SANTA ANA (CNS) - An outside law firm hired by the county substantiated sexual harassment claims against a former senior prosecutor, but it cleared Orange County District Attorney Todd Spitzer of retaliating against one of the whistleblowers, according to a report obtained today by City News Service.
The 162-page report regarding sexual harassment against retired prosecutor Gary LoGalbo, prepared by attorney Elisabeth A. Frater of the Burke, Williams & Sorensen law firm, was completed April 28. The firm was retained by the county counsel's office on Dec. 28.
The investigation was triggered when an Orange County District Attorney's Office employee who was leaving his job made a remark the first week of November about inappropriate behavior by LoGalbo and whether anything would be done about it. LoGalbo was the best man at District Attorney Todd Spitzer's wedding and the two were roommates for a time.
Then, the Orange County Attorneys Association, which represents prosecutors and public defenders, made a formal request on Nov. 10 if there had been any sexual harassment claims made regarding LoGalbo.
Frater concluded that “the allegations of discrimination against LoGalbo are sustained,”and that “derogatory comments made by LoGalbo were motivated by racial, ethnic or national origin animus and bias, and also constituted harassing conduct as defined by”the county's policy. Frater, however, rejected allegations that the District Attorney's Office “failed to promptly investigate and remedy LoGalbo's act of harassment.''
It took 35 days from when the departing employee made the remark about LoGalbo on the way out the door and his being placed on administrative leave, Frater said. That prompted LoGalbo to immediately announce his retirement.
The report ultimately concluded there was not enough evidence to substantiate a claim that Spitzer retaliated against one of the women who complained of harassment because Spitzer ultimately signed off on a positive review of her employment, which allowed her to clear probation and become a permanent employee.
Frater, however, doubted Spitzer's and his public information officer's account of a meeting with one top prosecutor regarding whether the employee should be “written up”for an email she sent to human resources about fear of participating in an inquiry because she thought it left her vulnerable to dismissal.
The report provides numerous accounts from multiple witnesses regarding lewd and inappropriate sexual and racial comments allegedly made by LoGalbo.
Some of the more explosive allegations involve claims that LoGalbo had a “foot fetish”and had hung up in the office of another prosecutor a stress-ball that resembled a “sperm.”The object was produced as an advertisement by a company the office was doing business with regarding DNA testing.
After his retirement, one co-worker was texting with LoGalbo about his sudden departure and he said of his future plans that there was “more to come,”but he spelled “come”as another lewd term that rhymes with it, according to the report.
In another instance, when a discussion occurred in the office about several prosecutors going on maternity leave, LoGalbo allegedly said, “You ladies need to duct tape it up,”according to the report.
In another discussion about an attorney who is Muslim, LoGalbo allegedly referred to him as a “terrorist,”and also, on other occasions, said how it was appropriate that an Asian prosecutor would be taking a case regarding an Asian defendant, according to the report.
LoGalbo was also accused of joking he would put a men's pornographic magazine on the desk of Assistant District Attorney Shawn Nelson.
In another instance, LoGalbo was accused of taking a photo of a woman in the office who was bent over, attempting to plug an appliance into an electrical socket, and then joking he would keep the image for his “spank bank,”a reference to masturbation, according to the report.
Some alleged he inappropriately touched them and one said he would ask her to sit in his lap, according to the report, which said several of the women said they were warned about LoGalbo being a “a perv,”with some telling investigators they tried to laugh off the outrageous comments or would eye roll in a way to let him know it was not acceptable behavior. One woman broke down in an interview with a human resources executive in the District Attorney's Office because she felt ashamed for not comi ng forward sooner, according to Frater.
One of the accusers said she googled LoGalbo's name and saw that a Cal State Fullerton student, on a “rate my professor”page, said LoGalbo, who taught a class at CSUF, was being investigated for a harassment claim there, as well. When she later looked for the report to give to investigators, she found it was deleted, according to the report.
In a Dec. 30 interview with Frater about the harassment claims, LoGalbo said he first met Spitzer in 1990, but then refused to discuss his relationship between the two, the attorney wrote.
“LoGalbo said he understand that he had an obligation to cooperate with the investigation, but he was `retiring in two weeks, so if they fire me, they can pay me a 90-day severance and waste more taxpayer money,' “Frater wrote.
LoGalbo said, “I had to deal with a difficult, a couple of difficult employees unfortunately, which is what led to this whole thing,”according to the report.
