Byrd sues on civil rights violations

Richard Byrd, who in 2004 sold a piece of property to the sheriff who was incarcerating him and the district attorney who was prosecuting him, recently filed a federal suit against the Atwater policeman who arrested and charged him, the sheriff, the DA, their real estate partners (which included Greg Hostetler, owner of Ranchwood Homes), his former attorney and Salvadori Realty for damages arising from violations of the federal civil rights and labor codes.

Below you will find Byrd's complaint to the United States District Court for the Eastern District of California and a collection of newspaper clippings on events surrounding this case.
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COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION

KEVIN G. LITTLE, SBN 149818

ATTORNEY AT LAW

2115 Kern Street, Suite 330

Fresno, California 93721

Telephone: (559) 486-5730

Telecopy: (559) 486-4759

E-mail: fwllaw@aol.com

Attorney for Plaintiff Richard Byrd

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

***

RICHARD BYRD,

Plaintiff,

v.

ATWATER RESERVE OFFICER

MICHAEL TEATER; GORDON SPENCER,

FORMER DISTRICT ATTORNEY FOR

THE COUNTY OF MERCED; MARK

PAZIN, SHERIFF OF THE COUNTY OF

MERCED; STEPHEN MAUZY; CENTURY

21 SALVADORI REALTY; CARL

CAMPODONICA; WILLIAM AND LILLIAN

CAMPODONICA TRUST; JOHN JULIUS;

GARTH PECCHENINO; DAVID

GRESHAM; HOSTETLER

INVESTMENTS, LLC; BELLEVUE ROAD

PARTNERS, LLC; C. LOGAN

McKECHNIE, SBN 77393, THE COUNTY

OF MERCED, CALIFORNIA; THE CITY

OF ATWATER, CALIFORNIA, DOES 1-10,

Defendants.

No.

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF, AND

RESCISSION

42 U.S.C. § 1983

28 U.S.C. § 2201

ACTUAL AND CONSTRUCTIVE FRAUD

NEGLIGENT MISREPRESENTATION

BREACH OF FIDUCIARY DUTY

BREACH OF THE COVENANT OF GOOD FAITH

BREACH OF CONTRACT

NEGLIGENCE

INTERFERENCE W ITH ECONOMIC ADVANTAGE

ABUSE OF PROCESS

RESCISSION

JURY TRIAL DEMANDED

TO THE HONORABLE COURT:

Plaintiff Richard Byrd, through his undersigned counsel, hereby makes the following

allegations against the defendants, and each of them:

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JURISDICTION AND VENUE

1. This Court has original jurisdiction over this proceeding pursuant to 28 U.S.C.

§§ 1331 and 1343, as this action is one for damages arising under federal civil rights and labor

law. This Court has jurisdiction over the claim for declaratory relief under the Declaratory

Judgment Act, 28 U.S.C. § 2201. This Court also has jurisdiction over the supplemental

California law claims pursuant to 28 U.S.C. § 1367.

2. This Court has venue in this action pursuant to 28 U.S.C. § 1391(b), as the

occurrences giving rise to this action all occurred within this judicial district.

PARTIES

3. At all relevant times, plaintiff Richard Byrd (“Byrd”) was a citizen and resident of

the State of California, County of Merced. Byrd has had a lengthy and honorable career in

military service and in law enforcement, including having served as the Chief of Police at

Merced College. Byrd has also had success as a property owner and principal of an

investigations and security firm. Prior to his wife’s untimely death in August 2003, and his

subsequent descent into alcoholism, Byrd had no criminal record, and, even after August

2003, Byrd’s few legitimate arrests related only to his driving while intoxicated. Byrd’s only

conviction stems from his false arrest on March 11, 2004, and that arrest is being expunged

based on the misconduct set forth herein.

4. Defendant Atwater Reserve Officer Michael Teater (“Teater”) is a level II reserve

officer with the Atwater Police Department and is a citizen and resident of the State of

California, County of Merced. Teater’s lengthy criminal history and history of dishonesty

should have disqualified him from ever representing a law enforcement agency. Teater was

the law enforcement officer responsible for concocting the alleged offense for which Byrd was

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arrested on March 11, 2004, as well as entrapping Byrd’s alleged involvement in said offense.

With respect to all actions described herein, Teater was acting under color of law and within

the course and scope of his duties. Teater is sued in his individual capacity for purposes of

monetary damages, and in his official capacity for purposes of the declaratory and ancillary

relief requested herein.

