The First Whistleblower

A complaint is filed, IN PERSON at the Merit Commission's Office. To prevent any dispute over the filing of the complaint, the Complainant brings along a second copy and has it stamped as "received" by the Office's receptionist with the Commission's Official stamp.

To further insure proof of delivery, a second copy is sent to the Commission's fax as designated by Ms. Janice Stratton's official website. A facsimile confirmation receipt is also obtained.

(Via facsimile & USPS Certified Mail, return receipt)
Mr. McNair files a request for disclosure of documents relevant to the case/charges, to be used as evidence in the hearing of his complaint.

Also, Ms. Stratton (Commission Administrator) is reminded of the legal requirements for the Commission to hold a hearing with 30 days of receipt of a complaint, and, the legal requirement to provide the Complainant with 20 days prior notice of the hearing date.

Since the Merit Commission is directly appointed by and "serves at the leisure of" the Board of Supervisors, it would therefore by a conflict of interest for them to judge the members of the Board. Additionally, Mr. McNair previously filed a Notice of Claim with the County, asserting that he intended to file a multi-million dollar suit against the Merit Commission (and its individual members) for their deliberate violation of his right to "due process" in a previous matter. Accordingly, it would also be a conflict of interest for the Commission to judge his case. Considering these circumstances, Mr. McNair requests a "Change of Venue".

The Commission (Janice Stratton) COMPLETELY IGNORES the letter.

Even though Ms. Stratton has the Complainant's home (VOICE) telephone number, she leaves a voice message on his FACSIMILE machine claiming she did not receive all of the pages of the facsimile from the Complainant. (A second copy of the document in question was resent the following day.)

Facsimile sent to Janice Stratton, Merit Commission Administrator. Mr. McNair files a supplemental request for documents to be used as evidence.

The Commission (Janice Stratton) COMPLETELY IGNORES the letter.

Facsimile sent to Janice Stratton, Merit Commission Administrator. Since the Commission and Ms. Stratton have been completely ignoring Mr. McNair's complaint, Mr. McNair sends a written request for a Case/Docket number of his complaint.

He also inquires as to whether or not the Defendants have retained counsel yet.

The Commission (Janice Stratton) COMPLETELY IGNORES the letter.

The Maricopa County Employee Merit Commission, COMPLETELY IGNORES Mr. McNair's complaint.

According to Arizona Law ( ARS § 41-785) and Maricopa County Merit Commission rules, the Merit Commission was required to hold a hearing in to Mr. McNair's complaint within 30 days of receiving it. As of July 15 2004,(one day past the deadline) the Merit Commission FAILED to hold hearing of this complaint.

The Complainant again requests to be notified of the case number for his complaint and of a hearing date.

He also includes a list of documents requested as "discovery items" in this matter. In keeping with the policy established by the Maricopa County Attorney's Office (Richard M. Romley, a defendant), the County completely ignores all requests pursuant to the rules of Discovery & Disclosure (they shall never be provided.)

Additionally, since the Merit Commission "serves at the leisure of the Board of Supervisors", the Complainant requests a "Change of Venue" for his complaint since it would be a clear conflict of interest for the Commission to judge their own bosses.

The Complainant submits a second request for document from the County to be used as evidence in his case.

In keeping with the policy established by the Maricopa County Attorney's Office (Richard M. Romley, a defendant), the County completely ignores all requests pursuant to the rules of Discovery & Disclosure (they shall never be provided.)

In a letter to Janice Stratton (Merit System Coordinator), the Complainant AGAIN requests a case/docket number.

Notice of Witnesses: The Complainant notifies the Commission that Daniel Brenden & Mary Cronin of the Maricopa County Attorney's Office will be called as witnesses in this matter. And, as witnesses in this case, they are specifically barred by Arizona State Bar Ethics Rule 1.7 from representing anyone other than themselves in this matter.

In a letter dated July 13 2004, yet postmarked July 19 2004, Ms. Stratton informs the Complainant that the Commission will hold a "Prehearing Conference" (a "conference", NOT a "hearing") on July 28 2004.

Without any motion by any party, and without any explanation, Hearing Officer David J. Gering has decided to ignore Arizona law by failing to hold a hearing within the time prescribed by law. He now wishes to hold a "prehearing conference" for the expressed purpose of providing the County an opportunity to have the complaint dismissed for "jurisdictional" reasons. (It is irrelevant that no party has raised any "jurisdictional" questions of law.) Mr. Gering has failed to provide any precedence for this act, and has failed to show that he has ever done this with any other case he has presided over before.

Per Hearing Officer David J. Gering, the purpose of the "conference" will be:

By this letter, the Merit Commission (via Hearing Officer David J. Gering), has AGAIN violated ARS § 41-785 by failing to hold a HEARING within 30 days of receiving the complaint.

