The First Whistleblower

Notice from Board that Az. Admin. Code R2-5.1-102.B.5 requires hearing to be held "within 30 days from receipt by the Board unless the time is extended by mutual consent of the appellant and respondent". (emphasis added) (Mary C. Cronin named as counsel for Maricopa County)

The Counsel for Respondents/Defendants (Maricopa County, Kenneth Medlin, Terry Peterson, & Jennipher Ramsey) file a Motion To Dismiss on the basis that since Complainant's complaint is against the County and its personnel, the STATE Personnel Board does not have jurisdiction. The County further asserts that since Complainant was a contract employee he was exempted from the Maricopa County Employee Merit System, and therefore has NO RIGHTS WHATSOEVER to file ANY complaint.

It should be noted, that up to this point, Mary C. Cronin (Office the Maricopa County Attorney) was recognized as the counself for the Respondents/Defendants. But, Daniel Brenden has begun filing legal pleadings instead of Ms. Cronin.

The Complainant responds by asseting that since the Maricopa County Employee Merit Commission has continually refused to accept a complaint from him (claiming that as a "contract employee" Complainant was exempted from ANY and ALL redress with the County), that the matter becomes the jurisdiction of the State of Arizona Personnel Board. (Such is stated in A.R.S. 38-534 (C) )

The Complainant is instructed by Marian Liska to compile a list, fill out some forms (which she will supply), and submit them to her. After which, it will be his responsibility to hire someone to serve me. Over the next several days, there are of phone conversations about who/what will be subpoenaed and how they will have them served.

In direct violation of Arizona State Bar Ethics Rule 1.7 (Conflict of Interest), after receiving notice that he will be a witness in this case, Daniel Brenden files a "Notice of Appearance". (Ethics Rule 1.7 specifically prohibits an attorney to act as both "a witness and an advocate" in any case.)

Upon receiving my notice that he will be a witness in this case, Daniel Brenden immediate faxes a "Notice of Appearance" to the State of Arizona Personnel Board. Mr. Brenden's "Notice of Appearance" states the he will be appearing as counsel for MCDOT (NO mention of acting as counsel for Kenneth Meldin, Terry Peterson, or Jennipher Ramsey)

The Complainant sends a letter (via facsimile) to Daniel Brenden demanding disclosure of relevant records and documents to be used as evidence in the case. Also included is a list of Maricopa County personnel to be called as witnesses and a demand for the full disclosure of the potential witnesses full names, addresses, etc.

Notice sent stating that the Harold J. Merkow would be CANCELING the 01/29/2003 Hearing and instead, hold an "Evidentiary Hearing" on 02/10/2003 to consider the County's Motion to Dismiss

***NOTE*** This in direct violation of AAC R2-5.1-102.B.5 which specifically states: "Every hearing on an appeal shall be held within 30 days from receipt by the Board unless the time is extended by mutual consent of the appellant and respondent"(emphasis added)
Henkel included this citation in her original notice of the hearing on 12/30/2003. She even went so far as to add the (emphasis added) in her letter.

Hearing Officer Harold J. Merkow denies the Motion to Dismiss filed by the Respondents (Maricopa County, et. al.)

Merkow now orders that a "Jurisdictional Hearing" be held on February 10, 2003 to determine: a) The Complainant's employment status, b) Whether the State of Arizona Personnel Board has jurisdiction to hear his complaint.

Merkow also specifically orders: "...pending resolution of the jurisdictional issues, no evidence will be received regarding any disclosures to public bodies or any reprisals taken from those disclosures."

The Complainant sends a letter (via facsimile) to Daniel Brenden disputing his Notice of Appearance because Brenden was previously listed as a witness and he is aware that his appearance is a conflict of interest.

The timing/dating of his notice is disputed and a demand for copies of his facsimile-logs is demanded to be used as evidence of his unethical behavior.
It is also demanded that both Daniel Brenden and Mary C. Cronin withdraw as counsel for Medlin, Peterson, and Ramsey as this too is a conflict of interest for Maricopa County in general.

