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"Be vewy, vewy quiet about this!"
There is exactly one thing that is in exactly one respect funny about the whole Carlos Bustamante situation and that is this: Tom Mauk permitted Busta to quit and paid him 3 month’s salary to prevent him from suing the County.
In reading commentaries about the matter, I’ve realized that people don’t know exactly what was going on here, so I’m going to explain it to you.
This sounds like what is called a “settlement agreement” in an employment law case — and I would love to know more about it. This is what you’d expect to see when Bustamante was threatening a lawsuit against his employer, the County, and the County says “OK, we’ll give you some money not to sue us, just sign this agreement and go away.” In this case, I might imagine, Bustamante may have been prepared to — and may have actually begun to, for all I know — sue the County for something like defamation. You know, calling him a serial groper and masturbator-in-front-of-er young vulnerable female employees. How would you like people saying that sort of thing about you? “Why,” I can imagine Bustamante’s lawyer saying, “it’s an outrage! My client is willing to leave your employment, but he must be compensated!”
Here’s what’s funny: what is the County supposed to get out of an agreement like that? What do they want even more than to pay out only three months salary rather than six months?
Secrecy.
That’s the nasty thing about plaintiff’s employment law. I’m not a district attorney out to serve the public; I’m there to represent a client, often one who — like Bustamante, I suppose, though I have never had a situation like this one — faces a future of reduced income potential and has this one chance to recoup some of their losses. Personally, I have an interest in getting wrongdoing employers to reform, so I may explain to my opponent exactly how I found out about things, how other people are likely to find out as well, how if they have any brains they will fix the problem of their awful employees who did these terrible things to my client — and then, rather than bringing everything into the light of day in a lawsuit, I’m willing to trade my client’s confidentiality for a cash settlement, because that’s what’s in their best interest.
You can look upon this as a privately imposed fine — and I can tell you from experience that it often works to fix problems even better than a DA does. At its most efficient, it doesn’t require an expensive trial. Once one gets to the point of filing a public complaint, being able to bargain away secrecy is no longer on the table.
So if, as I suspect, this was a plaintiff’s employee’s law settlement agreement, Bustamante would be telling the County “in exchange for three months’ salary, I promise not to tell the world about how you, my employer, defamed me and damaged my ability to earn an income.”
Does that seem a little screwy to you in this case? Who really wanted secrecy here? I think the person who wanted secrecy — and I can’t remember this ever happening in my practice — is the prospective plaintiff, not the defendant employer. Or — at least not the defendant employer itself. The defendant’s agent — someone whose complicity in failure to supervise Busta (or worse) might be exposed — well, maybe they would like secrecy too. But, in that case, they’d be negotiating a settlement based on their own interests rather than that of the employer whom they represented. That … would be really bad.
Now, the Orange County Government might have legitimately wanted secrecy here so that prospective plaintiffs would not be heading into court to sue them for Bustamante’s harassment, for which the Orange County Government (as his employer, and the more so if as his negligent or complicit employer) would be jointly liable. But that would be an odd situation of “we don’t want you to be vewy vewy quiet because we did something bad that we don’t want the world to know about; we want you to be vewy vewy quiet because you did something bad and we are going to be on the hook for it.”
I suspect that a private employer would get away with that. With a public employer, and especially with the behavior in question asserted to be criminal behavior, I have my doubts. Then, it starts to look like an illegal cover-up. As a lawyer, I’d need to think very hard about whether I could even be party to that. I suspect that I couldn’t.
And that raises a question in my mind — did Bustamante even have a lawyer representing him going into the settlement? More to the point — had he even threatened to bring forth a case of defamation, etc.? Is it possible that the idea of a settlement agreement giving Bustamante some cash to keep quiet did not originate with Bustamante, but from someone with the County, someone who also had his or her own reasons to want to keep the whole matter secret?
I don’t do criminal law, but from what I remember if the settlement offer came from the County without there being a demand, to ensure silence, I think that this crosses into a whole new level of wrongdoing.
Right now, the Supervisors are considering firing Tom Mauk. Can you imagine if Bill Campbell wanted to give him three month’s salary in exchange for maintaining his secrecy about this matter — say, to refuse to cooperate with any investigation and invoke the Fifth Amendment in the event of criminal proceedings? That would not really benefit Orange County, but if Campbell could be embarrassed by something, it could benefit Campbell. That would seem be sort of funny, wouldn’t it? Funny weird.