The letter clearly shows that once again the Maricopa County Attorney's Office (Richard Romley, with the assistance of Hearing Officer David J. Gering) would be conspiring to violate the Complainant's right to a Due Process Public Hearing of his corruption complaint by trying to manufacture a "jurisdictional reason" for dismissing the complaint all together. This same maneuver was used (successfully) before in a similar complaint before the State of Arizona Personnel Board.

It should be noted that the notice was dated July 13th, yet postmarked July 19th.

• Was the letter illegally BACK-DATED in order to appear as to be sent prior to the deadline for a HEARING?
• Or, did Janice Stratton deliberately (illegally) sit on the notice for a week?

In direct and deliberate defiance of the Complainant's notice that Daniel Brenden & Mary Cronin (Deputy County Attorneys) will be called as witnesses, they both file a Notice of Appearance asserting themselves as counsel for the Defendants/Respondents.

Though this is a clear and deliberate violation of Arizona State Bar Ethics Rule 1.7, the State Bar of Arizona refuses to take any action in the matter.

In response to the blatantly unlawful Notice of Appearance by Daniel Brenden & Mary Cronin, the Complainant informs the Commission that should the Commission or the Hearing Officer (David J. Gering) allow either of them to unlawfully represent anyone in this case, he shall filed complaints with the Arizona State Bar and Arizona Judicial Commission against Mr. J. Gering.

THIRTY-NINE DAYS after receiving the complaint (and nine days past the statutory deadline to hold a hearing), the Maricopa County Merit Commission finally assigns a case number to the complaint.

The Complainant files a demand for a True and Accurate Record of the "Prehearing CONFERENCE" scheduled for July 28 2004.

In response to the Complainant's notice to the Commission (and Hearing Officer David J. Gering) concerning the unlawful appearance of Deputy County Attorneys Daniel Brenden & Mary C. Cronin, Mr. Gering vacates the July 28 2004 "Prehearing CONFERENCE" and orders briefs to be submitted on the subjects of the unlawful appearance of Brenden & Cronin, and, on the Complainant's request for a "Change of Venue".

Since more than ample information was supplied by the Complainant to the Commission on both subjects, and since it is the Hearing Officer's responsibility (not the Complainant's) to insure that proceedings are held in a "Fair, Just, Impartial, and Lawful" manner, no additional pleadings are submitted by the Complainant. (Not to mention that the Complainant is NOT an attorney.)

Daniel Brenden (or Mary Cronin, it is unclear which) file a response to the Complainant's assertion that they should be disqualified as counsel because they will be witnesses in this case. (ie. Arizona State Bar Ethics Rules are irrelevant to the wishes of Maricopa County Attorney Richard Romley.)

Without explanation, Hearing Officer David J. Gering now vacates his "prehearing conference", and decides to schedule a hearing on October 6 2004. (54 days past the lawful deadline!)

Additionally, in blatant acts of prejudice and an as example of sabotoge of the Complainant's case, Hearing Officer David J. Gering places a number of stringent (and unprecedented) parameters by which the case will be allowed to proceed.

Failing to find any ARIZONA case law or authority to support his bizarre set of parameters, Hearing Officer David J. Gering cites obscure authority from Texas, New York, and Washington D.C. cases (who's Whistleblower laws vary drastically from Arizona's.)

Since the Merit Commission failed to hold a hearing within 30 DAYS from receiving the Complainant's Whistleblower complaint, he files a Motion for Default Judgment.

Under ARS § 41-785, the Commission was required by law to hold a hearing within 30 DAYS of RECEIVING the complaint.

The complaint was RECEIVED on June 14 2004.

On July 19th 2004 (35 days) the Commission mailed a notice that it would hold a "Prehearing CONFERENCE" into the matter on July 28th (44 days).

On July 26 2004 Hearing Officer David J. Gering vacated his own "Prehearing CONFERENCE", and delayed any possible hearing for an indefinite period of time.

On August 26 2004 (73 days), Hearing Officer David J. Gering gave notice that he would hold a hearing on October 6, 2004 (85 days).

In total, the Merit Commission has missed the 30 DAY DEADLINE by 55 DAYS!

The time between Hearing Officer David J. Gering's order for a hearing (August 26) and the date of the actual hearing (October 26), is itself 41 days !!

The Maricopa County Merit Commission, the State of Arizona Personnel Board, and all of the Arizona Courts have repeatedly and routinely DENIED appeals and complaints from employees when they failed to meet ANY deadline by even ONE day!

The Complainant therefore files a MOTION FOR DEFAULT JUDGMENT asserting that the Merit Commission (and Hearing Officer David J. Gering) had ample time to hold a hearing in accordance with the 30 day statute of limitations and failed to do so of its own accord. Accordingly, the Commission must be held to the same standards of legal timing as those it judges. Since the Commission failed to abide by the law, it must rule in favor of the Complainant by default.

