afENNEL 3 BOARD

October 26,2010 Lupe Zamora (c/o Paul Harris) 10600 N. Trademark Parkway, Suite # 405 Rancho Cucamonga, CA 91730 Re: Lupe Zamora v. California Department of Fish and Game et a/. SPB Case No. 10-4286N; Whistleblower Retaliation Complaint

Dear Ms. Zamora: The State Personnel Board (SPB) is in receipt of the whistleblower retaliation complaint you filed on or about October 21, 2010, in which you assert that you were retaliated against in your employment with the California Department of Food and Game (DFG) for making protected disclosures andlor refusing to obey an illegal order. Please be advised that your complaint does not comply with the Whistleblower Protection Act, California Government Code section 8547 et. seq. and SPB regulations pertaining to whistleblower retaliation complaints, set forth at California Code of Regulations, tile 2, section 67, et seq. Your amended complaint must: be filed with and received by the SPB within one year of the most recent alleged act of reprisal; clearly identify the protected activity in which you engaged (i.e. the substance of your report(s) of improper activity (or each illegal order you refused . governmental to obey),thedate($) you reported the imprope; governmental activity ior refused to obey the illegal order), and the person(s) to whom you reported the improper governmental activity (or informed you would not obey the order in question)); include the name and business address of each individual and entity alleged to have committed retaliatory acts; specify what relief andlor damages you are seeking against the department and any individually-named respondent(s) as a result of the alleged retaliation, and state the reasons why damages or other relief should be awarded against the individual@); clearly identify the specific act@)of reprisal or retaliation alleged to have occurred (i.e. the date of the act(s) and the entity and/or person(s) responsible for it (them));

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

J..MORA
BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA
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the Matter of Appeal By. UPE ZAMORA, rom Dismissal.

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SPB Case No.: 10-4286

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REQUEST FOR CHANGE OF VENUE

Appellant, y DEPARTMENT OF FISH AND AME for the STATE of CALIFORNIA. Respondent.

Appellant, Lupe Zamora (hereinafter "Mr. Zamora" or "Appellant") hereby requests that the learing scheduled for February 7,201 1 at 12:00 p.m. in Los Angeles be relocated to Rancho Iucamonga for the same time and date. This case arises from Mr. Zamora's employment with the Iepartment of Fish and Game in Nuevo California. T l ~ t sAppellant . believes that Rancho hcamonga is the appropriate venue for the parties and witnesses involved. Respondent's counsel is not opposed to this request
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Respectfully submitted, SEIU Local 1000

Attorneys for Appellant. LUPE ZAMORA

Debbie Turner
From: Sent: To: Green, Margie [MGreen@SEIUlOOO.org] Thursday. October 21.2010 10:33 AM Appeals McPhee, Sherry FW: Whistleblower Complaint Zamora - SPB Case No. 09-6782 Whist001 .PDF

Cc: Subject:
Attachments:

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Attached is Whistleblower Complaint for case referenced above

- - - - -Original Message----From: scanRC@calcsea.org [mailto:scanRC@calcsea.orgl Sent: Thursday, October 21, 2010 3:07 ? m To: Green, Margie Subject: Whistleblower Complaint Zamora
Please open the attached document. Workcentre Pro. Sent by: Guest [scanRC@calcsea.orgl Number of Images: 4 Attachment File Type: PDF Workcentre Pro Location: Rancho Cucamonga Device Name: XEROX 275 For more information on Xerox products and solutions, please visit http://www.xerox.com It was scanned and sent to you using a Xerox

PAUL E. HARRIS. 111. Chief Counsel (SEN 180265) SHERRY MCPHEE. Staff Counsel (SEN 263232)
Service Emolovees Interni~tional Union. Local I(WO 10600 N. ~ r k l & a r k Parkway. Suite #405

Rancho Cucamonga, CA 9 1730 I : (909) 466-5057 Attorneys for Appellant LUPE ZAMORA

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

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

,UPE ZAMORA,
v.

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

FIRST AMENDED WHISTLEBLOWER COMPLAINT

and

Scotto Sewell, and Eddie Kono

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NATURE OF COMPLAINT
The Department of Fish and Game ("DFG) retaliated against me, Lupe Zamora, Seasonal Aid, with the Department of Fish and Game. as a result of my having reported improper governmental activities that include my report that Scott Sewell. Wildlife Habitat Supervisor 11 of DFG. was improperly receiving substantial gifts from a lessee of state property. Since reporting these issues, I was terminated from DFG. The entity and persons that have retaliated against me are as follows: Department of Fish and Game, Scott Sewell, Wildlife Habitat Supervisor 11, and Eddie Kono, Regional Manager of DFG.

STATEMENT OF FACTS
1. I'have been a Seasonal Aid with the Department of Fish and Game since approximately 1993. After being off for four years due to an on the job injury, I returned to work in 2007, worked 2008 and 2009. As a seasonal aid 1 am familiar with the prohibition
FIRST AMENDED WHISTLEBLOWER COMPLAINT

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

about December 30,2009, Mr. Kono called me and stated something to the effect of. "You no longer work for DFG. Scott Sewell doesn't have a job for you."

9. It is my belief that 1 was fired by Mr. Sewell and Mr. Kono in retaliation for reporting Mr.
Sewell's improper activities to Mr. Kono and the State Auditor.
10. It is also my belief that Mr. Kono approved of Mr. Sewell's initial termination of me in

October 2009 because he failed to take any action to correct the improper personnel action and further retaliated against me.

I I . In the years before I reported Mr. Sewell's improper governmental activities, I was always
welcomed to return to work for DFG and had never been told not to return. My performance has always been satisfactory.
12. Mr. Sewell's business address is Department of Fish and Game 17050 Davis Road,

Lakeview, CA 92567. 13. Mr. Kono's business address is Department of Fish and Game 3602 Inland Empire Blvd. Ontario, CA 91764.
14. A complaint has not been filed with the Office of the Inspector General.

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DAMAGES

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

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

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

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

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

FlRST AMENDED WHlSTLEBLOWER COMPLAlNT

1v.
DISCIPLINARY ACTION REOUESTED

1. I am requesting that disciplinary action be taken against Scott Sewell, Wildlife Habitat
Supervisor 11, for those reasons set fonh in Sectio~l 11. Paragraphs 2 , 3 . 7 and 9. Mr. Sewell should be terminated for taking bribes in exchange for leasing public land. Mr. Sewell's business address is Department of Fish and Game 17050 Davis Road. Lakeview, CA LJ2567.

2. 1 am requesting that disciplinary action be taken against Eddie Kono, Regional Manager
of DFG. for those reasons set forth in Section 11, Paragraphs 5 . 8 . 9 and 10. 13.Mr. Kono should be demoted to a nonsupervisory position because he can not be trusted to perform the duties of a supervisor. Mr. Kono's business address is Department of Fish and Game
3602 Inland Empire Blvd. Ontario, CA 91764.

v.
SWORN STATEMENT
I declare, under penalty of perjury under the laws of the State of California that the foregoing
; trueand

correct to the best of my knowledge and belief.

FIRST AMENDED WHISTLEBLOWER COMPLAINT

VI. LIST OF SUPPORTING MATERIALS

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

gift cards accepted by Mr. Sewell. 2. Attached hereto as Attachment 2 is a tnle and correct copy of my October and December

2009 calendar wherein I made notes regarding events relating to this whistleblower
complaint.
3. Attached hereto as Attachment 3 is a true and correct copy of my notes showing that I

spoke with Kay on September 16,2009.

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

Agreement between Mr. Bruno and DFG.

declare, under penalty of perjury under the laws of the State of California that the foregoing is true nd comect to the best of my knowledge and belief.

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FIRST AMENDED WHISTLEBLOWER COMPLAINT

ATTACHMENT I

233 W.Markham St.

Perris.CA92571

C o ~ M o D ~ a4.F s g Fa(951, (951) 940-182 940-ISM

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ATTACHMENT 2

ATTACHMENT 4

AGENCY : PROJECT :

Department of Fish and Game San Jacinto Wildlife Area

NUMBER : AL-2008-01-R6

AGRICULTURAL LEASE:

San Jacinto Wildlife Area - 711 Acres AGRICULTURAL LEASE:

This LEASE, entered intoOctaber 27,2008by and between the State of California, acting by and through the Department of Fish and Game, hereinafter called State, and William V. Bruno and Nicholas V. Bruno called Lessee; WITNESSETH: The parties hereto. for the consideration hereinafter expressed, do agree as follows:
1.

That the State, in consideration of the payment or rent hereinafter specified to be paid by the Lessee and the covenants and agreements herein contained. does hereby lease, demise, and let unto Lessee Ulat certain property situated in the County of Riverside. State of Califomla. excepting therefrom all areas heretofore reserved therefrom for wildlife habitat development programs, consisting of 711 acres for the growing of agricultural m p s and more particularly described and delineated in that certain map and description entitled San Jacinto Wildlife Area Agricultural Lease and marked Exhibii 'A", which is attached hereto and incorporated by reference and made a part hereof.
The term of the Lease shall be for three (3) years commencing October 27. 2008 and terminating on the last dav of Se~tember. 2011.

2.

3.

In lieu of rental payments, the Lessee will be required to provide custom tractor work, including discing, seeding, mowing, land leveling and/or mutually agreed upon equivalent work necessary to accomplish the restoration of wildlife habitats on the San Jadnto Wildlife Area (SJWA). Lessee work will be performed on a per acre basis and will be subject to the expenditure of the agreed upon annual Lease value. All Lessee work will be accomplished pursuant to the direction of the Area Manager, SJWA. in lieu of tractor work, Lessee will be required to make improvements and repairs to the San Jacinto Wildlife Area. Lessee shall, in addition to all other sums agreed to be paid by him under this Lease. pay any and all taxes, possessory interest taxed, water charge taxes, and water surcharges levied or assessed on Lessee by proper governmental authority during the term of this Lease or any extension thereof. Lessee will use the existing irrigation well and water transport facilities located on the property and will be responsible for maintenance and repair of all pumping facilities and water transport faciliies during the Lease term. Lessee agrees to pay all costs of water, SCE, or other cost as relate to Lessee agricultural use. State shall not be responsible for the replacement of any pumps, pumping facilities or water transport facilities during the Lease term. 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

4.

5.

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 all liability and claims for damages by reason of any injury to any person or persons, including Lessee, from any cause or causes whatsoever while in, upon, or in any way connected with the premises during the term of this Lease or any occupancy hereunder, except those arising out of the sole negligence of the State. Lessee agrees to defend, indemnify, and save harmless the State of California from ail liability, loss, cost, or obligation on account of or arising out of any such injury.or loss, however occurring. Lessee further agrees to provide necessary Workers Compensation Insurance for all employees of Lessee upon said premises at the Lessee's own wst and expense. The parties hereto agree that either party may terminate this Lease at any time during the term hereof by giving notlce to the other party in writing thirty (30) days prior to the date when such termination shall become effective. Lessee shall not assign this Lease in any event and shall not sublet the leased premises or any part thereof and will not permit the use of the leased premises by anyone other than the Lessee without prior written consent of the State. By entry hereunder, Lessee accepts the premises as being in good order, condition, and repair and agrees that on the last day of the term, or sooner termination of this Lease, to surrender up to State the leased premises with any appurtenances or improvements in the same conditlon as when received, reasonable use and wear thereof and damage by act of God or by the elements excepted. Lessee agrees that in no event shall State be required to perform any maintenance on or make repairs or alterations to the leased premises of any nature whatsoever. Lessee agrees to keep the leased premises in good order and condition at his sole w s t and expense. Lessee does hereby waive all right to make repairs at the expense of the State as pmvlded in Sectlons 1941 and 1942 of the Civil Code. No dumping of refuse by Lessee is permitted in any area of the leased premises, and Lessee shall not commit or suffer to be committed any waste or nuisance upon the premises; and Lessee agrees not to cut or remove any trees or brush thereon except as approved in writing by the State in advance, and Lessee further agrees that he shall at all times exercise due diligence in the protection of the leased premises against damage or destruction by fire or other cause. All livestock brought or kept upon the premises shall be free from disease. Lessee agrees to immediately bury or remove any livestock which may die or be killed on said premises. Lessee will provide for a representative, available to respond within 24 hours, to any problems on the San Jacinto Wildlife Area lease area. This may include problems with livestock movement or irrigation systems on the areas as a result of this Lease.

14.

