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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?
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.