This drawing, made by a coworker, was offered as evidence of workplace humiliation.
In 2005, Barry John Johnson left his job as city manager of Solana Beach, where he drew an annual salary of $149,344, to volunteer as a counselor at South Bay Community Services. At the agency’s Teen Recovery Center, whose clients were often referred by the court, he counseled teenagers with substance-abuse problems. Six months later, he was offered compensated employment. Johnson resigned from his job in 2008 and shortly afterward filed suit against South Bay Community Services in the San Diego Superior Court. Among the suit’s 11 causes of action were “Hostile Work Environment” and “Retaliation for Whistle-Blowing.”
South Bay Community Services is a nonprofit organization that provides an array of social services in Chula Vista, National City, and Imperial Beach, including shelter at Casas Seguras for victims of domestic violence, housing at Casa Nuestra for runaway and homeless youth, and transitional housing at Trolley Trestle for homeless and former foster youth. According to the agency’s latest available tax filing (2008), 95 percent of its $14 million budget came from taxpayer money. In the past five years, the agency has received from Chula Vista alone $2,486,425 in federal grant funds, a recent public records request shows.
Since 2006, three former employees who have filed suit against South Bay Community Services have asserted document falsification at the agency. Their lawsuits also contain allegations of retaliatory behavior. Six people, four in legal documents and two interviewed during an internal investigation by the agency, have attested to document falsification or sloppy recordkeeping. Typically, the alleged falsification happened just prior to county audits.
At the Teen Recovery Center, which has since ceased operation, counselors were required to work out service plans with clients and to get their signatures on the plans several times during the program. Counselors were also required to record progress notes. The purpose of these records was to document that clients were meeting their goals and that the public money funding the program was being used for its intended purpose.
However, according to Johnson’s suit, he “witnessed numerous occasions where documents were falsified to show that [South Bay Community Services] clients received services, when they did not. Client signatures have been forged and the services to client[s] have been exaggerated by adding to the number of counseling sessions an [agency] client received,” the suit says.
An example of how this alleged activity might have happened is provided by Modesto Lizarraga, who worked as a counselor at the Teen Recovery Center for about a year, beginning in 2006. In an “Uncertified Real-time/Rough Draft” transcript of a deposition, which occurred on May 13, 2010, Lizarraga said, “When we would fall behind on our duties, as far as keeping up the…service plan, we would sometimes meet with a youth and just fill out the files in order to keep them up to par.” When the attorney asked Lizarraga whom he meant by “we,” Lizarraga answered, “Everyone,” and then added, “Except Carole.”
Lizarraga was asked about a specific instance when this occurred.
“Can you give me an estimate of how many kids were brought in…?” the attorney asked.
“Basically all of them.”
“How many is that?”
“I would say approximately 25 to 30.”
“How long did it take to get everybody’s signature?”
“I would say about two hours, two to three hours,” Lizarraga said, according to the transcript.
In August 2008, about the time of Johnson’s whistle-blowing, an internal investigation was launched by Kathryn Lembo, the executive director; Ismena Valdez, director of human services; and Captain Don Hunter, a member of the board of directors who at the time worked for the Chula Vista Police Department. The team interviewed a number of employees. Transcripts and other records from the investigation were acquired through the discovery process of a lawsuit filed by Alicia Guido in May 2009.
Johnson’s lawsuit describes his interview with the team. “On or about August 12, 2008, the Plaintiff was summoned into a conference room in an unscheduled meeting and interrogated about his grievances for nearly two hours by Defendant Valdez and Captain Don Hunter of the Chula Vista Police Department (who also serves as …Board member). During this interrogation, the Plaintiff was repeatedly threatened with insubordination and discipline if he did not disclose all communications, including private communications with non-[agency] employees about the issues surrounding his grievances.”
While interviewing employees, Hunter, Lembo, and Valdez focused on two points. They wanted to know if the notes describing meetings between counselors and clients were “cookie cutter notes” filled out in a hurry before an audit, and they wanted to know if services were actually rendered to clients.
During their interview with Johnson, Hunter asked if he had “personally witnessed falsifying of documents.” After saying yes, Johnson continued, “Sheila [a supervisor] told staff that there was an audit coming up and the [Teen Recovery Center] needed to show proof of counseling that had never taken place. Staff were asked to meet with kids (clients) and have them give three signatures on the service plan without dating them. Dates would be added to the notes later.”