Lessee shall furnish a Certificate of Insurance to the State with amounts of public liability insurance of not less than $1,000.000 per occurence for bodily injury and property damaged combined naming the State of Califomla, its officers, agents, and employees and servants as additional insured insofar as operations under this agreement are concerned. It is agreed that the State shall not be liable for the payment of any premiums or assessments on the insurance coverage required by this paragraph. The Certificate of Insurance shall pmvide that the insurer will not cancel the insured's coverage without thirty (30) days prior written notice to State. Lessee agrees that the insurance herein provided for shall be in effect at all times during the term of this Lease. In the event said Insurance coverage expires at any time or times during the term of this Lease, Lessee agrees to provide State at least thirty (30) prior to said expiration date, a new Certificate of Insurance evidencing insurance coverage as pmvided for herein for not less than the remainder of the term of the Lease or for a period of not less than one (1) year. In the event Lessee fails to keep in effect at all times insurance coverage as herein provided, State may, in addition to any other remedies it may have, terminate this Lease upon the occurrence of such event. The insurance certificate should be mailed to B ~ a r t m e nof t Flsh and Game, Attention: Terri Willlams, 4665 Lampson Ave. Suite J. Los Alamitos, CA 90720. Lessee shall, at his sole cost and expense, comply with all of the requirements of all municipal, state, and federal authorities now in force, or which may hereinafter be in force, pertaining to the premises. During continuance in force of thls Lease. there shall be and is hereby expressly resenred to the State and to any of its age~cies, contractors, agents. employees, representative. o r licenses, the right at any and all tlmes. and at any and all places, to temporarily enter upon said leased premises for survey, inspection or any other lawful State purposes. This Lease is subject to all existing easements and right of way. Sfate further reserves the right to grant additional public utility easements as may be necessary and Lessee hereby consents to the granting of any such easement The public utility will be required to reimburse Lessee for any damages caused by the construction work on the easement area. Lessee agrees not to interfere, in any way, with the interests of any person o r persons that may presently. or in the future, hold oil. gas, or other mineral interests upon or under said leased premises. nor shall Lessee in any way interfere with the rights of ingress and egSess of said interest holders. It is further agreed and understood by the Lessee that the herein demised premises and every part thereof shall be subject to use for public recreation including, but not limited to, public hunting, publish fishing, camping, and picnicking under applicable laws of the State of California and rules and regulation of the State Fish and Game Commission and that the State of California, its officers, agents, and employees shall not be responsible for damages to livestock or property or injuries to persons which may arise fmm or be incident to such use and occupation of said premises. The Lessee, and

15.

16.

17.

18.

19.

others cla~ming under him, shall have no r'ght to hunt or fish on the demised premises except in accordance with the California Fish and Game regulations. State expressly reserves the right to the use of the herein leased propelty, in any manner, provided such use does not unreasonably interfere with the use of the Lease herein granted.
All notices herein provided to be given, or which may be given, by either party to the other shall be deemed to have been fully given when made in writing and deposited in the United States mail, certified and postage prepaid, and addressed as follows: to Lessee at 233 W. Markham Street, Perris, CA 92571 and to the State, do Department of Fish and Game, 1416 Ninth Street, Sacramento. CA 95814, and also to the Area Manager in charge of San Jaclnto Wildlife Area, Department of Fish and Game, P.O. Box 1254, Lakeview, CA 92567. The address to which the notices shall or may be mailed as aforesaid to either party, shall or may be changed by written notice given by each party to the other as hereinbefore provided, but nothing herein contained shall preclude the giving of any such notice by personal service.

In the event of the breach by Lessee of any of the covenants herein contained on the part of the Lessee to be kept and performed. it shall be lawful for the State to enter into and upon the leased premises, and every part thereof, and to remove all persons and pmperty therefrom, and to enjoy the leased premises as in the first and fonner estate of the State, anything to the contrary herein contained notwithstanding. If action be brought by the State for the recovery of any rent due under the provisions hereof, or for any breach hereof, or to restrain the breach of any agreement contained herein. or for the recovery of possession of said premises. or to protect any rights given to the State against Lessee, and if the State shall prevail in such action, then Lessee shall pay to the State such amount as attorney's fees in said action that the Court shall determine to be reasonable. which shall be fixed by the Court as part of the wsts of said action. Lessee agrees that it will not dlscrimlnate against any employee or applicant for employment because of race. color, religion, ancestry, national origin, sex, age or physical handicap. Lessee agrees to take affirmative action to ensure that applicants are employed. and the employees are treated during employment, wthout regard to their race. color, religion. ancestry, national origin. sex, age or physical handicap. (See California Government Code Sections 12920-12994 for further details).

Lessee agrees and understands that the primary purpose of the State's
ownership and occupancy of the herein demised and leased premises is for wildlife conservation purposes, and Lessee agrees not to commit waste or damage the wildlife habitat. This agreement contains any and every representation,' promise, and agreement made by the parties hereto in the negotiation thereof. Time is of the essence of this Lease agreement
4

28.

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

29.

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

30.

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

STATE OF CALIFORNIA DEPARTMENT OF FISH AND GAME

LESSEE
BY k f l 2 a L A Lcaf~ William V. B N ~ O

By A d d , Nicholas V. Bruno

s d.",

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

Case No. 10-4286
Lupe Zamora

Notice of Time and Place of Informal Hearing

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

Appellant: Lupe Zamora

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

DATE:
02107111

TIME:
12:OO PM

LOCATION:

State Personnel Board 320 West Fourth Street, Conf. RM 38 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 and authorized by the State Personnel Board as its representative to hold and conduct the Informal Hearing in the matter. r the Each named respondent is required to serve on the complainant and the State Personnel Board at least 10 calendar davs ~ r i oto informal hearinq, a written response to the complaint specifically addressing the allegations contained in the complaint which is signed under penalty of perjury. Each party to these pmceedings is entitled, but not required, to be represented by counsel at his or her own expense. inquiries may be directed to www.aDwalaca.aov. Requests for continuances are discouraged due to time frames set forth in Government Code section 19683(a) and Cal. Code of Reg., Title 2, section 56.5(a). Complaining parly may waive time frames in writing. Failure of a party to appear at the hearing will result in a Notice of Findings being issued without hislher input.
PROOF OF SERVICE
ideclare that Iam a resident of or emolovedin the CwnlY of Sacramento, Caiifornia. Iam over the aoe of 18 vears and not a oartv to the within entitled cause. The ~tate~ersonnel ~ o a m 801 : Capitol Mail, ~acraminto, caiiornia 95814, 1 amreadily famiiiar with the ordinary name and address of my business is thi~aiifornia practiceofthe business of collecting, p m s i n g and depositingcorrespondencein the UnitedStates PostaiService and that the correspondence will be deposited the same day with postage thereon fully prepaid On the date shown below, Iserved the above-entitleddocument on each of the above parlies by placinga true copy for collection and mailing in the UnitedStates PostaiService following ordinary business practices

I declare under the penalty d perjury that the foregoing is true and correct
Executedon December 15, 2010 at Sacramento, California

Joely Walker cc:

State PersonnelBoard. Appeals Division,801 Capitol Mall Sacramento,Califamia94244-2010 (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

Tel:

Fax:

(909) 466-5057 (909) 466-8249

December 8,2010

stronger Together

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

RE:
YVONNE R. WALKER
President

SPB Case No. 1 0 - 4 2 8 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 Complaint on the individually named defendants (also corrected in the SAWC):
1. Scott Sewell Dept. of Fish & Game

M. CORA OKUMURA
Vice Freserldent and Serierary-Treasurer

JIM HARD
Vice President for Organ,zmg/Representation

KATHLEEN 6. COLLINS
Vlce President for Bargaining

2. Eddy Konno Dept. of Fish & Game

..*-

F&qh
SERVICE EMPLOYEES INTERNATIONALUNION

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

Sherrv

cPhee

I0600 Trademark Pkwy N. Suite 405 Rancho Cucamonga

C A 91730

Enclosures cc: Catherine Kennedy, Senior Staff Counsel, DFG

1909) 466-5044 1909) 466-5060 (fax) www.se1u1000.org

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3

PAUL E. HARRIS, Ill. Chief Counsel (SBN 180265) SHERRY MCPHEE, Staff Counscl (SBN 263232) Service Employees International Union, Local 1000 10600 N. Trademark Parkway, Suite #405 Rancho Cucamonga, CA 9 1730 Tel: (909) 466-5057 Fax: (909) 466-8249
L .

ORIGINAL
. ~...

Attorneys for Appellant LUPE ZAMORA BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA
) SPB Case No.: 10-4286N

) )
1

SECOND AMENDED WHISTLEBLOWER COMPLAINT

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

and

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NATURE OF COMPLAINT
The Department of Fish and Game ("DFG) retaliated against me. Lupe Zamora. Seasonal

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Aid, with the Department of Fish and Game, as a result of my having reported improper governmental activities that include my report that Scott Sewell, Wildlife Habitat Supervisor I1 of DFG, was improperly receiving substantial gifts from a lessee of state property. Since reporting these issues, I was terminated from DFG. The entity and persons that have retaliated against me are

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as follows: Department of Fish and Game, Scott Sewell, Wildlife Habitat Supervisor 11, and his supervisor Eddy Komo, DFG.

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STATEMENT OF FACTS
1. I have been a Seasonal Aid with the Department of Fish and Game since approximately
1993. After being off for four years due to an on the job injury, I returned to work in SECOND AMENDED WHISTLEBLOWER COMPLAINT
I

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2007. worked 2008 and 2009. As a seasonal aid I am familiar with the prohibition against accepting gifts from members of the public who conduct business with DFC. 2. On or about September 16,2009.1 called the State Auditor whistleblower hotline at (800) 952-5665. Kay from the State Auditor's office called me multiple times to discuss my rcports of improper governmental activity. I reported Mr. Scott Sewell's acceptance of substantial gift cards (valued at over $2,000) from a lessee of public land in violation of

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

about February 24,2009, Bill Bruno, a firmer, leasing public land, was giving gift cards to Mr. Sewell. My report with Kay included the following information: Mr. Bruno gave me approximately two $500 Home Depot gift cards to give to Mr. Sewell. M;. Sewell instructed me to put these gift cards on his desk. I also reported to Kay that on or about April 22,2009, Mr. Bruno gave me approximately three Home Depot gift cards valued at about $400 each to give to Mr. Sewell. I reported to Kay that I then heard Mr. Sewell instruct Mr. Bruno over the telephone not to give the cards to anyone but him. 4. 1 also reported to Kay of the State Auditor's office that on or about May 18, 2009, I witnessed Mr. Bruno open up his wallet and ask Mr. Sewell how much money he needed this time. I reported that Mr. Sewell responded by stating something to the effect of, "No. no. Not here, let's take it down to my house."
5. Sometime between August 7,2009 and October 23.2009.1 reported Mr. Sewell's

improper governmental activities to his supervisor, Eddy Konno, and told him that Mr. Sewell was receiving Home Depot gift cards from Mr. Bruno. Mr. Konno told me that he would take care of it and instructed me not to tell anyone. 6. Prior to October 29,2009, Mr. Sewell was aware that I had reported his improper governmental activities. Game Warden, Kyle Chang, Thomas Trakes and Dirk Holt have penonal knowledge of this.
7. On or about October 29,2009, I was terminated from DGF in retaliation for reporting Mr.

Sewell's improper governmental activities to his supervisor and the State Auditor. On or about October 29,2009, Mr. Sewell called me and said something to the effect of, "You're
SECOND AMENDED WHISTLEBLOWER COMPLAINT 2

no longer working for DFG. It's not from me hut from a higher power. You will never work for DFG anymore. You are not welcome if you step on the wild life grounds."
8. The retaliation for my reporting of improper governmental activity continued when on or

about December 30. 2009, Mr. Konno called me and stated something to the effect of, "You no longer work for DFG. Scott Sewell doesn't have a job for you."
9. It is my belief that I was fired by Mr. Sewell and Mr. Konno in retaliation for reporting

Mr. Sewell's improper activities to Mr. Konno and the State Auditor. 10. It is also my belief that Mr. Konno approved of Mr. Sewell's initial termination of me in October 2009 because he failed to take any action to correct the improper personnel action and further retaliated against me.