5. Defendant Gordon Spencer (“Spencer”), former District Attorney for the County

of Merced, is a citizen and resident of the State of California, County of Merced. Spencer

pursued and manipulated the criminal charges instituted in March 2004 against Byrd for his

own economic gain as one of the purchasers of Byrd’s lucrative property. Spencer also was

one of the officials primarily responsible for keeping Byrd in custody while the illegitimate

purchase was finalized. With respect to all actions described herein, Spencer was acting

under color of law and within the course and scope of his duties. Spencer is sued in his

individual capacity for purposes of monetary damages, and in his official capacity for purposes

of the declaratory and ancillary relief requested herein.

6. Defendant Mark Pazin (“Pazin”), Sheriff of the County of Merced, is a citizen and

resident of the State of California, County of Merced. Pazin investigated, pursued and

manipulated the criminal charges instituted in March 2004 against Byrd for his own economic

gain as one of the purchasers of Byrd’s lucrative property. Pazin also was one of the officials

primarily responsible for keeping Byrd in custody while the illegitimate purchase was finalized.

With respect to all actions described herein, Spencer was acting under color of law and within

the course and scope of his duties. Spencer is sued in his individual capacity for purposes of

monetary damages, and in his official capacity for purposes of the declaratory and ancillary

relief requested herein.

7. Defendant Stephen Mauzy (“Mauzy”) is a citizen and resident of the County of

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Merced. Mauzy is a realtor who works under the auspices of Century 21 Salvadori Realty.

Mauzy was purportedly the representative of Byrd with respect to the sale of his lucrative

property, but, as set forth herein, Mauzy violated his legal and contractual duties and

fraudulently induced the sale of Byrd’s property for approximately 20 percent of its actual value

to a group of purchasers that included himself, Spencer, Pazin and others named herein.

Mauzy is liable under state and federal law for his own actions and the acts of his employees,

representatives, agents or assigns, as alleged herein. Mauzy is also liable under federal law

based on the joint activity and/or conspiracy he engaged in, either himself or through his

employees, representatives, agents or assigns, with individuals acting under color of law and

within the course and scope of their duties. Mauzy is liable for the monetary damages,

declaratory and ancillary relief requested herein.

8. Defendant Century 21 Salvadori Realty (“Salvadori Realty”) is a real estate firm

doing business in the County of Merced, California. Plaintiffs are informed and believe that

Salvadori Realty is either a business entity, or the dba of such an entity, doing business in the

State of California. Salvadori Realty was supposed to be the firm representing Byrd with

respect to the sale of his lucrative property, but, as set forth herein, Salvadori Realty violated

its legal and contractual duties and fraudulently inducing the sale of Byrd’s property for

approximately 20 percent of its actual value to a group of purchasers that included Mauzy,

Spencer, Pazin and others named herein. Salvadori Realty is liable under state law for the

acts of its employees, representatives, agents or assigns, as alleged herein. Salvadori Realty

is also liable under federal law based on the joint activity and/or conspiracy it engaged in,

through its employees, representatives, agents or assigns, with individuals acting under color

of law and within the course and scope of their duties. Salvadori Realty is liable for the

monetary damages, declaratory and ancillary relief requested herein.

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COMPLAINT FOR DAMAGES,

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9. Defendant Carl Campodonica (“Campadonica”), representative of the William

and Lillian Campodonica Trust, is a citizen and resident of the County of Merced.

Campodonica was one of the illegitimate purchasers of Byrd’s lucrative property that

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. Campodonica is liable under

state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. Campodonica is also liable under federal law based on

the joint activity and/or conspiracy he engaged in, either himself or through his employees,

representatives, agents or assigns, with individuals acting under color of law and within the

course and scope of their duties. Campodonica is liable for the monetary damages,

declaratory and ancillary relief requested herein.

10. Defendant the Lillian and John Campodonica Trust (“the Campodonica Trust”)

is a legal entity base din Merced County that is subject to suit under federal and California law.

The Campodonica Trust was one of the illegitimate purchasers of Byrd’s lucrative property that

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. The Campodonica Trust is liable

under state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. The Campodonica Trust is also liable under federal law

based on the joint activity and/or conspiracy he engaged in, either himself or through his

employees, representatives, agents or assigns, with individuals acting under color of law and

within the course and scope of their duties. The Campodonica Trust is liable for the monetary

damages, declaratory and ancillary relief requested herein.

11. Defendant John Julius (“Julius”) is a citizen and resident of the County of

Merced. Julius was one of the illegitimate purchasers of Byrd’s lucrative property that

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benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. Julius is liable under state and

federal law for his own actions and the acts of his employees, representatives, agents or

assigns, as alleged herein. Julius is also liable under federal law based on the joint activity

and/or conspiracy he engaged in, either himself or through his employees, representatives,

agents or assigns, with individuals acting under color of law and within the course and scope

of their duties. Julius is liable for the monetary damages, declaratory and ancillary relief

requested herein.

