Arbitrator Michael H. Leb ruled this week that the county “did not have reasonable cause to terminate” Damon Tucker, who is “to be reinstated with all back pay and benefits as soon as reasonably practicable.” Also, “documentation related to the termination at issue here shall be removed from Tucker’s record.”
The ruling cannot be appealed with a lawsuit unless some sort of evidence of corruption in the process was uncovered.
When Tucker would be allowed to return to work depends on how long it takes to do the accounting of his back pay and pension benefits, his attorney, Keith Bruno said.
“It typically takes some time because of the way public employees accrue retirement and benefits,” Bruno said.
Bruno said he suspects “another level of trumped-up charges” could be leveled to block Tucker from returning to work.
“Maybe they come up with something else,” Bruno said. “That’s rank speculation on my part. But you’re assuming a leopard has no spots and that’s a dangerous assumption.”
Tucker has a lawsuit pending that Bruno said he is seeking to amend to include allegations of defamation against Orange County District Attorney Todd Spitzer for “his very ill-advised spouting off and damaging the reputation of Damon” with comments Spitzer made following a claim that was filed last year.
Tucker, who was hired as an investigator in July 2003, was fired Dec. 16, 2020. Before his stint with the Orange County District Attorney’s Office he had 10 years of previous law enforcement experience.
In July 2018, Tucker was assigned to complete an internal affairs investigation of co-worker, Tom Conklin, who previously assisted the Fair Political Practices Commission’s review in October 2016 of campaign finance “irregularities” by Spitzer, according to the arbitrator.
Conklin was accused of leaking his summary of the report days after Spitzer announced his candidacy to unseat then-District Attorney Tony Rackauckas.
Tucker was asked to conduct the internal review of Conklin, but demurred and another investigator was assigned to the case but left the office with the job unfinished and it was handed over to Tucker.
Tucker had “begged off” the case initially because he had just done another internal affairs investigation and because he “liked Conklin,” the arbitrator said.
After reviewing the previous investigator’s work and following up on the case, Tucker suspected that Conklin “sabotaged” the probe of Spitzer to “exonerate” him of any criminal wrongdoing, the arbitrator wrote.
Particularly troubling to Tucker was Conklin’s failure to follow up with former Playboy model Christine Richters, who worked for Spitzer and alleged he “engaged in criminal conduct,” the arbitrator wrote.
Tucker told the chief of the investigations bureau, Paul Walters, he “believed there was evidence to suggest Spitzer had threatened Richters,” who sued Spitzer after she lost her job, and that Tucker also suspected Spitzer had “engaged in money laundering, bribery of political officials, extortion and campaign finance violations.”
Tucker met with Walters every other day in the run-up to the Nov. 6, 2018, election, the arbitrator said.
After Spitzer won, Walters told Tucker that Spitzer asked him to remain in charge of the investigations bureau. Then, Walters told Tucker to “redact” and reference of Spitzer in questions prepared for an interview with Conklin, drawing an objection from Tucker, who said it would hinder the investigation, according to the arbitrator.
Tucker redacted the questionnaire anyway, and three days after the election Walters put another investigator in charge of the probe and asked Tucker to provide assistance if asked. The arbitrator noted Tucker was never informed in writing he should stop working on the Conklin probe.
Tucker backed off except for “repeatedly” asking the other investigator if the case would be sent to outside law enforcement agencies. But in February 2020 when that investigator was promoted he told Tucker the case was never farmed out to another agency.
In June 2020, Tucker made calls to a friend in the Orange Police Department to see if there were any reports related to Richters’ allegations, the arbitrator wrote. That ultimately triggered the internal affairs review of Tucker.
County officials argued Tucker overstepped “in pursuit of some sort of vendetta against Spitzer,” with whom Tucker had a spat on social media regarding Spitzer’s public criticism of Tucker’s socializing with the chief of staff for Rackauckas.
“This entire case would have been avoided if the bureau had simply recused itself from any further investigation involving Spitzer in any way after July 10, 2017, when Spitzer announced he was running for Orange County district attorney,” the arbitrator wrote.
At least, the investigators should have been “especially sensitive” to conflicts of interests.
“Instead, the bureau compounded its initial bad judgment call when, notwithstanding Tucker’s reluctance to investigation Conklin,” his supervisor “recommended that Tucker take over the Conklin investigation despite Tucker’s supposedly well-known animosity toward Spitzer and his friendship with (Rackauckas’ chief of staff Susan Kang Schroeder),” the arbitrator wrote.
The arbitrator was critical of the county counsel’s role in the investigation and firing of Tucker before it was “asked to act as the advocate defending the termination decision. The conflict here is patent.”
The arbitrator ruled that the process of terminating and investigating Tucker was “far from fair.” The arbitrator also was critical of the county for skipping a step in the termination process.
“This was such a transparently botched corruption by a bunch of bozos,” Bruno said. “They couldn’t operate a one-car funeral properly.”
The District Attorney’s Office released this statement:
“There was no reasonable belief of wrongdoing because there was no wrongdoing (in Tucker’s dismissal). As a trained investigator Tucker should have recognized that. This was nothing more than political espionage immediately after Rackauckas’ dismal showing in the primary. In fact, Tucker is asking to come back to work for the Orange County District Attorney’s Office and work for District Attorney Todd Spitzer.
“It is unequivocally clear that the sitting Orange County district attorney could not have ethically opened up an investigation into Spitzer, his political rival, in the middle of the 2018 campaign for district attorney.
“Tucker was assigned to investigate DA investigator Conklin, not Spitzer. In the wake of Rackauckas’ dismal performance in the June 2018 primary, Tucker engaged in unauthorized and self-directed activities in a desperate attempt to dig up dirt on Spitzer before the general election in November and prevent Rackauckas from being unseated.
“The final determination to fire Tucker for violating the standards of the OCDA Bureau of Investigation was made by the head of the county’s human resources department, not Spitzer. Spitzer was never called to testify as part of the arbitration, which was handled entirely by county counsel.”