I I. In the years before I reported Mr. Sewell's improper governmental activities, I was always
welcomed to return to work for DFG and had never been told not to return. My performance has always been satisfactory. 12. Mr. Sewell's business address is Department of Fish and Game 17050 Davis Road, Nuevo, CA 92567 and P.O. Box 1254 Nuevo, CA 92567. 13. Mr. Konno's business address is Department of Fish and Game 78078 Country Club Dr. #lo9 Bermuda Dunes, CA 92203. 14. A complaint has not been filed with the Office of the Inspector General.
1 1 1 .

DAMAGES

1. I am requesting that no further retaliation andlor retribution be taken against me. 2. I am requesting all back pay and benefits owed to me as a result of my termination, including interest.
3. I am requesting compensatory damages.

4. I am requesting $25,000.00 in emotional distress damages as a result of the stress, anxiety, and depression that I experienced as a result of the above-listed retaliatory actions.

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

SECOND AMENDED WHISTLEBLOWER COMPLAINT

3

IV.
1)ISCIPLINARY ACTION HEOUESTED
1. I am requesting that disciplinary action be taken against Scott Sewell, Wildlife Habitat

Supervisor [I, for those reasons set forth in Section 11, Paragraphs 2.3.7 and 9. Mr. Sewell should be terminated for taking bribes in exchange for leasing public land. Mr. Sewell's hi~siness address is Department of Fish md Game 17050 Davis Road, Nuevo. CA 92567. 2. 1 am requesting that disciplinary action be taken against Eddy Konno, for those reasons set forth in Section 11. Paragraphs 5.8.9 and 10. 13. Mr. Konno should be demoted to a nonsupervisory position because he can not be trusted to perform the duties of a supervisor. Mr. Konno's business address is Department of Fish and Game 78078 Country Club Dr. #lo9 Bermuda Dunes, CA 92203

v.
SWORN STATEMENT

I declare, under penalty of perjury under the laws of the State of California that the foregoing
tnle and correct to the best of my knowledge and belief.

ated: /

SECOND AMENDED WHISTLEBLOWER COMPLAINT 1

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

I am a citizen of the United States and a resident of the County of San Bernardino, California. 1 am over the age of eighteen (18) years and not a party to the above entitled action. My business address is 10600 Trademark Parkway North, Suite 405, Rancho Cucamonga, California 91730 I am familiar with the Service Employee's International Union practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a United States mailbox at the close of each day's business.
On December 8,2010 1 served the following: SECOND AMENDED WHISTLEBLOWER COMPLAINT

[XI (BY MAIL) placing a true, copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Rancho Cucamonga, California, addressed as set forth below.
(original and three copies) SPB Appeals 801 Capiatol Mall Sacramento, CA 995814 (one COPY) Catherine Kennedy Department of Fish a n d G a m e 1416 Ninth Street Sacramento, C A 95814

[XI

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

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

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

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

801 Capitol Mall Sacramento CA 95814 I 866-844-8671

1 w w spb ca gov

Governor Edrnund G Brown Jr

TRANSMITTAL SHEET

smc~hee(53seiu1000.org Appellant's Representative

Linda McAtee, Presiding Administrative Law Judge SPB Appeal's Division

Catherine Kennedy,

ckennedv@dfq.ca.sov

January 11,2011

URGENT
NOTESICOMMENTS:

[XI FOR REVIEW

PLEASE COMMENT

PLEASE REPLY

PLEASE RECYCLE

I f &

r ~ e ~ ~ ~ q u e s t i o n s a this 6 o u0t r i i p h . w umtuctAmt NarieJammayat altpe&@sp6.ca.gov andi& (1) tlie h t name oftlie uppellint, (2) uppekt's case d e r , (3) rihte o f h t i n g (4) a return p b num6et; and(5)yow cumratfqnum6m wliere ligdcmay 6e sent

$wiry;

ORDER GRANTING CHANGE OF VENUE

Hearing Date and Time Requesting Party 21711 1 at 12:OO P.M. ALJ:

None

Appellant DENIED:

GRANTED:

[XI

OTHER:

. .
(Zamora) ORDER On December 20,201 1, in the matter of the appeal by Lupe Zamora, SPB Case Number 104286, the Appellant's representative submitted a request to Change the Venue of the Evidentiary Hearing from Los Angeles to Rancho Cucamonga. The request is hereby GRANTED. Appellant's hearing shall take place as previously noticed on February 7,201 1 at 12:OO p.m. The location shall be changed to the State Personnel Board, 10390 Commerce Center Drive, Suite C-180, Rancho Cucamonga, California 91730. No formal Hearing notice will follow. IT IS SO ORDERED. DATED: January 11,2011

Linda McAtee Presiding Administrative Law Judge State Personnel Board

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Catherine Kemedy, 166910 Senior Staff Counsel Department of Fish and Game 14169~~treet Sacramento, Caliiornia 95814 Televhone: (916)654-3821

I/

/I
In the Matter of Appeal by
LUF'EZAMORA Appellant,

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BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

) SPB Case No. 10-4286 ) RESPONDENT'S OPPOSITION TO ) WHISTLEBLOWER RETALIATION ) COMPLAINT ) Hearing Date: February 7,201 1 ) Time: 12:OO p.m.
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DEPARTMENT OF FISH AND GAME,

j Place:
)

~ancdo Cucamonga

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Respondent

11 T O THIS BOARD, ALL PARTIES AND THEIR ATTORNEYS O F RECORD:

Respondent Depnrtment of Fish and Game ("DFG') hereby submits its Opposition to Appellant Lupe Zamora's Whstleblower Retaliation Complaint pursuant to Title 2 ' California Code of Regulations Section 67.5 (SPB Rule 67.5) and requests that the matter be dismissed for failure to state a valid cause of action. For the reasons set forth below and based on the supporting declarations, Respondent will be able to prove that Lupe Zamora cannot meet his

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a s retaliated for reporting improper activities as the San Jacinto burden of proof that he w
Wildlife Area and this action must be dismissed. Assuming arguendo that the State Personnel

RESPONDENT'S OPPOSITION

II

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

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The DFG utilizes seasonal aides to work on its many wildlife and hatchery areas. As the name suggests, seasonal Aides are temporary or seasonal employees of the Department who are

limited to working 1500 hours per calendar year. Lupe Zamora (Appellant) was appointed as a Fish and Wildlife Seasonal Aide in January 2007'. The usual pattern of Appellant's employment

1I with DFG would be from January through September with the months of October, November 1
and December being off from work. In or about the end of September2909, Scott Sewell, Wildlife Habitat Supervisor 1 1and second-line supervisor of Mr. Zamora, audited Appellant's hours andtold Mr. Zamora that he had reached his cap of 1500 hours aud sent him home forlthe
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1) season. Mr. Zamora had never been formally separated from DFG and could be recalled to work 1

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with DFG at any time.

S~~bsequect lo that notification, Mr. 2mnora repeatedly asked boil1 Mr. Sewell and Mr. Sewell's supervisor - Eddy Konno for an admission or written documentation that he had been

terminated from employment from DFG. Both Mr. Sewell and.Mr. Konno repeatedly informed

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Appellant that lie was not fued or terminated from DFG. Sewell and Konno did state to Zamora something to the effect of ''there was no need for his services at this time." However, this

statement was made d e r consulting with a representative from DFG's Human Resources Branch. These subsequent telephone conversations occurred after September 2009. (See

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paragraph 6 of Sewell Declaration and paragraph 8 of Konno Declaration).

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

'

RESPONDENT'S OPPOSITION

In addition, Mr. Konno consulted his acting supervisor David Elms to ask if it was

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(1 standard practice to put something in writing after the end of an employee's regular season. Mr. I
Elms told Konno that it was not standard practice at DFG when a season ended. (See paragraph 8 of Konno Declaration). At no time during any discussion in or about August, September or October 2009 with either Mr. Sewell or Mr. Konno did Appellant state that he had reported the

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/(misuseof the Home Depot Gift Cards to anyone. It was only in December 2009 that Mr. Konno received a voicemail message from Lupe Zamora wherein Appellant stated something to the

effect that he was the one who blew the whistle. (See Paragraph 9 of Iconno Declaration.) This

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declaration came long after his season was ended and after November 2009 when he filed a

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

The Califomia Whistleblower Protection Act (Government Code section 8547.8) protec
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stzte employees from suffering retaliations or reprisals for reporting improper govemmm

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(1 1 iI
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activity as defined in section 8574.2. The Whistleblower Protection Act authorizes a stat employee to file a complaint with the SPB to seek remedies for retaliation. (See G o v e y Code Sections 8547.8 and 19683.) lu order to prevail on his complaint, MI. Zamora must prove k e e things: (I) h participated in a protected activity; (2) that he suffered an adverse employment action; and (3 that the adverse employment action was due to his participation in the protected activity. (Se

I I 4

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Flait v. North America Watch Company (1992) 3 ~ a l . ~ p p . 4467, " 476 for the general prim

facie elements of an employment retaliation case; See also i n Re Holte (1994) SPB Dec. No. 9
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Respondent filed a Motion to Dismiss the Appeal of a Notice of Dismissal on the grounds that Appellant was not entitled to an evidentiaiy hearing under (Title 2 California Code of Regulations Section 282.). This matter was a p e d oo December 2,2010and SPB Chief Adminishative Law Judge granted the Motion to Dismiss. (See Exhi.bi "A.'to Declaration of Catherine Kennedy.) RESPONDENT'S OPPOSITION

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

Government Code section 8547.2 (d) which "...means any good faith communication tha discloses or demonstrates an intention to disclose information that may evidence (1) an imprope
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governmental activity or (2) any condition that nlay significantly threaten the health or safety 04 employees or the public if the disclosure or intention to disclose was made for the purpose of

l o remedying that condition." and that he suffered an adverse employment action because of this
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participation. Government Code section 8547.8(e) requires that he prove his case by a preponderance of evidence. At which point, the Respondent has the opportunity to prove by a

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clear and convincing standard that the alleged employment action would have occurred for
ligitmmte, indepe~ldentreason even if appellant had not engaged in the protected (Ibid.) Appellant requests as part of his remeily both monetary' damages and for disciplin I/action to be taken against both Scott Sewell and Eddy Konno This request requires ths Appellant prove that he suffered damages and that there is enough evidencc to warrani disciplinary action to be taken against his supervisors.
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LEGAL ARGUMENTS
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A. Appellant Fails to Meet His Burden of Proof Lupe has declared that he reportedwhat he believed was improper government activities committed by his direct supervisor Scott Sewell to the Bureau of State Audits. If Mr. Zamora did report such a ccomplaint it would con?litnte a protected activity under the Whistleblower
RESPONDENT'S OPPOSITlON

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

n the protected activity. In this case, there is that someone at DFG knew it was he who engaged i
clear evidence that Mr. Sewell, Mr. Konno nor Mr. Olvera, Region 6 Administrative Officer, did not have knowledge that Mr. Zamora participated in any protected activity at the time his season ended in September 2009 or even in the subsequent months.

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1)

The alleged misdeed that was complained about centered on the use of Home Depot gift cards to purchase supplies and equipment for the Wildlife Area. As is common at various lands owned and managed by DFG, there existed an Agricultural Lease with a farmer. The lease at issue was entered into with William and Nicholas Bruno in October 2008 (See Exhibit B attached to Sewell Declaration). This lease allowed for "in-kind" service by the lessees to be applied against the annual rental requirements. Specifically, the lease allowed for the lessee to :

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make repairs around the Wildlife Area. (See paragraphl2of Sewell Declaration.), Consistent with both the existing practice and his understanding, Sewell did accept Home Depot cards f r o m the lessee to use towards maintenance of the Wildlife area and its buildings. (See paragraph 13 of Sewell Declaration). Concern over the practice of using the gift cards was raised to Eddy Konno in late July or early August 2009. However, it was not LupeZamora who raised the concern. In the summer of 2009, DFG employee Thomas Trakes told Habitat Supervisor I Steven Kollenbom
i f t cards and how he was uncomfortable using them because. he perceived about the usage of the g

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1 that the usage was outsjde of the normal or routine procurement process and wanted Kollenbon~
to discuss the matter with Komo without stating who told him about the situation. (See paragraph 3 of Kollenborn Declaration.) Accordingly, Kollenbom spolce to Konno about the practice without divulging the name of the complaining employee -Thomas Trakes. Lupe Zamora's name was not mentioned nor dld Lupe Zamora speak independently with Konno. (See paragraph 4 of Kollenborn Dec!aration and paragraph 4 of Konno Declaration.) Konno

RESPONDENT'S OPPOSITION

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

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discuss the lease agreement and determine whether or not gift cards could be used. Konno also contacted Sewell to inform him of the complaint and order him to cease the p~actiee.At that time, he did not tell Sewell who made the complaint because he did not know who at the Wildlife Area made the complaint. (Paragraphs 5 and 6 of Konno Declaration). Sewell stopped using the g& cards. Komo determined that Sewell was not engaged in any improper behavior and therefore did not instigate any disciplinary actions3. Konno later learned that Trakes was the

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person who contacted I<ollenborn. There was no evidence that Zamora attempted to inform Konno of his alleged invoivement until Decemba 2009 (See Paragraph 7 of Konno

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In support of his complaint, Appellant asserts that Warden Kyle Chang knew in October

2009 that Zamora had told Sewell and Konno that he had discussed the matter with the Bureau o 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)
.

