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IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA STACEY KALBERMAN, Plaintiff,
FILED IN OFFICE
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GEORGIA GOVERNMENT TRANSPARENCY AND CAMPAIGN FINANCE COMMISSION, fIkIa GEORGIA) ST ATE ETHICS COMMISSION, HOLLY LABERGE, in her Official capacity as Executive Secretary of the Georgia Government Transparency and Campaign Finance Commission. and PATRICK MILLSAPS, in his Individual capacity, Defendants.
CIVIL ACTION FILENO.
COMPLAINT COMES NOW Plaintiff Stacey Kalberman ("Kalbennan") and hereby files this Transparency Commission and (the
COMPLAINT (the "Complaint") against Defendants Georgia Government Campaign Finance Commission, flkJa Georgia State Ethics
"Commission"), Holly LaBerge, in her Official capacity as the Executive Secretary of the Georgia Government Transparency and Campaign Finance Commission ("LaBerge"), and
Patrick Millsaps ("Millsaps"), in his Individual capacity (collectively "Defendants"), showing the Court as follows: PARTIES
Kalberman was formerly employed by the Georgia State Ethics Commission, nIkIa the Georgia Government Transparency and Campaign Finance Commission. At all times relevant to
this action, Kalbennan was a "public employee" for purposes ofO.C.G.A. is subject to the jurisdiction of this court.
§ 45-1-4. Kalbennan
Defendant Georgia Government Transparency and Campaign Finance Commission, fIkIa Georgia State Ethics Commission, is an agency of the State of Georgia and is a "public
employer" within the meaning of O.C.O.A. § 45-1-4. The Commission has offices located at 200 Piedmont Avenue, Suite 1402 - West Tower, Atlanta, Georgia 30334. The Commission
may be personally served at that location by service upon its Executive Secretary, Holly LaBerge.
Defendant HoUy LaBerge is the current Executive Secretary of the Commission. She is sued in her official capacity only. She may be personally served at her office at the Commission, located at 200 Piedmont Avenue, Suite 1402 - West Tower, Atlanta, Georgia 30334.
Defendant Patrick Millsaps is a resident of Mitchell County, Georgia. Service of process may be made upon Defendant Millsaps at his residence at 88 South Scott Street, Camilla, Georgia 31730. Alternatively, service of process may be made upon Defendant Millsaps at his principal place of business located at Hall Booth Smith & Slover, p.e., 2417 Westgate Drive,
Albany, Georgia 31708.
This action is brought under the Georgia WhistIeblower Act, O.C.G.A. § 45-1-4, et seq.,
D.C.O.A. § 51-12-1. et seq., and the Common Law of the State of Georgia.
Venue is proper in the Fulton County Superior Court because Fulton County is the principal site of operation of the Commission and because Defendant Millsaps' unlawful actions took place in Fulton County.
The Commission was created by the State of Georgia to oversee the enforcement of the State's ethics laws and to ensure compliance with the Georgia Campaign Finance Act. 8. On April 10, 201 0, Kalbennan began employment with the Commission as the Executive Secretary. 9. Prior to Kalberman's termination in June of 2011, she had never been subjected to any disciplinary actions by the Commission. To the contrary, Kalbennan received positive feedback from all of the Commissioners during her tenure as the Executive Secretary.
As Executive Secretary of the Commission, Kalbennan managed its operations, including its administrative, legal, and investigatory functions, which included determining whether to administratively dismiss complaints that fail to state a claim under the Georgia Campaign Finance Act or to pursue investigations of such complaints.
11. It was Kalbennan's responsibility to determine when additional documentation was
required in order to properly investigate a matter and whether that information could be requested informally or through subpoenas.
Between March and May of 2010, Kalberman became aware of three third-party complaints made against a gubernatorial candidate (the "Candidate") concerning his campaign's compliance with the Georgia Campaign Finance Act. 13. The Candidate had reappointed Millsaps to his position on the Commission.
The Commission's investigation revealed troubling irregularities with the Candidate's campaign financial disclosures.
In September of 2010, Kalberman informally requested a specific list of items from the Candidate's private counsel.
The Candidate's private counsel ignored Kalberman's request for the documents.
