Sam Olens Hiding Behind Obfuscation and Sovereign Immunity in Whistleblower cases

In fact, not a single court has addressed the facts alleged, the documentation of the allegations, or the substantive legal claims–instead relying on procedural issues or expansions of the doctrine of sovereign immunity.

Court treatment of cases against State Officials

Executive Summary:

No court has ever considered the factual allegations and supporting documentation, or ruled on the substantive legal claims brought in this series of cases against the USG Board of Regents and Attorney General.  Instead, courts have found various procedural means to avoid both the substantive legal questions and the damaging and undisputed documentation that state officials have committed crimes of evidence tampering, perjury, knowingly falsifying state agency reports, mail fraud, wire fraud, computer fraud, theft of state and federal funds, influencing witnesses, extortion, and obstruction of justice—in addition to breach of USG contracts and violation of USG policies.

Benedek v. Adams. Claims for fraud and violation of First Amendment rights (Section 1983) were filed against President Michael Adams and the Board of Regents in Fulton State Court, February 2013.  Defendants removed the case to federal court where Judge Amy Totenberg treated the Section 1983 claims as employment law claims and dismissed them, saying Benedek had missed the two year statute of limitations for employment law claims by four months. The judge denied Benedek’s right to amend his complaint to add federal RICO claims—which have a four-year statute of limitations–and remanded the remaining state law fraud claims back to state court.

Once back in State Court, Benedek amended his complaint to add detailed claims under the Georgia RICO Act and filed a motion to add RICO party-defendants. Judge Susan Edlein entered an order denying the amendment to the complaint to add RICO claims, contrary to OCGA 9-11-15. The judge also denied the motion to add parties, without considering the governing factors under OCGA 9-11-21. Arguing that state agencies and officials enjoy sovereign immunity, Judge Edlein dismissed the fraud claims under the Georgia Tort Claims Act (GTCA), though the GTCA does not bar fraud claims. Judge Edlein also said Benedek could not file claims specifically authorized under the RICO Act in order to “circumvent” the GTCA (which was, in turn, the court’s means of circumventing OCGA 9-11-15 & 21).

Benedek v. Olens. Benedek then filed a complaint in Fulton Superior Court that consisted only of the RICO claims barred from the first suit by Judge Edlein, naming only the defendants who were never made parties to the first action.  Judge Jerry Baxter dismissed the second case on claim preclusion grounds, holding that the claims and parties in Benedek v. Olens were the same claims and parties that had been barred in Benedek v. Adams, and that Benedek should have brought his RICO claims in the first case.

Judge Baxter also ruled that he did not have jurisdiction to consider claims the Attorney General committed fraud by obstructing service on Jane Gatewood, a witness who has already testified under oath to evidence tampering and subornation of perjury by the Attorney General, until she could leave the state to evade service.  The Attorney General claimed Gatewood was not a party to the first suit, to prevent service on her, and then claimed Gatewood was a party to the first suit in order to get the second suit dismissed on claim preclusion grounds.

Tricoli v. Watts. Tricoli filed Georgia RICO and breach of contract claims in Dekalb Superior Court, May 2014. When the Attorney General, in the face of extensive documentary evidence obtained only through a third party’s Open Records lawsuit against the Board of Regents, admitted that USG officials committed a number of criminal acts, including knowing falsification of official state agency reports, Tricoli moved for immediate injunctive relief.  The same day Tricoli filed the motion based on the criminal admissions, however, Judge Daniel Coursey dismissed the entire action.

The claims for knowing falsification of state agency reports to cover up misappropriation of funds, brought under the Georgia RICO Act, were dismissed as a matter of law, relying on immunities governing claims brought under the Georgia Tort Claims Act (GTCA). The court held that knowing falsification of budget reports to cover up theft of funds by state officials was immunized by the GTCA’s sovereign immunity protection for state officials performing their “financial oversight” duties. The court did not address the criminal nature of the conduct—which is addressed not by the GTCA but by the Georgia RICO Act.

The contract claims were dismissed as a matter of law based on Tricoli’s subsequent forced resignation, and on USG policies that were changed after the fact (as admitted by the Attorney General in face of the documentation).