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is
is 17 is
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B. No Adverse Employment Action Occurred The California Supreme Court in Ymmria r L 'O~eai USA, Inc. (2005) 36 Cal. 4 1028,

/I 11

1138 discussed what constitutes an "adverse" working employment action in a "retaliation" case. The court adopts a broad standard to include, not only termination and demotion, but also those actions which "are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." However the Court states,

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11 "[allthough a mere offensive utterance or even a patte~nof social slights by either the employer I 1I(
or co-employees cannot be viewed as materially affection the terms, conditions, or privileges of employment" (Ibid).

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RESPONDENT'S OPPOSITION

l5

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

1 2

Lupe Zamora has not been terminated from the Department of Fish and Game. (See Declarations of Sewell, Konno, Olvera, and Smith.) His normal season ended in September 2009. Subsequently, he was assured on numerous occasions by both Konno and Sewell that he was not terminated. Instead of following his normal pattern of contacting the Wildlife Area in December to set dates to come back to work, Zamora filed a notice of an appeal of dismissal (without actually having ever received any type of formal dismissal action) in November 2009. (See Exhibit "B" of Kennedy Declaration) Just because Zamora argues he was terminated does not create an actual legal termination. No matter how broadly a court looks to what constitutes
an adverse employment action, there still has to be an actual action.

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C.

No Causal connection Exists

Assuming arguendo that Appellant can show that the conclusion of his regular season
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is simehow an "adverse" employment situation, he still has to show-that there was a causal connection between engaging in the protected activity and the communication by Sewell and Konno that his season ended in September and October of 2009. In order to make this causal connection, Zamora has to prove that Konno and Sewell knew it was Zamora who made the complaint. The only evidence ofthis is Zamora's own self-serving testimony. There is no othe~ evidence that indicates that Zamora told Sewell and Konno in September or October 2009. Indeed, contrary evidence exists which clearly proves that it was Trakes who told Kollenbom about the situation. This is confirmed by the testimony of Kollenbom, Konno and Warden Chang. No one remembers that Zarnora mentioned anything of his alleged whistleblowing at that time.

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Instead the only evidence that Zamora ever said anything to Konno was a telephone voice-mail message in December 2009. Again, this self-sewing, after the fact, message was that Zamora identifying himself as the whistleblower. Clearly, this message was an attempt to make

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

RESPONDENT'S OPPOSITION

time his season ended. Such an attempt to manufacture a case when none existed is consistent with his repeated requests to for some type of "admission" or witing stating the reasons he was terminated. (See paragraph 8 of Konno Declaration.) There was nothing to prevent him from coming back to work for the DFG. Respondent

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anticipates that Zamora will argue futility as a reason not to request to be put back to work for the 2010 season. Such a request fails for two,main reasons. The first is the repeated requests for confirmation of his termination after September 2009 and the repeated reassurances of both supervisors that he was not terminated. (See Declarations of Konno and Sewell.) The second is the fact that he has a pendingworkers compensation claim for an injured knee. It is unclear whether or not he could actually perform the physical labor required of a Seasonal Aide on a wildlife area. (See Declaration of Dwight Greene.) Indeed, it is more likely that he did not request to be put on for the 2010 season due to pursuing his workers compensation injury and not because he had any reason to believe that he was fired.
C . Legitimate ~ u s i n e s Reason s

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DFG hac! a legitimate business reason for notifying Zamora that his services or season for 2009 were over in September 2009. Zamora was not a permanent full time civil servant with DFG as defined in Government Code section 18528. Instead, he is a seasonal employee or tempormy employee as defined in Government Code section 18529. Pwsiiant to ilrticle VTI, section 5 of the California Constitutioi~, Zamora was limited to how many hours he could work in any calendar year. That section specifically states: "A temporary appointment may be made to a position for which there is no e&ployment list. No person may serve in one or more positions under temporary appointment longer than 9 months in

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12 consecutive months." Zarnoralaew this due to his long-history as a seasonal employee with
DFG (See Paragraph 1 of Statement of Facts in Zamora's complaint). Governor Schwarzeneggsr's Executive Ordzr SS-3-09 extended the furloughs to three days per month until
RESPONDENT'S 0PPOSITIC)N

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June 30,2010. That adjustment did affect when Zamora' season ended in September 2009 but
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only by a few days. (See Sewell Declaration).

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IV. CONCLUSION
Respondent requests that Lupe Zamo dismissed in its entirety for the reasons stated above damages pursuant to his complaint. In addition, Re be brought against DFG employees Eddy Konno or Scott Sewell as no grounds exist under Government Code section 19572 which warrant disciplinary actions against them. Dated:

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SESPONUENT'S OPPOSITION
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Catherine Kennedy, 166910 Senior St& Counsel Department of Fish and Game 1416 9" Street Sacramento, California 95814 Telephone: (916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@dfp..ca.~ov BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of Appeal by

LUPE ZAMORA
Appellaot,
VS.

DEPARTMENT OF FISH AND GAME, Respondent

) 1 ) ) ) I ) ) )
I

SPB Case No. 10-4286 D E C W T I O N OF KYLE CHANG IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER COMPLAINT Hearing Dates: February 7,201 1 Time: 12:00 p.m. Rancho Cucamonga Place:

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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

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Fish and Game Warden with the Law Enforcement Divjsion ofthe Department of Fish and Game (DFG). I make this Declaration based on personal knowledge and if called as a witness could testify to the contents herein. 2.

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

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peace officer as deiined in Penal Code 830.2(e). Warden duties involve, but are not limited to, administering and enforcing fish, wildlife, and habitat protection laws, rules, and regulations; conducting investigattons with full participation in surveillance, interviewing witnesses,

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DECLARATION OF KYLE CHANG I N SOFPORT OF RESPCINDENT'S OPPOSTION TO WHTSTLEBLOWER RETALIATION COMPLAONT - 1

-. .,

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searching for and k a ! & g custody of physical evidence, se~zing illegal fish, wildlife, and
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equipment connected with violations, securing and serving search wanants, making arrests and testifying in court; coordinating cases with the district attorney, attorney general, and the Department of Justice. Wardens may also be required to take action in crimes of a general nature, including violations of Penal, Vehicle, Health and Safety Codes, and others to preserve and protect all public health and safety. This may include arresting armed and dangerous felons,

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

taking emergency action to preserve life in traffic or other accidents, and participating in
Homeland Security efforts on State lands and waters.

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3.

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

includes but is not limited to the geobraphicd area where S w Jacinto Wildlife Area. Iam
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personally acquainted with the DFG employees who work at the San Jacinto Wildlife Area, including Soott Sewell, Thomas Trakes, and Lupe Zamora due to the fact that the Wildlife k e a is within my patrol region.
4.

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" IIthe Wildlife Area. I cannot remember the exact date. X4y understanding of the purpose of the
He had requested a meeting with Scott Sewell who was uncomfortable meeting with Lupe

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

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

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Zamora and asked for me to attend. I went to the Wildlife Area and recollect that both Thomas Trakes and Scott Sewell were present. Lupe Zamora never showed up t o the meeting or wildlife1

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

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inappropriate use of gift cards. I have reviewed the statement made in paragraph 6 of the Appellant's Second Amended Whistleblower Complaint which states: "Prior to October 29, 2009, Mr. Sewell was aware that I had reported his improper governmental activities, Game

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DECLAPATION OF KYLE CfIANG IN SUPPORT OF RESPONDENT'S OPWSTION TO WHISTLERLOWER RETALIATION COMPLAONT - 2

Warden, Kyle Chang, Thomas Trakes and Dirk Holt have personal~knowledge of this." I cannot
2

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5

a&matively testify to this fact. My recollection is that I lamed about the gift card allegations either Thomas Trakes or Scott Sewell and riot Lupe Lamora I have m howledge as to

whether or not Scott Sewell knew who reported the activities or when he learned of the matter on or before October 29,2009.

5.

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

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

Governor's Waste Watchers, the coyty district attorney's office, DFG's Internal Affairs U n i t or the local law enforcement offices regarding the allegations of misuse, bniny, mnBful
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acceptance of g i f t s of the Home Depot gift cards in connection with the San Jacinto Wildlife

Area, Mr. Sewell or Mr. KOMO. TOthe best of my knowledge, and apart from this case, I am
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unaware of any pending administxative, civil or criminal matters pending~egarding the allegations of Mr. Zamora

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

11 above is true and correct.

Date: Place:

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WA

ENKYLEC

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DECLAWLTION OF KYLE CHANG IN SUPPORT OF RESPONDENT% OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT -3

Catherine Kennedy, 166910 Senior Staff Counsel Department of Fish and Game 1416 9"' Street Sacramento, California 95814 Telephone: (916)654-382 1 Facsimile: (916) 654-3805 Email: cltennedv@dfe.ca.eov

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BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

II

In the Matter of Appeal by

) SPB Case No. 10-4286

LUPE ZAMORA
Appellant, VS.

j
> I

DECLARATION OF SCOTT SEWELL IN

) SUPPORT OF OPPOSTION TO ) WHISTLEBLOWER COMPLAINT

) Hearing Dates: February 7,201 1 ) Time: 12:OO p.m. ) Place: Rancho Cucamonga

DEPARTMENT OF FISH AND GAME, Respondent

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

1.

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

Wildlife Habitat Supervisor Il with Region 6 of the Department of Fish and Game (DFG). I hav been employed with DFG since 1998. I make this Declaration based on personal knowledge and if called as a witness could testfy to the contents herein.

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2.

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

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management of the San Jacinto Wildlife Area (Wildlife Area). I directly supervise Tom Trakes, Wildlife Habitat Supervisor I and on-site manager of the Wildlife Area. I am the second-line

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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

- 1
_ . ~ _ _ . _ _ . . _ _ _ _ ~ p _

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Area hires seasonal employees to augment the services rendered by the permanent employees. The number of seasonal employees hired changes upon the needs of the Wildlife Area. The number has varied during the time I have supervised the area from no seasonal employees to two employees. Currently, there are no seasonal employees working at the Wildlife Area. 3. Lupe Zamora is employed with the DFG as a Seasonal Aide. This is a seasonal

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position with DFG. Mr. Zamora's usual pattern of employment with DFG would be from January through September with the months of October, November and December being off from work. This was the pattern of work in 2009.

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4:

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

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work hour cap of 1500 hours. On or about September 25,2009, I informed Mr. Zamora that his 2009 season with DFG was ending. I did not terminate his empIoyment with DFG and to my knowledge Mr. Zamora has not been officially separated from DFG employment.

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5.

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

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September 2009 timesheet signed by both Mr. Zamora and me. September 28,29, A d 30,2009 were furlough days required by the Governor's Executive Order.

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6.

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

know that his season for 2009 had ended, I spoke to LaPezra Smith, the DFG Personnel Specialist for Region 6 about Mr. Zamora'scircumstances. Upon her advice, I communicated to

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Mr. Zamora the next week that "his [Zamora's] services are no longer needed at this time" in
response to his second accusation that I had terminated his employment with DFG. Such a statement was consistent with my understanding that Mr. Zamora's season had ended for the year and he could not work until the next calendar year.

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7.

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

discuss the situation. I had some concerns for my safety so I requested DFG Warden Kyle Chang to meet me at the Wildlife Area to act as a witness and be available should there be any

DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 2

1
2

problems. The meeting was scheduled for in' early October 2009, approximately one week after the September 25,2009 meeting with Mr. Zamora. Mr. Zamora failed to show up at this subsequent meeting. Warden Chang was present, as well as Wildlife Habitat Supervisor I, Thomas Trakes and Dirk Holt.
8.