I have no information that anything like this is going on as Mauk’s job hangs in the balance — but the circumstances of this just seem weirder and weirder.
As the Register reports,
Mauk did his job by removing Bustamante from the workplace, Campbell said. Every sexual-harassment training seminar that Campbell has attended over the past 25 years was focused on preventing and investigating wrongdoing and protecting employees from harm – not on recognizing criminal behavior, he said. Presumably, Mauk received the same type of training, Campbell said.
Well, yes — but if they’d caught Busta raping and murdering someone in his office, he would not have gotten off so easily, right? You can remove someone from the workplace without paying them three months’ salary!
In August, an anonymous letter was sent to supervisors and some members of the media, including The Orange County Register. Shortly thereafter, Bustamante was put on paid leave. Mauk commissioned an outside law firm, Fisher & Phillips, to investigate, said John Moorlach, who is now board chairman.
When that report came back in October, Mauk met with Bustamante, who agreed to resign with 90 days of severance pay in exchange for not suing the county. Bustamante earned salary and benefits worth a combined $244,637 in 2011, according to county records.
(Disclosure: I’ve opposed Fisher & Phillips in cases. That isn’t affecting my analysis here.)
If that Fisher & Phillips report says what I presume it says about this situation, that payoff is really funny — and the fact that the County sacrificed its expensively bought confidentiality anyway is even more so.
I don’t see anything funny here – you must have a completely different definition of funny than I do GD.
However, Elmer Fudd & Carlos ARE funny!
Maybe that’s what I really meant, then.
Funny ironic, not funny ha-ha.
To be more clear: the irony was that he was paid a settlement when he had no basis to be paid a settlement and despite it being confidential (which is usually to suit the employer) it was publicized by agents of the employer.
The more I think about it, though, the more it seems “funny-peculiar.”
(Anyway, by now you should know that I’m not above trying to drag people into a piece with a catchy headline.)
I am just wondering who authorized the payout? County Counsel, without going to the BOS, can authorize a payout of $25K. Risk Management, after someone files a claim, can payout $49,999.99 without BOS approval. Three months salary at approximately $175K annually is about $43,000.00. I don’t think he filed a claim for damages – part of the payout was so he didn’t do that. The BOS must have then approved the payout – right? Therefore, the BOS knowing full well about the actions in question.
We all know the BOS likes to take care of their own. The last being John Williams. He got paid his full salary of $150+K per year for not even working (they hired someone to do his job while he was still there) after two Grand Jury reports stated he was basically running the department into the ground (actually it was the D.A.’s fiancee Peggi Buff running it into the ground while Williams was falsifying his timesheets while he was in Orlando attending seminars for the South Orange County Community College District). The list goes on and on. Its how they roll.
the payout was a good idea. cheap insurance against the nutty court rulings that always come about.
Yeah, I thought that was pretty strange too, the payoff to this cad. At first I thought it was just more pampering of the beloved Carlitos. Are you suggesting what I’m starting to think, that it might have actually been a payoff for him not to say, “Hey, YOU knew all about what I was doing, and so did YOU, and YOU, and YOU.”
BTW, I changed your title to include my new contraction “BustaMauk.” Change it back if you don’t like it.
I’m cool with your editorial control.
That’s what I initially thought also. But then I thought “wait — would he really have even have the cojones to threaten to sue them for defamation or wrongful termination? He’d be willing to go through discovery???” And if the answer is “no” — well, then how did all of this happen? Did someone approach him preemptively? Who stood to gain by doing so? Just asking questions, that’s all.
Apparently it happened after the Fisher & Phillips report came out; I don’t even know if that has been made public. It must be awfully interesting reading.
But that is pretty cool eh – BUSTAMAUK? This blog’s coinage!
To the t-shirt factory!
Congratulations Mr. Diamond – you finally authored a post that is reasonably concise and which, with my aging brain, I can understand! And the photo is hilarious! Overall, interesting speculation and who knows – you could be right, or close to it. We may never know how all this palace intrigue went down.
Now that is one back-handed compliment.
I’ll take it!