After the Candidate failed to respond to Kalberman's request for the documents, in October of 2010 to
Kalbennan conferred separately with each of the Commissioners
determine whether subpoenas should be issued to the Candidate's campaign. The Commission
decided that subpoenas should not be issued so close to the November 2010 gubernatorial election, as they may have been perceived as an attempt to influence the election.
Kalberman's staff continued their investigation into the Candidate's campaign and
prepared the subpoenas in the Spring of2011.
19. Kaiberman forwarded the subpoenas to the State Attorney General's office to ensure they
were in compliance with Georgia law. 20. On or around May 3, 2011, Kalbennan presented draft subpoenas to each of the
Commissioners for their review.
21. Prior to presenting the subpoenas to Millsaps, Kalbennan had updated him on the investigation and discussed the subpoena status with him on at least four occasions, including in October of 2010 when the Commission originally requested issuance of subpoenas. 22. During these updates, Kalberman described to Millsaps the specific evidence her investigation uncovered which formed the basis for the complaints including, without limitation, findings that the Candidate's campaign had possibly violated campaign contribution limits on many occasions and campaign contribution reports which contained frequent and systematic irregularities.
Kalberman and Millsaps had also discussed the meetings she and her Deputy had with an Assistant U.S. Attorney and agents from the local FBI division concerning the investigation into the Candidate.
After Kalberman briefed Millsaps on her discussions with the FBI and the Assistant U.S. Attorney, Millsaps was visibly upset and advised Kalberman she must keep the matters discussed in "strict confidence." Because of this, Kalberman refrained from discussing the Candidate in
front of other staff members, including the education staff which often consulted on the Commission's ongoing cases.
Millsaps, as Chair of the Commission, had to sign the subpoenas before the Commission could issue the same. 26. On May 20, 20 II, less than three (3) weeks after providing the subpoenas to the Commissioners, Millsaps emailed Kalberman, requesting detailed information about the
In his May 20, 20 II email, Millsaps also stated: "I am extremely fearful that we are literally going to run out of money before next year without more detailed budgetary and strategic planning. Before we jump into ANY grand campaign, I think we need to look at this more closely."
As of his May 20, 2011 email, Millsaps had refused to sign the subpoenas. 29. Kalberman and Millsaps scheduled a meeting for June 9, 2011, to ostensibly discuss the budget.
30. A few days prior to the meeting, Millsaps informed Kalbennan that Commissioner
Stringfellow ("Stringfellow") would be attending the meeting, even though she had not taken an active role in any budget discussions. 31.
diligently prepared the requested budgetary items for discussion with
Millsaps so that she would be able to show him there were no budgetary concerns which would cause an impediment to further investigation into the Candidate.
On June 9, 2011 (the "June Meeting"), Kalbennan met with Mil1saps and Stringfellow and attempted to provide them with the requested budgetary information,
Instead of reviewing any of the budgetary information, Millsaps informed KaIbennan that the Commission was cutting her salary by 35% and was eliminating the position of Deputy Secretary, who served as Kalberman' s chief investigator.
Millsaps' plan to reduce Kalbennan's salary and fire the Deputy Secretary had not been approved by the Commissioners at the time he conveyed it to Kalberman.
35. At the June Meeting, it was obvious to KaIberman that Millsaps' sudden "budget cut" was retaliation against her for pursuing the ethics investigation into the Candidate. Kalberman, exhausted from previous weeks of dealing with her mother's diagnosis of Stage IV metastatic breast cancer, became emotional and stated she could not work for the drastic reduction in salary Millsaps proposed. 36. At no time did Kalberman resign her employment with the Commission. 37. Millsaps, however, refused to review the budgetary figures prepared by Kalberman in response to Millsaps' email requesting the same, and the meeting ended without further discussion on the budget. 38. The evening of June 9, 2011, Kalberman spoke to Kent Alexander ("Mr. Alexander"), one of the Commissioners, about the day's events. Kalberman explained to Mr. Alexander that the budget was sound and the Commission was not at risk of running out of funds, as Millsaps had argued. Mr. Alexander advised Kalberman to try to discuss the matter further with Millsaps. 39. The next morning, Kalbennan attempted to call Millsaps to discuss the prior days' events.
