable laws of the State of California and rules andregulation of the State Fish and Game Commission and that the State ofCaiifornia, its officers, agents, and employees shall not be responsible fordamages to livestock or property or injuries to persons which may arise from orbe incident to such use and occupa tion of said premises. The Lessee, and



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

20. State expressly reserves.the rig ht to the use of the herein leased prope rty, in anymanner, provided such use does not unreasonably interfere with the use of theLease herein granted.

21. All notices herein provided to b e given, or which may be given, b y either p ar ty to

the other shall be deemed to have been fully given when made in writing anddeposited in the United States mail, certified and postage pre-paid, andaddressed as follows: to Les see a t 233 W. Markham Street. Perris, CA 92571and 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 JaclntoWildlife Area, Department of F ish and Game, P.O. Box 1254, Lakeview, CA92567. Th e address to which the notices shall or may be rnaiied as aforesa id toeither party, shall or may be change d b y written notice given by each p art y to theother as hereinbefore provided, but nothing herein contained shall preclude thegiving of any such notice b y person al sennce.

22. In the even t of the breach by Les see of any of the covenants herein contained on

the pa rt of the Lessee to be kep t and performed, it shall b e lawful for the Sta te toenter into and upon the leas ed premises, and every part thereof, and to removeall persons and property therefrom. and to enjoy the leased premises a s i n thefirst and former estate of the State, anything to the contrary herein containednotwithstanding.

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23. If action be brought by the State for the recovery of any rent due under theprovisions hereof, or for an y b rea ch hereof, or to restrain the breach o f anyagreement contained herein, or fo r the recqvery of possession of said premises,or to protect any rlghts given t o th e State against Lessee, and if the State shallprevail in such actlon, then Lessee shall pay to the State such amount asattorney's fees in said action that the Court shall determine to be reasonable,which shall be fixed by the Court a s part of the costs of said action.

24. Lessee agrees that itwill not discriminate against any employee or applicant foremployment because of race, color, religion, ancestry, national origin , sex, ag e orphys ical handicap. Lessee agrees to take affirmative actlon to ensure thatapplicants are employed, and the employees are treated during employment,without regard to their race. color, religion, ancestry. national origin, sex, age orphysica l handicap. (See California Government Code Sections 12920-12 994 forfurthe r details).

25. Lessee agrees and understands that the primary purpose of the State'sownership and occupancy o f the herein demised and lease d premises is forwildlife conservation purposes, and Lessee agrees not to commit waste or

damage the wildlife habitat.

26 . This agreem ent contains any an d eve ry represen tation, promise, and agreem entmade by the parties hereto in th e negotiation thereof.

27. Time is of the essence of this Le as e agreement.

A



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II 11 BEFORE TEE STATE PERSONNEL BOAlZD

1

2

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4

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Catherine Kemledy, 166910Senior Staff CounselDepa~lment f Fish and Game1416 9"' Skeet

Sacran~ento, alifornia 95814

Telephone: (916)654-3821Facsimile: (916) 654-3805Email: [email protected].~ov

I

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

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II

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;I 141 15

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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 th e 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 person al knowledge and if called as a witness couild testify to the contents

OF TI-IE STATE OF CA LIFO RNIA

In the Matter of Appeal by ) SPB Case No. 104 286

1LUPE ZAMORA ) DECLARATION OF LaPEZRA SMITH IN

) SUPPO RT OF MOTION TO DISMISSAppellml, 1

) Hewing Dates: February 7,201 1VS . ) Time. 12.00 p.m

) Place: Rancho C~ ~cam ollgaDEPARTMENT OF FISH AND G M , )

)Respondent

I herein. I

DECLARATION OF LaPEZRA SMITH 11.1 SUPPORT UF

O P P O S I T I O N TO WHISTLEBLOWER RETALIATION COMPLAINT

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..

2 . As pa11of my duties as a Personnel Specialis t, I regulwly access the Sta te

Controller's Office (SC O) com puter system to review the employment information of DFG. . .

. . _. ".l______l,._....- .. ... " -



1

i3

!5

en~ployees.1 an1 personally fan ili ar witli tlie codes used by th e SCO's systwn 011 its p j~ l ld t i t s

oi6'Employee History Summ ary."

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 fo rt li e 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 the ir work as a Seasonal Aide in the next yeor. (A bile and correc t co l~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~~ghoutegion 6 regarding personnel issues. Such incluiries could

l2

13

include questions from supervisors regarding how Inany hours a s ub n rd i~ ~a teeasolla1 em ployee

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

5 . In Octnbcr 20 09 ,l recall receiving a telephone call l o r n S C O ~ewell geiierally

1 4 recluesting informati011 bout tlie employmne~it f seesonal employees 1?r11e11 th es ea so n is over. IlWh I do i~o tecall specifically what I said, l understand that Scott Sewell sta tes tha t I advised

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"Place:

.4ds ?1.&JV2 4

19

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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

ib e c o ll e c ti o n that seasonal eniployees cannot extend their working si tua tio~ ~eyoilci their normal

soas011.

