A state administrative law judge has ruled that Ed Stewart, the former head of Marin County's Environmental Health Department who was thrown out of his office last September on five minutes notice, and fired this January, was discharged for reasons other than misconduct and is therefore eligible to collect unemployment insurance benefits.
Stewart had complained that Supervisor Steve Kinsey was interfering with the work of Dave Mesagno an experienced septic system inspector. They both filed a series of grievances, with Stewart filing under the so called "Whistleblower's Ordinance." County officials deny the men were fired because of their complaints, although, with both men out of the way, septic system regulations are being revised and relaxed and Supervisor Kinsey was exposed for having an illegal septic system and illegally constructed living units on his property.
Shortly after being officially notified that he was fired in January, Stewart a county employee for twenty eight years with an unblemished record, applied for unemployment insurance benefits. He decided to do whatever he could to clear his name and to get his job back.
Since Stewart had never been warned or cautioned by his superiors that anything was wrong, or that he was in danger of dismissal, he was quickly approved for benefits. The County was later notified that the reasons it gave for firing Stewart "did not meet the definition of misconduct connected with work." The County appealed the decision and a hearing was held May 25, 2000 in Santa Rosa before Administrative Law Judge Sean Claymore.
At the hearing, the attorney for Gates/McDonald, the County's insurance carrier, did not produce any of the individuals who instigated the charges of sexual harassment and discrimination which allegedly led to Stewart's dismissal-nor were any declarations from witnesses produced. It was claimed that witnesses were not available because, "they had been subpoenaed for a personnel hearing in Marin and had to be available to appear at that forum" (The Marin County Personnel Commission held it's first hearing on May 10th and it's second hearing was scheduled for June 22)
Judge Claymore ruled, "The employer's decision to terminate the claimant ...is not questioned. However, to sustain a finding that the discharge was for misconduct connected with the work, the employer must show the discharge was for a deliberate, willful or wanton breach of an important duty owed the employer. In the present case, the employer has failed to sustain its burden".
What is strange and confusing about the specific reason for Stewart's dismissal offered to Judge Claymore, i.e. "gender discrimination," is not among the charges being heard before the Personnel Commission in Marin. Stranger yet is that according to Unemployment Insurance records Gates/McDonald stated that Stewart had voluntarily quit because of "dissatisfaction with his job".
According to Stewart, two county officials, one from Health and Human Services and the other from the Community Development Agency appeared with the attorney representing the county. When the Judge asked if the person who filed the gender discrimination charge was present and was told "no." He stood up, appeared incredulous, and asked the attorney, "Do you realize that everything from here on is hearsay?"
According to Stewart, the judge said to the attorney, " Do you mean to tell me that this man has been terminated after twenty eight years and now you are attempting to take away his unemployment benefits and you haven't even brought the witness that brought the grievance?"
The judge allowed the introduction of the charges contained in Stewart's letter of termination but then closed the proceedings stating he had heard enough.
The County still has one more level of appeal left, which is to a panel of Administrative Law Judges who report to the full Board of Unemployment Appeals in Sacramento. It is not yet known if the county will appeal further
There are eleven appeals offices throughout the state which hear approximately 200,000 cases a year. Of these, eight percent, or about 16,000 of are appealed Of the latter, about eight percent are appealed to Sacramento where about a thousand are reversed.
Administrative Judges are completely separate from the Unemployment Department (EDD). Their findings may not be used as evidence in wrongful termination law suits, however, considering Steward's case, if he does not get his job back, it seems clear he may hit the jackpot in Superior Court and Marin County taxpayers will be big time losers-but that will be years from now and who will remember.
Stewart said that during his initial unemployment interview he was repeatedly asked, "How many documented warnings did you receive?" When he repeatedly said 'none' the interviewer became silent and began to laugh. "Do you mean to tell me you worked there for twenty eight years, never got a documented warning, and you were fired? he said.
Hard to believe, but true.