12. Defendant Garth Pecchenino (“Pecchenino”) is a citizen and resident of the

County of Merced. Pecchenino was one of the illegitimate purchasers of Byrd’s lucrative

property that benefitted from the wrongful and fraudulent acts of the co-purchasers of that

property, including Mauzy, Spencer, Pazin, and others named herein. Pecchenino is liable

under state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. Pecchenino is also liable under federal law based on

the joint activity and/or conspiracy he engaged in, either himself or through his employees,

representatives, agents or assigns, with individuals acting under color of law and within the

course and scope of their duties. Pecchenino is liable for the monetary damages, declaratory

and ancillary relief requested herein.

13. Defendant David Gresham (“Gresham”) is a citizen and resident of the County

of Merced. Gresham was one of the illegitimate purchasers of Byrd’s lucrative property that

benefitted from the wrongful and fraudulent acts of the co-purchasers of that property,

including Mauzy, Spencer, Pazin, and others named herein. Gresham is liable under state

and federal law for his own actions and the acts of his employees, representatives, agents or

assigns, as alleged herein. Gresham is also liable under federal law based on the joint activity

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and/or conspiracy he engaged in, either himself or through his employees, representatives,

agents or assigns, with individuals acting under color of law and within the course and scope

of their duties. Gresham is liable for the monetary damages, declaratory and ancillary relief

requested herein.

14. Defendant Hostetler Investments, LLC (“Hostetler Investments”) is a real estate

development firm doing business in the County of Merced, California. Plaintiffs are informed

and believe that Hostetler Investments is either a business entity, or the dba of such an entity,

doing business in the State of California. Hostetler Investments was one of the illegitimate

purchasers of Byrd’s lucrative property that benefitted from the wrongful and fraudulent acts

of the co-purchasers of that property, including Mauzy, Spencer, Pazin, and others named

herein. Hostetler Investments is liable under state and federal law for his own actions and the

acts of his employees, representatives, agents or assigns, as alleged herein. Hostetler

Investments is also liable under federal law based on the joint activity and/or conspiracy he

engaged in, either himself or through his employees, representatives, agents or assigns, with

individuals acting under color of law and within the course and scope of their duties. Hostetler

Investments is liable for the monetary damages, declaratory and ancillary relief requested

herein.

15. Defendant Bellevue Road Partners, LLC (“Bellevue”) is a real estate

development firm doing business in the County of Merced, California. Plaintiffs are informed

and believe that Bellevue is either a business entity, or the dba of such an entity, doing

business in the State of California. Bellevue is the successor in interest of the illegitimate

purchasers of Byrd’s lucrative property that benefitted from the wrongful and fraudulent acts

of the co-purchasers of that property, including Mauzy, Spencer, Pazin, and others named

herein, and is therefore not a bonafide purchaser of said property. Bellevue is liable under

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COMPLAINT FOR DAMAGES,

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state and federal law for his own actions and the acts of his employees, representatives,

agents or assigns, as alleged herein. Bellevue is also liable under federal law based on the

joint activity and/or conspiracy he engaged in, either himself or through his employees,

representatives, agents or assigns, with individuals acting under color of law and within the

course and scope of their duties. Bellevue is liable for the monetary damages, declaratory and

ancillary relief requested herein.

16. Defendant C. Logan McKechnie, SBN 77393 (“McKechnie”) is an attorney

licensed to practice in the State of California and is a citizen and resident of the County fo

Merced. McKechnie was Byrd’s attorney for purposes of the criminal proceedings set forth

herein. McKechnie, despite being on actual and/or constructive notice of the false charges

against Byrd, the entrapment, Teater’s criminal history and history of dishonesty, the identities

of the prospective purchasers of Byrd’s lucrative property, and other facts that cried out for his

zealous advocacy, did nothing to assist Byrd in being exonerated or released from custody

earlier than her was. McKechnie is liable under state and federal law for his own actions and

the acts of his employees, representatives, agents or assigns, as alleged herein. McKechnie

is also liable under federal law based on the joint activity and/or conspiracy he engaged in,

either himself or through his employees, representatives, agents or assigns, with individuals

acting under color of law and within the course and scope of their duties. McKechnie is liable

for the monetary damages, declaratory and ancillary relief requested herein.

17. Defendant the County of Merced, California (“Merced County”) is a political

subdivision of the State of California. Merced County is the primary funding body of the Office

of the District Attorney for Merced County and the Merced County Sheriff’s Office. Merced

County’s liability for the monetary damages sought in this action is based on its customs and

policies, which gave rise to the federal causes of action alleged herein. As permitted by

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COMPLAINT FOR DAMAGES,

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applicable law, these customs and policies will be detailed at a later point in this proceeding.

Merced County also has responsibility under applicable law for the declaratory and ancillary

relief requested by plaintiff herein.