“With respect to specific misconduct allegations, LoGalbo affirmed that he told a friend in the OCDA's office that he has a foot fetish,”Frater wrote. She said LoGalbo claimed it was a running joke with a good friend in the office.
For many other allegations, such as giving a co-worker a bottle of wine called “Menage a Trois,”LoGalbo said, he didn't recall. LoGalbo said no one told him to “refrain from making inappropriate comments,”according to the report. He also denied taking a photo of the co-worker's buttocks.
LoGalbo said that two accusers “fabricated the present allegations against him as a result of their own work-performance issues,”according to Frater's report.
Many of the women said LoGalbo was a good boss otherwise, according to her report.
Matthew Pettit, the District Attorney's human resources manager, said when he received the letter from the attorneys association on Nov. 10, he spent about a week working with Nelson and Pettit's supervisor on a response. Pettit said he did not communicate any of the allegations to Spitzer.
Pettit said they could find no prior claims against LoGalbo, but he said he felt it deserved an investigation and Nelson agreed, according to the report.
Pettit said he emailed the county's Equal Employment Officer Jodi Wertheimer on Nov. 24 to discuss the issue. This was after Pettit had spoken with a couple of accusers, according to the report.
Pettit was new to the office and in his previous job handled harassment claims “soup to nuts”and was aware of the protocol on passing along an investigation to the main human resources managers for the county, according to the report.
Nelson was indicating that LoGalbo might benefit from harassment training, but Pettit said his gut told him that LoGalbo should at least be placed on administrative leave or suspended, according to the report. Pettit emailed Wetheimer again on Dec. 1 and there were calls exchanged back and forth, but they connected on Dec. 9.
The county's main EEO office said it would take over the investigation at that time. Frater did not find there was any unnecessary delay in Pettit's alerting the EEO office about the allegations.
Spitzer insisted in his interview with Frater that if he had known about the allegations, he would have gotten rid of LoGalbo as soon as possible.
Spitzer also downplayed his friendship with LoGalbo.
One accuser sent a letter to Frater on Jan. 15 when Frater asked her for an interview, saying she was afraid to participate because she feared losing her job. She was on probation at the time as a new hire.
“The man visiting this harassment upon us is not only a friend of the elected District Attorney, but he was actually the `Best Man' at his wedding,”she wrote in the email to Frater. “Imagine how stressed the female prosecutors in this office must be. So who determines if we are telling the truth?''
The accuser was also offended that her name was used in follow-up interviews with other witnesses, according to the report. Frater said she withdrew the request for an interview and apologized for upsetting her.
The probationary employee's boss accused Spitzer of demanding that she be “written up”because the county's top prosecutor was angered by the email she sent to Frater and believed she made “untruthful”claims in the complaint, according to the report.
Frater found the allegation unsubstantiated, but only because the employee was not written up and was granted a permanent position. Frater found Spitzer's account of his meeting with the unnamed top prosecutor not credible and also doubted a claim from his public information officer, who was present for the impromptu meeting at the West Justice Center in Westminster, that she was not paying attention and did not hear the exchange.
Frater concluded “any allegations that Spitzer would have either ignored reported sexual harassment or would have retaliated against a victim or witness who reported sexual harassment prior to this investigation is speculative.''
The whistleblower's evaluation was marked “exceeded expectations ”by her supervisor, and the supervisor's boss left a post-it note on it for Spitzer saying she should not be written up, according to the report.
On Feb. 8, Spitzer told the supervisor that he signed off on the positive evaluation, and on March 31 the employee cleared probation.
Spitzer told Frater that he recalls having a conversation at the courthouse with the woman's supervisor and just asking “how she was doing,'' according to the report. He emphasized that he didn't want her to feel she was being retaliated against.
Frater found that Spitzer's and his public information officer's accounts of the discussion with the supervisor were “not credible on this incident.''
Frater added that the public information officer is “a former reporter and was presumably trained to accurately observe and recall events. In addition, her responses about even being in the room during the discussion Spitzer had with (the supervisor) were markedly inconsistent and evasive.''
Frater concluded that the supervisor had no motive to “lie or fabricate”the discussion about the woman's job evaluation and that his account was “indirectly corroborated by his immediate discussion”with another executive about the meeting. Also, the supervisor immediately reported the incident to the county EEO office, Frater said.