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

to tell the en~p loye e there is no work at Lhis time" in response to 11% ir~quir)~bout what to

tell employees after their season had ended. Sucli advjce would be consistenl wit11my



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 ISH & GAME 08/19/10 102319999 B C 1

07/01/10 350 565-602-0790-905 ISH & GAME 07/08/10 101899999 B C 11 - 07/01/09 350 565-602-0790-905 ISH & GAME 07/06/09 091879999 B C 1

01/30/09 350 565-602-0790-905 ISH & GAME 02/10/09 090419999 B C 1I ' 07/01/07 GEN 565-601-0790-905 ISH & GAME 08/26/07 072389999 B 1I ' 01/10/07 A02 565-602-0790-905 ISH & GAME 01/31/07 FG0310006 BAGH D I 1

07/01/03 GEN 565-602-0790-905 ISH & CAME 08/20/03 032329999 B 1

11 05/08/03 SO1 565-602-0790-905 ISH & GAME 05/09/03 FG1290003 F IJ 108/31/00 GEN 565-602-0790-905 ISH & GAME 09/06/00 002509999 B C 1I - 01/13/00 565 565-602-0790-905 ISH & GAME 03/03/00 020630001 C I 1

1 -- 01/01/00 120 565-602-0790-905 ISH & GAME 02/10/00 020410502 1- 07/01/99 GEN 565-584-0790-905 ISH & GAME 10/16/99 992899999 B 1

- 04/01/99 GEN 565-584-0790-905 ISH & GAME 04/20/99 991109999 B C 1- 01/31/96 505 565-584-0790-905 ISH & GAME 05/15/96 021360028 H 1

01/01/96 MSA 565-584-0790-905 ISH & 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 PAYROLL1 B = SALARY D = SERVICE F = SEPARATION H = RETIREWENT J = SEP PAYROLL

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



I / BEFORE THE STATE PERSO NNEL BOARD

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4

5

II OF THE STATE OF CALF OR MA

Catherine Kennedy, 166910Senior Staff CounselDepartment of Fish and Game1416 9Ih StreetSacramento, California 95814

Telephone: (916)654-3821Facsimile: (916) 654-3805Email: clcennedvmdf~.ca.eov

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

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11

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

LUPE ZAMORA

Appellant,

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

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J

VS. ) Hearing Dates: February 7, 20 1 1) Time: 12:OO p.m.

DEPARTMENT OF FISH AND GAME, ) Place: Rancho Cucamonga

Respondent)

2 o 11 ~ ~ ~ l a r a t i ~ ~ased 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 o f 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 s ince 1981 and held numerous positions within

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DECLARATION O F KIMBERLY N I C O L I N SUPPORT OF

O P P O S T IO N TO WHISTLEBLOWER RETALIATION COMPLAONT

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DFG including Fishery Biologists, Associate B iologist, 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



tF

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7

DECLARATION OF KIMBERLY NICOL I N SUPPORT O F


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

management decisions including but not limited to, the implementation and managem ent 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, Iam he

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 gif ts at

the San Jacinto Wildlife Area or involving Wildlife Habitat Supervisor11 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 th e Bureau

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

Governor's Waste W atchers, the county district attorney's o ffice or the local law enforcement

offices. TOmy know ledge, and apart from this case, there are no pending admin istrative, civil 01

criminal matters pending regarding the allegations of Mr. Zamora

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

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

actions, and in discussion s with appropriate staff and managers in DFG's H uman 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 the re was

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



6 1 1 BEFORE THE STATE PERSON NEL BOARD

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2

3

4

5

/I OF THE STATE OF CALIFORNIA

Catherine Kemledy, 166910Senior Staff CounselDepartment of Fish and Game1416 9"' StreetSacramento, California 95814

Telephone: (91 6)654-3821Facsimile: (91 6) 654-3805Email: ckennedv~,dfr.cn.eov

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

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11

I; JOSE PH OL VERA, hereby 'declare to the follo wing: . . . . . I

LUPE ZAMORA j DECLARATION OF JOSEPH OLVERA

) SUPPO RT OF OPPOSTION TOAppellant, ) WHISTLEBLOWER COMPLAINT

1 2

l 3

14

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

Ivs. ) Hearing Dates: February 7, 20 1 1

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

)Respondent

24 I /management for the region including, but not limilcd to, personnel issues and thep roce s3ing 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 con tents

herein.

2. I have been employed with DFG fo r 22 years. For th e last 16 years, I have been

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

--DECLARATION OF JOSZPH OLVERA I N SUPPORT O F

OPPOSTION TO WHISTLCBLOWER RETALI ATI ON COMPLAONT

- 1--- - -- - --



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7.

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DECLARATION OF JOSEPH OLVERA IN SUPPORT OF

OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAOMT- 2

contracts for R egion 6. As part of my d ities, 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 Zamo ra and his employment histoly with

DPG as a Seasonal Aide at the San Jacinto Wildlife Area. I w a s aware in S eptember 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 inform ed

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

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

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i n any given calendar year.

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

of S tate Audits, the California Highway Patrol, the Califor nia Department o f Justice, tKe

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

th e local law en forcement offices regarding the allegations of misuse, bribery, wrongful

acceptance of gifts o f the Home Depot gift cards in conn ection with the San Jacin to Wildlife

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

been my experience that the outside investigator does not divulge th e 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 Wildlif e Area. I did not recognize the voice

and have no idea who the person was. Ther e was no contact information.

6. I first learned of the actual complaint of the misuse o f the Hom e Depot card s 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 wa s written by former DFG employee

Thomas Paulek.



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

acceptanc e of gifts.

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

above is true and correct.