18. Defendant the City of Atwater, California (“Atwater”) is a political subdivision of

the State of California. Atwater is the primary funding body of the Atwater Police Department.

Atwater’s liability for the monetary damages sought in this action is based on its customs and

policies, which gave rise to the federal causes of action alleged herein. As permitted by

applicable law, these customs and policies will be detailed at a later point in this proceeding.

Atwater also has responsibility under applicable law for the declaratory and ancillary relief

requested by plaintiff herein.

19. The fictitious defendants, sued herein as Does 1-10 (sometimes collectively

referred to as “the fictitious defendants”), are individuals and/or business entities who are

liable under the federal and/or state laws invoked herein. The fictitious defendants are liable

for the monetary damages, declaratory and ancillary relief requested herein. The fictitious

defendants will be renamed once their actual identities are ascertained.

FACTUAL ALLEGATIONS

20. On March 11, 2004 Byrd was arrested by the Merced County Sheriff’s

Department based on an offense concocted by Teater, who owed Byrd money, was

manipulating and taking advantage of the oft-intoxicated Byrd, and had longstanding animosity

against him. The alleged offense was Byrd’s supposed effort to get Teater to provide the

identity and address information of the Merced County Sheriff’s Deputy who arrested him for

driving under the influence on November 21, 2003. Byrd, a highly trained, experienced former

law enforcement officer and owner or a private investigation and security company, at all times

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had independent means to obtain this information if he had desired it, but made no efforts to

obtain it. Teater also entrapped Byrd with respect to the alleged offense over the span of

approximately three months, during which time he would attempt to encourage and bait the

intoxicated Byrd into paying him to obtain said information. When these efforts were

unsuccessful, Teater proceeded to concoct said allegations and report them to the Merced

County Sheriff’s Office.

21. On March 15, 2004, Byrd was charged with bribing Teater, in violation of Penal

Code § 67, and, with respect to his November 21, 2003 arrest, to carrying a loaded firearm,

although Byrd was legally authorized to do the latter. Even though Byrd had no prior criminal

history, the District Attorney’s Office, at Spencer’s and Pazin’s direction, sought and obtained

a $500,000 bail for these charges.

22. In order to pay for his legal representation, newly built home, ongoing business

expenses, and other short term expenses, Byrd found it necessary to sell his 21 acre ranch

property while he was in custody. Byrd’s daughter, Linda Roybal, who was unsophisticated

in such matters, sought the assistance of Mauzy and Salvadori Realty, in selling said property.

23. Mauzy and Salvadori Realty never advised Roybal or Byrd of the actual value

of the ranch property, which, according to reasonable valuations, was worth more than

$6,000,000 at the time. Instead, Mauzy told Roybal and Byrd that this property was worth

considerably less and falsely indicated that a nearby property of similar size had sold for

$700,000. Mauzy also communicated an alleged offer of $1,400,000 for the property, which

subsequently “fell through,” as corroboration for his false valuation of the property.

24. At the same time he was misrepresenting the value of Byrd’s property to Roybal

and Byrd, Mauzy was himself among a group of purchasers, consisting of Spencer, Pazin,

Pecchenino, Gresham, Julius, Campodonica, as representative of the Campodonica Trust,

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and Hostetler Investments. It was well known to all of the purchasers, based on the highly

publicized nature of Byrd’s criminal case, Spencer’s and Pazin’s involvement therein, and the

amount of their offer in light of their sophistication, that this proposed purchase represented

a highly improper and illegal endeavor.

25. On May 6, 2004, Byrd pled no contest to a reduced charge of obstructing an

executive officer, Teater, in violation of Penal Code § 69. The conditions of the plea were that

the remaining charges would be dismissed, that Byrd would receive three years felony

probation, six months in county jail, and voluntarily enroll in a residential alcohol treatment

program. At the time this plea was being negotiated, Byrd’s property was already for sale, and

the illegitimate purchase by Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius,

Campodonica, as representative of the Campodonica Trust, and Hostetler Investments was

already contemplated. It was known that Byrd would remain in custody throughout the time

of the consummation and finalization of the purchase under the proposed terms of the plea

bargain, and that his continuing in custody status was what in large part necessitated his sale

of the property. It was also known to Spencer and Pazin, based on incidents occurring relating

to Byrd while he was in jail, that he continued drinking and was thus under the effects of his

sever alcoholism.

26. During this same time period, all of the above facts where known or

ascertainable to McKechnie, who did nothing to seek Byrd’s exoneration, earlier release or the

protection of his property rights through his criminal case. No did McKechnie seek to

investigate or develop a defense to the underlying charge based on Teater’s history of

dishonesty, criminal record, the disappearance of crucial evidence, Byrd’s voluntary

intoxication, or any other factor.