The dismissal order did not address the request for injunctive relief based on the criminal admissions, filed the same day the judge signed the dismissal order, and the dismissal prevented the Attorney General from ever having to even respond to that motion.

Caldon v. Regents, whistleblower action in Fulton Superior Court

The president of Macon State College fired Denise Caldon nine days after she objected in writing to his falsification of his leave reports (on which his current pension is based) to cover the fact that he was mentally incompetent to perform his duties. Judge Downs granted summary judgment against Caldon because the president said he had a different reason for firing Caldon besides her whistleblowing on his criminal actions.  The Court of Appeals affirmed, adding that the time proximity between the whistleblowing against the president and his firing of the whistleblower was not enough to create a jury issue. Caldon filed a Rule 60 motion to set aside the judgment against her for fraud, based on admitted misrepresentations to the court by the defendants. The motion was filed in July 2014 and Judge Downs still had not taken any action on the motion by 2015. When a reporter inquired, Downs said the case had been transferred to another judge. On March 10, 2015, it was verified that this claim was false, that Judge Downs still had the motion and had not looked at it, and Judge Downs entered an order denying the motion the same day.

Brandenburg v. Regents. Todd Brandenburg was summarily fired after reporting a conflict of interest involving sales to Medical College of Georgia by Regent Donald Leeburn’s company. Brandenburg was accused of insulting a patient’s family by a USG official who was not present at the incident. The patient’s family denied the accusation. Brandenburg never received any hearing, and has litigated for years over the Regents failure to produce documents in response to Open Records requests.

REVIEW OF THE CASES

Case #1 Benedek v. Adams, Section 1983 and fraud claims filed in Fulton State Court, filed Feb, 2013

US District Court, Judge Amy Totenberg

-The case was removed by defendants to federal court on basis of the federal 1983 claims, where Judge Amy Totenberg dismissed the Section 1983 claims on statute of limitations grounds after re-characterizing them as “adverse employment action” claims.

-Judge Totenberg said there was a 2-year statute of limitations, ignoring the fact that we made a loss of consortium claim that extended the statute of limitations to four years (she said we did not plead that claim properly–which is not a proper legal basis for dismissal, which requires that there is no way the claim could be properly pled to cure any deficiency)

-Totenberg also denied our amendment to add federal RICO claims, which also extends the statute of limitations to four years (instead of the 2-year limit imposed by Totenberg). Federal law allows permissive amendment, and amendment once as of right within 21 days of a motion to dismiss.  The AG filed a motion to dismiss and we filed an amended complaint in response. The AG then filed another motion to dismiss and we filed a second amendment including our RICO claims within 21 days of that second motion to dismiss. Totenberg said we were not allowed to do this because the federal rule says we are only allowed to amend once as a matter of right within 21 days of a motion to dismiss.

-Even if we were not allowed to amend as of right in response to the AG’s second motion to dismiss, federal law still says amendment should be “permissive” in other instances–basically the issue is that it does not come so late that it prejudices the other party (for example, discovery is already over). Totenberg denied our amendment under that discretionary prong of the law, though the statute itself says amendment should be liberally allowed. Since we were still in the initial stages of the litigation, and the amendments came in response to Defendants’ motions to dismiss, and within 21 days of those motions, they could claim no prejudice.

– JudgeTotenberg also denied our RICO amendments on the basis that they were “futile,” because according to her they did not affect the basis her dismissal order. However, the dismissal was expressly based on a 2-year statute of limitations and the RICO claims bear a 4-year statute of limitations–meaning the amendments actually completely obliterated the basis of the dismissal order.

-Of course for statute of limitations purposes, the issue is not only how long you have to sue, but when the clock starts running. By re-characterizing it as an employment law case, the judge said the clock started running when Benedek was demoted as head of the Asian languages program–which of course is a minor delict in this case, and is not even by itself a RICO predicate act.  Under the RICO statute, the clock would run from the last predicate act committed, such as Sam Olens’ knowingly false claim that there is no evidence any of these predicate acts occurred and thus no need to investigate.

Note that what happened in federal court is not that our RICO claims were considered by the court and dismissed as “frivolous,” as the Attorney General falsely claims.  Since the amendments were denied, they never became part of the case.