Date: //2q L O /

'4. .Place: LosA/itim 3 allfomla

DECLARATION OF JOSEPH OLVERA IN SUPPORT OF




3 1 1 Sacramento. California 95814

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Catherine Kennedy, 166910Senior Staff CounselD e p q e n t of F ish and Game14169 Street

I1 BEFORE THE STATE PERSONNEL BOARD

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5

Telephone: i916)654-3821Facsimile: (916) 654-3805Email: [email protected]

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lo

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


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

1LUPE ZAMORA ) DECLARATION OF STEVEN

KOLLENBORN IN SUPPO RT OF11

1 2

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1 4

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

Appellant, j OPPOSTION TO WHISTLEBLOWER) COMPLAINT

VS. 1) Hearing Dates: February 7,2 01 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 Tra kes about som e

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

DECLARATION OF STEVEN KOLLENBORN IN SUPPORT OF


- 1



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 Ho me 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 con tact Eddy Konno who was Scott Sewell's supervisor at the time. M

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

:ontacted outside of DFG to investigate the matter.

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

~fhe Home Depot& ards. I did not provide Mr. Konno with the name of the em ployee whc

iontacted me about the situation when I called him.

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

~fState Audits, the California Highway Patrol, the C alifom ia 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


.- - --



9 1 IIn the M atter of Appeal by

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BEFO RE THE STATE PERSONNEL BOARD ,


Catherine Kennedy, 166910Senior Staff CounselDepartment of Fish and Gam e1416.9 '~ treetSacramento, California 95814

Telephone: (916)654-3821Facsim ile: (916) 654-3805Email: ckennedv@,dfp.ca.aov


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l4 I1 Respondent

1LUF'E ZAMORA ) DECLARATION OF CATHERM E

) KENNEDY M SUPPORT OF OPPOSTIONAppellant, ) TO W HISTLEBLOWER COMPLAINT

1 2

1

IVS. ) Hearing Dates: February 7, 20 1 1

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

)

DECLARATION OF CATHERINE KENNEDY IN SUPPORT OF


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I, CATHERINE KENNEDY, hereby declare to the following:

1. I am over the ag e of 18 years and not a party to this action. I am em ployed as a

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

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 2,20 10 granting Respon dent'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 Appea l

of Dismissal filed on behalf of Appellant dated November 19,2 009 .

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

the above is true and correct.

Date: January 27,2011

Place: Sacramento, California

DECLARATION OF CATHERINE KENNEDY IN SUPPORT OF


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

LUPE ZAMORAv.

DEPARTMENT OF FISH and GAME

Appeal from Termination of Limited TermAppointment 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.

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

Service Employees Interna tional Unron, Local 1000.

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

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

Retaliation Complaint.

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

terminated from his Seasonal Aide appointment and, second, is n ot entitled to appeal a

termination of a Seasonal Aide appointment pursuant to California C ode of R egulations ,

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

action.



Lupe ZamoraCase Nos. 09-6782 & 10-4286

Page 2 o f 3

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

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

Personnel Board. The employing department is obligated to conduct Nam e Clearlng

Hearings when requested. Therefore, Appellant does not have a r~ gh 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 Comp laint 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, Ca lifornia.

Appellant's Whistleblower Retaliation Comp laint was properly filed an d will n ot be

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

complaints filed with the SPB under the California Whistleblower Protection Ac t

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

Respondent's Motion to D ismiss the Appeal from th e asserted termination ol

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



Lupe ZarnoraCase 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 2,2 01 0

Linda K. McAteePresiding Administrative Law JudgeState Pe rsonnel Board



1 DECLARATION OF M A I L ~ ~ G

1 DEPARTMENT REPRESENTATIVE C OPYI In the Matter of the App eal by: LupeZamora Case No. 09-6782

Legal Office:Fish and Game - Legal1416 9th StreetSacramento, CA 95814

I Attn:

I Appellant:LuDe Zamora

Personnel Officer:Fish and GameHuman Resources: K. Wroten1416 9th StreetSacramento, CA 95814

Appellant's Representative:SElU - Rancho Cucamonga, Local 100010600 Trademark Pkwy North, Suite 405Rancho Cucamonga, CA 91730Attn: Sherry McPhee

(See Attached Docu men ts )

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

Sa~d ddresses were the last known addresses of specified agencies and persons. Eachenvelope was then sealed and deposited in the United States mail, at Sacramento, California, withpostage thereon fully prepaid. On said date there was delivery service by United States mail at each ofthe places so addressed or there was regular communication by Un ited States mail between said placeof mailing and each of the places so addressed.

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

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

Tamara Lacey

cc:

RECEIYFD

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SEIU,LOCAL 000, CTW.0CLC

NOTICE OF APPEAL OR 'P.ETITIoN :5EIU .smnberrmgmw. . &re Personnel Uonrd Dopl: of Pt ao nn cl Admlnistrnlion

1515"Stmt l, Suile 40001 Capitol Msli

Sncramenlo. CA 95 814 Sncramero. CA 95814

0 Adverse Action o t 0 AulomnlicResignetion (AWOL)

7) IL M I ~ J- m ~ c o ~ ~ l t i crnnsfer 1 : . ,

Scr Aside Rsi gnn ion

(Diimisal, Lkmian. 5dv' ur~corioa.lCJ

pnejcclian During Pmbhion other Z&de'L A 41 w

Medical Demolion ITcrminalion b/t +)& K/,,y& cu W,O La INS,

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1 hereby nppal orptlilion h e ate^^ action on.bll gmun ds permitre* by isw. I nquesl a hearing at the cariiesr cpnvenicnl lime. I II haw nulhotjvd lhc SElU Locsi 1000, loac r M my exclusive nprest nlativ c and agent in rhis muler. Pita? ac d coprcs of all nolice s lo at

the following oddasi:. . , ' ,

d e T uSACNLMEKM C O A W A L A ~ o SOUTUWDS~AREA . o CENTRAL AREAi8M 141h Slrcei. 1413 Wcbslcr SI. 4721 Wilshi~Blvd. 10600Tradhbrk Fnrk,vny NO . I . .1551 E.-Show Avr. #I99