Marian Liska leaves a voice mail messase with the Complainant informing him that the Hearing Officer (Harold J. Merkow) has summarily refused to issue ANY subpoenas requested by the Complainant. (No formal order was ever issued.)

A letter is sent to Ms. Henkel (Executive Director, State of Arizona Personnel Board) questioning the validity of Daniel Brenden's Notice of Appearance and requesting confirmation that it was/wasn't received on 01/17/2003, and, notifying her that he is a "crucial witness" in the case and will be called as a witness before the Board.

Fax from Arizona Personnel Board (by Judith Henkel) stating Brenden's Notice of Appearance was filed 01/17/2003 and index of current docket.

The Complainant files a motion to have subpoenas issued for documents and witnesses to be used on his behalf at the 02/10/2003 "Evidentiary Hearing".

This motion was NEVER ruled upon. Hearing Officer Harold J. Merkow COMPLETELY IGNORED IT!

The Complainant files a motion to have Daniel Brenden's "Notice Of Appearance" rejected by the Arizona Personnel Board because Brenden was listed as crucial witness. The Complainant also points out that Mary C. Cronin was previously identified by Maricopa County as the attorney designated by the County as legal counsel for this matter. It is further stated that the manner and timing of Daniel Brenden's Notice of Appearance is also in question and possibly done deliberately to compromise the Complainant's right to due process.

This motion was NEVER ruled upon. Hearing Officer Harold J. Merkow COMPLETELY IGNORED IT!

A unknown male appears at the Complainant's door (in a suit) attempting to deliver a package to him. The deliverer refuses to provide his name but wants the Complainant to sign something stating that he received the package. the Complainant review its contents, accept it, sign for it, then asks for a copy of the receipt he signed. The delivery person refuses to provide him with a copy of what he signed.

• Respondent's List of Witnesses and Exhibits
• Table of Contents
• Exhibit 1. Maricopa County Employee Merit System Resolution pages R-1 through R-4.
• Exhibit 2. Employee Compensation Plan pages CP-1 through CP-2.
• Exhibit 3. County Personnel Action Form signed by Espy Gamez on June 28, 2002.
• Exhibit 4. Contract Employment Revision/Renewal signed by Scott McNair on June 15, 2001.
• Exhibit 5. Maricopa County Employment Status Acknowledgment Form signed by Scott McNair on October 12, 2000.
• Exhibit 6. Maricopa County Employment Application signed by Scott McNair on October 27, 2000.
• Exhibit 7. Maricopa County Contract Employment Agreement signed by Scott McNair on October 2, 2000.
• Exhibit 8. Email from Scott McNair to Board of Supervisors, Barbara Rees, David Smith, Diane Weikamp and Janice Stratton dated July 17, 2002.
• Exhibit 9. Letter to Diane Weikamp from Scott McNair with "Workplace Professionalism: Avoiding Harassment and Discrimination" and 40 page Complaint for Sexual Harassment and Retaliation for Opposition attached.
• Exhibit 10. Email from Jim Nelson to Espy Gamez dated September 12, 2002.
• Exhibit 11. Email from Janice Stratton to Scott McNair dated November 4, 2002.
• Exhibit 12. Email from Scott McNair to Janice Stratton dated December 2, 2002 and reply from Janice Stratton to Scott McNair dated December 3, 2002.

The Complainant arrives early for the hearing and finds the Hearing Officer (Merkow), two County Attorneys, and the County's witnesses all in the hearing room chatting.

He asks the receptionist where he could get a cup of coffee. Marian responds by telling him that there are machines in the basement. Just then, Hearing Officer Merkow comes out and asks Marian for "another cup of her coffee."