When asked if that was a direct quote from the supervisor, Johnson said, “[M]ore along the lines of, ‘We need to get the kids to sign off on three counseling sessions, don’t worry about the date.’”
Transcripts of the internal investigation show that, prior to audits, pressure to have paperwork in order would become intense. When the investigative team interviewed a counselor named Carole Dougherty, Hunter asked her, “Did anyone ever direct you to get things signed or to do something inappropriate or in a group setting and the group is being asked to just get them signed and don’t worry about dating them?”
Dougherty answered, “I can’t remember to be told directly, but we had to get the files done no matter what it takes.”
“Did she [the supervisor] actually say I don’t care what it takes?” Hunter asked.
“She never told me in those exact words but she did imply it,” Dougherty replied.
“Did she imply it to anyone else?”
“She sounded like she did — she would scream and yell, ‘I can’t believe the files are a mess,’ I know she wanted it perfect. And we would pass 100%,” Dougherty said.
A third counselor at the Teen Recovery Center, Jeff Larsen, was also questioned. He told the investigative team that he sometimes fell behind on his paperwork by “3 to 4 weeks.” In speaking of one particular instance that took place in 2006, Larsen said, “I was pressured from Sheila [the supervisor] to get files done.” During the discussion, Lembo pointed out a discrepancy in Larsen’s paperwork. “Progress notes are signed and according to the note on 5/9 the youth was not there,” she said.
As the questioning continued, Larsen attributed the discrepancy to “sloppy note writing,” but Hunter sounded increasingly exasperated: “I am having trouble believing that it is sloppy writing. Sometimes the things people do, they do for a reason.… I’ve talked to six staff in the past days and I have enough statements from people it all rolls back to your files, auditing it rolls back to you, creating the cookie cutter notes rolls back and the progress notes do not reflect the accurate services provided to youth. Then I heard it again, pulled more files and it corroborates to the serious issues brought up. So, I have statements, physical evidence, a report from the person assigned to review the files. Files are a mess, it horrifies me….”
During the time that the agency was conducting interviews, it also reviewed the 40 case files that were open during September 2006. Directors Pam Wright and Valerie Brew wrote a summary of the review, dated August 21, 2008. Under the category of “Intake” records, the summary says that the “Referral Form” was “Generally not found in file.” Of the “Youth Assessment Index,” “There were numerous times when this form was missing from the case file,” and “Generally speaking, this form was not completed in full and had significant fields missing.”
In the category of “Treatment Plan,” the summary says: “Supervisor’s signature frequently missing,” “coined goals,” and “Periodically, the date of the individual progress note indicating that the plan was reviewed and signed with the client did not correspond to any dates listed on the plan.”
Johnson’s suit alleges that problems with recordkeeping were not confined to a particular time or limited to a particular program at South Bay Community Services. “Former employees who left in good standing have informed plaintiff of overt falsification practices that they witnessed within the last 2 to 3 years in different [South Bay Community Services] programs such as the ‘Trolley Trestles’ program and ‘Casa Nuestra,’” his suit states.
Tara Olin is one of those former employees referred to in Johnson’s suit. She worked for the agency from 2005 until 2007. In a Declaration she made to the court on June 4, 2010, in support of the lawsuit by Alicia Guido, Olin states that she was a quality assurance and contract compliance associate and for a time a resident manager at Trolley Trestle. Her court Declaration states, “On more than one occasion when the Agency was notified of an upcoming audit, managers and case workers would pull some or all client case files and check them to see if they were meeting contractual/audit requirements.… If the files were not meeting the requirements, the program manager or case worker would revise the file by filling in missing information, adding missing documents, or adding additional progress notes to meet the requirements, backdating the paperwork to when it was supposed to have been done.”
Olin described an incident that occurred shortly before she left the agency. In late March or early April 2007, she held a meeting attended by program managers and the compliance director, Dina Chavez. “It was clear from the statistics that we would not meet our objectives for one program and would have to report this to the required agencies,” Olin’s Declaration states. “Dina Chavez asked us to count clients from another program to increase the numbers, and therefore meet the objective.” Olin told Chavez that this was not allowed. Not only had the clients not received services from that program, but Olin thought this would be “double-counting.” The Declaration continues, “I had heard about the Agency directors double-counting or falsifying reports on some programs in the past from other employees, but had never experienced it first-hand until that time.”