SwrnmcnioCA 95814 Suite200 Suite388 . , Sullc 40.5 j . Frcsno,CA 93710 .Oaklund. CA 94612 Loa Angels, CA 9WIO Rancho Cuoamonba CA 91730 i

I hereby authorize SElU ~ o o n l 000 lo review nnd obtsin copics Of my pcrsonncl and dcparlmcnlni fiics &d any olhcr documcnrs

pertnining lo n ~ yur.>

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' I agree to the Slaamcnl of Rightsand l~es~onribili l iesn the reverse side of rhis form and agree to co op ~r al c irh SEIU Local

II 100 0 in preparing my case. i I I. .ddrws

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Catherine Kennedy, 1669 10Senior Staff CounselDepartment of Fish and Gam e1416 9IhStreetSacramento, California 95814

Telephone: (916)654-3821Facsimile: (916) 654-3805Email: ckennedv@df~.ca.gov

BEFORE TH E STATE PERSONNEL BOARD


In the Matter of Appeal by

LUPE ZAMORA

Appellant,


1) DECLARATION O F DWIGHT GREENE) SMITH IN SUPPORT OF OPPOSITION Tc

) WHISTLEBLOW ER 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 I 8 years and not a party to this action. I am employed as aI1Return to Work Coordinator in the Department of Fish and Game's Hu man Resources Branch .I I make this Declaration based on personal lmowledge and if'called as a witness could testify to

I he contents herein.

I2. As a Return to Work Coordinator, I am one of two DFG em ployees 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 OFOP P OS IT ION 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 200 8 and that it has no

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7 / Iperform his duties as a Seasonal Aide. 1been accep ted 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 theI / I,, /'

above is true and correct. /' , ,'

Date: I - 25 - (

/, /+!

/' WIGHT GREENE

DECLARATION OF DW I GH T GREENE I N SUPPORT OF

OP P OS ITION TO WHISTLEBLOWER RETALIATION COMPLAINT

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BEFORE THE STATE PERSONNEL BOAR D

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

Catherine Kennedy, 166910Senior Staff CounselDepartment of Fish and Gam e1416 9"' StreetSacramento, California 95814Telephone: (91 6)654-3821

Facsimile: (916) 654-3805Ernaik [email protected]

lo

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I, EDDY KONNO, hereby dec lare to the following: I

ILUPEZAMORA ) DECLARATION OF EDDY KONNO

) IN SUPPORT OF OPPOSTION TOAppellant, ) 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: Fe bq ar y 7,201 1

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

. . . . . . ., :. . ... . . . . . . . . . . . . ) ;,,; , ; : . . 2 . . . .. , . .

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

l9 Senior Environmental Sc ientis t in Region 6 of the Departm ent of Fish and Game (DFG). I makeI2 o

2 4 Marine Biologists, Wildlife B iologist, Staff Environmental Scientist, and wa s prom oted to SenioII

this Declaration based on personal know ledge 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 O F


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25 Environmental Scientist in 2006. My current duties include management of DFG owned lands i1



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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 inc ludes the management of 2 DF G 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 notI I

I supervise 17 permanent emp loyees including my direct subordinate Wildlife Habitat Supervisor

I1Scott Sewell.

1 (participate n the decisions regarding the hiring of seasonal employees on the wildlife areas and 18

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l2 1 said thathe was uncomfortab1e with the arrangement with the use of Home D epot cards being I

did not participate in the decisions regarding the hiring of Mr. Zamora or the comm unication 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 I15

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1 9 Watchers, the county district attorney's office or the local law enforcement offices. To m yI1 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 co mplaint. 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 Californ ia Department of Justice, the G overnor's Waste

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DECLARATION OF EDDY KONNO I N SUPPORT O F


knowledge, and apart from this case, there are no pending adm inistrative, civil or criminal

matters pending regarding the allegations of Mr. Zarnora.

5. I called my superv isor, Region 6 Deputy Regional Manager Chris Hayes to

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determine how to handle the m atter. We reviewed the Agricultural Lease Agreement and the

provisions for the " i n - h d " work by William and Nick Bruno under the agreement. We

determined that it was better to give the lessees a list ofpa rts needed and have them buy the pa rts



2 4 I with his request for a letter,

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DECLARATION OF EDDY KONNO I N SUPPORT OF


directly instead of providing the Home Depot c ards. Receipts and other record keeping were

required to m ake 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 stil l 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 drakes that

he was the one who spoke to Steve Kollenborn. I confirmed this information with S teve

Kollenborn. I did not pass this information on to Scott Sewell. It is my unders tanding thatS co tt

Sew ell 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 Superv isor I at the

Wildlife Area.

8 . After being told his season was ove r in September 2009, Lupe Zarnora contacted

me a few times. Initially, he asked why he was fired. I informed him that it was m y

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 sam e phrase that our HR representative instructed Scon

to use - there is no work fo r you at this time." Subsequently, Mr. Zamora requested a letter

from DFG setting forth all of the reasons he w as terminated. I confirmed with C hris 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 /t ha t h i was the one who was the "whistleblower." This was the first time I heard that Mr. I1 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 br inging the Home Depot gift card conce rn

forward. It was well after his season had been terminated in September 2009 and afterMr.