Fulton State Court, Judge Susan Edlein

Once Totenberg dismissed all our federal Section 1983 claims and denied our RICO amendments, the remaining fraud claims were remanded to Fulton State Court, where the case was originally filed before it was removed to federal court.

-The first thing Benedek did upon remand to the State Court is file an amendment stating over a hundred pages of detailed claims under the Georgia RICO Act. Georgia law allows amendment of claims as of right up until entry of a pre-trial order (that is in the advanced stages of the litigation, and in this case we never proceeded past the initial motion to dismiss stage). Judge Edlein DENIED the Georgia RICO amendments–an act she has no power to do under OCGA 9-11-15.

Judge Edlein based her denial of the RICO amendment on sovereign immunity, but still she has no power to deny the amendment. The most she could have done is allow the amendments, making them part of the case, and then dismiss them on sovereign immunity grounds. However, again, similar to Totenberg’s actions, Edlein’s denial of the amendment kept the RICO claims from ever becoming part of the case. She did not substantively address and dismiss them as frivolous–again, contrary to the AG’s knowingly false claims.

-At the same time Benedek filed his Georgia RICO amendments, in December 2013, he also made a motion to add additional parties that are subject to suit under the RICO claims, who as state officials could not be sued under Section 1983 or ordinary tort claims.  The proposed added party-defendants included UGA official Jane Gatewood, whose testimony at Benedek’s tenure hearing established that the Attorney General intentionally concealed explosive evidence refuting the charges the AG brought against Benedek, and the Attorney General himself was also added as a party for this criminal RICO predicate act. Under Georgia law, addition of parties is not automatic, but it is supposed to be permissive and there is no case law to bar it at this early stage of litigation. Nonetheless, Judge Edlein denied the motion, keeping Olens and Gatewood from ever becoming parties to the case.

-Edlein made these rulings, denying the amendment to add RICO claims and denying the motion to add RICO parties, under unusual circumstances. We filed the RICO amendment and motion to add RICO parties in December 2013. Despite repeated prodding, by April 2014 we still had heard nothing from the court in response to our motion. We needed an order from the court to be able to serve the additional parties. Then we heard that Jane Gatewood was quitting UGA and leaving the state. Of course, we wanted to serve her before she could leave Georgia for parts unknown, so we brought this matter to the attention of the court by way of a motion requesting the court to act. We also wrote and brought it to the attention of the Attorney General, who represented Gatewood–whose testimony against the AG for concealing documents and suborning perjury would be devastating (the AG did not recuse himself, oblivious to this blatant conflict of interest). The AG wrote back claiming ignorance and total lack of responsibility concerning Gatewood’s plans or whereabouts–on the grounds that this devastating witness of crimes committed in the AG’s office was not a party to the civil case. Edlein for her part, responded to our notice about Gatewood leaving the state–by May 9, at the latest, according to our information–by setting a phone conference with the parties. Edlein cancelled that phone conference when a CBS reporter asked to listen in.  Instead, she set a hearing for May 15, a week after we had given notice that Gatewood would be gone. Then, before the scheduled hearing could occur, Judge Edlein entered her order on May 2 denying our RICO amendment and denying our motion to add RICO parties. This fulfilled like a prophecy the AG’s earlier statement that Gatewood, the witness against the AG for criminal evidence tampering and subornation of perjury, was not a party to the civil case.

Edlein also employed the highly unusual rationale that if sovereign immunity barred tort claims against the state agencies and officials, then Benedek could not employ another law, the Georgia RICO Act, to bring claims allowed by the RICO statute on that alternative theory. Of course, as any first year law student knows, the only issue is whether the RICO statute allows the claims–not, as Edlein stated, whether that other statute is being “impermissibly” used to “circumvent” the Tort Claims Act.  Edlein focused on the intent of the attorney to avoid the GTCA, instead of the legislature’s intent in passing the RICO Act to allow claims for the criminal predicate acts.

