To:  Mono County Board of Supervisors, Supervisors-Elect Alpers and Stump, and the Citizens of Mono County

From:  Katie Maloney Bellomo, Attorney at Law

Date:  7/24/12

Re:  Mono County Personnel Board hearing of Dick Luman

I am writing this statement because I am deeply disturbed by the conduct of Mono County management at the recent Personnel Board hearing of my client Dick Luman.  The ultimate decision of the Personnel Board to sustain the termination of my client, despite evidence he was assaulted by a supervisory employee, is unjust. However, equally disturbing is the manner in which “justice” was dispensed.  Let there be no mistake about it:  this hearing was a farce, a kangaroo court, and a depressing display of corrupt government.

This kind of corruption tends to benefit those at the top – which does not include taxpayers.  For those who want funds to support air service to Mammoth, or for senior or other services, take heed.  Penn State is not the only public employer with a cover-up mentality that can end up having unintended costs down the road.

I have been a licensed attorney for over thirty years.  The recent hearing was the most bizarre and disturbing proceeding in which I have ever participated. None of the most basic principles of fairness was observed.  The proceeding resembled a hearing before a tribunal in communist China where the purpose of the hearing is to tell the world that the accused was given a hearing, but the outcome is pre-ordained and the hearing rules are adapted to ensure that the accused will be found guilty regardless of the evidence.

As one might expect in a dictatorship, but would hope not to find in the U.S.  where citizens have Constitutional rights, from the outset the County maintained that there was absolutely no reason why the Personnel Board members had to be unbiased, uninvolved persons. Two of the three members of the Personnel Board had serious conflicts of interests/bias such that they would have been disqualified to sit on a jury on this case – and yet they sat as judges.

Undersheriff Ralph Obenberger sat on the Personnel Board.  Yet his office and staff working for him investigated the assault that led to Mr. Luman’s termination, and he himself directed (per statements he made to me) his staff to review reports favorable to the County, which puts him squarely in the investigation of the controversy.  Additionally, a deputy, a sergeant, and a lieutenant testified on central issues in the case over which Obenberger, their superior officer, presided.  And yet he declined to step down off the Board to allow substitution of a person with no pre-involvement in the case.

That a second Board member, Ken Goode, had two serious conflicts came to light during the hearing.  His wife was being investigated for criminal misconduct by Undersheriff Obenberger’s Department and she was ultimately charged with a felony while Mr. Goode sat on the Board with Mr. Obenberger, whose office was investigating his wife and possibly even him to the extent jointly held funds could have been at issue. Furthermore, while the case of Mr. Goode’s wife was in active prosecution, both then District Attorney George Booth and current District Attorney Tim Kendall testified on key issues in the case before Mr. Goode.  The foregoing was ample reason enough for Mr. Goode to step down from the Board, if for no reason but to eliminate the appearance that he could not be fair in judging the testimony and credibility of his wife’s prosecutors and the Sheriff’s Department involved in his wife’s arrest.  Still, yet another circumstance came to light that should have caused both Mr. Goode and Jim Arkens, CAO, to require Mr. Goode to step down from the Board.   I remain astonished this did not occur.  The facts are as follows.  Mr. Goode is employed by the Assessor’s Office.  During the hearing, Jody Henning resigned as Assessor.  Pending replacement of a head of the Assessor’s office, newspapers have reported Jim Arkens took over as the head of the office. This then placed Jim Arkens as the direct report and boss of Ken Goode.  The whole purpose of the hearing was to determine if Jim Arkens’ decision to terminate Dick Luman should be overturned. In order to find in favor of Mr. Luman, Mr. Goode would have had to find that the head of his department had acted wrongly.   So much for a fair hearing before a person able to vote his conscience without fear of reprisal.

I am bewildered that Mono County’s management and legal team did not insist that the Personnel Board be composed of persons without conflicts, bias, and prior involvement in the investigation of the case.  The fact this was allowed is evidence, to me, of the sad fact that Mono County is used to doing just as it pleases, fairness be damned.

Examples of utterly astonishing events at the hearing abound and there is not room to detail them fully. It was clear that some witnesses lied to the Board without consequence – it was unclear to me whether the County was actually suborning perjury  or simply benefitting from it.  In an astonishing display of misuse of power, the County withheld evidence that tended to establish the innocence of Dick Luman, and then argued it had the right to do so.  Fairness was of no apparent concern to the County’s attorney. Under the County’s personnel rules, the terminated employee (Dick Luman in this case) has no right to see what evidence the County has that could assist the employee in his defense (the County attorney argued enthusiastically that the employee has no discovery rights.)  As the hearing progressed, rules written by the County were interpreted by the County to the County’s favor.  A crucial ruling was changed by Obenberger and Goode (over objection of Personnel Board member Supervisor Tim Hansen) part-way through the hearing when the County’s case began to look weak and the County wanted a chance to bolster its position.