Zamora filed his initial appeal with the State Person nel Board alleging retaliation.

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l o. At no time has Scott Sewell denied the Home Depot gift card arrangement that

was created as a m eans with the Lessee to fulfillhis obligation to provide in-kind services under

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the Agricultural Lease . My review of the facts and documents concerning this arrangem ent and

my discussions with other DFG employees did not convince me that no bribery or illega l 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 disciplina ry

proceedings against Mr. Sewell. 1

I declare under penalty of perjury, under the laws of the S tate of C alifornia, that the

above is true and co rrect.

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Date: 18 , T aw / /

PI/+ .Place:

6erwvJ4 ,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 b usiness address is: Departme1

f Fish and Gam e, Office of General Counsel, 1416 9ThStreet, Sacramento,CA 95814

On January 27,2011, I caused to be served the following:

Respondent's Opposition to W histleblower 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 a s follows:

heny McPhee, Esq.EIU Local 10003600 N. Trademark Parkway, Suite 405ancho Cucamonga, CA 91730

mail: [email protected]

tate Personnel Boardppeals Division11 Capitol Mallicramento, CA 95814

ia Email: [email protected]

By Personal Delivery in a Sealed Envelope Addressed as Ind icated

By Depositing in a Sealed Envelope Via Golden State Overnight Mail with Postage Full)Paid Thereon and Addressed as Indicated

0 ia 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 theforegoing is true and correct. Executed in



801CapitolMallSaaamnto,CA95814 ( -71 I umw.8~5agw Gove rnorhk l Sehwacenagger

November 17,2010

John McCammanThomas Gibson, Esq.1416 Ninth Street, 12" FloorSacramento, CA 95814

Re: L u w Zamora v. California De ~a rtm en t f 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 whistleblowerretaliation complaint filed by former Ca lifomia Department of Fish and Game (DFG)employee Lupe Zamora against the DFG as well as its employees: Wildlife HabitatSupervisor IIScott Sewell and R egional Manager Eddie Kono. The SP B hasdetermined that Mr. Zamora has met all necessary filing requirem ents as against DFG,Mr. Sewell, and Mr. Kono. Accordingly. we will review the m atter pursuant to theprovisions of Governm ent Code sections 8547 et seq., and 19683, as well as CaliforniaCode of Regulations, title 2, sections 67 et seq.

In addition to filing the instant amended complaint, Mr. Zamora has appealed hisdismissal in SPB Case Num ber 096782. Because Mr. Zamora is alleging in his

whistleblower retaliation complaint that DFG andlo r its employees terminated him formaking protected disclosures pertaining to improper governmental activities engaged inby DFG andlor its employees, the whistleblower re taliation complaint in SPB Caseumber 10-4286 and the appeal of dismissal in SPB Case umber 09-6782will be

consolidated pursuant to California Code of Regulations, title 2, section 67.8.

Because Mr. Zam ora is seeking remedies against Mr. Sewell and Mr. Kono, and theymay be subject to liability if it is determined that they retaliated against Mr. Zamora, Mr.Sewe ll and Mr. Kono will have an opportunity to present evidence to the assignedadministrative law udge, consistent with California Code of Regulations, title 2, section67.8, subdivision (c). By this letter, the SPB is also notifying Mr. Sewell and Mr. Konothat a complaint has been filed against them and of their right to respond to thecomplaint.

During the course of the consolidated hearing, the Department will bear the burden ofproving, by a preponderance of the evidence, those allegations contained in the Noticeof Adverse Action (NOAA), assuming a NOAA was sewed, that led to Mr. Zamora'stermination. Mr. Zamora will have the burden of proving, by a preponderance of theevidence that he has been retaliated against for having engaged in protected activitiesunder the California Wh istleblower Protection Act. Should Mr. Zam ora meet his burden.the Department and Mr. Sewell and Mr. K ono will be required to prove, by clear and



Zamora Whistleblower ComplaintNovember 17,2010Case No. 10-4286Page 2 of2

convincing evidence, that they did not retaliate against Mr. Zamora as a result of hishaving engaged in protected activities.

You may contact Senior Staff Counsel Van Nguyen at the above-listed address or bycalling (916) 653-1026 if you have any questions or concerns regarding this matter.

E X S ~ ~ N ~fficer

Enolosures

cc: Lupe Zamora (do Sherry McPhee wlo enclosures)SElU Local 100010600 N. Trademark Parkway, Suite #405Rancho Cucamonga, CA 91730

Scott SewellDept. of Fish and Game17050 Davis Rd.Lakeview, CA 92567

Eddie Kono

Dept. of Fish and Game3602 Inland Empire Blvd.Ontario, CA 91764



PAUL E. HAKKIS. 111. Chief C ou~iscl SHN 180265)SHERRY MCPHEE. Stal'f Counscl lSBN 1632 32)Service Employees International Union, I,ucal IMH)1060() N. Trademark Pnrkway, S u ~ t eW0.5

Rancho Cucamonea. C A 9 1730Tcl: (909)466-5057Fax: (909) 466-8 249

Altorne s for AppellantLUPEJAMORA

BEFORE THE STATE PERSONN EL BOARD

OF THE STA TE OF CALIFORNIA

.UPE ZAMORA,

v.

