MacKinnon v. City of Santa Paula CA2/6

Filed 10/27/15 MacKinnon v. City of Santa Paula CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

STEPHEN MACKINNON, 2d Civil No. B256042 (Super. Ct. No. 56-2013-00433766- Plaintiff and Appellant, CU-WT-VTA) (Ventura County) v.

CITY OF SANTA PAULA et al.,

Defendants and Respondents.

Stephen MacKinnon claims the City of Santa Paula ("City") terminated his employment as police chief in violation of the whistle-blower statute, Labor Code section 1102.5.1 The trial court sustained the City's demurrer to his second amended complaint without leave to amend. We reverse the ensuing judgment. FACTS The second amended complaint alleges as follows: In September 2005, Robert Gonzales retired as City police chief. The retirement followed a critical management audit of the police department. Stephen MacKinnon applied for the position of police chief. During the job interview, MacKinnon requested personal use of a City car to travel to and from his second residence in Arizona, where his wife continued to live and work. The City

1 All statutory references are to the Labor Code unless otherwise stated.

offered MacKinnon the job. The City's offer stated his employment would be at will and that he would be provided a City car for personal and professional use. MacKinnon accepted the offer and became police chief in November 2005. In February 2010, Jaime Fontes was appointed as City Manager. By this time former Police Chief Gonzales was the City's mayor. While Fontes was City Manager: "Plaintiff complained about the lack of use, and current status of, approximately $35 million in Bond Funds that CITY was to use for public improvements. Plaintiff also complained about a $149.7 million contract for a wastewater treatment plant, which CITY's Council had not adequately or reasonably justified given that CITY staff had recommended CITY's Council hire a better qualified company willing to provide the same services for an estimated $22.3 million less. [¶] . . . In fall 2011, Plaintiff complained to Defendant FONTES numerous times about $36,000 that had gone missing from a Bankruptcy Trust Fund, which was supposed to have been for the exclusive use of Public Safety. During the same time Plaintiff and CITY Attorney discussed their shared concerns about potential conflicts of interest and/or possible criminal misconduct of CITY Council members, particularly that of Defendant GONZALES. . . . [¶] . . . During the course of Plaintiff's regular employment duties, he became suspicious that Defendants were engaging in potential illegal, unethical, and/or questionable financial and managerial practices. Plaintiff contacted Defendants on more than one occasion to raise his reasonable suspicions regarding certain financial activities and managerial practices. Repeatedly, Defendants failed to respond to Plaintiff's concerns." As a result of the complaints, Fontes began to retaliate against MacKinnon. Fontes hired a private investigator to investigate whether MacKinnon used a City car for unauthorized trips to Arizona, violated City policy by using the City's gas access card, and lost work time by showing himself on payroll records to be at work when he was in Arizona on personal business. The report was biased and actually incorrect. Nevertheless, Fontes found all the allegations of misconduct to be true.