27. On or about May 18, 2004, and agreement was reached between Byrd and the

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purchasers, Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius, Campodonica, as

representative of the Campodonica Trust, and Hostetler Investments, to purchase the property

for $1,300,000, about 20 percent of the actual value of the property. This sale closed escrow

and was recorded on July 1, 2004, two weeks before Byrd’s July 16, 2004 sentencing in the

criminal case. The sale resulted in Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius,

Campodonica, as representative of the Campodonica Trust, and Hostetler Investments

becoming owners of the property, and Salvadori Realty’s collecting a $78.000 commission.

Even after Byrd’s May 6, 2004 plea to the lesser charge under Penal Code § 69, no motion

was made by either the prosecution or the defense to reduce his $500,000 bail, which would

have enabled him to attend to and stabilize his economic situation prior to returning to custody

and which would have eliminated the necessity for him to sale his lucrative property.

28. On July 16, 2004, Byrd was sentenced and received time served. He was

required to immediately enroll in a residential alcohol treatment program that kept him

effectively custody for another two months, until September 2004. Indeed, Byrd had highly

restricted use of communication services during his time in the alcohol treatment program.

Only after Byrd was out of custody and in control of his alcoholism, was he gradually able to

ascertain and understand the implications of the foregoing. Byrd has also ascertained that

some or all of the interest in the property purchased by Mauzy, Spencer, Pazin, Pecchenino,

Gresham, Julius, Campodonica, as representative of the Campodonica Trust, and Hostetler

Investments has been illegitimately transferred to Bellevue. Also, Byrd has since exposed and

the false nature of the criminal charges made against him and seeks further relief in this

proceeding. Byrd has already served his entire sentence and has no remedy through a writ

of habeas corpus, thus entitling him to pursue his further exoneration in this proceeding.

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29. Byrd’s damages as a result fo the foregoing are monumental. Byrd has

sustained loss of liberty for six months, expenses incurred in fighting an illegitimate criminal

case, loss of his profitable business as a result of his false arrest, malicious prosecution and

having to stay in custody for the length of time her did, loss of his reputation, loss of a property

worth more than $6,000,000, as well as other general damages.

FEDERAL CIVIL RIGHTS CLAIMS

30. The following defendants are liable to Byrd for compensatory damages under

federal law, specifically, under 42 U.S.C. § 1983: (1) Teater, for false arrest and malicious

prosecution, in violation of Byrd’s rights under the Fourth Amendment; (2) Spencer and Pazin,

for abuse of process, manipulation of the criminal proceedings, and conspiracy to violate

Byrd’s due process rights and deprive him of his property rights, in violation of the Fourth,

Fifth, Sixth and Fourteenth Amendments; (3) Mauzy, Salvadori Realty, Spencer, Pazin,

Pecchenino, Gresham, Julius, Campodonica, the Campodonica Trust, Hostetler Investments,

and Bellevue, for joint and/or conspiratorial activity with state actors that constituted abuse

of process, manipulation of the criminal proceedings, and conspiracy to violate Byrd’s due

process rights and deprive him of his property rights, in violation of the Fourth, Fifth, Sixth and

Fourteenth Amendments; (4) Atwater, for having a de facto custom and policy of failing to

terminate, supervise and/or discipline Teater, which was the moving force behind Teater’s

constitutional violations stated hereinabove; (5) Merced County, for failing to terminate,

supervise, and/or discipline Spencer and Pazin, which was the moving force behind all but one

of the constitutional violations set forth hereinabove; and (6) Merced County, based on the

actions of their appointed policymakers, Spencer and Pazin, which were the moving forces

behind all but one of the constitutional violations set forth hereinabove.

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31. As a direct and proximate result of the defendants' violations of his federal

constitutional rights specified above, plaintiff has suffered substantial damage, as detailed

hereinabove. The individual and non-municipal entity defendants’ intentional and reckless

acts, as described above, were intentional, wanton, malicious, oppressive, and undertaken

with reckless disregard for Byrd’s rights, thus entitling him to an award of punitive damages

under federal law.

DECLARATORY RELIEF CLAIMS

32. The following defendants are liable to Byrd for declaratory relief under federal

law: (1) Teater, for false arrest and malicious prosecution, in violation of Byrd’s rights under

the Fourth Amendment; (2) Spencer and Pazin, for abuse of process, manipulation of the

criminal proceedings, and conspiracy to violate Byrd’s due process rights and deprive him of

his property rights, in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments; (3)

Mauzy, Salvadori Realty, Spencer, Pazin, Pecchenino, Gresham, Julius, Campodonica, the