) SPB Cose No.: (wl~istlcblowcr)o be assigned)

) SPB Case No.: 09-6782) (Appellant's Appeal of Dismissal))

)) W H I S T L E B L O W E R C O M P L A I N T

3y DEPARTMENT OF FISH AND 1;AME for rhe ST AT E of CALIFORN IA. )

)

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 mem bers

of the public w ho conduct business w ith DFG.

3. 011o r about February 24.2 009 .1 discovered that Bill Brnno. a farmer. leasing public land,

I was OW f n r ;tpprc~rirnatrlyou r years due to an on lhe job injury.

WHISTLEBLOWER COMPLAINT



w:~sg i v i ~ ~ gilt c:~rtls o Mr. Scw cll. Mr. Bruno gnvc inc oppmx iinatcly two $500 t1o111c

Ik po t gilt cards to give to Mr. Sewc ll. Mr. Scwell instructed me to put these gift card s on

his dcsk.

4. On or nhout April 22, 2009, Mr. Bruno gave me approximately three Home Depot gift

c;~rtls alued ;it ahout $400 cach to give to Mr. Sewell. I then called Mr. Sew el wh o

;~skctlo spcak to Mr. Bruno. I &uld hear Mr. Scwell tell Mr. Bruno not tog ive thec ard s

lo anyone hut 11i1n.

5. On or ;lhout Mny 18.2 00 9. Mr. Bruno and his son went to the DFG office. I witnessed M r.

R~.uno pcn up his wallet and ask Mr. Sewell how much money he needed this time. Mr.

Scwell stated so me thin g to the el'fect of, "No, no. Not here, let's take it dow n to my

house."

6. On or about August 7 .20 09 .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 anyo ne abou t it .

7. On or about September 16,2 009 .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

~ rpo r t edhat Mr. Sew ell had directed m e to work on private land during state time.

8. On or about Octo ber 29.2009. Mr. Sew ell called me and said something to the effec t 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 Decem ber 30 .20 09. Mr. Kono called me and stated something to the effec t

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

I I . I believe that I was tired b y Mr. Sewell and Mr. Ko no in retaliation fo r reporting Mr.

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

12. Mr. Sewell and Mr. K ono's business address is Department of Fish and Gam e

17050 Davis Road, Lakeview, C A 9256 7 and 3602 Inland Empire Blvd. 0ntari o.C A

91764.

11 WHISTLEBLOWER COMPLAINT



13. A compi:~inthas not been filcd with the Officc of the in specto r General

111.DAMAGES

1. I am req uesting that no further retaliation andlor retribution be taken against m e.

2. 1 am requesting all back pay and benefits owed to me rci a result of my lermination,

including interest.

3. 1 am requesting com pensatory damages.

4. 1 am requesting an y other remedy the State Personnel Board d eem s appropriate.

IV.

SWORN STATEMENT

I declare, under penalty of perjury under the laws of the Sta te of California that the foreg oin g

is true and correct to the be st of my know ledge and belief.

WHISTLEBLOWER COMPLAINT



P RO O F O F S E RV ICE

CASE NAME : Lup f 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 m familiar w ith the Service Employee's International Un ion practice whereby the ma il

is sealed, given the approp riate postage and placed in a designated mai l collectio n area. Eachday's mail is collected and deposited in a United States mailbo x at the close o f each day's

business.

On October 21, 201 0 1 served the following:

W H I S T L E B L O W E R C O M P L A I N T

[XJ (B Y M A IL ) p lacillg a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid in the United States mail at Rancho Cucamonga, California,

addressed as set for th belo w.SPB Appeals

801 Capiato l M al lSacramento, CA 995814

[XI (BY ELECTRONIC MA IL ) TO: SPB Appeals - Ao~ea Is~sob .ca .eov

[J (B Y OVE RN IGH T DE LIVER Y) by placing a true copy thereof enclosed in asealed envelope, w ith de livery fees paid or provided, and placed in the designated receptacle fo rsuch overnight ma il, addressed as set forth belo w. I n he ordinary course o f business, ma il placedin that receptacle i s picked up that same day for delivery the foll ow ing business day.

[I (BY PERSONAL SERVICE) by delivering by lland and leaving a true andcorrect copy with the person at the address set rorth below.

I eclare undcr penalty o f perjury undcr the laws o f the State o f Ca lifornia that theforegoing i s true and correct and that this Dec laration was executed on October 21, 2010, at

Rancho Cucamonga, California.



. .

~~< i?>

STATEf I'ERSONNELi i DAKD

801 Capi to l Mall Sacramento, CA 95814 ; 866-844-H67? j ~./\i,~/.s?t>.~;:i.$/fi!.~

LUPE ZAMORAv.

CALIFORNIA DEPARTMENT OF FISH ANDGAME; EDDIE KONO; AND S C O T SEWELL

I

Whistleblower Reta liation Complaint I

Governor Edrnund G. Brown Jr.

Case No. 10-4286

NOTICE OF FINDINGS

.. . . - ... . - - - - , . . . - - . ... .WHEREAS, the E xecu tive Officer of the State Personnel Bo ard has carefully

considered the Proposed Notice of Findings filed b y the Informal Hea ring Officer i n the

above matter; and

WHEREAS, the E xecu tive Officer is satisfied that the ,finding s of,fact and ,

conclusions.of law set forth in the Proposed N otice of Findings are correct; a nd

WHEBEAS, by said Proposed Notice of Findings -theWhistleblower Com plaini is

DISMISSED.

,WHEREAS,Complainant may file a civil complaint with,the superior court

pursuant to California Code o f Regulations, title 2, section 67.6, upo n the rece ipt of this

Notice of Findings dismissing the Whistleblower Retaliation Complaint.