Edlein entered her May 2 order dismissing our case, 13 days before the scheduled hearing, after we gave her notice that we would dismiss the case before her and file a new action naming Gatewood as a party–allowing us to serve Gatewood without waiting for an order from the court adding her as a party–if Judge Edlein would not act in time. Of course Judge Edlein’s order dismissing our case 13 days before the scheduled hearing prevented us from filing all our claims against all the defendants in a single action.

When all was said and done, by the time we sought action through another court in order to serve Gatewood, she had left the state and evaded service.

Case #2, Benedek v. Olens in Fulton Superior Court

When Judge Edlein denied the RICO amendment and denied the motion to add RICO parties–on sovereign immunity grounds, stating that these claims were barred by the Georgia Tort Claims Act–Benedek filed the RICO claims against the RICO parties in Fulton Superior Court. This action consisted only of the claims and parties that were denied by Judge Edlein, and thus never became part of the first case.  The AG also denied in the first case that Gatewood and others were parties to that case–for purposes of obstructing service on Gatewood.

In case #2, however, the AG urged dismissal on claim preclusion grounds, arguing that it was the same case against the same parties as the one Edlein dismissed.

Judge Jerry Baxter did dismiss the case on claim preclusion grounds in August 2014, concluding that–though the claims and parties in the two cases were not the same–the claims and parties were legally the same because Benedek had alleged a conspiracy between the different parties. The court did not examine the hundreds of pages of claims included in the two suits to determine that there was no claim in the second suit that was not duplicated in the first suit, or to verify that the conspiracies alleged were similar.

Benedek moved under Rule 60 to have that order of dismissal vacated based upon the fraud by the AG in claiming that Gatewood was not a party to the first suit, in order to prevent her from being served, and then claiming she was a party to the first suit in order to get the second suit dismissed. Since the judge did not decide that motion within the 30 day period in which an appeal may be filed, Benedek filed a conditional notice of appeal, contingent on the judge’s ruling on the fraud motion with respect to the AG’s duplicitous statements regarding Gatewood, a witness who can confirm criminal evidence tampering and subornation of perjury in the AG office. Judge Baxter then ruled that he had no jurisdiction to decide the Rule 60 fraud claim against the AG because Benedek had filed a notice of apeal (ignoring that it was conditioned in the motion to set aside the dismissal for fraud by the AG), depriving the trial court of jurisdiction.

Benedek then filed a motion for sanctions against the Attorney General for fraud–since it was held in the Kalberman case when the AG was fined for withholding documents in that whistleblower action that a Superior Court always has jurisidiction to consider the conduct of the parties appearing before it, even when the case is over, as in the Kalberman case.  The AG did not respond prior to the scheduled March 10 hearing to written documentation of the fraud filed with the court, and the AG asked for a postponement the morning of the hearing.

Case #3, Tricoli v Watts, RICO and breach of contract claims, filed May 2014

The AG argued that the Georgia Tort Claims Act barred Tricoli’s claims under the Georgia RICO Act, and that the Georgia Constitution barred Tricoli’s contract claims because he did not have a written contract.

In response to the contract defense, Tricoli filed Open Records requests and also did research on changes in USG policy and filed evidence with the court that Tricoli did have a written contract that was governed by USG policy, and that the Regents had gone back after the fact to alter some of the policies they had violated by their actions against Tricoli.

Based on this and other documentation from Open Records requests by third parties, Tricoli served the AG with requests for admissions that Tricoli had a written contract and that the USG defendants had altered polices after the fact and knowingly falsified state agency reports related to the Tricoli case. The AG continued to deny that Tricoli’s written contract governed by USG policy was a contract governed by USG policy–basing the denial on the very after the fact alterations of USG policy. In the course of that exchange, and in face of irrefutable documentation, the AG admitted that state officials had engaged in criminal RICO predicate acts by knowingly falsifying Georgia Perimeter College budget reports and other official documents and state agency reports–in violation of OCGA 16-10-20.  Confronted with the documentation, the AG also admitted that the Regents had gone back and changed USG policies relevant to the case after the fact.