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

or reported any alleged wrongdoing on my part or Mr. Konno's. It was only subsequent to his filing an appeal with the State Personnel Board that I learned Mr. Zamora was alleging that he claimed that he had reported alleged misdeeds to anyone at the State Auditor's office or that he alleged that he was terminated in retaliation for having been a whistleblower.
9.

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

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beginning of January to arrange for the start date of the next seasonal employnlent. This arrangement worked due to the fact that Mr. Zamora's contact information in DFG records would not always be accurate to allow me to call him to reschedule bim. At no time since September 2009 has Mr. Zamora requested to return to his seasonal job. 10. Prior to promoting to my cment position as a Wildlife Habitat Supervisor I1 in

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2008, I was the Wildlife Habitat Supervisor for the Wildlife Area. I served in that capacity from 2005 until 2008. In both of these positions, my duties included managing the actual resources on the Wildlife Area. Management o f the resources includes, but is not limited to, overseeing 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 intoappropriate contracts, and overseeing the Agriculture Wildlife Fanning Lease.
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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.

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DECLAARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

. .

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III
1)
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(See Agricultural Lease Attached as Exhibit "B." The lease agreement provided by Appellant as

~ttachrnmt 4 was missing the final page which memorialized the value of the lease agreement.)
12.

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

and Nick Bruno, perform ;-kind services in lieu of paying rent. The nature of the in-kind services ara broadly captured through out the lease agreement Specifically, paragraph 3 states:

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"In lieu of payments, the Lessee will be required to provide custom tractor work,
including discing, seeding mowing, land leveling and/or mutually agreed upon equivalent work necessary to accomplish the restoration of wildlife habitats on

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the San JacintoWildlife Area (SJWA). Lessee work will be performed on a per acre basis and will be subject to the expenditure of the agreed upon annual Lease value. All Lessee work will be accomplished pursuant to the direction of the Area Manager, SJWA. In lieu of tractor work, Lessee will be required to make improvements and repairs to the San Jacinto Wildlife Area." Paragraph 4 requires in pertinent part that the: "Lessee will use the existing irrigation

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IIwell and water transport facilities located on the property and will be responsible for
maintenance and repair of all pumping facilities and water transport facilities during the Lease term."

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13.

My understanding based both on practice preceding my promotion and

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

1 I employees, including my direct supervisor, Eddy Konno, was that the in-kind services could I
include the lessee paying for parts, equipment and services for repairs needed op the Wildlite

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A r e The value of the purchase of the parts and equipment and in-knd service were an off-set against t h e annual rent. In order to facilitate the purchase of parts and equipment needed to keep the Wildlife Area and its buildings in repair, it was suggested and I agreed to have the Brunos

II

DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT

purchase a Home Depot Gift Card to use to purchase needed supplies for the Wildlife Area and off-set the amount against the rental obligation under the lease. 14. Expenses paid for upkeep and maintenance under the lease agreement included

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purchases of supplies needed to put in large piping, culverts, roofs, wells and water pumps, roofs 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 Lessee and used by DFG to value the in-kind rental off-sets.

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15.

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

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for my own personal gain. I never opened my wallet to accept case nor was it my practice to meet the Brunos' at my state-owned house. Business with the Brunos was usually conducted at

the Wildlife Area's office.

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Apart from discussing these allegations with my supervisors and DFG legal

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counsel, I have never been contacted by an investigator or representatwe from the Bureau of State Audits, the California Highway P a o l , the California Department of Justice, the Governor's Waste Watchers, the county district attorney's office or the local law enforcement offices. To my knowledge, and apart from this case, there are no pending administrative, civil or criminal matters pending regarding the allegations of Mr. Zamora.

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17.

In or about late July or emly Aumst 2009, I had a conversation with my

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

received a complaint dom someone about the use of the cards and instructed me to stop using

them. He did not tell me who had made the complaint to him. I immediately stopped the use of
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the Home Depot cards per his instructions. 19. It was only in the late Spring or early Summer in 201 0, that I was attending a sta

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

DECLARATION OF SCOTT SEWELLIN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 5

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01~/25/2011 11: 40

7603590709

Cb FISH & W E

IWA

PAGE

the use of the Homc Depot cards. Mr. Trakes is still emgo$
2

as a Habitat Supnvioor I at the

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

Date: 6117r
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naceqlAi k e f

o ~ a

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

EXHIBIT A

EXHIBIT B

S r a t e a.a f ~. a - The
DEPARTMENT OF FISH AND CAME htto~llwww.dfa.ca,aov 141 6-Nfith Street Sacramento, CA 9581 4

ARNOLD S C H W A R Z -

CC:5 Z b . 1 1 4

November 14,2008 Wtlliam V. Bruno Nicholas V. Bruno

Subject:

Lease AL-2008-01-R6

To Whom It May Concern:

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

Eric R. Dockter Analyst Business Services

cc:

Teni Williams Region 6

Endosure

"

PROJECT :

AGENCY

Departn 'f Fish and Game San Ja~Int~Wildlife Area

NU,

R : AL-2008-01-R6

AGRICULTURAL LEASE:

San Jacinto Wildlife Area - 711 Acres AGRICULTURAL LEASE:

This LEASE, entered into October 27, 2008 by and between the State of California, acting by and through the Department of Fish and Game, hereinafter called State, and William V. B N ~ O and Nicholas V. Bruno called Lessee; WITNESSETH! The parties hereto, for the consideration hereinafter expressed, do agree as follows: 1. That the State, in consideration of the payment or rent hereinafter specified to be paid by the Lessee and the covenants and agreements herein conta~ned,does hereby lease, demise, and let unto Lessee that certain property situated in the County of Riverside, State of California, excepting therefrom all areas heretofore reserved therefrom for wildlife habitat development programs, consisting of 711 acres for the growing of agricultural crops and more particularly described and delineated in that certain map and description entitled San Jacinto Wildlife Area Agricultural Lease and marked Exhibt "A", which is attached hereto and incorporated by reference and made a part hereof. The term of the Lease shall be for three (3) years commencing October 27,2008 and terminating on the last dav of Seotember, 2011. In lieu of rental payments, the Lessee will be required t o provide custom :ractor work, including disclng, seeding, mowing, land leveling andlor mutually agreed upon equivalent work necessary to accomplish the restoration of wildllfe habitats on the San Jacinto Wildlife Area (SJWA). Lessee work will be performed on a per acre basis and will be subject to the expenditure of the agreed upon annual Lease value. All Lessee work will be accomplished pursuant to the direction of the Area Manager, SJWA. In lieu of tractor work, Lessee will be required to make improvements and repairs to the San Jacinto Wildlife Area. Lessee shall, in addition to all other sums agreed to be paid by him under this Lease, pay any and all taxes, possessory interest taxed, water charge taxes, and water surcharges levied or assessed on Lessee by proper governmental authority during the term of this Lease or any extension thereof. Lessee wlll use the existing irrigation well and water transport facilities located on the property and will be responsible for maintenance and repair of all pumping facilities and facilities during the Lease term. Lessee agrees to pay all costs water transpo~ of water, SCE, or other cost as relate to Lessee agricultural use. State shall not be responsible for the replacement of any pumps, pumping facilities or water transport facilities during the Lease term.
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5.

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

.-

mntainec '.. ..ein shall be construed as cot partners.

. .. ding
,

the parties herein as

6.

This Lease is made upon the express condition that the Sfate-is to. be free from all liability and claims for damages by reason of any injury to any person o r persons, Including Lessee, from any cause or causes whatsoever while in, upon, or In any way connected with the premises during the term of this Lease or any occupancy hereunder, except those arising out of the sole negligence of the State. Lessee agrees to defend, indemnify, and save harniless the State o f California from all liability, loss, cost, or obligation on account of or arising outof any such injury or loss, however occurring. Lessee further agrees to provide necessary Workers Compensation Insurance for all employees of Lessee upon said premises at the Lessee's own cost and expense. The parties hereto agree that either party may terminate this Lease at any time during the t e n hereof by giving notice to the other party in writing thirty (30) days pnor to the date when such termination shall become effective. Lesses shall not assign thls Lease in any event and shall not sublet the leased premises or any partihereof and will not permit the use of the leased premises by anyone other than the Lessee without prior written consent of the State. By entry hereunder, Lessee accepts the premises as being in good order, condition, and repair and agrees that on the last day of the term,, o~ sooner terminailon o i this Lease, to surrender up to State the leased premises wiKany appurtenances or Improvements in the same condition as when received, reasonable use and wear thereof and damage b y act of God or by the elements excepted. Lessee agrees that in no event shall State be required to perform any maintenance on or make repairs or alterations to the leased premises of any nature whatsoever. Lessee agrees to keep the leased premises in good order and condition at his sole cost and expense. Lessee does hereby waive all right to make repairs at the expense of the State as provided In Sections 1941 and 1942 of the Civil Code. No dumping of refuse by Lessee Is permitted in any area of the leased premises, and Lessee shall not commit or suffer to be committed any waste or nuisance upon the premises; and Lessee agrees not to cut or remove any trees or brush thereon except as approved in writing by the State in advance, and Lessee further agrees that he shall at all times exercise due diligence in the protection of the leased premises against damage or destruction by fire or other cause. All livestock brought or kept upon the premises shall be free from disease. Lessee agrees to immediately bury or remove any livestock which may die or be killed on said premises. Lessee will provide for a representative, available to respond within 24 hours, to any problems on the San Jacinto Wildlife Area lease area. This may include problems with livestock movement or irrigation systems on the areas as a result of this Lease.
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10.

11.

12.

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Lessee shall rurnish a Certificate of lnsurance to the State with amounts of public liability insurance of not less than $1,000,000 per occurrence for bodily injury and property damaged combined naming the.State of California, its officers, agents,.. . and employees and servants as additional insured insofar as operations under this agreement are concerned. It is agreed that the State shall not be liable for the payment of any premiums or assessments on the insurance coverage required by this paragraph. The Certificate of lnsurance shall provide that the insurer will not cancel the insured's coverage without thirty (30) days prior written notice to State. Lessee agrees that the insurance herein provided for shall be in effect at ail times during the term of this Lease. In the event said insurance coverage expires at any time or times during the term of this. Lease, Lessee agrees to provide State at least thirty (30) prior to said. expiration date, a new Certificate of Insurance evidencing insurance coverage as provided for herein for not less than the remainder of the term of the Lease or for a period of not less than one (1) year. . .In the event Lessee fails. to keep in effect at all times insurance coverage as herein provided, State may, in addition. to any other remedies it may have, terminate this Lease upon the occurrence of such event. of Flsh and Game, The insurance certificate should be mailed to De~artment Attention: Teni Williams, 4665 Lampson Ave, Suite J, Los AJamitos, CA 90720. Lessee shall, at his sole cost and expense, comply with all of the requirements of all municipal, state, and federal authorities now in force. or which may hereinafter be inforce, pertaining to the premises. During continuance in force ofthis Lease, there shall be and Is hereby expressly reserved to the State and to any of its agencies, contractors, agents, employees, representative, or licenses, the right at any and all tlmes, and at any and all or places, to temporarily enter upon said leased premises for survey, inspect~on any other lawful State purposes. This Lease is subject to all existing easements and right of way. State further reserves the right to grant additional public utility easements as may be necessary and Lessee hereby consents to the granting of any such easement. The public utility will be required to reimburse Lessee for any damages caused by the construction work on the easement area. Lessee agrees not to interfere, in any way, with the interests of any person or persons that may presently, or in the future, hold oil, gas, or other mineral interests upon or under said leased premises, nor shall Lessee in any way interfere with the rights of ingress and egress of said interest holders.

15.

16.

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18.

19.