IT IS RESOLVED that the Proposed Notice of Findings is adopted b y the

Executive Officer'of the S tate Personnel Board as her Decision in the case, and that a

true copy of the Proposed N otice of Findings shall be attached to this Resolution for

delivery to the parties in accordance with the law,- -I ----

&&fluU NNE M. MBROSE

~ x e c s i v e fficer



Lupe ZamoraCase No. 10-4286

Page 1 of 14

LUPE ZAMORAv.

CALIFORNIA DEPARTMENT OF FISH ANDGAME, EDDIE KONO, ND SCOTT SEWELL

I

Case No. 10-4286

Proposed Notice of Findings

Whistleblower Retaliation C omplaint 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 of th e hearing .

Lupe Zamora (Complainant), was present and represented by his counsel of

record, Sherry McPhee, Esq. of SEIU, io c a l 100 0. Caliiornia Department of ,Fish and

Game (DFG) employees 'Tom Trakes (Trakes) and .Dirk Holt (Holt) were also pres ent

because Complainant had subpoenaed their attendance.

Respondent, California Department of Fish and Ga me (DFG or Respondent) and

individual Respondents Eddie Kono (Kono) and Scott Sewell (Sewell) were present an d

represented by their counse l of record, Catherine Kennedy, Senior Staff Coun sel, DF G.

Also in attendance on behalf of the Respondents was Kimberly Nicol.

David Danelski, a reporter from The Press-Enterprise attended the latter portion

of the informal hearing to observe the p roceed ings.

Complainant, a seasonal employee, asserts that he was retaliated against

because he reported that his supervisor, Sewell, was improperly accepting bribes of




P a g e 2 o f 1 4

Hom e Depot gift cards from a lessee of land.' Complainant asse rts that Respo ndents

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, Responden ts assert that C omplainant 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 know ledge until after September ,2009 .that Complainant ma de

any complaints about the acceptance and use of gift cards. Fourth, he was never

~ + ~ ? rC i sent hin, ' ome fc the season. -. . when. - . -he. - had- --eached 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

(AW C). On November 17, 2010, the SPB accepted jurisdiction over the matter and

consolidated the AWC with Complainant's appe al from dismissal,SPB Case No.

DFG filed a motion to dismiss Complainant's appeal from dismissal on the

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 mak e rental - - - - - - -

. -- - - .- - . mymen& -bapermits lessees tomakeimerove-mmentstoth_e~ancl.inn!.ieu.o~.r!taL~_am-?nle~.-- -- ..- _ . .:



Y

I Lupe ZamoraCase No. '10-4286

Page 3 of 14

employee. On December 2, 2010, the SPB granted Resp ondent's motion. Thereafter,

the AWC was returned to the whistleblower informal hearing process.

On January 28 ,20 11, Respondents filed a Response to Com plainant's AWC.

On February 7, 2011, 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 emp loyme nt

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 w ith 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 wA - ;easor-l ---I-. . - ? - . . - A :-Aa- 1-



Lupe Zam oraCase No. 10-4286

Page .4 of 14

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 Habi ta t

Superviso r I, his curren t position.

3, Sewell began with the DFG as a seasonal

Sewell was promoted to wildlife habitat as s is t a ~ ~ ~ .n 2005, Sewell was promo ted

to Wildlife Habitat Supervisor 1. In 2008, Sewell was promoted to W ildlife H abitat

Supervisor It, his current position. In 2008, Sewell was Com plainant'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 governmen t. In 1989, he returned to theDFG as

a marine biologist and in i3 9 0 served as an associate marine biologist, In'1994,

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, K ono

becam e a senior environmental scientist. Kono was Sewell's direct supervisor.

imnla inar \hlnrk

1

a w e , 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 treatmen t.

.,. . .. . - .. . .. . - -- . . . -. . .. +* .- - - . . . - -.< . - - * , , . .




Page 5 of 14

DFG often included in its contracts with lessee- -' --" '"-'"ey could make

, .. . .ieu of making rent:

2008, .. essees, Home De

~ a v m e n t s . S i n ce at least

it could be

used W u r c h a s e materials fo ' " ~ emaintenance and improvement of the lands.

Trakes testified '"-'"-.;age aliu d ~ ~ ~ ~ t a n c ef the gift carAn -'ns wel l ' * 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 attache d 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 n nnn t 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 la r "- "'̂ xdministered,

9, During the two shopping trips to Home Depot Complainant witnessed Sewell use

the gift cards to purchase e lectrical 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 Oc tobe r20 08 through September 2011, required the. . .. lessee, , to make. - rental. . ayments- or ,make, restoration.,., improvements. . .... to -he and. . n lieu of rental. ayments... . . . . .



Lupe Zamo raCase No. 10-4286

Page 6 of 14

lo* Trakes was unsure, but guessed that it was sometime in the summer of 2009,

u ,,

,.,.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 ha ve occurred before Ap ril

2009 when he was promoted to Habitat Supervisor I and not during the sum mer

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

: .

cards with Steven Kollenborn (Kollenborn) who was a lso 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 .

mL I I ~ UDti--71+gi4 la*Ae. -u -#

Two weeks after speaking with Kollenborn, Trakes told

Kono that it was he who raised th e issue with Kollenborn. Trakes did not suffer

any form of retaliation for admitting that he was the one w ho 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 . - -

4 - - - ---I------+ *.--.-I--.- .--A- ,-..-I..-- ...+.--_ ".*.. . * - * - -__--* _ _ _ 3 * . . I _ _ _ _ _ , . e _ _ _ . . . _ . _ *



Lupe ZamoraCase No. 10-428 6

P a g e 7 o f 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, 200 9, he contac ted th e

Bureau ( e Audi- -

srding Sewell's acceptance and u from

lessees of land.

