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San Diego County public defender acknowledged false statements in wrongful termination case

San Diego County Public Defender Randy Mize admitted under oath in December that he signed off on an investigative report regarding discrimination and harassment allegations in his office despite knowing it contained false statements, according to court transcripts.

Mize made the admission during his testimony last month in the Superior Court trial of a wrongful termination lawsuit brought against San Diego County by former deputy public defender Zach Davina. The jury decided the case in Davina's favor and awarded him $2.6 million in damages.

The trial transcripts show that under cross-examination by Davina’s attorney Chris Ludmer, Mize repeatedly acknowledged he knew that four of the five supervisors who sat on Davina's tenure review panel had made false statements to an HR investigator. The investigator was probing Davina's firing in November 2020.

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The statements in the HR investigator’s report centered on whether the panel members knew that Davina had told a colleague he felt discriminated against and harassed during his tenure review panel.

“And when you signed this report on November 30 … you knew all these statements by all these tenure panel members were false?,” Ludmer asked, according to the court transcripts.

Mize replied, “I did.”

Ludmer then asked, “And you didn’t do anything to correct them, did you?”

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Mize answered, “I missed it.”

Ludmer followed up: “You missed something that directly beared on one of Mr. Davina’s specific complaints of retaliation?”

Mize responded, “I did.”

He also acknowledged reading the full investigative report before signing it.

Mize, who has held his post since 2017, did not respond to a request for comment. Neither did the four public defender supervisors who sat on the tenure review panel and who Mize acknowledged made false statements to the HR investigator. They included: Mignon Hilts, Frank Barone, Sherry Stone and Jo Super.

Tara Kearns, a lawyer in the San Diego County Counsel's office, who represented the county in the Davina case, also did not respond to a request for comment.

Davina, who is gay, says he went into the tenure review with high hopes because he had been graded well on previous performance reviews. But then a supervisor on the review panel began the evaluation by asking him if he was too flamboyant and animated and whether that hurt his clients.

“Their follow-up questions were very much like, `Oh, are you sure you're being professional in court? And it became very clear it wasn't a question of what is actually professional or what is actually right as a public defender, but why aren't you acting straight?,’” Davina told KPBS in October.

Right after the tenure review session ended, Davina spoke with fellow deputy public defender Jessica Enriquez and complained about how he felt about the panel's line of questioning.

Davina’s complaint was branded a breach of confidentiality by Mize and the other supervisors, according to court records.

Davina was told on Nov. 4, 2020, he had failed probation and was asked to resign or be fired. He elected to resign. Days later, each of the four supervisors told an HR investigator they were unaware of a breach of confidentiality by Davina, according to the investigative report.

Yet, Mize acknowledged during the trial that the issue had been discussed with those same supervisors at a meeting on Nov. 2, 2020, two days before Davina’s termination.

“It created anger for them,” Ludmer said in an interview. “In fact, Randy Mize himself asked Zach’s direct supervisor Michael Ruiz to speak to him and counsel him about that disclosure, about that complaint.”

Ludmer said Mize’s signature on the investigative report despite knowing it included false statements should be a fireable offense.

 “Any senior public official doing something like that should immediately lose their job,” he said. “The idea that the county would continue to pay our taxpayer dollars and keep someone in their job who has admitted to this kind of gross, unethical misconduct is shocking to me."

County spokesperson Chuck Westerheide said in a statement: "One of our core values is belonging, for the people we serve and for the employees of the County. This matter must still be presented to the board in closed session. Therefore, it would be inappropriate to comment at this time."

Chair of the San Diego County Board of Supervisors Nora Vargas also said in an emailed statement that it would be inappropriate to comment. Supervisors Terra Lawson-Remer, Joel Anderson and Nathan Fletcher all said they were unavailable for comment. Supervisor Jim Desmond did not respond.

Updated: January 13, 2023 at 8:55 AM PST
This story was updated to include a statement from Nora Vargas, chair of the San Diego County Board of Supervisors.