The setlement with Bustamante was strictly a Mauk affair – no doubt with Campbell’s concurrence – but the rest of the BOS were probably told after the fact. The County’s personnel & Salary Resolution (PSR) gives him sole authority:
“To the extent permitted by law, the County Executive Officer may include a severance package, including pay and or health benefits in an At Will agreement entered into on or after November 9, 1999 for all Group II Executive Management employees as deemed necessary to recruit and retain qualified personnel. The severance package shall not exceed 90calendar days from the date of termination of employment by the County. This severance provision shall not apply to any termination for cause implemented in accordance with the provisions of Article XIV and XV.”
Articles XIV and XV are the sections governing Disciplinary Action and Appeals processes. Nothing in the PSR requires that a severance package be given. The deal was cut by Mauk to justify no follow up on the Fisher & Phillips report and to avoid any revelation that it was Mauk who (behind the scenes) directed that Bustamante be selected for the Public Works Admin job that was eventually turned into an executive appointment for Bustamante.
Campbell’s claim that Mauk was not trained to recognize “criminal behavior” is one of his usual techniques of distracting discussion from the real issue when he has no supportable position on the actual issue. Mauk clearly had a responsibility to conduct further investigation based on EEO law and the contents of the Fisher & Phillips report. Additionally, any $300K/year County CEO who couldn’t figure out that a possible crime should be checked out to protect the County from further liability should be fired for incompetence and bad judgment. Diverting the issue to BOS discussions about executives receiving training to recognize criminal behavior is a way to give Bates a reason to not pull the trigger on Mauk.
Unless Pat Bates is bombarded with extremely bad press, Mauk wil be allowed to negotiate his own severance package, including when he will leave, how much severance he will get; immunity from consequences of his decision to not act on the report – and Campbell, Nguyen and Bates will vote to approve it. The County will pay out plenty of money for damages for Mauk’s coverup by the time this is over.
Thanks for the informed view. (I presume so — or else thanks for making it sound so informed.)
Your section on Articles XIV and XV seems pretty damning. Somehow, this apparently was not seen to fall under those Articles allowing for (or even requiring?) a termination for cause — which seems quite weird especially after what I infer was in the Fisher & Phillips report. If so, that would mean that Mauk acted outside of his authority in offering the severance agreement. If so, that would raise the question of why he did so — and specifically if he was converting County resources for personal gain (such as protection from what Busta might say publicly about Mauk’s knowledge and complicity.)
If I were Supervisor’s Nelson or Moorlach, I might consider asking for a second referral to the DA. If anyone has the intuition that you can’t use public money — or your own, for that matter, but especially public money — as a payoff for someone’s silence about one’s complicity in covering up potentially criminal acts, I think it’s well-founded.
If Mauk goes down, the question becomes Campbell’s role. Hey, is anyone forwarding this discussion to Pat Bates? She might want to consider a few things before she votes.
*A simple question: If any of those girls that Carlos harassed were a member of your family or your daughter or wife…….. What would you do?
I would visit said perp with a baseball bat.
Greg you ask if Carlos would have the ‘manly parts’ to actually sue the County (or even if he ever made the threat). I understand we are talking theoretically here. I believe the man has an ego so big that he would tell himself he would never get caught or that no one would believe that this fine upstanding citizen (that’s Carlos by the way) could do such terrible things. IF he had an attorney with him, I’m sure the attorney believed everything Carlos told him. Don’t all attorney’s believe everything their clients say?!?
As a previous posted pointed out, a payout package of 3 months to Carlos would have to have BOS approval. I’d like to know why they approved it.
No, good attorneys do not necessarily believe everything their clients say.
If Fred Johnson’s calculation below is correct, the payout would not have exceeded $50,000 if he filed a claim, meaning that the BOS would not have had to approve it. Maybe this was interpreted to mean that the credible (!) threat to file a claim would suffice. If they were wrong about that interpretation, just add it to the pile.
Or maybe the BOS did approve it — but were they aware of the content of the Fisher & Phillips report when they did so?
OCR just reported that Bustamauk’s supervisor just got canned! The cannee is claiming he had no authority to fire Bustamonte and Mauk is the one that suggested the internal investigation that went no where. Now we start the he said/she said banter and finger pointing. Carbajal will no doubt file a wrongful termination suit and win millions. The County will appeal for a decade then have to pay out millions more. This whole matter is a lose lose for the County taxpayers. Mauk should resign immediately, stating the need to take care of his ailing wife (which is true from what I hear). Campbell should also resign or the Public Guardian should step in and declare him mentally unfit. Moorlach should also resign and move to a deserted island where he can write stories about him self to populate his book collection (he collects books where there is at least one mention of him). The County should immediately write a check to each of the victims for no less than $500,000.00 for all their pain and suffering and be done with it. They will end up paying at least that much just in contatrated attorney fees.
