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Wednesday, February 04, 2009

Former UC Davis Officer Claims Violation of Settlement Agreement

Documentary Evidence Suggests University Failed to Adhere to Their Terms of Agreement

On Monday the Vanguard ran a story on the lawsuit filed by former UC Davis police Officer Calvin Chang. The story has since been covered in detail in the California Aggie and mentioned briefly on the Davis Enterprise website. At this point, one of the hang ups has been that the university has not been served and thus not officially notified with the complaint. So at this point they cannot respond.

The Vanguard spoke briefly to UC Davis Police Chief Annette Spicuzza and Julia Ann Easley, Senior Public Information Representative at UC Davis News Service.

The Vanguard has now received a copy of the settlement agreement between Officer Chang and the university since in February of 2008. In that agreement, Officer Chang was to be paid by the Regents a sum of $240,000 of which $66,000 would go to his attorney.
"In exchange for the promises and warranties of CHANG as set forth below the REGENTS shall pay the total sum of $240,000 (two hundred forty thousand dollars). The $240,000 will be paid in two separate checks - one payable to Calvin Chang in the amount of $174,000 and the other check payable to James McGlamery in the amount of $66,000."
In addition to the monetary terms there were several key non-monetary provisions including the removal of identified negative documents from Calvin Chang's personnel file.
“To remove certain identified negative documents from CHANG's official personnel file and place them in a separate confidential file (''unsanitized file”) that will be maintained in the office of Campus Counsel, Steve Drown. CHANG, his attorney, and the attorney for the REGENTS will meet to cull through the official personnel file to determine which documents constitute such “negative” documents. A list of the documents that are removed from his personnel file and placed in the separate '''unsanitized file'' will be compile and attached hereto as Exhibit A.”
Moreover, for future employers, information would be limited to dates of his employment, title, and the fact that he has voluntarily resigned.

Specifically it authorizes that the regents will keep the "currently pending laundry-room Internal Affairs investigation open as "not completed." The University will expunge from Officer Chang's personnel file all letters or reprimand older than six months.

Here is the full listing of the items specifically agreed upon by both parties to be removed:

The complaint alleges a breach of contract stemming from the university not adhering to the terms of this agreement.

According to the complaint:
“A fundamental obligation of the settlement was to also preserve Plaintiff's peace officer career and coveted public safety retirement. As such, the settlement imposed a fundamental and material obligation on Regents as established by paragraph 2 of the settlement, that certain negative documents, that were the product of discrimination, be expunged or removed from his personnel file, and otherwise to comply with his rights under the Public Safety Officers Procedural Bill of Rights Act (Govt. Code § 3300 et seq., hereinafter "POBR").”
It continues:
Specifically, pursuant to the terms of the settlement, Spicuzza met with Plaintiff and counsel in open session, to review and agree on the removal of documents according to the obligations stated above as outlined in paragraph 2 and "Exhibit A" of the settlement. As a result of this obligation, pursuant to the terms of the settlement, the parties generated "Exhibit A," that delineated the documents to be placed in or removed from Plaintiff's personnel files.
This allegedly did not happen.
“However, defendant Regents unlawfully placed into Plaintiff's personnel file, adverse documents that negated the purpose and effect of the terms of the agreement. These documents have irreparably harmed Plaintiff's ability to successfully obtain other employment as a peace officer and have effectively denied him the ability to continue in his career.”
Instead the complaint alleges that a number of items were placed into Mr. Chang’s personnel file.
“Regents placed into and failed to remove from Plaintiff's police department personnel file, a letter dated January 18, 2008, authored by Spicuzza that placed Plaintiff on "administrative leave."
Regents also placed into and failed to remove from Plaintiff's police department personnel file two additional letters referring to and revealing the "Settlement" and to his "resignation."

Regents also placed over one hundred pages of negative documents into Plaintiff's peace officer personnel file located at the Office of Campus Counsel. Said documents consist of the most inflammatory and derogatory material, false allegations against Plaintiff, and Plaintiff's complaints against other peace officers, as contained in the full bound unredacted Seyfarth Shaw workplace investigation report.

