Arbitrator Overturns Termination for Yolo County District Attorney Investigator

Posted by Daniel T. McNamara

After seven days of hearing, Arbitrator Robin Matt recently reinstated a Yolo County District Attorney investigator who was fired after authoring a published letter accusing the District Attorney of unethical practices. Investigator Rick Gore settled his claims against the County and District Attorney Reisig, following the arbitration decision, and resigned.

Termination Follows Public Charges Of Misconduct In Death Penalty And Gang Case

Gore’s charges against Reisig primarily involved Reisig’s conduct during a death-penalty prosecution and a civil injunction proceeding against a street gang. In early 2008, Gore had pressed Reisig about an alleged failure to disclose exculpatory firearms evidence in a death-penalty prosecution. He also had expressed concern over whether Reisig was serving papers in the civil injunction in a manner calculated to prevent the gang members from contesting the injunction in court.

Concerned he would be fired for pressuring Reisig on these issues, Gore authored an explosive letter accusing the D.A. of unethical and inappropriate practices. Gore sent the letter to the Yolo County Counsel’s Office, the Public Defender, the State Bar, and the California Attorney General. The letter received widespread media coverage in Yolo and Sacramento counties. Reisig fired back with a 22-page notice of termination alleging violations of office confidentiality, destruction and concealment of evidence in a criminal investigation, compromise of a criminal case, insubordination, off-duty misconduct, improper contact with the media, and unwarranted criticism of persons and procedures. Reisig also contended Gore would no longer be able to testify because his office would have an obligation to disclose to defense attorneys that, in Reisig’s view, Mr. Gore had made false statements in his letter.

District Attorney Levies Criminal Charge: Not content with the administrative charges, Reisig started a criminal investigation based on an allegation Gore had violated Penal Code section 135 by erasing information relating to the letter from an office computer. Reisig claimed Gore, through his letter, had requested an investigation and then “destroyed evidence” relating to that investigation by deleting the material on which his letter was based from his computer. The accusation, a misdemeanor, was “under investigation” for over a year and assigned to three separate law enforcement agencies. No criminal charges were ever filed against Gore.

Reisig also accused Gore of compromising other criminal cases because other investigators had been cross-examined in court about the contents of the letter. Reisig asserted Gore was responsible for a defense lawyer’s attempt to cross-examine another district attorney investigator about a claim the investigator had perjured himself in a previous trial. Gore had never made the allegation; instead, that information was contained in a confidential interview Gore gave to a Yolo County Human Resources investigator. The County released the findings of the “confidential” investigation to the media and then, incredibly, tried to punish Gore for the impact of the public release of the information.

Arbitrator Matt issued a 58-page decision in which he overturned the termination and found all but two of the allegations against Gore to be unsupported. Mr. Matt did not rule on the Penal Code section 135 charge, finding it was beyond his authority to adjudicate a criminal charge. He also found that, to the extent any criminal case was compromised, the County had created its own problem by publicly releasing the information. He ordered Gore reinstated.

Mr. Gore is grateful for the assistance of the PORAC Legal Defense Fund, without which he could not have reached the results in his case.

Daniel T. McNamara is an associate attorney with Mastagni, Holstedt, Amick, Miller & Johnsen, where he represents PORAC LDF members in administrative and criminal cases. He represented Rick Gore in his administrative appeal