I find this whole thing funny because everytime Occupy Santa Ana asked for permission to camp, city council’s response was fear of legal liability. I guess they will end up paying someone’s legal fees eventually. Ain’t karma a bitch?
Thanks for TELLING everyone what is the ONLY funny thing about this. WTF?
1) I thought Carlos picking up the wedding dress off the lawn last year was funnier! It was muted by the crying wife and kids, but still pretty funny.
2) The fact he hosted and bragged about Arnold’s honor (watch THAT VIDEO) was disgustingly funny. Check out the look on the guests face for head scratching funny.
3) The skate board shit was the funniest of all, but gross.
4) The look on Chmiliewinski’s face when he heard Pedroza was REMOTELY mentioned as a place holder.
But again, what do the rest of us know about humor.
#2. You know where we can find that video? Just so’s I can help you make your point?
I’m looking at a narrower recent time-span, but I bow to your apparently awesome collection of humorous Busta bits.
It was on Arnolds campaign site. I am sure if you Dogpile it you can find it.
The other funny couple there were the “MORRISON PARK” couple (identity protected) who championed Rob Richardson to victory over Lopez, smooching. pretty Risque for a GOP event. Even with Arnold.
CBUS speech matched that of a Lori Galloway speech, super nervous, not well put togther, lot’s of nervous laghs and chuckles………It should be material for SQS to study. Seriously. It’s amazing how much polish these canidates lack.
That could be a “Why Tom Daly Won” pt 3 post from Diamond too. These folks just don’t come across well, if at all genuine. Almost as if they are uncomfortable in thier skin.
NOTE TO GREG: I softened up a bit; I didn’t say: “Why Julio lost”. There just might be some wiggle room for this guy in my world. MIGHT.
Today is July 11, and the media reports that Public Works Director Carbajal has been fired and that he has a high powered attorney, Wylie Aiken. I would not be surprised if Mr. Aiken has discussion with the DA about Carbajal telling all he knows in exchange for a non-prosecution commitment from the DA (if, that is, there is anything to prosecute Carbajal for – that is unclear to me at this point). Such an open disclosure to the DA could lead to further DA charges being filed. Let’s see what plays out here.
To compare this to the Sandusky case, aren’t the “head people” who knew something was going on now to be dealt with. It is obvious Maulk should go; he never seemed tuned into his job anyway, if you watch him at the Board of Supervior’s meetings. The man is arrogant and never answers questions with any direct responses. What are we paying these people such high salaries for; any one of us could do a better job. He had a responsiblity to go public with Bustamonte’s crimes. Bye, bye.
How is it that Deputy CEO Alisa Drakodaidis has managed to avoid this mess? She was supposed to be in charge of Public Works and Waste & Recycling, among others – those directors reported to her and she reported to Mauk. That is, until recently, when those two departments suddenly ended up directly under the CEO. Exactly what Drakodaidis did as head of “OC Infrastructure” has been a mystery for a long time. She’s the one whose multiple raises were reversed after Steve Danley’s audit of HR. Isn’t it kind of strange that her name hasn’t shown up at all in this story? How’d she stay out of the fray? Why isn’t her head on the block?
I have not heard of Alisa Drakodaidis until now and have no opinion of her either way. This comment strikes me as anonymous grudge settling, which I don’t like, but for those who want a little context on the “multiple raises” thing, here’s a relevant OC Register article: http://www.ocregister.com/articles/county-303122-ceo-percent.html.
If she had a supervisory relationship to Bustamante where she was to address behavior like this (and didn’t) or take reports of complaints from underlings (and didn’t), then you raise a valid point. If not, then you’re changing the subject — and there’s enough to say about the present subject for us not to need to drop everything to explore “what Drakodaidis did as head of ‘OC Infrastructure’.” We could, I suppose, start a new story with a comments section inviting people to anonymously dump all of the information and supposition and innuendo that they have about Alisa Drakodaidis, just because you’ve anonymously called her out, but that would be sort of sick, wouldn’t it? You’ll find other local blogs that might be happy to comply.