Millsaps refused to return Kalberman's call and instead sent an email to Kalberman at 9:30 a.m. on June 10. 2011 indicating that the Commission had accepted her "resignation" and that her last day with the Commission would be June 30, 2011. 41. Kalberman immediately responded to Millsaps' email, apologized for becoming
emotional in the June Meeting, and denied that she had resigned from her position. Kalberman also attempted to engage Millsaps in a discussion of budgetary issues, which had purportedly been the purpose of the JW1eMeeting. 42. Millsaps responded via email that "the time for discussing the budget with you has passed." 43. Millsaps then began maliciously spreading false rumors to the press and to the public that Kalberman had resigned from her position during the June Meeting.
On June IS, 2011, Kalberman sent a detailed email to Millsaps outlining several alternative plans for restructuring the budget to avoid Millsaps' proposed cuts.
Kalbennan also indicated in her email that she felt that Millsaps' alleged "budgetary concerns" were pretextual to hide his real reason for removing Kalberman from her position: to deter the investigation into the Candidate. Kalbennan made it clear to Millsaps that she planned to proceed with her job duties, which included the investigation.
Millsaps ignored Kalberman's overtures to discuss the Commission's budget, leaked Kalberman's email to the press, and told the press that Kalberman had resigned from her position and that she behaved badly by becoming "upset" at the June Meeting. In addition, Millsaps
misled the press when he reported he could not really remember if he ever received the Candidate's subpoenas. 47. On June 15, 2011, Kalberman received a call from Mr. Alexander who was concerned about the matter escalating in the press. Kalberman reiterated that she did not resign her
employment, but after Millsap's public flaying, she would be in an untenable position if she continued as the Executive Secretary. compromised. 48. On June 16,2011, the Conunission met to officially enact Millsaps' proposed budgetary cuts of eliminating the Deputy Secretary's position and reducing Kalberman's salary by 35%. Ms. Kalberman also attended the meeting. 49. During the meeting, Kalberman was forced to resign from her position, as it was clear she would not receive support from the Commissioners, and her ability to perform her job duties was compromised. Mr. Alexander agreed that Kalbennan's authority was
The Commissioners and Kalberman agreed to terminate discussions with the press regarding Kalberman's employment. In addition, the Commissioners promised to assist
Kalberman with her job search. 51. Kalberman's resignation as Executive Secretary amounted to a constructive termination because the Commission, and specifically Millsaps, forced her out of her job and made it clear she would be rendered powerless. amounting to nothing more than a figurehead.
Following Kalbennan's termination and contrary to his promise at the meeting, Millsaps continued to give interviews and vilified Kalberman to the press, falsely claiming that Kalberman focused her efforts as Executive Secretary on her investigatory and prosecutorial role to the detriment of her administrative responsibilities. 53. Millsaps' statements cast a shadow over Kalberman's tenure at the Commission, and they have prevented her from obtaining similar ethics-related positions, including a high-profile position with the City of Atlanta. 54. Since Kalberman's termination, the Commission hired a new Executive Secretary, an attorney, and a new receptionist to answer the telephone which had previously been handled by a phone service, all of which confirms that Millsaps' budgetary cuts were pretextual.
55. Defendants' wrongful actions caused Kalbennan great injury, including lost wages, the loss of accumulated fringe benefits of employment, loss of retirement income, diminished future earning capacity, tamishment of her reputation, great uncertainty regarding her future, emotional distress, humiliation, and embarrassment.
COUNT I RETALIATION UNDER THE GEORGIA WHISTLE8LOWER ACT. O.C.G.A § 45-1-4. et seq. (against Defendant Commission and Defendant laBerge)
56. Kalberman incorporates by reference all of the foregoing paragraphs of this Complaint, as if fully set forth herein. 57. Pursuant to O.C.G.A. § 45·1-4, it is unlawful for a public employer to retaliate against a public employee for disclosing fraud, waste, abuse. or violations of law and rules, or regulations, in relation to any State programs or operations under the jurisdiction of such employer. 58. The reduction of Kalberman' s salary and her constructi ve termination constituted adverse employment actions under O.C.G.A. § 45-1-4. 59. Defendants' proposed reduction of Kalberman's salary and Kalberman's constructive termination were in retaliation for making disclosures protected under D.C.G.A. § 45-1-4.