Campodonica Trust, Hostetler Investments and Bellevue, for joint and/or conspiratorial activity

with state actors that constituted abuse of process, manipulation of the criminal proceedings,

and conspiracy to violate Byrd’s due process rights and deprive him of his property rights, in

violation of the Fourth, Fifth, Sixth and Fourteenth Amendments; (4) Atwater, for having a de

facto custom and policy of failing to terminate, supervise and/or discipline Teater, which was

the moving force behind Teater’s constitutional violations stated hereinabove, and for

policymaker Chief Hawthorn’s non-disclosure of Teater’s record of criminal misconduct and

dishonesty; (5) Merced County, for failing to terminate, supervise, and/or discipline Spencer

and Pazin, which was the moving force behind all but one of the constitutional violations set

forth hereinabove; and (6) Merced County, based on the actions of their appointed

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policymakers, Spencer and Pazin, which were the moving forces behind all but one of the

constitutional violations set forth hereinabove.

33. The foregoing factual allegations set forth an actual controversy with respect to

the violation of Byrd’s federal constitutional rights. Therefore, this proceeding is an

appropriate one for declaratory relief under 28 U.S.C. § 2201.

34. Byrd seeks a declaration from this Court that the defendants, based on the

factual transaction underlying this proceeding, violated the constitutional rights identified

hereinabove. This declaration may be based on all of the facts underlying this proceeding

without regard to any issue of qualified or absolute immunity, since such immunities only apply

to claims for monetary relief.

35. Byrd also requests further necessary and proper relief as provided for under 28

U.S.C. § 2202, including the full expungement of the records of his criminal arrest and

prosecution and the full restoration of the property rights of which he has been deprived.

STATE CIVIL RIGHTS CLAIMS

36. The following defendants are liable to Byrd under California Civil Code § 52.1

for state civil rights violations, which may be based upon the federal constitutional violations

set forth hereinabove, or their state constitutional equivalents: (1) Teater, for false arrest and

malicious prosecution, in violation of Byrd’s rights under the Fourth Amendment; (2) Spencer

and Pazin, for abuse of process, manipulation of the criminal proceedings, and conspiracy to

violate Byrd’s due process rights and deprive him of his property rights, in violation of the

Fourth, Fifth, Sixth and Fourteenth Amendments; (3) Mauzy, Salvadori Realty, Spencer, Pazin,

Pecchenino, Gresham, Julius, Campodonica, the Campodonica Trust, Hostetler Investments

and Bellevue, for joint and/or conspiratorial activity with state actors that constituted abuse

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 15 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -16-

of process, manipulation of the criminal proceedings, and conspiracy to violate Byrd’s due

process rights and deprive him of his property rights, in violation of the Fourth, Fifth, Sixth and

Fourteenth Amendments; (4) Atwater, as a result of its vicarious liability for Teater’s false

arrest and malicious prosecution, for having a de facto custom and policy of failing to

terminate, supervise and/or discipline Teater, which was the moving force behind Teater’s

constitutional violations stated hereinabove, and for policymaker Chief Hawthorn’s nondisclosure

of Teater’s record of criminal misconduct and dishonesty; (5) Merced County, as

a result of its vicarious liability for Spencer’s and Pazin’s misconduct, as specified

hereinabove, and for failing to terminate, supervise, and/or discipline Spencer and Pazin,

which was the moving force behind all but one of the constitutional violations set forth

hereinabove; and (6) Merced County, based on the actions of their appointed policymakers,

Spencer and Pazin, which were the moving forces behind all but one of the constitutional

violations set forth hereinabove. The defendants’ interference with these constitutional rights

was accomplished by means of force, coercion, and intimidation, and/or the threat thereof.

37. As a direct and proximate result of the defendants' violations of his federal and

state constitutional rights specified above, plaintiff has suffered substantial damage, as

detailed hereinabove. The defendants’ conduct set forth above entitles plaintiff not only to

actual damages, but also to an award of as much as three times that amount.

STATE LAW CLAIMS

38. The defendants are liable under California state law to Byrd on the following

bases: (1) Teater, for false arrest and malicious prosecution; (2) Spencer and Pazin, for

abuse of process, manipulation of the criminal proceedings, intentional interference with

economic advantage, and conspiracy; (3) Mauzy, and Salvadori Realty, for fraud (both actual

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 16 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -17-

and constructive), breach of contract, breach of fiduciary duty, breach of the covenant of good

faith and fair dealing, intentional interference with prospective economic advantage, breach

of the covenant of good faith and fair dealing, negligence, negligent misrepresentation, and

rescission; (4) Mauzy, Spencer, Pazin, Pecchenino, Gresham, Julius, Campodonica, the

Campodonica Trust, Hostetler Investments and Bellevue for fraud (both actual and

constructive), breach of the covenant of good faith and fair dealing, intentional interference

with prospective economic advantage, breach of the covenant of good faith and fair dealing,

negligent misrepresentation, and rescission; (5) McKechnie, for professional negligence; (6)

Atwater, vicarious liability for Teater’s false arrest and malicious prosecution, and for

policymaker Chief Hawthorn’s non-disclosure of Teater’s record of criminal misconduct and

dishonesty; and (7) Merced County, vicarious liability for the misconduct of Spencer and Pazin,

set forth hereinabove. As a direct and proximate result of the defendants' misconduct

specified above, plaintiff has suffered substantial damage, as detailed hereinabove.