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

others ck g under him, shall have no right aunt or fish on the demised premlses except in accordance with the California Fish and Game regulations. 20. State expressly reserves.the right to the use of the herein leased property, in any manner, provided such use does not unreasonably interfere with the use of the Lease herein granted. All notices herein provided to be given, or which may be given, by either partyto the other shall be deemed to have been fully given when made in writing and deposited in the United States mail, certified and postage pre-paid, and addressed as follows: to Lessee at 233 W. Markham Street. Perris, CA 92571 and to the State, do Department of Fish and Game, 1416 Ninth Street, Sacramento, CA 95814, and also to the Area Manager In charge of San Jaclnto Wildlife Area, Department of Fish and Game, P.O. Box 1254, Lakeview, CA 92567. The address to which the notices shall or may be rnaiied as aforesaid to either party, shall or may be changed by written notice given by each party to the other as hereinbefore provided, but nothing herein contained shall preclude the giving of any such notice by personal sennce. In the event of the breach by Lessee of any of the covenants herein contained on the part of the Lessee to be kept and performed, it shall be lawful for the State to enter into and upon the leased premises, and every part thereof, and to remove all persons and property therefrom. and to enjoy the leased premises as in the first and former estate of the State, anything to the contrary herein 1 contained . - . notwithstanding. If action be brought by the State for the recovery of any rent due under the provisions hereof, or for any breach hereof, or to restrain the breach of any agreement contained herein, or for the recqvery of possession of said premises, or to protect any rlghts given to the State against Lessee, and if the State shall prevail in such actlon, then Lessee shall pay to the State such amount as attorney's fees in said action that the Court shall determine to be reasonable, which shall be fixed by the Court as part of the costs of said action. Lessee agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, sex, age or physical handicap. Lessee agrees to take affirmative actlon to ensure that applicants are employed, and the employees are treated during employment, without regard to their race. color, religion, ancestry. national origin, sex, age or physical handicap. (See California Government Code Sections 12920-12994 for further details). Lessee agrees and understands that the primary purpose of the State's ownership and occupancy o f the herein demised and leased premises is for wildlife conservation purposes, and Lessee agrees not to commit waste or damage the wildlife habitat. 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.
A

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Catherine Kemledy, 166910 Senior Staff Counsel Depa~lment of Fish and Game 1416 9"' Skeet Sacran~ento, California 958 14 Telephone: (916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@dfg.ca.~ov

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1
LUPE ZAMORA

BEFORE TEE STATE PERSONNEL BOAlZD OF TI-IE STATE OF CALIFORNIA

9
10

In the Matter of Appeal by

) SPB Case No. 104286

1 1

1 I
;
I

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

Appellml,
12
13 14
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13

l1

VS.

DEPARTMENT OF FISH AND G M ,

Respondent

) Hewing Dates: February 7,201 1 ) Time. 12.00 p.m ) Place: Rancho C~~camollga ) )

1
I

;
i

l7

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

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

Personnel Specialist with the Department of Fish and Game (DFG) assigned to Iiegion 6. I have bee11 em]iloyed by DFG since 2000 and have bean with Region 6 since 2008. I make this Declaration based on personal knowledge and if called as a witness couild testify to the contents

II

herein.
2.

As pa11o f my duties as a Personnel Specialist, I regulwly access the State

,

.. . . .

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

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

en~ployees.1 an1 personally faniliar witli tlie codes used by the SCO's systwn 011 its pj~lldtits oi6'Employee History Summary."

3.

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

!
5

employee history indicates illat he has never bee11 termincited with the DFG. It is customary for Seasonal Aides with DFG to rernain ail einployee witli DFG fortlie portion of tlie year that they are not actively working because'their "season" has ended and not be formally terminated. Tbis
'7

allows them to resume their work as a Seasonal Aide in the next yeor. (A bile and correct col~y of Lipe Zamora's Employee I-listory Sunnnnry is anached hereto as "Exllibil A.')
4.

8
9
lo

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

from field stnfflocated ilxo~~ghout Region 6 regarding personnel issues. Such incluiries could include questions from supervisors regarding how Inany hours a subnrdi~~ate seasolla1 employee

l2 13
14

had worked, how to till out time-sheets, leave time, and eniployment status.
5.

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

recluesting informati011about tlie employmne~it of seesonal employees 1?r11e11theseason is over.

" W lh

I do i~ot recall specifically what I said, l understand that Scott Sewell statesthat I advised
"there is no work at Lhis time" in response to 11% ir~quir)~ about what to to tell the en~ployee

I-Qiln
i7

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

ibecollection that seasonal eniployees cannot extend their working situatio~~ beyoilci their normal
19
?o

soas011.
I declare under penalty of perjury, under the laws o f the Slate of California, that the

22

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24

Place:
.4ds

(?1.&JV

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

EXHIBIT A

sge: 1 Document Name: untitled

iSA# 571-66-0938 EFF DATE TRAN 08/01/10 350 07/01/10 350 07/01/09 350 01/30/09 350 07/01/07 GEN I' 01/10/07 A02 07/01/03 GEN 05/08/03 SO1 08/31/00 GEN 01/13/00 565 1 -01/01/00 120 07/01/99 GEN 04/01/99 GEN 01/31/96 505 01/01/96 MSA EMPLOYEE HISTORY SUMMARY PAGE 01 OF 02 NAME ZAMORA , LUPE R HISTORY SPB AGY-UNT-CLAS-SER SPB AGENCY ENT DATE PSD REF # TYPES ID 565-602-0790-905FISH & GAME 08/19/10 102319999 B C 1 565-602-0790-905FISH & GAME 07/08/10 101899999 B C 1 565-602-0790-905FISH & GAME 07/06/09 091879999 B C 1 565-602-0790-905FISH & GAME 02/10/09 090419999 B C 1 565-601-0790-905FISH & GAME 08/26/07 072389999 B 1 565-602-0790-905FISH & GAME 01/31/07 FG0310006 BAGH D I 1 1 565-602-0790-905FISH & CAME 08/20/03 032329999 B F IJ 1 565-602-0790-905FISH & GAME 05/09/03 FG1290003 565-602-0790-905FISH & GAME 09/06/00 002509999 B C 1 565-602-0790-905FISH & GAME 03/03/00 020630001 C I 1 565-602-0790-905 FISH & GAME 02/10/00 020410502 1 565-584-0790-905FISH & GAME 10/16/99 992899999 B 1 565-584-0790-905FISH & GAME 04/20/99 991109999 B C 1 565-584-0790-905FISH & GAME 05/15/96 021360028 H 1 565-584-0790-905FISH & GAME 05/15/96 021360028 B 1 ......................... H I S T O R Y T y p E s-------------------------C = EMP C O W E = REEMP COND G = APPT CERT I = GEN PAYROLL - A = APPT B = SALARY D = SERVICE F = SEPARATION H = RETIREWENT J = SEP PAYROLL SELECT DETAIL - SELECT HISTORY TYPES: - - - - - - - - - - OR MANUAL AUDITS I

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

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LUPE ZAMORA VS.

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALFORMA

1 ( In the Matter of Appeal by

11
12
13
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) SPB Case No. 10-4286

; DECLARATION OF KIMBERLY NICOL I N SUPPORT OF OPPOSTION TO

) ) WHISTLEBLOWER COMPLAINT
.\

Appellant,

DEPARTMENT OF FISH AND GAME, Respondent

) Hearing Dates: February 7,201 1 ) Time: 12:OO p.m. ) Place: Rancho Cucamonga )

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I, KIMBERLY NICOL, hereby declare to the following:

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

2o

Regional Manager of Region 6 of the Department of Fish and Game (DFG). I make this ~ ~ ~ l a based r a t on i ~ personal ~ knowledge and if called as a witness could testify to the contents herein. 2.

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

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DFG including Fishery Biologists, Associate Biologist, Environmental Scientist, Staff Environmental Scientist, Senior Environmental Scientist, Environmental Program Manager, Acting Wildlife Branch Chief, and was promoted to Regional Manager in August of 2010. As

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DECLARATION OF KIMBERLY NICOL I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 1

1
2

Regional Manager, my duties include being the final decision maker in Region 6 for management decisions including but not limited to, the implementation and management of the programs and policies for the management of natural resources including DFG owned wildlife areas, ecological reserves, and hatcheries. As part of my duties of Regional Manager, I am the ultimate decision maker for Region 6 regarding the supervision of regional staff and personnel, regional contracts, and leases. 3. The previous Regional Manager for Region 6 Curt Taucher briefed me on all

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7

pending legal and personnel matters during my transition period into my current position as
9

Regional Manager. At no time was there ever a mention of a previous or current audit or investigation into allegations of theft, bribery, or acceptance of inappropriate or illegal gifts at the San Jacinto Wildlife Area or involving Wildlife Habitat Supervisor 1 1 , Scott Sewell or his

10

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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.

14

4.

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

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of State Audits, the California Highway Patrol, the California Department of Justice, the Governor's Waste Watchers, the county district attorney's office or the local law enforcement

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offices. TOmy knowledge, and apart from this case, there are no pending administrative, civil 01
criminal matters pending regarding the allegations of Mr. Zamora

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5.

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

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of the matter, my understanding of the statutes and rules regulating state civil service employees actions, and in discussion s with appropriate staff and managers in DFG's Human Resources Branch, it is my opinion that there was no wrong-doing on the part of Eddy Konno or Scott Sewell which warrants disciplinary actions on the part of DFG. Had I believed that there was sufficient evidence to warrant disciplinary proceedings against MI. Konno and Mr. Sewell

DECLARATION OF KIMBERLY NICOL I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 2

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Catherine Kemledy, 166910 Senior Staff Counsel Department of Fish and Game 1416 9"' Street Sacramento, California 95814 Telephone: (916)654-3821 Facsimile: (91 6) 654-3805 Email: ckennedv~,dfr.cn.eov

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LUPE ZAMORA
vs.

11

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of Appeal by

10

) SPB Case No. 10-4286

j
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DECLARATION OF JOSEPH OLVERA

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12

Appellant,

) SUPPORT OF OPPOSTION TO ) WHISTLEBLOWER COMPLAINT ) Hearing Dates: February 7,201 1 ) T~me, 12:OOp.m. ) Place: Rancho Cucamonga )

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DEPARTMENT OF FISH AND GAME, Respondent

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

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herein.

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

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.1'9 Administrative Officer IIJ in Region 6 of the Department of Fish and Game (DFG). I make this

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

2.

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

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

management for the region including, but not limilcd to, personnel issues and theproces3ing of

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

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contracts for Region 6. As part of my dities, I often serve a s the contact person in the region for any outside investigations, audits or other formal inquiries.
3.

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

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DPG as a Seasonal Aide at the San Jacinto Wildlife Area. Iwas aware in September 2009 that his season for 2009 was over due to the fact he had reached the maximum amount of hours that a seasonal employee can work for the Department. It is my recollection that Mr. Sewell informed Mr. Zamosa that his season ended in or about the end of September 2009. This was not unusual as Mr. Zamora's pattern of employment with DFG was to work from January through September i n any given calendar year.
4.

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7.

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

of State Audits, the California Highway Patrol, the California Department of Justice, tKe Governor's Waste Watchers, the county district attorney's office, DFG's Internal Affairs Unit o: the local law enforcement offices regarding the allegations of misuse, bribery, wrongful acceptance of gifts of the Home Depot gift cards in connection with the San Jacinto Wildlife Area, Mr. ~ e w e l l o Mr. 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 the name of the person who filed the complaint with the investigating agency.
5.

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

stating that there was a problem at the San Jacinto Wildlife Area. I did not recognize the voice and have no idea who the person was. There was no contact information.

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6.

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

Curt Taucher in January 2010. At that point, I contacted Eddy Konno and discussed the Agricultural Lease. It is my understanding that the lease was written by former DFG employee Thomas Paulek.

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DECLARATION OF JOSEPH OLVERA IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAOMT - 2

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

I declare under penalty ofperjury, u d e the ~ laws of the State of California, that the
above is true and correct. Date:

//2q/ L O / 1

Place: Los A/itim 3 Callfomla

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DECLARATION OF JOSEPH OLVERA IN SUPPORT O F OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 3

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Catherine Kennedy, 166910 Senior Staff Counsel D e p q e n t of Fish and Game 14169 Street 11 Sacramento. California 95814 Telephone: i916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@dfg.ca.aov

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BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of Appeal by

LUPE ZAMORA Appellant,
VS.

) SPB Case No. 10-4286 ) DECLARATION OF STEVEN

lo 11
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KOLLENBORN IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER ) COMPLAINT

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DEPARTMENT OF FISH AND GAME, Respondent

) Hearing Dates: February 7,201 1 ) Tie: 12:00 p.m. ) Place: Rancho Cucamonga

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.

1)

2.