60. The Commission is liable for all economic and non-economic damages resulting from its acts of retaliation, pursuant to D.C.O.A. § 45-1-4(e)(2)(D) and (E).
Reinstatement is not appropriate as Kalberman' s position was filled after her departure from the Commission in August of 20 11. 62. Kalberman is entitled to recover damages for lost wages, the loss of accumulated fringe benefits of employment, loss of retirement income, diminished future earning capacity, tamishment of her reputation, great uncertainty regarding her future, emotional distress, humiliation, and embarrassment, pursuant to O.C.G.A. § 4S-1-4(e)(2)(D) and (E)_ 63. Kalbennan is entitled to recovery of her attorneys' fees and all other costs of litigation, pursuant to O.C.G.A. § 45-1-4(1).
COUNT II INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UNDER THE COMMON LAW OF GEORGIA
(against Defendant Millsaps) 64.
Kalberman incorporates by reference a11of the foregoing paragraphs of this Complaint as
if fully set forth herein.
65. Millsaps' conduct in reducing Kalberman's salary was intentional and calculated to force her to resign so that the investigation into the Candidate would not continue.
66. Millsaps knew Kalberman did not resign her employment from the Commission.
Millsaps leaked Kalberman' s email to the press and misrepresented facts to the press, to the other Commissioner's and to third parties to render Kalbennan powerless.
Millsaps' actions resulted in Kalberman's constructive termination from the Commission. 68. Millsaps' conduct toward Kalberman and the abuse of his position as a Commissioner was extreme and outrageous.
Millsaps' actions were not in the best interests of the Commission and were taken to further his political aspirations and personal agenda as Millsaps had been reappointed to the Conunission by the Candidate.
Because of his relationship with the Candidate, Millsaps interfered with the service of the subpoenas by forcing Kalberman out of her job. 71. Millsaps' unlawful conduct caused Kalbennan to suffer severe emotional distress.
As a direct and proximate result of Millsaps' unlawful conduct, Kalberman has suffered damages in an amount to be proven at trial.
73. Millsaps' actions demonstrate willful misconduct, malice, wantonness, oppression and that entire want of care raising the presumption of conscious indifference to the consequences of his actions, entitling Kalberman to punitive damages under D.C.G.A. § 51-12-5.1. WHEREFORE, Kalberman demands that a trial by jury be had on all Counts of her
Complaint and that following such trial judgment be entered on her behalf against Defendants granting the following relief: 1. Reinstate Kalberman with back pay and such benefits as Kalberman would have enjoyed had she never been terminated; 2. If reinstatement is deemed inappropriate under the circumstances, the
Commission be ordered to compensate Kalberman with three years of front pay, including any fringe benefits and any loss of retirement income; 3. Compensatory damages in an amount to be proven at trial to compensate Kalberman for the diminished future earning capacity, mental anguish,
humiliation. pain and suffering, and such other damages as resulted from the Commission's improper conduct; 4. Compensatory damages for Millsaps' intentional infliction of emotional distress upon Kalberman; 5. Punitive damages in an amount to be determined by the enlightened conscience of an impartial jury as warranted to deter defendants from future wrongful conduct of the type proven at trial; 6. 7. Kalberman's attorneys' fees, pursuant to O.C.G.A. § 45-1-4(1); Kalberman's costs of this action, including reasonable attorneys, fees;
All other costs incurred by Kalbennan; and Such further and additional relief as the Court may deem is appropriate. of June, 2012.
Respectfully submitted this ~day
RASHER KAISER & LISS, LLC
mberly Worth, Esq. Georgia Bar No. 500790 email@example.com D. Barton Black, Esq. Georgia Bar No. 119977 firstname.lastname@example.org
Attorneys for Stacey Kalberman
Five Concourse Parkway Suite 2600 Atlanta, Georgia 30328 Telephone: (404) 760-6000 Facsimile: (404) 760-0225