In a lawsuit filed in 2006, a family therapist who worked for South Bay Community Services for five years described another incident. “On or about October 31, 2005, Plaintiff’s supervisor, Leone, called Plaintiff into her office. Leone told Plaintiff to reopen a closed case file on one of Plaintiff’s clients. The purpose of this directive was to enter a billing invoice into the file for work supposedly performed by another therapist. San Diego County was to pay this bill. Leone told Plaintiff to reopen the case, crossed out some case notes, and instructed Plaintiff to sign a document stating that the case was still open when, in fact, it was not.” The lawsuit states that the Plaintiff declined to sign the document and “charge the county for work not performed.” When contacted for an interview, the family therapist said her suit was settled out of court with a confidentiality clause and she was unable to discuss it.
Two of the three lawsuits filed against South Bay Community Services since 2006 list “Wrongful Termination” as a cause of action. Other causes listed in the suits are “Battery,” “Intentional Infliction of Emotional Distress,” “Hostile Work Environment,” and “Harassment.”
In June of 2008, Johnson filed a grievance with the agency’s Human Resources Department. “Almost immediately after the Plaintiff filed his grievance,” Johnson’s lawsuit states, “Defendant Lembo demoted the Plaintiff by modifying his job duties to include being a ‘bathroom monitor.’ Defendant Lembo directed that all counselors in Plaintiff’s department of the Teen Recovery Center be bathroom monitors.”
The suit describes bathroom-monitor duties: “Defendant Lembo mandated that the Plaintiff escort…clients to the restroom, unlock the restroom door, and then wait outside until the client was done. After the…client left the restroom, Defendant Lembo directed, the Plaintiff was to go into the restroom and inspect for graffiti.”
However, “Defendant Lembo also knew that the Plaintiff was only one of two male counselors in the Plaintiff’s department, and the Plaintiff had the lowest level of seniority. As a result, most of the bathroom monitor duties would fall onto the Plaintiff.”
Johnson asserts that in his department he “could routinely interact with up to 25 male clients a day” and that bathroom monitoring took “a great deal of time and effort away from him, and other counselors, in the performance of their main job duties.” According to Johnson’s suit, “Lembo sought to demean and humiliate” him. One of his coworkers “even made a drawing of someone wearing a gas mask with the caption ‘Barry Johnson, Lavatory Monitor,’” the suit says.
In August of 2008, as the agency conducted its investigation, Johnson was placed on paid administrative leave. “Placing the Plaintiff on administrative leave for ‘whistle-blowing’ was unlawful hostile, harassing and retaliatory conduct,” says Johnson’s suit. After returning from administrative leave in early September, according to the suit, Johnson was “re-assigned to a new clinical supervisor”; his hours were changed such that he “was required to work until 7:30 p.m., two nights a week even though he had no client appointments”; and “all of his personal belongings had been packed into boxes.”
Ultimately, according to Johnson, South Bay Community Services settled his lawsuit out of court, and he was awarded $80,000, or the equivalent of two years’ pay. Johnson’s settlement did not include a confidentiality clause.
Johnson had a personal relationship with Alicia Guido, who worked for the agency from June 2006 until February 2009. Her May 2009 lawsuit listed eight causes of action. The agency moved for a summary judgment — a decision without a trial. The judge ruled that the case could go forward on four causes of action: “Discrimination and/or Harassment,” “Failure to Prevent Discrimination,” “Wrongful Termination,” and “Intentional Infliction of Emotional Distress.”
Guido was fired, according to her suit, because of a violation of the federal Health Insurance Portability and Accountability Act, which protects the privacy of clients. Guido’s suit states that on Friday, January 30, 2009, she left the office with client files to work on at home and that the associate manager saw her leave. “As the plaintiff was making her way out through the [organization’s] building she was met by Dina Chavez, Associate Director Manager for [the agency]. Ms. Chavez is second-in-command at [South Bay Community Services]. Ms. Chavez saw the plaintiff carrying the files and said to plaintiff ‘it looks like someone is working from home.’ The plaintiff responded to Ms. Chavez that she had some files to review and prepare over the weekend,” the lawsuit states.