Hearing Officer David J. Gering, denies Complainant's request for a Default Judgment on the basis that the Merit Commission failed to act in a timely manner.

His reasoning: He was on vacation when the Merit Commission assigned him the case! Appearantly, David J. Gering is the ONLY Hearing Officer in the state available to the Maricopa County Merit Commission.

Daniel Brenden, counsel for the Defendants files responds to Complainant's Motion for Default Judgment, and, files a motion to dismiss. Rather then send it to the Complainant so that he may response, Daniel Brenden deliberately sends it to the WRONG ADDRESS!

In attempt to have the matter quietly and expiditiously dismissed, Daniel Brenden, counsel for the Defendants files a terse motion to dismiss, and then, rather then send it to the Complainant so that he may response, Daniel Brenden deliberately sends it to the WRONG ADDRESS!

Due to the shady manner in which a hearing officer was "assigned" the case, and due to the irrefutable fact that it is a clear conflict of interest for the Merit Commission to "Judge Its Self", the Complainant demands a full and detailed disclosure of the Hearing Officer (David J. Gering), his relationship to any of the Defendants, how he was chosen, and by whom.

Hearing Officer David J. Gering refuses any and all disclosure.

The Merit Commission and the Defendants, have each been provided with copies of the Hearing Transcript (FOR FREE!) But, they refuse to release a copy to the Complainant.

At the beginning of the hearing, Hearing Officer David J. Gering, refuses to disclose any information about his relationship to the Defendants, how he was assigned the case, or any other information about himself or his qualifications to preside over the proceedings.

NONE of the Defendants APPEAR at the hearing!

NONE of the Defendants deny the charges against themselves!

But, Hearing Officer David J. Gering refuses to take any action against them, refuses to order them to appear, and continually lies about the extent of his authority as a hearing officer. Mr. Gering also refuses to hear all of the issues contained in the complaint. Even though the complaint contains issues concerning Whistleblower retaliation, AND, retaliation for reporting and opposing sexual harrassment, Mr. Gering REFUSES to hear ANY argument or review ANY evidence concerning any sexual harassment issues. Hearing Officer David Gering states that he is empowered ONLY to hear the issues concerning Whistlblower Retaliation. (But refuses to provide any written documentation that would explain or support this statement.)

In his continuing self-contradiction, Hearing Officer David J. Gering states that NONE of the rules of procedure, evidence or disclosure apply to administrative proceedings. But, he cites numerous federal rules of procedure as the "procedural basis" for the heaing.

Since none of the Defendants or County employees listed as witnesses have appeared, David J. Gering stops the proceedings and informs the Complainant that if he wants to question anyone, he must have them subpoenaed to appear. David J. Gering refuses to order any County employee to appear, even though they are in the same building (and some in the adjacent office.) Gering goes on to state that he has no authority to issue subpoenas, nor any authority to enforce them (A BOLD FACE LIE!)

After allowing the Complainant to present evidence, Hearing Officer David J. Gering then suspends the proceedings stating that he will issue an order to allow the Complainant to request subpoenas. (But Gering won't issue or enforce them, the Complainant is "on his own" to figure out how to accomplish this.)

***IMPORTANT*** It is also learned at the hearing that counsel for the Defendants (Daniel Brenden) has filed motions to dismiss the case, BUT, DELIBERATELY withheld them from the Complaintant by sending the to the WRONG ADDRESS!

After suspending his farce of a hearing, Hearing office David J. Gering issues an order directing that the hearing be continued to December 3 2004. Beyond the issue of Complainant's subpoena requests (which Gering will not issue or enforce), Gering will now allow NEW and ADDITIONAL motions from Defendants PRIOR to the continued hearing.

***IMPORTANT***
This order was DATED 10/08/2004.
It was not SENT until 10/12/2004!

For some strange reason, in direct violation with Merit Commission regulations that all notices and documents must be MAILED to the complainant, Ms. Janice Stratton (Merit Commission Administrator) has been haphazardly faxing orders, letters, notices, etc., to the Complainant. The Complainant therefore requests that Ms. Stratton comply with the Commission's own rules and mail all such materials. Additionally, the Complainant requests a copy of the case docket.

Furthermore, since the Merit Commission rules provide that an applicant (the Complainant) is entitled to disclosure of information concerning all those that were considered for the position in dispute, the Complainant requests such. (Ms. Stratton ignores/refuses to comply.)

Counsel for the Defendants (Daniel Brenden) files a new Motion To Dismiss. In it (and against Az. Bar Ethics Rules), Brenden submits as "evidence" copies of rulings from another case, with are currently UNDER APPEAL! Any "reputable" judge/magistrate, would hold an attorney in contempt and sanction them for submitting such.