Based on those admissions, Tricoli filed a motion for an interlocutory injunction removing one of the admitted violators of the Georgia RICO Act from office and restoring Tricoli to his position as GPC president. That motion was filed on November 19, 2014, just before the clerk’s office closed at 5 pm. On November 21, the clerk of the court officially entered an order signed by Judge Daniel Coursey dismissing the entire action. The RICO claims were dismissed by Judge Coursey on sovereign immunity grounds. The contract claims were dismissed, not on sovereign immunity for lack of a written contract, but based on the fact that Tricoli later resigned his contract–ignoring the fact that the resignation was coerced, and that the breaches of the contract and violations of USG policy occurred before the forced resignation. The court completely ignored the motion for injunctive relief (not barred by sovereign immunity) that was filed two days before the order was entered by the clerk.  The order stated on its face that it was signed by Judge Coursey on November 19, according to the hand-written date–the same day the motion based on the admissions of criminal conduct was filed at 4:54 p.m.–and filed with the clerk two days later, according to the official file stamp of the clerk’s office.

Tricoli sent correspondence and filed motions to have the court address the request for injunctive relief that was bypassed and ignored in the dismissal order. The court denied those motions without explanation.

The Nov. 21 order dismissing the RICO claims stated that state officials were immune under the Georgia Tort Claims Act, under their discretionary and financial oversight functions, for the admitted criminal RICO predicate acts of knowingly falsifying GPC budget reports and other official agency reports–even if the knowing falsifications (a criminal violation by themselves) were for the purpose of covering up theft of funds or other criminal acts.

This order, though more than a little disturbing in its implications, is the only order, throughout this series of actions against state agencies and officials, in which the judge actually addressed the substantive claims and held that state officials could not be sued for these admitted criminal acts.

Case #4, Caldon v. Regents, Rule 60 motion filed in July 2014

Denise Caldon was fired for insubordination by the president of Macon State College the week after Caldon refused in writing to falsify the president’s leave reports (on which his state pension is based today) to cover up the fact that he was mentally unfit to perform his duties and absent more than he was present.

The Board of Regents dismissed her application for review of her termination (later admitting they did so without considering or investigating her whistleblower claims).  She filed suit under the Georgia Whistleblower Act and Fulton Superior Court Judge Doris Downs granted summary judgment against her based on the Macon State president’s argument that he fired her not because of her whistleblower claims against him, exposing his criminal actions, but because she called him out for being rude to his son nine days later, which Caldon could not disprove.  In this case the Regents represented to the trial court that they had investigated the whistleblower claims and found no evidence to support them.

The Georgia Court of Appeals upheld this decision, stating that it did not matter that the firing occurred shortly after the whistleblowing activity, and also that the whistleblowing was trumped by the president’s evidence that he had a different reason for firing Caldon besides her written objections to his criminal activity (the case law on alternate grounds for firing only allows it when the person doing the firing has no knowledge of the whistleblowing activity).

The evidence in the case concerning the president’s falsified leave reports was filed under seal. Since the dismissal of her case, Caldon has filed several pro se motions to unseal the evidence, all of which have been opposed by the Attorney General.

In July of 2014, Caldon filed a Rule 60 motion to set aside the order dismissing her case for fraud by the defendants–based in part on a recent admission that, contrary to what was represented to the trial court, the Regents had never investigated Cladon’s whistleblower claims.

By 2015, Judge Downs had still not taken any action on that motion filed in July of 2014. When a CBS reporter inquired about the status of the motion, Judge Downs falsely responded that the case had been transferred to another judge.  On March 10, 2015, Caldon consulted the Fulton County Superior Court docket and found that the case was still assigned to Judge Downs.  Caldon called Downs office to inquire about the status of the motion. Downs’ legal assistant confirmed that Downs still had the case and the assistant told Caldon that she would take the file and give it to Judge Downs. The same day, Judge Downs signed an order denying the motion without holding a hearing on the evidence of fraud submitted to the court.

Case #5, Brandenburg v. Regents. Todd Brandenburg was a 15-year X-ray tech who was summarily fired after reporting a conflict of interest involving sales to Medical College of Georgia by Regent Donald Leeburn’s company. Brandenburg was accused of insulting a patient’s family by saying his feet were smelly by a USG official who was not present at the alleged incident. The patient’s family denied the accusation. Brandenburg never received any hearing, and has litigated for years over the Regents failure to produce documents in response to Open Records requests.