I have the same question Ms. Drakodaidis was in charge of OC Public Works and OC Waste. Both Department Directors reported directly to her and as such took direction from her regarding all departmental issues and concerns. Ms. Drakodaidis reported to CEO Mauk. To disengage her from responsibility from the Carlos Bustamante issue and the OC Waste HR Manager lawsuit is not possible given her reporting relationship and her position responsibilities. I think that this question does merit serious consideration. Drakodaidis was moved out of her OCPW and OCWR position recently.
Check out the voice of oc blog for an update on Drakodaidis – she burned her bridges and left after flaming out the BOS…..
Wow. Just read the Voice of OC post. Perhaps, Mr. Diamond, you’ll credit me with something other than “anonymous grudge settling” for wondering where Drakodaidis has been in all of this. I don’t know the woman and can barely spell her name. How am I supposed to have a grudge against her? My question remains this – how can someone who was one of the highest paid people in the county, whose job it was to oversee Carbajal, Giancola and Bustamonte, who was a direct report to Mauk- have stayed so out of sight in all of this that you yourself admit you’d never heard of her? It seems almost no one has. Why do so few of us think there’s something off here?
You seem like you’re grinding an ax, which leads me to distrust your motives. You may be right about her role in this and you are right to ask the questions if you’re honestly wondering, but if you intended to come off as dispassionate it didn’t work.
Here’s how you might have asked the questions without setting off my antennae:
See the difference?
The only axe I might have to grind is one against incompetence and secrecy. The 1%er attitude that seems to be at work among all the players in this farce should piss people off. I know I am.
Your sensitivity about my posts in particular strikes me as odd. I have to wonder – is your issue becuase this has to do with a woman? I don’t see you having the same reaction to these types of posts/questions about men. Nothing I said was untrue, and nothing I asked was unreasonable. Reread your own article for tone if you’re wonder what gave me license for my own.
See the similarites?
Nope, it was not because you were attacking a woman. It’s because it was a anonymous character assassination coming out of the blue. As it stands, it appears that Drakodaidas is likely to be terminated and is, according to one local report, preparing to tell all sorts of stories about people. So while you could be whistle-blowing, you could also be engaging in preemptive attacks on her. I don’t know which it is; I don’t know if you’re telling the truth about not even knowing of her; I don’t even know who you are, which might allow me to assess your motives.
I do know that I don’t want this blog to become a place where people come to hurl anonymous charges at each other. The OC political blogosphere has enough venues for that. I think that raising questions, in the way that I rewrote your comment, is fine. I think that your comment itself was not.
Your point about the tone of my original article is well-taken — but that was about actors already recognized to be part of the drama. It’s the expansion of critical discussion to people who may have had nothing to do with the drama, and that people may be tarring for other reasons, that disturbs me. I presume that you can appreciate the dangers in that — and that those dangers were not present in my commenting on events where the actors and their actions had already been introduced.
She seemed to spend most of her time grinding staff over endless iterations of ASR’s (agenda staff reports) petty redo’s over and over and over making staff insane. She was so focused on the minor league stuff – and never seemed to recognize the big picture leadership issues that begged for her attention and action. In WAY over her head. She was very aware of the Bustamante issue and allowed Giancola to bungle major projects and sensitive issues with no oversight and no accountability.
She didn’t have a minor role in the film Office Space, did she?
after confronting Joanna about sleeping with Lumbergh]
Joanna: Peter! What is wrong with you? That was like two years ago! What, did you know him?
Peter Gibbons: Yeah, I know him. I know him! He’s my boss! He’s my unholy, disgusting pig of a boss!
Joanna: He’s not that disgusting.
Peter Gibbons: He represents all that is soulless and wrong! And you slept with him!
Joanna: Hey, that is none of your business, okay? I didn’t ask you who you slept with before we were together. I don’t care.
Peter Gibbons: Well, I didn’t think that you slept with guys like Lumbergh!
Joanna: Listen to you. Who do you think you are? How dare you judge me! I mean what are you? You think you’re some kind of, like, angel here? No, you’re just this penny-stealing, wanna-be criminal…man!
Peter Gibbons: Yeah, well, that may be. But at least I never slept with Lumbergh!
Office Space: All in fun…..right? haha