As the hearing progressed it became clear to me that Mr. Luman would lose despite the evidence in his favor.  That is what happens in kangaroo courts when the majority of participants either are protecting their boss, trying to avoid retribution for not supporting their boss, or currying favor with the boss.

Several things were conclusively established, for me, at the hearing:  1) it is not possible for a Mono County employee to receive a fair hearing before the County’s Personnel Board; 2) the County is run by the office of the CAO, the Finance Director, and Director of Risk Management; 3) the currently sitting Board of Supervisors exercises scant control over any of the day to day operations of this County; 3) some in upper management and legal are intoxicated with their own power and flaunt that power without regard for justice or equity toward others; 4) the upper management team will continue to rule this County as a private fiefdom for as long as the Board of Supervisors permits it to do so.

I anticipate that at some future time, Mono County will be faced with one or more significant lawsuits brought by wronged employees.  If this occurs, it could be very expensive for County taxpayers.  This is why all citizens and business owners should be concerned about how the County manages its personnel.

As for the specifics of Dick Luman’s termination – the Personnel Board voted 2-1 to uphold the termination of Dick.  Undersheriff Obenberger and Ken Goode voted for termination, and Supervisor Hansen voted against.  The Decision finds that supervisor Brett McCurry engaged in inappropriate conduct in the workplace over time, and that the County should have acted to address the inappropriate conduct.  The inappropriate conduct included yelling, using profanities toward employees, getting in the personal space of employees, and creating what several employees perceived as a hostile work environment.  The Board found that complaints had been made about McCurry’s conduct but they were not addressed.  The evidence at the hearing showed that on the date of the incident in question (October 3, 2011),  Jim Kerby and Dick Luman were in the office of their supervisor for the purpose of complaining about McCurry’s conduct. McCurry arrived, became angry about the complaints, called them “bold faced f— liars”.  In response Dick Luman asked McCurry if he had previously referred to Luman as a “motherf—“, to which McCurry replied that if he were to call Luman that he would have the “b….” to say it to his face.  Luman replied that if he was to have the “b….” to say it to his face, he’d probably be falling down his stairs again, in what Luman testified was a reference to Brett having fallen down his stairs at home when allegedly drunk, which had been the subject of much joking among employees (as testified to by several witnesses.)  Brett asked Luman if he was threatening him, Luman stated I’m not threatening you (as overheard by independent witness Mike Rhodes who heard the two men.)  Luman was then heard by two witnesses to say he was going to leave the room.  After stating he was going to leave the room, he approached the door and McCurry assaulted him (according to Kerby who was standing near the doorway, and Rhodes who saw McCurry throw Luman across the hall and pin him against metal cabinets.)

The majority Decision of the Personnel Board concluded that the County did not prove that Luman engaged in mutual combat with McCurry.  They nonetheless decided to uphold firing Dick Luman on the basis that he threatened McCurry by the “falling down the stairs” remark.    Deputy Hanson who investigated the incident and prepared the Sheriff’s Department report testified that he did not believe Luman’s words were a threat in the context in which they were made.  The Deputy stated they were a rude remark; Jim Kerby who was present testified he understood them as a “dig” and he had to refrain from laughing; Mike Rhodes testified that he heard Luman say he was not threatening McCurry; Dick Luman testified they were a wisecrack intended to refer to McCurry’s having allegedly recently fallen down drunk.

As for Brett McCurry, it is worth considering the status of his employment. Testimony of witnesses established that he created a hostile work environment; employee complaints to management about his conduct were ignored; ultimately he assaulted Dick Luman cracking his ribs and causing him to undergo a hernia operation. McCurry was terminated and appealed his termination.  His appeal hearing has been postponed to allow for negotiations – I am informed the County has offered him a monetary settlement if he’ll drop his appeal. Rumor has it they haven’t offered enough money.   If we don’t see McCurry back at work, we can be fairly certain it’s because he’s been given a big (secret) payoff. After all, he was only doing the County’s dirty work as a supervisor wasn’t he? Surely he is owed a payoff of public funds.

I received a lovely bouquet of flowers delivered to my office after Luman’s hearing concluded. A note thanked me for my efforts on behalf of County employees and was signed “Demoralized and (not so) intimidated employees of Mono County.”  The note reads “We agree that the County has been managing through intimidation and arrogance, and we are hopeful that with the three new County Supervisors we will see improved employee relations and working conditions.”  Mono County taxpayers should join in this hope.

Katie Maloney Bellomo, Attorney at Law

P.O. Box 217

Lee Vining, CA 93541