The Complainant asks Marian if he can also have a cup of coffee. She states that it is "her" coffee. (Meanwhile, Merkow helps himself to another cup.) The Complainant offers to purchase a cup from her. With a look of total contempt towards the Complainant, Marian says she will see if she has another cup for him. A moment later Marian returns with an cup that is disgustingly FILTHY and states that "this is all we have around." The Complainant states how filthy the cup looks and offers to clean it. Marian says she will clean it for him, and leaves the room. When she returns, she fills the cup without allowing the Complainant to see it (Your call on this stunt.)

Merkow now states that he is ready to begin the [evidentiary] hearing. The Complianant's motions for witnesses and documents, and his motion to reject Brenden's Notice of Appearance are COMPLETELY IGNORED by Merkow. The Complianant is forced to proceed without ANY documents, exhibits, or witnesses.

Even though Daniel Brenden has filed a Notice of Appearance, Mary Cronin begins on behalf of the County. Once she feels that Harold J. Merkow is going to ignore the Complianant's Motion To Reject Brenden's Notice of Appearance, Cronin moves out of the way and allows Brenden to proceed as counsel for the County (and defendant's Kenneth Medlin, Terry Peterson, and Jennipher Ramsey.)

Throughout the hearing, ALL of the County's witnesses (Espy Gamez, Janice Stratton, and Barbara Rees) are in the room and allowed to be present WHILE EACH TESTIFIES.

During the proceedings, the Complainant argues with Merkow about his refusal to issue subpoenas of evidence and witnesses on the Complainant's behalf. Merkow blatant refuses to issue any subpoenas claiming HE doesn't see it as relevant

After about a half an hour, Merkow declares he wishes to take a short break and stops the proceedings. When Merkow and the Complainant leave the room, he asks Marian if he can buy another cup of coffee. Marian scowls at him, then looks directly at Merkow and asks, "Do YOU want any more coffee?" Merkow declines, after which Marian turns to the Complainant and states that she isn't going to make another pot.

After the COUNTY FINISHES presenting its case, Harold J. Merkow STOPS the hearing by saying "I've heard enough". He then rules that because the County does not have an independent review board to hear the Complainant's complaint, then the State of Arizona Personnel Board must.

Merkow then informs the County that if they file a Motion to Dismiss based on the Complainant's failure to file a complaint in time, he will grant it! (He compounds this act of predetermined bias by informing the Complainant, "I don't see you surviving that...")

Merkow then ENDS the hearing, WITHOUT allowing the Complainant the opportunity to present ANY evidence, witnesses, testimony, or rebuttal.

Merkow rules that since the Complainant was a "contract employee" which Maricopa County had exempted from its Employee Merit System, the County did NOT have an independent panel to review the Complainant's complaint, and therefore the State of Arizona Personnel Board DID have jurisdiction over the matter.

In accordance with the (biased) directions of Harold J. Merkow, the County files a second motion to dismiss, claiming (as directed by Merkow) that the Complainant failed to file his "Whistleblower Complaint" with the 10 day period prescribed by law. (Note: The County's motion "appeared" upon the Complainant's computer-fax without any prior notice or request for permission to send it in this manner.)

Though the Complainant worked for the County as a "contract employee" for over two years, the County continues to assert that, "McNair was never an employee of Maricopa County". And attempts to use this as a reason for denying his complaint.

The Complainant calls the State of Arizona Personnel Board to find out how long he has to file a response to the County's Second Motion To Dismiss. The Executive Director's Administrative Assistant (Marian Liska) doesn't know, but will check with the Hearing Officer (Harold J. Merkow) to find out.

The Complainant also inquires as to how he would obtain a copy of the transcript from the 02/10/2003 "Evidentiary Hearing". Ms. Liska informs him that it is his responsibility to have the tape transcribed. Over the next several days, the Complainant makes numerous attempts to obtain a copy of the tape. The State of Arizona Personnel Board is LESS than cooperative (yet "polite"). The Complainant is informed that the person that copies the tapes is about to go on vacation and "she" might not have time to do it. The Complainant stresses the importance of obtaining the tape in time to have it transcribed and included in his response to the County's Second Motion To Dismiss. After a few days of run-around from the Board, the Complainant obtains a copy of the tape and takes it to a secretarial service to be transcribed (at HIS expense.)

