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Trouble in the D.A.’s Office 

Whistleblower’s case alleging retaliation moves closer to trial

Thursday, Apr 15 2004
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The U.S. 9th Circuit Court of Appeals has unanimously reversed a lower court’s dismissal of a federal lawsuit filed by an L.A. County deputy district attorney, who alleged corrupt practices and retaliation by his former boss and two supervisors.

Ruling that the free-speech rights of veteran prosecutor Richard Ceballos were violated after he reported suspected misconduct by L.A. County Sheriff’s deputies, the three-judge panel also handed whistleblowers a rare legal victory. “We have held that when government employees speak about corruption, wrongdoing, misconduct, wastefulness, or inefficiency by other government employees, including law enforcement officers, their speech is inherently a matter of public interest,” wrote Judge Stephen Reinhardt. Such speech, he added, “is no less deserving of First Amendment protection because the employee reported the misconduct to his supervisors rather than to the news media.”

Ceballos, who’s now assigned to the D.A.’s Public Integrity Division, which prosecutes public officials, judges and lawyers, said he’s relieved that his case can finally move forward. “This is not just a victory for me. Because it’s a published opinion, public employees, here and elsewhere, can cite it as a precedent if they suffer retaliation on the job for reporting corruption.”

Ceballos said he heard about the victory the day the opinion was issued. “A couple of my D.A. friends called and said, ‘You won.’” He told his lawyers, but he’s heard nothing from the D.A.’s Office. Steve Cooley, he added, has asked his appellate division for a written opinion. Patrick Moran, assistant head deputy of the D.A.’s appellate division, confirmed this request. “I’m sure they’re concerned,” Ceballos said. “Supervisors are no longer immunized against civil claims if they interfere with an employee’s First Amendment rights to report on matters of public interest, and retaliate against them in the workplace.”

The appellate judges chided the county for claiming Ceballos’ actions violated its interest in avoiding “inefficiency and disruption in the workplace.” Citing an earlier case, Reinhardt wrote, “It would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office. The County does not have a legitimate interest in covering up mismanagement or corruption and cannot justify retaliation against whistleblowers as a legitimate means of avoiding the disruption that necessarily accompanies such exposure.”

Roger Granbo, an attorney with the County Counsel’s Office, said, “We disagree with the decision and did not retaliate against Ceballos. But this is still an ongoing case. So I’m not going to discuss the judge’s ruling.”

Granbo said the matter is under discussion and an appeal to the 9th Circuit is likely.

Retired Deputy D.A. Frank Sundstedt and Deputy D.A. Carol Najera, Ceballos’ former supervisors and defendants in the case, did not return the Weekly’s calls for comment. Najera ran unsuccessfully for judge in the last election. She’s currently assigned to Los Padrinos Juvenile Division.

Former District Attorney Gil Garcetti, another defendant, said he had no reaction to the ruling. “I have nothing to do with this,” he insisted. “I’m not interested in it. I’m out of the D.A.’s Office and have a different life. I’m a photographer now, and it’s a lot more fun. I don’t miss being D.A. at all.”

Ceballos filed his lawsuit in 2000. It was dismissed in federal court in January 2002. An appeal was filed in July of that year. And oral arguments were heard last June. The events that precipitated this legal brouhaha occurred in 1999. At the time, Ceballos worked as a calendar deputy in the Pomona office, then supervised by Sundstedt and Najera.

He was prosecuting an auto-parts theft case against three defendants. The defense lawyer for one of them, Michael Cuskey, told Ceballos that Sheriff’s Deputies Daniel Spitulski, Murray Simpkins and Keith Wall had lied on their search-warrant affidavit.

Ceballos investigated the claim and decided it had merit. He gave Sundstedt a memo detailing his concerns. The prosecutor then tried but failed to get permission to dismiss the charges. He also gave Sundstedt a second memo, which led to a confrontation with him, Najera and Sheriff’s representatives. The Weekly previously reported this story in 2000.

Ceballos was subpoenaed by the defense and testified at a hearing to quash the search warrant. The judge denied the motion, and Ceballos was removed from the case. He was then transferred to El Monte to work as a trial deputy, a lower-ranking position. Ceballos alleged that this was in retaliation for his testimony at the hearing.

Ceballos told the Weekly that Najera claimed El Monte’s head deputy, Terry White, had requested another prosecutor. But White and his trial deputy Jaime Hernandez gave Ceballos signed declarations denying that any such request was made. White declined comment on Ceballos’ charges or the 9th Circuit’s ruling. “I will let my declaration speak for itself,” he said. Ceballos also claimed that he was denied a promotion. And he charged that Garcetti’s office engaged in regular cover-ups of officer misconduct.

The 9th Circuit made no ruling on the legitimacy of Ceballos’ claims. Those issues must still be decided at trial. Ceballos said he expects the county will appeal, but he believes the ruling will stand. And he added, “I’m looking forward to finally getting my day in court.”

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