The "hearing" was continued at the direction of David J. Gering in order for the Complainant to have subpoenas issued to compel the defendants and witnesses (County employees) to appear. But, since Hearing Officer David J. Gering refused to issue them, and refused to make any effort to enforce them, the Complainant has no way in which to accomplish this. Therefore, the Complainant withdraws this request, and demands that a ruling be made upon the evidence submitted.

The key points of the evidence from the hearing are:

• The Defendants NEVER DENIED the charges against themselves.
• The Complainant submitted numerous documents issued to him by the County, showing that the COUNTY recognized him as an "employee"
• It is undisputed and irrefutable that the Complainant filed a "public disclosure"
• It is undisputed and irrefutable that the Complainant filed sexual harassment complaints with and against the County
• The Complainant previously held the job in another department.
• The County had repeatedly in the past stated that the Complainant's performance in the position was beyond satisfactory, and even presented him with a plaque stating how valuable his skills were.

In response to Complainant's wishes that the matter be decided upon the evidence in the record, the continued/rescheduled hearing if vacated.

The "order" was:

• Dated 11/24/2004
• Filed 11/30/2004
• Mailed (to Complainant) 12/04/2004

After MONTHS for refusing all disclosure to the Complainant, and refusing to produce County employees as witnesses requested by the Complainant, and AFTER the hearing continuance is cancelled, Daniel Brenden (counsel for Defendants), NOW wishes to supplement the record with evidence and witnesses previously withheld.

Hearing Officer David J. Gering issues his ruling.

Ignoring ALL EVIDENCE submitted by the Complainant, David J. Gering rules that the Complainant was never an employee of the County, and therefore is not protected by ARS 38-532. This is in total disregard for the facts of the record, and in disregard for the fact that Complainant had applied for a position that IS covered by the Merit Commission.

To compound his ridiculous decision, David J. Gering refuses to even consider the sexual harrassment retaliation issues raised by the Complainant, even though the Merit Commissions' own regulations state that they must accept and review such a complaint, regardless of the complainant's employment status!

Furthermore, David J. Gering repeatedly cites the transcript of the hearing, even though he deliberately withheld that transcript from the Complainant.

The Complainant files a formal objection to Hearing Officer David J. Gering's recommendation.

In it, Complainant cites:

• The Board's conflict of interest in the matter precludes it from any involvement,
• The Defendants' failure to even deny the charges,
• The over-whelming evidence showing how the County treated the Complainant as an employee, reported to OTHER GOVERNMENT AGENCIES that he was their employee, etc., etc.
• etc,

Since the Merit Commission has the hearing transcribed, and since such is classified as a "Public Record", the Complainant filed a demand for a FREE copy as allowed by ARS 38-1221. (The demand will be refused.)

The Merit Commission continues to withhold its hearing transcript from the Complainant.

More that THREE MONTHS AFTER the Merit Commission's hearing (kangaroo-court), it sends a notice to the Complainant that it will rule on the matter on April 6 2005.

Now, FOUR MONTHS AFTER the Merit Commission's hearing (kangaroo-court), instead of issuing a final ruling, it issues a "PROPOSED" Final Order.

This is the SECOND notice that the Merit Commission will rule upon this matter. As of yet,FIVE MONTHS AFTER the Merit Commission's hearing (kangaroo-court), it still has not issued a ruling.

Since the Merit Commission Administrator (Pat Soria) has refused to provide a copy of the transcript from their Kangroo-Court hearing for free as the law provides, the Complaint send a check for payment of such.

Included in the letter is a warning to Pat Soria warning him/her that they cash the check, the Complainant will seek criminal prosecution against them for violation of ARS § 39-122 and ARS § 38-413

The Merit Commission Administrator (Pat Soria) ignores the letter completely, and continues to withhold the transcript from the Complainant. (And fails to return or record the payment it in direct violation of ARS § 38-414 .)

Since it is a criminal act (felony) for a state employee to demand or accept payment for public records deemed as "FREE", the Complainant writes to the Arizona Attorney General requesting criminal prosecution of Pat Soria's actions.

After almost six months, the Maricopa County Merit Commission issues its final decision.

In a last and final act of retaliation (desperation), the Merit Commission withholds the decision for almost TWO WEEKS before mailing it to the Complainant. The only reason for this deliberate and unlawful delay, is to inhibit the Complainant's ability to file a timely appeal to the Superior Court of Maricopa County.

After withholding the transcript from the Complainant for SIX MONTHS, Ms. Pat Soria finally sends him a copy. But, only after unlawfully demanding payment for a "public record" the Complainant is entitled to for FREE!