From: VC Star
By: Kathleen Wilson
A judge has decided not to grant an order to keep fired investigative commander Tracy Towner off the job he lost in the Ventura County District Attorney's Office more than two years ago.
In a 20-page ruling issued last week, Ventura County Superior Court Judge Mark Borrell found the county government had not demonstrated any grounds for "disturbing" last year's decision by the Civil Service Commission to reinstate Towner. He denied the county's request to nullify that ruling.
Towner had worked in the DA's office for 20 years before he was fired from his $174,000-a-year job as an investigative commander for alleged dishonesty in April 2018. The termination was based on his allegedly false testimony at an appeal hearing over a promotion that his friend, investigator Kimberly Michael, sought unsuccessfully in 2016.
Towner testified that he had learned of an attempt to intentionally give Michael a failing score on an assessment for another promotion she did not receive two years earlier. He misunderstood the situation but believed his testimony was true and should not have been fired, the commission concluded.
The commission ordered Towner reinstated to his position with full back pay and benefits, which likely exceed $430,000 by now. The figure does not include the county's legal costs.
Towner eager to return
It's not clear under what terms Towner would return to the county's payroll, but the 58-year-old Ventura man said late Friday that he was gratified the judge had upheld the independent commission's decision. He said he was eager to return to duty.
"I can’t wait to begin working for the citizens of Ventura County and with my colleagues in the Ventura County District Attorney's Office again," he said.
Borrell suspended the commission's decision to reinstate Towner a year ago, pending a ruling on the merits of the county's lawsuit against the commission. Now that he has ruled, the suspension should be lifted and the commission's decision should take effect absent any further court action, said Towner's attorney, Bill Hadden.
"It's what we asked for," Hadden said of the ruling.
"It is big. It is big for everybody involved," he said. "His life has been on hold for about three years now."
The commission's lawyer said the panel of Ventura County residents that heard the case worked hard to ensure a fair and just decision.
"The court's well reasoned and comprehensive decision appears to recognize this," attorney Grant Burton said.
Chief Deputy District Attorney Chuck Hughes said Friday that he had not yet seen the ruling. "We'll evaluate it when we get it and determine next steps," he said.
The county challenged the commission's decision on a number of grounds, but Borrell did not find the claims persuasive.
Included were arguments that the commissioners hearing Towner's appeal were biased and should have recused themselves, that their written findings were inadequate and that they failed to receive evidence that Towner had allegedly lied in an unrelated context. The county also said the commission's conclusion that Towner had not willfully given false testimony was unsupported by the evidence.
The county said the commission should have appointed an independent hearing officer to hear Towner's termination appeal because the panel had previously found Towner credible during Michael's promotion appeal.
Borrell, though, said the earlier finding did not categorically disqualify the panel from hearing Towner's termination appeal. Fears that the commission would not keep open minds in Towner's termination appeal seem in hindsight to be "entirely unwarranted," he wrote.
He also found that the commission had more than adequately explained the reasons for its judgment in the written decision.
No abuse of discretion
The local government also said the commission had abused its discretion and denied the county a fair hearing by refusing to consider evidence that Towner had falsely completed a disclosure form filed with the U.S. Securities and Exchange Commission for his advisory investment business.
The government argued that made it more likely that he testified untruthfully in the Michael appeal, Borrell said.
But the judge said the commission's decision to exclude the evidence was not an abuse of discretion for several reasons, including the lack of connection to Towner's firing and no clear demonstration the SEC document showed a willful falsehood.
During Michael's hearing in 2017, Towner testified that he had learned of an intentional attempt to give her a failing score on a prior review for promotion. He was told by investigations bureau Chief Mike Baray and Senior Investigator Tom Mendez that Deputy Chief Ken Valentini had directed Mendez to fail Michael, Towner testified.
Towner was in error, according to the commission. The discussion actually concerned language that Valentini suggested be added to Michael's performance evaluation in 2013 to show she was being investigated for allegedly surreptitiously recording a conversation between Valentini and a third party, the commission said. No wrong-doing was found, Burton said.
The judge found the evidence reasonably supported the commission's finding that Towner had misunderstood his conversations with Baray and Mendez.
The county also disputed the commission's conclusion that Towner would not lie under oath and jeopardize his career as a sworn investigator solely because of his close relationship with Michael, saying that was contrary to the weight of substantial evidence.
In fact, the commission concluded that Baray, Mendez, Towner and Valentini would not intentionally give false testimony given what could be at stake if they were found to have lied, Borrell said.
The commission concluded that it was "not believable" that Towner would do so solely because of his close relationship with Michael, nor that the other three officers would engage in a coordinated effort to deceive the commission.
It was not clear Friday whether District Attorney Greg Totten would continue to fight Towner's reinstatement.
Hadden said the DA's office could try to get the decision reversed in the state Court of Appeal.
"I am sure we're not done with it," he said.