PRAYER FOR RELIEF

Plaintiff prays for judgment as follows:

1. For full compensatory damages in amounts according to proof;

2. For declaratory relief as requested hereinabove;

3. For punitive damages as to the federal civil rights causes of action against the

individual and non-municipal defendants, in amounts according to proof;

4. For treble damages according to proof under California Civil Code § 52.1;

5. For rescission of the sale of his property and invalidation of the deed and

related documents recorded thereupon on July 1, 2004;

6. For attorneys' fees and costs of suit; and

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 17 of 18

____________________

COMPLAINT FOR DAMAGES,

DECLARATORY RELIEF AND RESCISSION -18-

7. For such other relief as this Court deems just.

DEMAND FOR A JURY TRIAL

Plaintiff requests a trial by jury, consistent with his rights under the Seventh Amendment

and other applicable law.

In Fresno, California, this 15 day of July, 2006. th

/s/ Kevin G. Little

Kevin G. Little

Attorney for Plaintiff Richard Byrd

Case 1:06-cv-00900-OWW-LJO Document 1 Filed 07/15/2006 Page 18 of 18
------------------------------

Notes:

7-28-06
Merced Sun-Star
Man who was jailed on bribery charge sues to get land back...Chris Collins
http://www.mercedsunstar.com/local/story/12513043p-13227841c.html
The man who sold his land to former District Attorney Gordon Spencer while he was in jail and facing charges from the District Attorney's Office now wants his 21 acres back -- and he's suing for it. In a lawsuit filed in Fresno's U.S. District Court this week, Richard Byrd claims Spencer and Merced County Sheriff Mark Pazin, who also bought some of Byrd's land, "pursued and manipulated the criminal charges" against Byrd for their "own economic gain" by coercing him into selling his land...names eight local men who bought Byrd's land... Ranchwood Homes owner Greg Hostetler, who was one of the investors and says he has been appointed by the group to speak on their behalf, said the purchase was a "fair, ethical and legal agreement."

7-23-06
Fresno Bee
A district attorney's 'fall from grace' told...Tim Eberly
http://www.fresnobee.com/local/story/12491981p-13208430c.html
Gordon Spencer of Merced Co. had a distinguished career soured by a scandalous finale. Gordon Spencer isn't a flashy man...known for living on the cheap, wearing inexpensive clothes and ugly ties.He did, however, develop a kind of arrogance in recent years that led him to brush off laws he was sworn to enforce as Merced County's district attorney. A hero...Much of Spencer's luster came from his willingness to take on big business in the legal arena. with an attitude...Superior Court judge Frank Dougherty..."In the past 10 years, I saw a marked change," "I saw a person who was consumed with power. I saw a person who [discarded] old friends and acquired new friends who he regarded as influential in the business community." to zero?...Spencer's temperament may have blocked his path to becoming a Superior Court judge. The first scandal was not a knockout punch, but they kept coming like a steady series of body blows, Morse said. Life goes on...The drama, though, hasn't ended: An early-morning fire last weekend at the Merced County courthouse destroyed several offices and work spaces of District Attorney's Office employees. The fire has not been linked to Spencer. "

7-19-06
Merced Sun-Star
Land deal rhetoric flares up...Leslie Albrecht
http://www.mercedsunstar.com/local/story/12471197p-13189784c.html
Tension about recent press coverage of former District Attorney Gordon Spencer's land deal with Merced County Sheriff Mark Pazin and other prominent locals boiled over at the supervisors' meeting Tuesday when Ranchwood Homes president Greg Hostetler harshly criticized Supervisor Deidre Kelsey. Hostetler is one of the investors who bought land from a man while he was in jail being prosecuted by Spencer. During the meeting's public comment period, Hostetler leaned over the podium and read a statement that first refuted information in the Sun-Star story, then accused Kelsey of making "uncalled for comments." Hostetler said a Merced County civil grand jury investigation into Kelsey's family mining business five years ago left Kelsey in no position to pass judgment on others. This isn't the first time Hostetler and Kelsey have clashed. In March a voicemail message reportedly left by Hostetler was posted on the Web site Badlands Journal. In the message Hostetler accused Kelsey of using county staff members as her "personal pit bulls" to attack his employees.