Regents also placed into and failed to remove from Plaintiff's peace officer personnel file, two versions of a Kilday & Kilduff report adverse to Plaintiff's interests - regarding internal affairs investigations that Regents launched against Plaintiff immediately after Plaintiff was reinstated in 2004. Plaintiff is informed and believes, and thereon alleges, that said documents include, a yet to be fully disclosed, unwarranted internal affairs investigation against him by Regents in 2003 for alleged "insubordination" that consisted of "talking about his discrimination complaint."
According to the complaint, Officer Chang only became aware of these breaches after he was denied an employment position by several law enforcement agencies including the city of Davis. Recall that according to the settlement agreement, the university had very specific provisions about how requests for information were to be treated and what information they were to give out.

Instead according to the complaint:
“On July 22,2008, Campus Counsel Steve Drown told Plaintiff that REGENTS showed to the background investigator the above breaching documents, including the Seyfarth Shaw report as well as two versions of the Kilday Kilduff reports. Drown declined Plaintiff's request to read the documents, and declined to show Plaintiff the documents that were contained in his peace officer personnel file.

Plaintiff informed Drown that the documents were not to be in his personnel file, were in violation of the settlement, and that he requested to read them, that REGENTS must remove them, and allow him to provide a response to them after he has read them.”
According to the settlement agreement, the “laundry-room” investigation would be classified as open and “not completed.”

In fact, the complaint alleges that agreement was entered in based on fraudulent information and even then the defendants did not adhere to those provisions.

“As a direct and material obligation of the Settlement, Regents represented that the Laundry Room IA was still pending, had not been concluded, and would be maintained indefinitely as an "open investigation."

On or about February 4, 2008, in the presence of counsel for Regents, Spicuzza, a peace officer, verbally stated to Plaintiff that the Laundry Room IA had no finding, and further represented to Plaintiff that Regents would never disclose the existence or any information regarding the investigation to any party, including to any prospective employer - because it was an "open investigation." This obligation was material and conclusive in that the disclosure of the existence and the "open status" of an IA would substantially foreclose on the ability of a peace officer to obtain other police employment with a prospective employer.

In addition to fraudulently misrepresenting to Plaintiff that the IA had no finding, and would remain open as pending, when in fact this was untrue, Regents and Spicuzza concealed this fact from Plaintiff, in order to further its fraud, duress, and misrepresentation to support constructively discharging Plaintiff's employment through a fraudulent settlement agreement.

Among other things, Plaintiff was induced by Defendants' misrepresentations to enter into the settlement agreement and release certain claims and his pending discrimination lawsuit, and would not have done so if the Defendants had not made false representations, or concealed and failed to disclose the material information alleged above. This further denied Plaintiff his statutory rights under the Public Safety Officers Procedural Bill of Rights Act (Cal. Gov't Code § 3300 et. seq.).”
“Plaintiff is informed and believes and thereon alleges that Regents have disclosed to the news media that the IA was in fact closed as "sustained" against Plaintiff and that Plaintiff "resigned" as a result of the IA. Plaintiff discovered this fraud when he was contacted and questioned by the news media about what misconduct he had engaged in to be terminated from his position as a police officer.”
Brief Commentary:

Based on a reading of the settlement agreement, it would appear that Officer Calvin Chang would have a case against the University for breach of their settlement agreement. This is particularly damaging if true because the university would have interfered with his ability to receive new employment.

As originally mentioned, the university has not received a copy of the complaint and we have not heard their side of the story. The Vanguard will continue to follow this case as more developments occur.


Julia Ann Easley, spokesperson for UC Davis emailed the Vanguard Wednesday afternoon with an official statement from the University:
Although the university has not been served, a lawyer representing the University has reviewed the complaint filed by Calvin Chang.

The university believes the case has no merit.

The university entered into a settlement agreement with Mr. Chang in 2008 to resolve all of his employment-related claims and secure his resignation from the police department.

As a term of the settlement agreement, Mr. Chang agreed that anytime he signed a waiver authorizing a prospective employer to review his personnel file, the potential employer or its agent would be given access to Mr. Chang¹s entire personnel file. The university believes that it has complied with these and all other terms of the agreement.

Once the lawsuit is served on the university, the university will have 30 days to file a response with the court.
---David M. Greenwald reporting