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

management of the unstaffed ecological reserves in the southern portion of Region 6. 3. During the summer of 2009, I was contacted by DFG Thomas Trakes about some

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

DECLARATION OF STEVEN KOLLENBORN IN SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 1

Habitat Supervisor l l , Scott Sewell. I believe at that time Thomas Trakes had not yet been promoted to his current position as Habitat Supervisor I at San Jacinto Wildlife Area. Mr. I'rakes expressed concerns regarding the use of Home Depot gift cards to purchase supplies anr tquipment. As I recall, Mr. Trakes believed the use of the Home Depot cards were not ippropriate under the terms of the agricultural lease connected with the wildlife area. Mr. Trak

as seeking my help to contact Eddy Konno who was Scott Sewell's supervisor at the time. M
Crakes also requested to remain anonymous. Mr. Trakes indicated that I should expect to be :ontacted outside of DFG to investigate the matter.
4.

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

~f the Home Depot & cards. I did not provide Mr. Konno with the name of the employee whc
iontacted me about the situation when I called him.
5.

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

~fState Audits, the California Highway Patrol, the Califomia Department of Justice, the ?overnor's Waste Watcheri, the county district attorney's office or the local law enforcement ~ffices.

I declare under penalty of perjury, under the laws of the State of California, that the
bove is true and correct. )ate: California

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

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

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1 IIn the Matter of Appeal by

LUF'E ZAMORA Appellant,
VS.

) SPB Case No. 10-4286

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12

) DECLARATION OF CATHERME ) KENNEDY M SUPPORT OF OPPOSTION ) TO WHISTLEBLOWER COMPLAINT

DEPARTMENT OF FISH AND GAME,

) Hearing Dates: February 7,201 1 ) Time: 12:00 p.m. j Place: Rancho Cucamonga
)

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Respondent

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I, CATHERINE KENNEDY, hereby declare to the following:

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

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Senior Staff Counsel with the Department of Fish and Game (DFG). I make this Declaration based on personal knowledge and if called as a witness could testify to the contents herein. 2. Attached hereto as Exhibit "A" is a true and correct copy of SPB Order dated

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

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

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

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

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4

I declare under penalty of perjury, under the laws of the State of California, that
the above is true and correct.

Date: January 27,201 1 Place: Sacramento, California

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

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801 Caplloi Mall Sacramenlo. CA 95814

866-844-8671

1 w.spb.ca.gov

Governor Arnold Schwarzenegger

LUPE ZAMORA

v. DEPARTMENT OF FISH and GAME

Appeal from Termination of Limited Term Appointment and Whistleblower Retaliation Complaint

Case Nos. 09-6782 & 10-4286 ORDER

This matter came on regularly before Linda K. McAtee, Presiding Administrative Law Judge (PALJ), State Personnel Board (SPB), on December 2, 2010, at Sacramento, CA. Respondent, Department of Fish and Game (DFG or Respondent), was represented by Catherine Kennedy, Senior Staff Counsel, DFG. Appellant, Lupe Zamora, was represented by Sherry McPhee, Staff Counsel, Service Employees International Unron, Local 1000. On October 7, 2010, Respondent brought a Motion to Dismiss Appellant's Appeal from termination of his seasonal or limited term appointment and his Whistleblower Retaliation Complaint. Respondent's Motion to Dismiss asserts that, first, Appellant was never terminated from his Seasonal Aide appointment and, second, is not entitled to appeal a termination of a Seasonal Aide appointment pursuant to California Code of Regulations, title 2, section 282 which states that a limited-term employee has no appeal from the action.

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Lupe Zamora Case Nos. 09-6782 & 10-4286 Page 2 o f 3 Pursuant to California Code of Regulations, title 2, section 63.1, subdivision (dl, there 1 s no r~ght to appeal a termination from a limited term appointment to the State Personnel Board. The employing department is obligated t o conduct Name Clearlng Hearings when requested. Therefore, Appellant does not have a r~ght to hearing before the SPB on the asserted termination of his Seasonal Aide position. On October 21, 2010, after the Motion to Dismiss was filed, Appellant filed a Whistlebiower Retaliation Complaint with the SPB. That case has been assigned SPB Case Number 10-4286. Because of the pending appeal from termination of the limited term position, SPB Case No. 09-6782 and SPB Case No. 10-4286 were consolidated for hearing and set for January 11, 12, and 13, 201 1 in Rancho Cucamonga, California. Appellant's Whistleblower Retaliation Complaint was properly filed and will not b e dismissed by this order. Rather, his Complaint will be processed similar to all other complaints filed with the SPB under the California Whistleblower Protection Act Government Code section 8547 et seq., Government Code section 19683, and California Code of Regulations, title 2, s.ections 56 et seq. Respondents' time to file a written response to the Complaint shall be triggered by the setting of an informal hearing. (See CA Code of Regs., tit 2, section 56.4, subd. (a) (2).) The SPB will be in contact with Respondent and Appellant regarding the Whistlebiower Retaliation Complaint
ORDER

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Respondent's Motion to Dismiss the Appeal from the asserted termination ol Appellant's Seasonal Aide position is GRANTED and that appeal is DISMISSED and

Lupe Zarnora Case Nos. 09-6782 & 10-4286 Page 3 of 3 will be processed for closure. The January 2011 hearing dates are vacated. The

Whistleblower Retaliation complaint shall proceed. DATED: December 2,2010

Linda K. McAtee Presiding Administrative Law Judge State Personnel Board

DECLARATION OF M A I L ~ ~ G
DEPARTMENT REPRESENTATIVE COPY

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In the Matter of the Appeal by: Lupe Zamora Legal Office: Fish and Game - Legal 1416 9th Street Sacramento, CA 95814 Attn: Appellant: LuDe Zamora

Case No. 09-6782 Personnel Officer: Fish and Game Human Resources: K. Wroten 1416 9th Street Sacramento, CA 95814 Appellant's Representative: SElU - Rancho Cucamonga, Local 1000 10600 Trademark Pkwy North, Suite 405 Rancho Cucamonga, CA 91730 Attn: Sherry McPhee

(See Attached Documents) I, the undersigned, say and declare that at all times herein mentioned 1 was a citizen of the United States, over the age of eighteen years, and not a party to the above entitled proceeding; that I was employed in the County of Sacramento, State of California, and that my business address was 801 Capitol Mali, Sacramento, California. On the date shown below, I sewed the attached ORDERon each of the State agencies and persons hereinafter specified by placing true copies thereof in separate envelopes respectively addressed to said State agencies and persons named herein. Sa~daddresses were the last known addresses of specified agencies and persons. Each envelope was then sealed and deposited in the United States mail, at Sacramento, California, with postage thereon fully prepaid. On said date there was delivery service by United States mail at each of the places so addressed or there was regular communication by United States mail between said place of mailing and each of the places so addressed.

I declare under the penalty of perjury that the foregoing is true and correct.
Executed or) December 02, 2010 at Sacramento, California.

Tamara Lacey
cc:

RECEIYFD

c,'cc 0 :' 2013

MFIE OF THE G T N E R X LdUNa ,~p/ifl~,,',NI OF FISH CE(D G M

smnberrmgmw

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-

SEIU,LOCAL1000, CTW.0 CLC NOTICE OF APPEAL OR 'P.ETITIoNi :

.. .
&re Personnel Uonrd 801 Capitol Msli Sncramenlo. CA 95814 Dopl: of Ptaonncl Admlnistrnlion 1515 "St S m t l , Suile 400 Sncramero. CA 95814

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other

Scr Aside Rsignnion

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1 hereby nppal orptlilion h e ate^^ action on.bll gmunds permitre* by isw. I nquesl a hearing at the cariiesr cpnvenicnl lime.

I haw nulhotjvd lhc SElU Locsi 1000, loacr M my exclusive nprestnlativc and agent in rhis muler. Pita? ac d coprcs of all nolices lo at
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Catherine Kennedy, 166910 Senior Staff Counsel Department of Fish and Game 1416 9Ih Street Sacramento, California 95814 Telephone: (916)654-3821 Facsimile: (916) 654-3805 Email: ckennedv@df~.ca.gov BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of Appeal by LUPE ZAMORA Appellant,

vS.

) SPB Case No. 10-4286

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)

) DECLARATION OF DWIGHT GREENE ) SMITH IN SUPPORT OF OPPOSITION T c ) WHISTLEBLOWER RETALIATION

COMPLAMT

DEPARTMENT OF FISH AND GAME, Respondent

) Hearing Dates: February 7, 201 1 ) Time: 12:00 p.m. ) Place: Rancho Cucamonga

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I, DWIGHT GREENE, hereby declare to the following: 1. I a n over the age of I8 years and not a party to this action. I am employed as a

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

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

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

coordinate and manage workers compensation claims filed by current and former DFG employees. I have reviewed our files and the system maintained by State Compensation

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

Insurance Fund (SCIF) and I am familiar with the pending workers compensation claim for knee injuries filed by DFG employee Lupe Zamora.

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3.

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

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

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

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

perform his duties as a Seasonal Aide.

I declare under penalty of perjury, under the laws of the 3tate I / I of California, that the , , ' /' above is true and correct. /' ,.,/ ,'
Date:

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/' DWIGHT GREENE

DECLARATION OF DWIGHT GREENE I N SUPPORT OF OPPOSITION TO WHISTLEBLOWER RETALIATION COMPLAINT 2

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Catherine Kennedy, 166910 Senior Staff Counsel Department of Fish and Game 1416 9"' Street Sacramento, California 95814 Telephone: (916)654-382 1 Facsimile: (916) 654-3805 Ernaik ckennedv@dfe.ca.gov
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BEFORE THE STATE PERSONNEL BOARD

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In the Matter of Appeal by LUPEZAMORA Appellant, VS. DEPARTMENT OF FISH AND GAME,
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) SPB Case No. 10-4286

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) DECLARATION OF EDDY KONNO ) IN SUPPORT OF OPPOSTION TO ) WHISTLEBLOWER COMPLAINT

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Respondent
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) Hearing Dates: Febqary 7,201 1 ) Time: 12:OO p.m. ) Place: Rancho Cucamonga . . . , ; :.. . ) ;,,; .. . . .
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I, EDDY KONNO, hereby declare to the following:

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1.

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

Senior Environmental Scientist 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.

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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

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Marine Biologists, Wildlife Biologist, Staff Environmental Scientist, and was promoted to Senio Environmental Scientist in 2006. My current duties include management of DFG owned lands i

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

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the southern portion Region 6. This includes the management of 2 DFG owned wildlife areas including the San Jacinto Wildlife Area (Wildlife Area) and 17 DFG owned ecological reserves.

I supervise 17 permanent employees including my direct subordinate Wildlife Habitat Supervisor

I1 Scott Sewell.

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3.

I hired Scott Sewell to be the Wildlife Habitat Supervisor I1 for the San Jacinto

Wildlife Area. He also supervises a second wildlife area under my supervision. I do not

(participatein the decisions regarding the hiring of seasonal employees on the wildlife areas and did not participate in the decisions regarding the hiring of Mr. Zamora or the communication that his seasonal employment had ended for the year.
4.

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In early July or early August 2009, I received a telephone call from DFG

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11 used to purchase supplies for the Wildlife Area. According to Mr. Kollenborn, the employee's 1

employee Steve Kollenbom. Mr. Kollenbom stated that a DFG employee had talked to him and said t h a t he was uncomfortab1e with the arrangement with the use of Home Depot cards being

discomfort came because that employee did not think the arrangement was normal procedure

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Mr. Kollenborn did not identify the employee who was making the complaint. Steve Kollenbom
indicated that the California Highway Patrol was going to investigate the complaint. To date, I have never been contacted by an investigator or representative from the Bureau of State Audits, the California Highway Patrol, the California Department of Justice, the Governor's Waste

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Watchers, the county district attorney's office or the local law enforcement offices. To my

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

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matters pending regarding the allegations of Mr. Zarnora.

5.

I called my supervisor, Region 6 Deputy Regional Manager Chris Hayes to

determine how to handle the matter. We reviewed the Agricultural Lease Agreement and the provisions for the "in-hd" work by William and Nick Bruno under the agreement. We determined that it was better to give the lessees a list ofparts needed and have them buy the parts

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DECLARATION OF EDDY KONNO I N SUPPORT OF OPPOSTION TO WHISTLEBLOWER RETALIATION COMPLAONT - 2

directly instead of providing the Home Depot cards. Receipts and other record keeping were required to make sure that the value of the supplies/equipmentwas appropriately applied towards the rental obligation.
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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
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did not inform him that the telephone call had come from Steve Kollenborn and at that time I was still unaware of who had complained to Mr. Kollenbom.