The Complainant receives a voice mail message from Hearing Officer Harold Merkow informing him that his response to the County's Second Motion To Dismiss is due "On MY (Merkow's) desk by close of business 02/24/2003..."

Mr. The Complainant receives a call from the secretarial service transcribing the hearing tape, informing him that the tape supplied by the State of Arizona Personnel Board is INCOMPLETE! It "just stops" in the middle!

The Complainant immediately contacts the State of Arizona Personnel Board. The Marian Liska (Administrative Assitant to the Executive Director [Judith Henkel] ) "can't understand" how the tape could be incomplete, but, if the Complainant will bring them ANOTHER blank tape, they will make him a new one, "as soon as they can get to it". Again, the Complainant stresses the importance of getting the tape in time to have it transcribed and included in his response to the County's Second Motion To Dismiss. The Ms. Liska seems unimpressed/unconcerned.

The Complainant files a motion with Merkow requesting an extension so that he can have the hearing tape transcribed and included in his response. In his motion, he explains how the transcript is crucial to his ability to file a proper response. The Complainant also points out how the transcript could be of benefit to ALL PARTIES involved.

***NOTE** As is his normal pattern, Hearing Officer Harold J. Merkow COMPLETELY IGNORES The Complainant's motion (for an extension of time in order to have the hearing tape transcribed.)

***NOTE** As is his normal pattern, Hearing Officer Harold J. Merkow COMPLETELY IGNORES The Complainant's motion (for an extension of time in order to have the hearing tape transcribed.)

Therefore, the Complainant is required to file a response to the County's Second Motion To Dismiss WITHOUT the benefit of a transcript. He specifically emphasizes this with the following statement:

Since Hearing Officer Harold Merkow had ordered the Complainant to have his response "on his desk" by close of business on the 24th, he contacted the Board to find out where Merkow's "desk" was. The Board informs the Complainant that Mr. Merkow works out of his home and provides him with the address.

AFTER receiving the Complainant's Response to County's Second Motion To Dismiss, Merkow decides he will NOW grant his request for an extension of time.

A copy of the Complainant's response was faxed to Mr. Merkow at approximately 3:30pm that day (while Mr. Merkow was not at home.) Sometime AFTER coming home that day (AFTER receiving his response), Mr. Merkow decided to grant the extension of time to file the response (now a moot point).

The postmark on the envelope of Mr. Merkow's ruling shows that it was not received/processed by the Post Office until 8:00 PM. (Proving, Hearing Officer Harold J. Merkow purposely never ruled upon the Complainant's request for an extension until AFTER it was too late.)

1. Status of the OTHER (non-whistleblower) issues he previosly brought to the attention of the State of Arizona Personel Board.
2. What his rights are?
3. Copies of any relevant Arizona Personnel rules, statutes, procedures, and policies.

Two weeks AFTER submitting his Response to the County's Second Motion To Dismiss to Mr. Merkow, the Complainant has FINALLY been able to obtain a COMPLETE COPY of the tape of the February 10 2003 Evidentiary Hearing and have it transcribed.

The original is filed with the State of Arizona Personnel Board, and copies are mailed to all of the parties involved. Total cost to the Complainant is $156.00.

Ms. Henkel responds to him by stating she "Can't give legal adviece", and, she instructs him to contact the Secretary Of State for copies of any personnel rules or regulations.

According to Arizona statute/code, the final recommendation of Hearing Officer (Harold J. Merkow) is due within 30 days of the hearing, and/or the last pleading filed in the case.

The recommendation of Harold Merkow is now LATE!

Ms. Butler (NOT Ms. Henkel), responds to his letter basically acknowledging that the Hearing Officer's recommendation is overdue.

34 DAYS AFTER receiving the Complainant's response the to the County's Second Motion To Dismiss, Hearing Officer Harold J. Merkow keeps his (biased & prejudicial) promise to the Respondents/Defendants (Maricopa County), and dismisses his complaint.