The suit goes on to say that Guido placed the files in the trunk of her car and drove away. “Shortly thereafter, the plaintiff received voice mail messages from Ms. Chavez and Ms. Brew to return the files to the [agency’s] building.” The following Monday, Guido was fired. Guido’s lawsuit states that the agency’s “policy permits, encourages and advises employees how to access [agency] files from home computers and laptops.” It also states, “If Ms. Chavez believed [Health Insurance Portability and Accountability Act] and/or [agency] policy was about to be broken by the plaintiff when Ms. Chavez saw and spoke to the plaintiff about the files before the plaintiff left the [agency’s] building, then Ms. Chavez should have taken some type of action as the Associate Director…to prevent the plaintiff from potentially violating any law or policies.”
Termination of employment, Guido’s suit says, was due to the fact that Guido “had a close personal relationship with a former [agency] employee Barry Johnson…a disfavored [agency] employee, because he had made an internal [agency] complaint against the defendants [South Bay Community Services] and Lembo.”
According to Guido’s suit, “On or after July 2008, and after Mr. Johnson made his complaints via [the agency’s] internal process, the defendants unlawfully harassed the plaintiff in order to disrupt her relationship with Mr. Johnson. Specifically, Ms. Chavez…personally questioned the plaintiff about her relationship with Mr. Johnson. At the same time, Ms. Chavez also suggested to the plaintiff, that she instead date others, besides Mr. Johnson.… Ms. Chavez also inquired of other [agency] employees regarding the plaintiff’s relationship with Mr. Johnson, and suggested to these employees that plaintiff date others. One such [agency] employee told the plaintiff, that Ms. Chavez had contacted him and that Ms. Chavez had encouraged him to date the plaintiff.”
The family therapist who filed suit in 2006 listed defamation and battery as causes of action. According to her suit, the agency “discharged Plaintiff in retaliation for making a reasonable, good faith refusal to violate the relevant laws.” Two days after discussing her concerns with the clinical director, human resources director Ismena Valdez “informed Plaintiff she was terminated and must leave immediately,” the suit says. “Plaintiff was not allowed to obtain her personal things from her office or say farewell to any coworkers. When Plaintiff was not moving fast enough, Valdez grabbed her on the arm and pulled her along the corridor. Plaintiff was shocked and embarrassed by Valdez’s demeaning behavior.”
Oversight of South Bay Community Services comes from a board of directors comprising influential Chula Vistans, such as former Chula Vista city manager David Rowlands and, until recently, Chula Vista chief of police David Bejarano. Shirley Horton, a former assemblymember and mayor of Chula Vista, left the Downtown San Diego Partnership last August to take a staff position at South Bay Community Services. As director of development, she raises funds for the organization.
Two members of the agency’s upper management, directors Mauricio Torre and Dina Chavez, sit on the City of Chula Vista’s Housing Advisory Commission. This commission influences decisions that directly affect the finances of South Bay Community Services. According to the City’s website, the commission “assesses the housing needs in the City and reviews housing policies, strategies, and proposed affordable housing projects.” It advises the city council, housing authority, and redevelopment agency. South Bay Community Services owns a number of affordable-housing rental properties in Chula Vista, purchased, in part, with federal grant monies awarded by the City of Chula Vista.
Kathryn Lembo has been the agency’s executive director since 1982. Her annual salary is listed on the 2008 tax filing as $154,322, her deferred compensation as $16,856, and the total package as $202,922. In a late–December 2010 interview, Lembo said she was unable to comment on any lawsuits. However, Lembo categorically denied document falsification. She said that “the county, the federal government, the city come and audit us on a quarterly basis…they tie our reports back to client files.”
Later in the interview Lembo said that falsification would be grounds for termination and that client files are tied to client satisfaction surveys. By way of example, Lembo referred to a time when a staff person had alleged that kids were not served and their client files were falsified. “We went and did our own investigation. We took the investigation further than just looking at files and talking to staff. We called clients and asked had they received those services. And then we even asked them what they thought of those services. So we tracked them. And we found that that person’s complaints were totally false.”