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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 Trakes d that he was the one who spoke to Steve Kollenborn. I confirmed this information with Steve Kollenborn. I did not pass this information on to Scott Sewell. It is my understanding thatScott

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Sewell did not know of Mr. Trakes spoke to Mi. Kollenborn about the gifl cards until late springlearly summer in 2010 when Mr. Trakes admitted to the fact during a staff meeting. Mr. Trakes continues to be employed with DFG in his role as the Wildlife Habitat Supervisor I at the Wildlife Area.

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8.

After being told his season was over in September 2009, Lupe Zarnora contacted

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me a few times. Initially, he asked why he was fired. I informed him that it was my understanding that he was not terminated from employment with DFG but that his season was over for the year. I believe that I used the same phrase that our HR representative instructed Scon to use - "there is no work for you at this time." Subsequently, Mr. Zamora requested a letter from DFG setting forth all of the reasons he was terminated. I confirmed with Chris Hayes that DFG does not send out written documentation when a seasonal employee's regular season had

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ended. I again informed Mr. Zamora that he was not fired and that I was not going to comply with his request for a letter,

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

9.

In December 2009, I received a voice-mail message from Mr. Zamora asserting

/that h i was the one who was the "whistleblower." This was the first time I heard that Mr. Zamora claimed to have participated in any way to bringing the Home Depot gift card concern forward. It was well after his season had been terminated in September 2009 and after Mr.

Zamora filed his initial appeal with the State Personnel Board alleging retaliation.
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At no time has Scott Sewell denied the Home Depot gift card arrangement that

was created as a means with the Lessee to fulfill his obligation to provide in-kind services under the Agricultural Lease. My review of the facts and documents concerning this arrangement and my discussions with other DFG employees did not convince me that no bribery or illegal gifts were being given to Scott Sewell nor was he soliciting them for personal gain. Although I instructed the use of the gift cards to cease, I did not see any grounds to Initiate disciplinary proceedings against Mr. Sewell.
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I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct.

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18 ,Taw / / PI/+ . Place: 6e rwvJ4 , Callforma

Date:
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PROOF OF SERVICE

I hereby declare as follows: I am employed in the County of Sacramento, State of California. I am eighteen years of

ge or older and am not a party to the within entitled action. My business address is: Departme1
f Fish and Game, Office of General Counsel, 1416 9ThStreet, Sacramento, CA 95814

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

Respondent's Opposition to Whistleblower Retaliation Complaint; Declaration of Kyle Chang; Declaration of Scott Sewell; Declaration of LaPezra Smith, Declaration of Kimberly Nicol; Declaration of Joseph Olvera; Declaration of Eddy Konno; Declaration of Dwight Greene; Declaration of Catherine Kennedy ,y placing a true copy thereof in the manner set forth below and addressed as follows: heny McPhee, Esq. EIU Local 1000 3600 N. Trademark Parkway, Suite 405 ancho Cucamonga, CA 91730 mail: SMcPhee@SEIUlOOO.org tate Personnel Board ppeals Division 11 Capitol Mall icramento, CA 95814 ia Email: Appeals@spb.ca.gov By Personal Delivery in a Sealed Envelope Addressed as Indicated

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

0 Via United States Postal Service Mail

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Via Facsimile Transmission at the Facsimile Number(s) Indicated

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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in

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801 Capitol Mall Saaamnto,CA95814 ( -71

umw.8~5 ca g w

Governorhkl Sehwacenagger

November 17,2010 John McCamman Thomas Gibson, Esq. 1416 Ninth Street, 12" Floor Sacramento, CA 95814 Re: L u w Zamora v. California De~artment of Fish and Game et. a/. SPB Case No. 10-4286N;Whistleblower Retaliation Complaint

Dear Mr. McCamman and Mr. Gibson: The State Personnel Board (SPB) has received the enclosed amended whistleblower retaliation complaint filed by former Califomia Department of Fish and Game (DFG) employee Lupe Zamora against the DFG as well as its employees: Wildlife Habitat Supervisor IIScott Sewell and Regional Manager Eddie Kono. The SPB has determined that Mr. Zamora has met all necessary filing requirements as against DFG, Mr. Sewell, and Mr. Kono. Accordingly. we will review the matter pursuant to the provisions of Government Code sections 8547 et seq., and 19683, as well as California Code of Regulations, title 2, sections 67 et seq. In addition to filing the instant amended complaint, Mr. Zamora has appealed his dismissal in SPB Case Number 096782. Because Mr. Zamora is alleging in his whistleblower retaliation complaint that DFG andlor its employees terminated him for making protected disclosures pertaining to improper governmental activities engaged in by DFG andlor its employees, the whistleblower retaliation complaint in SPB Case umber 10-4286 and the appeal of dismissal in SPB Case umber 09-6782 will be consolidated pursuant to California Code of Regulations, title 2, section 67.8. Because Mr. Zamora is seeking remedies against Mr. Sewell and Mr. Kono, and they may be subject to liability if it is determined that they retaliated against Mr. Zamora, Mr. Sewell and Mr. Kono will have an opportunity to present evidence to the assigned administrative law judge, consistent with California Code of Regulations, title 2, section 67.8, subdivision (c). By this letter, the SPB is also notifying Mr. Sewell and Mr. Kono that a complaint has been filed against them and of their right to respond to the complaint. During the course of the consolidated hearing, the Department will bear the burden of proving, by a preponderance of the evidence, those allegations contained in the Notice of Adverse Action (NOAA), assuming a NOAA was sewed, that led to Mr. Zamora's termination. Mr. Zamora will have the burden of proving, by a preponderance of the evidence that he has been retaliated against for having engaged in protected activities under the California Whistleblower Protection Act. Should Mr. Zamora meet his burden. the Department and Mr. Sewell and Mr. Kono will be required to prove, by clear and

Zamora Whistleblower Complaint November 17,2010 Case No. 10-4286 Page 2 of 2 convincing evidence, that they did not retaliate against Mr. Zamora as a result of his having engaged in protected activities. You may contact Senior Staff Counsel Van Nguyen at the above-listed address or by calling (916) 653-1026 if you have any questions or concerns regarding this matter.

E X S ~ ~Officer N~

Enolosures

cc:

Lupe Zamora (do Sherry McPhee wlo enclosures) SElU Local 1000 10600 N. Trademark Parkway, Suite #405 Rancho Cucamonga, CA 91730 Scott Sewell Dept. of Fish and Game 17050 Davis Rd. Lakeview, CA 92567 Eddie Kono Dept. of Fish and Game 3602 Inland Empire Blvd. Ontario, CA 91764

PAUL E. HAKKIS. 111. Chief Cou~iscl (SHN 180265) SHERRY MCPHEE. Stal'f Counscl lSBN 163232) Service Employees International Union, I,ucal IMH) 1060() N. Trademark Pnrkway, S u ~ t e W0.5 Rancho Cucamonea. CA 9 1730 Tcl: (909) 466-5057 Fax: (909) 466-8249 Altorne s for Appellant LUPE

JAMORA
BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA
)

SPB Cose No.: (wl~istlcblowcr) to be assigned SPB Case No.: 09-6782 (Appellant's Appeal of Dismissal)

.UPE ZAMORA, v.
3y DEPARTMENT OF FISH AND

) )

)
)

) ) WHISTLEBLOWER COMPLAINT

;AME for rhe STATE of CALIFORNIA. ) and ;cotto Sewell. and iddie Kono
) )

NATURE O F COMP1,AINT The Department of Fish and Game ("DFG") has retaliated against me after 1 reported that ;cot( Sewell. Wildlife Habitat Supervisor 11, was improperly receiving Home Depot gift cards and
ltller

gifts from a lessee of state properly. Since reporting these issues, I was terminated from DFG. 11.
STATElMENT OF FACTS

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

1993,. After heing oft' for four years due to an on the job injury. I returned to work in 2007. worked 2008 and 2009.

2. As a seasonal aid I am familiar with the prohibition against accepting gifts from members
of the public who conduct business with DFG.

3. 0 1 1 or about February 24.2009.1 discovered that Bill Brnno. a farmer. leasing public land,
I was O W fnr ;tpprc~rirnatrly four years due to an on lhe job injury.

WHISTLEBLOWER COMPLAINT

w:~sg i v i ~ ~ gilt g c:~rtlslo Mr. Scwcll. Mr. Bruno gnvc inc oppmxiinatcly two $500 t1o111c Ikpot gilt cards to give to Mr. Sewcll. Mr. Scwell instructed me to put these gift cards on
his dcsk.
4. On or nhout April 22, 2009, Mr. Bruno gave me approximately three Home Depot gift

c;~rtls valued ;it ahout $400 cach to give to Mr. Sewell. I then called Mr. Sewel who ;~skctl to spcak to Mr. Bruno. I &uld hear Mr. Scwell tell Mr. Bruno not togive thecards
lo anyone hut 11i1n.

5. On or ;lhout Mny 18.2009. Mr. Bruno and his son went to the DFG office. I witnessed Mr.

R~.uno opcn up his wallet and ask Mr. Sewell how much money he needed this time. Mr. Scwell stated something to the el'fect of, "No, no. Not here, let's take it down to my house."
6. On or about August 7.2009.1 reponed to Mr. Sewell's supervisor, Eddie Kono. Regional

Manager of DFG, that Mr. Sewcll was receiving Home Depot gift cards from Mr. Bruno. Mr. Kuno said that he would take care of it and instmct'ed me not to tell anyone about it.
7. On or about September 16,2009.1 called the State Auditor whistleblower hotline at (800)

952-5665. Kay tmm the State Auditor's office called me multiple times. I reponed to her the improper activities described above regarding Mr. Bruno and Mr. Sewell. I also ~rported that Mr. Sewell had directed me to work on private land during state time.

8. On or about October 29.2009. Mr. Sewell called me and said something to the effect of,
"You're no longer working for DFG. It's not from me but from a higher power. You will never work for DFG anymore." 9. Mr. Sewell knew prior to October 29, 2009. that I was a whistleblower. Warden, Kyle Chang advised Mr. Sewell not to fire me because I was a whistleblower. 10. On or about December 30.2009. Mr. Kono called me and stated something to the effect of. "You no longer work for DFG. Scott Sewell doesn't have a job for you."
I I . I believe that I was tired by Mr. Sewell and Mr. Kono in retaliation for reporting Mr.

Sewell's improper activities to Mr. Kono and the State Auditor. 12. Mr. Sewell and Mr. Kono's business address is Department of Fish and Game 17050 Davis Road, Lakeview, CA 92567 and 3602 Inland Empire Blvd. 0ntario.CA 91764.

WHISTLEBLOWER COMPLAINT

13. A compi:~inthas not been filcd with the Officc of the inspector General
111.

DAMAGES

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

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

including interest.

3. 1 am requesting compensatory damages.

4. 1 am requesting any other remedy the State Personnel Board deems appropriate.

IV.
SWORN STATEMENT

I declare, under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge and belief.

WHISTLEBLOWER COMPLAINT

PROOF O F SERVICE CASE NAME: Lupf Zamora - SPB Case No. 09-6782

I am a citizen o f the United States and a resident o f the County o f San Bernardino, California. L arn over the age o f eighteen (18) years and not a party to the above entitled action. My business address i s 10600 Trademark Parkway North, Suite 405, Rancho Cucamonga, California 91730 I am familiar with the Service Employee's International Union practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a United States mailbox at the close o f each day's business.
On October 21, 2010 1 served the following: WHISTLEBLOWER COMPLAINT

[XJ (BY MAIL) placillg a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Rancho Cucamonga, California, addressed as set forth below. SPB Appeals 801 Capiatol M a l l Sacramento, C A 995814
[XI
(BY ELECTRONIC MAIL) TO: SPB Appeals - Ao~eaIs~sob.ca.eov

(BY OVERNIGHT DELIVERY) by placing a true copy thereof enclosed in a [J sealed envelope, with delivery fees paid or provided, and placed in the designated receptacle for such overnight mail, addressed as set forth below. I n the ordinary course o f business, mail placed in that receptacle i s picked up that same day for delivery the following business day.
(BY PERSONAL SERVICE) by delivering by lland and leaving a true and [I correct copy with the person at the address set rorth below.

I declare undcr penalty of perjury undcr the laws o f the State of California that the foregoing i s true and correct and that this Declaration was executed on October 21, 2010, at Rancho Cucamonga, California.