In Merkow's report/recommendation he:

• Continually states that "McNair failed to produce any evidence..." (but avoids the fact the MERKOW refused to allow him the opportunity to present any...)
• Acknowledges that the County ignored and interfered with all of the Complainant's requests for disclosure of pertinent records,
• Acknowledges that he (Merkow) denied ALL the Complainant's requests for the subpoena of documents & witnesses,
• Acknowledges the he (Merkow) deliberately failed to allow the Complainant to present evidence, witnesses, testimony, or rebuttal arguement at the February 10 2003 hearing,
• Acknowledges that the Complainant demanded Equitable Tolling of his complaint, then refuses to apply such,
• Contradicts himself continually,
• Makes assertions, recommendations, and rulings that contradict the evidence, previous rulings, and established principles of law.

Merkow recommends to the State of Arizona Personnel Board that it dismiss the "Whistleblower Complaint"

Henkel's letter is included with Harold J. Merkow's final report and recommendation to the Board. In it, the Complainant is informed that he has 15 days in which to file with the Board any "written objections" to the Hearing Officer's findings/recommendation.

The Complainant files a detailed 10 page objection outlining the mistakes, errors, interference, prejudice, bias, and legal contradictions of Merkow's report.

He summarizes by asserting that he has been denied all access to any form of equitable justice or due process by Hearing Officer Harold J. Merkow. He requests that the Board reject Merkow's report and order that a proper hearing of the complaint be heard.

Notice by Ms. Henkel that the Board will meet to discuss and rule upon his complaint on April 29 2003 at 2:00pm. (Copy of meeting agenda included.)

Letter including instructions on addressing the Board in its open session. Also, a notice (encouragement) that you are "welcome" to leave the meeting once the Board has rendered its decision on your case.

Final decision by the Board, dismissing the Whistleblower complaint and informing the Complainant that he "may" file an appeal in Superior Court under Title 12, Chapter 7, Aticle 6 of the Arizona Revisted Statues (i.e. Judicial Review of Administrative Decisions, a.k.a. Arizona Adminstrative Review Act) (See A.R.S. 12-901 thru 12-914)

Official Minutes of the State of Arizona Personnel Board meeting held on 04/29/2002. The Minutes include the dismissal of the Whistleblower complaint, and other personnel actions decided on that date.

After the Board rendered its decision against the Complainant, he appealed their decision to Maricopa County Superior Court. In order to do so the Complainant was required by law to have the record of any hearings trascribed at the COMPLAINANT's expense. Even though he was out of work and broke, the Complainanat paid for the trascript.

During that appeal, as a blatant act of retaliation against the Complainant and to deliberately interfere his attempt at an appeal in Superior Court, the Board repeatedly refused to properly transfer the entire record,(including the transcript) as required by law. Unfortunately for the Complainant, his appeal in Maricopa County Superior Court was assigned to the dirtiest and most corrupt judge in existence (Judge Michael D. Jones). Judge Jones repeatedly refused to order the Board to comply with Arizona laws that required it to provide the court with a detailed index of the Board's record and the complete record (including the transcript).

Due to the Board's REFUSAL to transfer the transcript to the Superior Court, Judge Michael D. Jones denied the Complainant's appeal, claiming the Complainant failed to have a transcript made!

Since the Complainant lost his appeal (due to the Board's deliberate interference), according to ARS § 12-912 the Board my request legal fees,

Even thought the Complainant paid for the cost of the transcript, and even though the Board repeatedly refused to properly index and transfer the record to the Superior Court of Maricopa County, they will now hold a meeting to decide whether or not to request legal fees they know they are not entitled to.

Therefore, Arizona Personnel Board members ( Judith L. Henken [Executive Director], Gwendolyn J. Hatcher, Steve Sepnieski, Becky Jordan, Wanda F. Moore, & Jeff Grant) will meet on September 30 2004 to decide whether or not to complete their retaliation against the Complainant for exercising his lawful rights.