Three years later, ethics commission case goes to trial

Deep coverage

The Atlanta Journal-Constitution has reported extensively on the state ethics commission, including its handling of campaign finance complaints against Gov. Nathan Deal’s campaign in 2010 and the ouster of top commission lawyers Stacey Kalberman and Sherilyn Streicker.

Since then, the AJC has kept close watch on the commission’s activities as it dismissed the most serious complaints against Deal and hired a new director, whose own conduct has come under fire.

Late last year, the AJC was first to report allegations from current and former commission staffers alleging wrongdoing at the agency. The FBI began interviewing current and former commission staffers after publication of those stories.

Timeline:

• November 2010: Republican Nathan Deal is elected governor.
• January-May 2011: The top two staff members of the state ethics commission, director Stacey Kalberman and her deputy, Sherilyn Streicker, open an investigation into the Deal campaign. They meet with federal prosecutors and the FBI concerning their inquiry. The two draw up subpoenas for Deal and others and prepare to serve them.
• June 2011: Kalberman and Streicker are gone from their jobs. Streicker's job is eliminated. Kalberman's salary is cut from $120,000 to $85,000, and she resigns. The chairman of the ethics commission, Patrick Millsaps, says he needed to cut costs.
• August 2011: Holly LaBerge, previously of the Public Defender Standards Counci, is hired as the commission's new director.
• June 2012: Kalberman and Streicker file separate whistleblower lawsuits against the state.
• July 23 2012: The state ethics commission clears Deal of major ethics violations while finding he made "technical defects" in a series of personal financial and campaign finance reports. Deal agrees to pay fees totaling $3,350.
• September 2013: The Atlanta Journal-Constitution reports that two staff members of the state ethics commission accused LaBerge of improperly intervening in the probe of Deal. Staff attorney Elisabeth Murray-Obertein and IT specialist John Hair made the accusations in sworn testimony taken as part of the whistleblower suits. Hair said LaBerge ordered him to destroy documents in the Deal file. Murray-Obertein said LaBerge bragged that Deal "owed" her for making his legal troubles go away. LaBerge has denied those accusations in her own testimony. Deal also has denied any wrongdoing.
• Oct. 10, 2013: The AJC reports that the FBI has interviewed Murray-Obertein.
• Oct. 22, 2013: The state ethics commission votes to have the state auditor investigate the beleaguered agency.
• Dec. 11, 2013: Federal investigators issue subpoenas to at least five current and former ethics commission staff members. They are seeking documents related to the Deal probe to present to a grand jury.
• Dec. 19, 2013: In an effort to restore public confidence, the ethics commission votes unanimously to hire veteran lawyer Robert Constantine to oversee operations at the agency from January to May. One of the commissioners describes the agency as mired in "a legal morass."
• Jan. 6, 2014: Relying on personnel files obtained through an open records request, the AJC reports that Constantine was fired in August 2013 as a judge on the state Board of Workers' Compensation for "failure to meet performance expectations."
• February 2014: Deal and two top aides are subpoenaed by Streicker and could testify in her lawsuit. A Fulton County Superior Court judge hears arguments on whether to allow Kalberman's case to move forward but does not immediately issue a ruling. The commission also cuts ties to Constantine, voting to conclude his services while agreeing to pay the full $16,000 of his original agreement.
• March 2014: A third whisteblower lawsuit is filed by Hair, the ethics commission's former computer specialist. He claims he was fired after refusing orders from LaBerge to alter or remove documents.

Nearly three years after she claims she was forced from office for investigating Gov. Nathan Deal’s campaign, former state ethics commission director Stacey Kalberman’s lawsuit will be heard in court.

Kalberman’s case against her former employer begins Monday in Fulton County Superior Court. The trial, expected to last a week, could feature such high-profile witnesses as Deal himself, as well as his private attorney, top Republican lawyer Randy Evans.

Kalberman’s lawsuit, one of three filed against the commission, has helped throw it into turmoil as depositions have revealed allegations that agency employees were ordered to remove or alter documents from the Deal case file and that the governor’s office handpicked Kalberman’s successor.

Filed under the state’s whistleblower statute, Kalberman’s case hinges on whether a jury believes the commission — which is responsible for overseeing how public officials raise and spend money and how the information is disclosed — punished her for aggressively investigating Deal’s 2010 campaign.

The principals in the case have all declined to comment, including Kalberman’s attorney Kim Worth, the governor’s office, the ethics commission and Attorney General Sam Olens, whose office will represent the commission.

Brandon Hornsby, an Atlanta lawyer who has represented whistleblowers for more than 10 years, said Kalberman should expect the state to cast her as a problematic employee.

“The employer is always going to attack the employee’s motives and integrity,” said Hornsby, who is not involved in the case. “I’ve never seen an employer say that what the whistleblower stated was true. They always deny it.”

Matthew McCoyd, an adjunct law professor at Emory University and a former assistant district attorney in DeKalb County, said Kalberman’s challenge is to prove that she reported a potential violation of state law, ethics or rules and fell victim to retaliation because of that.

In her lawsuit, Kalberman said she and her top deputy, Sherilyn Streicker, prepared draft subpoenas as part of the Deal investigation and presented them to the commission. Shortly after, she says, then-commission Chairman Patrick Millsaps claimed the agency faced a financial crisis and told Kalberman that her salary would be cut by 30 percent and that Streicker’s job would be eliminated.

Kalberman later resigned and claims in her suit that she had no choice because her position was untenable. Kalberman will likely claim that her resignation was what’s known as “constructive discharge.”

“She can’t say, ‘I reported the incident and they fired me,’” McCoyd said. “What she’s going to say is, ‘I reported the incident and then they took steps to make it where I could not remain in my position.’ ”

It helps Kalberman that evidence exists that commissioners took steps to identify her replacement before she resigned, McCoyd said.

Current ethics commission director Holly LaBerge testified in a deposition for the case that someone in the governor’s office called her to gauge her interest in the job before it was open. The Atlanta Journal-Constitution later reported that Deal’s office confirmed it was chief counsel Ryan Teague who called LaBerge after several commission members asked the governor’s office for recommendations.

“That could be compelling evidence to a jury,” McCoyd said.

The case has followed Deal for years, even though the commission dismissed major charges against his campaign. He was eventually slapped with a small penalty for technical defects on his campaign filings.

Now, Deal may have to testify in open court. The state has filed a motion to quash his subpoena, but Judge Ural Glanville has yet to rule on the issue.