16. At the end of September 2009, Sewell became aw are that C omplainant ha d. - .- - . - - . - -.. . - - .- . -. . - - - . . - , . - - - . - . -. - - .

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

-- ...... .~ i m .Cot ..,.- inant was bellig-. ?n t .1angry.

'17. After September 2009, Comp lainant requested 'that :Keno and Sewell give him a

document confirming that he had been terminated. Both K ono and Sewell told

Complainant that he was not terminated, but simply had exhausted his 1 50 0

hours for the year as a seasonal employee. The 150 0 hours limitation includes

actual work hours, sick, and vac ation 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 me eting 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

-

spontaneous discussion regarding Complainant took place. Trakes revealed for

the first time -tha t he had been contacted by a state fraud-investigator.. Kyl e then. - . . - . . . . . . . - . . , . . . . . . . .- .




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 wh istleblower.

20. Complainant filed an appealfrom 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 com plaint prior to this date.

22. On October 7, 2010, the DFG filed a motion to dismiss Complainant's appeal

from h is termination, asserting th at Complainant was never terminated . On

Decem ber 2,.2010, the SPB granted the DFG's motion to-d ism iss Com plainant'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

witness1capacity 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. Cod e 5780, subds. (a), (b), (c), (f), (g), (h), (j) &.- -- . -, . - ... . -- .. .(k).)

Complai ;tirnon: ..--. self-se rv .., -..- .. - .-contradict his F r ter io ny when he be lieve d it would -fur the r- case . 2r instance,

. . .. . , . . , . . . . . . . - . , . . , . . , . .




Page 9 of '14

Complainant testified that he did not work after August 6, but admitted that he signed

the September time sheet. After Comp lainant realized that the time sheet indica ted 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 discrepa ncies 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, Complainan t could not explain wh y Sewe ll wou ld

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 presen t at DFG. However, Complainan t later testified tha t after Sewell and

Complainant purchased the materials from Home Depot, they delivered the materials

back to the DFG warehouse. Com plainan t also adm itted that he ,knew that certain lights

and other improvements were made using some of the Hom e 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@* "-

langua,, indicated-that heI L

was testif.ui.1 . . - .%~tJy.Sewell made eye contact throughout his testimony and he did

. . . . -. no t hesitate when asked questions; Sewell is foun d to be honest and credible. - - , . , ,

_ _ . _ _. . . _ ._ . _ ____--_* . ___ ____ _ ----I- ^- ._- - .- . . .- -. .- - ... - - - - .- - - - -.. -. - -




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 estimony, the other witnesses' testimony will be credited ove r 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 m ade a protected disclosure; or refu sed to 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 ' ~2, 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

disclosure" to mean:

, . . . - - .



Lupe Zamo raCase No. 10-4286

Page 11 of 14

[Alny good faith communication that discloses or demonstrates anintention to disclose information that may evidence 1) an improper

governmental activity or 2) any condition that may significantlythreaten the health or safety of employees or the public if thedisclosure or intention to disclose was made for the purpose ofremedying that cond ition.

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

rriismatrag~me F a g oss-waste-off iirids~an-abuse-of -alj tho-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 br ibes

generally constitutes a good faith intention to disclose an im prop er governmental activ ity

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 Tra kes,

Complainant would have known of the acceptance of gift cards sometime in 2008.

However Cnrnnlainant - - A - ef l - . . .- rep-. . .. _-. .-_,. _. ..., 3 e p t e m b ~ .,,,, -. ,- ,

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 rece ipts.

. . . . -Second, according to Complainant's own testimony, Sewell brought Complainant with

., . -. . . * . .. ..- ,. . . . . - .. . . . , , , . - , - +




Page 12 of '14

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 madea

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 1441, 1455.)

Complainant alleges that he was terminated. However, there is no evidence that

Complainant was terminated, Moreover, the evidence dem onstrates that Complainant

had exhausted his 1500 hours for the year and was released for this reason.

. - . .. -Additionally, Complainant.testified hat because of,his injury, he could no t ha-ve returned . .*. .-. . - - - - - - . . . .-..- " - - . - - - . - - , . .... - .. -




Page 13 of 14

to work even i f he had wanted to. Accordingly, Complainant did no t meet his burde n to

demonstrate that he suffered an adverse em ploym ent 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 causa l nexus,a

complainant must present evidence sufficient to raise the inference that the protec ted

activity was the likely reason for the adverse action , (Cohen v. Fred Meyer, Inc. (91hCir.

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(gthir. 1 996) 3 F.3d 1075, 1081 )

Here, Complainant has not demonstrated that Sewell or Kono Itnew that

Complainant had reported the improper useof the gift cards prior to Complainant being

released for the season in late September. Acco rding ly, neither Sew ell 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 o f retaliation. There is no bas is

to conclude that Kono would seek to retaliate against Complainant when he did not

retaliate against: Trakes for the identica l conduct, - - . . :-- - . -- . .



Lupe ZamoraCase 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 tha t

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 emp loyment action.

. QWDER

is DISMISSED,L*DATED: March 2,2011

/

Lupe Zamora's State Personal Board case

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Transcript of Lupe Zamora's State Personal Board case