Supervisors dock D.A. for swift exit...Leslie Albrecht
http://www.mercedsunstar.com/local/story/12471196p-13189760c.html
District Attorney Gordon Spencer's abrupt resignation will cost him $7,763.19...early departure means his last paycheck will be docked $4,420, the bonus amount he earned for the first six months of 2006. If Spencer had served out his last year as district attorney -- originally slated to end in January 2007 -- he would have earned the extra money...early departure means his last paycheck will be docked $4,420, the bonus amount he earned for the first six months of 2006. The lost bonus might not be Spencer's only financial penalty. Chairman Mike Nelson announced that the county could ask Spencer to pay back "other funds that may have been given Mr. Spencer during his tenure here as district attorney."Nelson said the supervisors must wait until the Attorney General's Office releases its investigation into Spencer's use of the allowances before they move to recover funds from him.

7-16-06
Merced Sun-Star

Fire torches courts building...Doane Yawger
http://www.mercedsunstar.com/local/story/12463486p-13182743c.html
An early morning fire on Sunday guts offices in the Superior Courts building, including offices of the Merced County deputy district attorneys
...$600,000 to $700,000 in damage...destroyed five offices of three deputy district attorneys and their secretaries.

Spencer news disappoints...Lola Barnett, Merced...Letters to the editor
http://www.mercedsunstar.com/opinion/story/12463494p-13182766c.html
I must say the base reporting I've read disappoints me. Spencer serves drinks at Country Club...may have led to death of a young man...I'm sure they didn't stop serving drinks just because he left... OES finds Mr. Spencer guilty. Guilty of what?... Our judicial system is based upon the premise that a person is presumed innocent until proven guilty in a court of law. Therefore, let us not presume Mr. Spencer is guilty until all the facts are in.

7-18-06 Merced Co. Board of Supervisor agenda http://web.co.merced.ca.us/bos/boardagenda/current.pdf
PRESENTATION AND INTRODUCTION OF THE SAN JOAQUIN VALLEY REGIONAL BLUE PRINT BY MCAG
REGULAR CALENDAR
BOARD ACTION

BOARD OF SUPERVISORS
21. Resolution acknowledging the resignation of Gordon Spencer, District Attorney and Public Administrator effective July 14, 2006 and
directing the Auditor/Controller to recover previously issued payments under Merced County Unrepresented Management Resolution No.
06-115, Section 5.D. Successor Delineation.

7-15-06
Merced Sun-Star
Amid turmoil, Spencer quits...Chris Collins
http://www.mercedsunstar.com/local/story/12456073p-13175492c.html
After a tumultuous week that included a dramatic car crash, a concussion, calls from the Board of Supervisors to step down, and continuing criminal investigations by the state Attorney General's Office, District Attorney Gordon Spencer said on Friday he will resign immediately. A spokesman for the Attorney General's Office said his agency will continue to investigate Spencer.

7-14-06
Merced Sun-Star

County workers get brush up on ethics...Chris Collins
http://www.mercedsunstar.com/local/story/12450025p-13170424c.html
Amid investigations by the state Attorney General's Office and growing questions about government accountability, county officials got an earful from Graham and other ethics speakers this week. All county department heads and elected officials, as well as middle managers, were required to go to Graham's session on Monday. Elected officials and top-level employees also had to go to a two-hour course Tuesday taught by a Sacramento law firm that reviewed accepted guidelines for government openness and accountability. But not everyone attended...four officials, including Spencer, didn't go to Monday's meeting... Spencer, who was in the hospital Tuesday after a car accident Monday, didn't attend Tuesday's session. The four no-shows Monday -- Spencer, Supervisor Deidre Kelsey, Human Services Agency Director Ana Pagan and County Counsel Ruben Castillo -- must go to Graham's Aug. 24 course for low-level managers if they want to keep their allowances. Morris said Kelsey had a family emergency and Pagan had a medical emergency Monday. He said he didn't know why Spencer and Castillo didn't attend. Supervisor Kathleen Crookham...felt Hedlund's session was "dull," she was glad to attend the ethics courses. "It reinforces the kind of things we should remember," Crookham said.
Correction...Last Updated: July 14, 2006, 02:51:25 AM PDT
http://www.mercedsunstar.com/local/story/12450026p-13170466c.html
• A headline on Page A1 of Thursday's Sun-Star about District Attorney Gordon Spencer was incorrect. No representative from the hospital said Mr. Spencer suffered a head injury.

7-12-06
Merced Sun-Star

D.A. still in hospital...Scott Jason
http://www.mercedsunstar.com/local/story/12439963p-13161488c.html
The Merced County district attorney remained in the hospital Tuesday night with short-term memory loss after a rollover crash Monday night, his attorney said. The California Highway Patrol is continuing its investigation into the crash, though it doesn't look like any charges or citations will be filed, Public Information Officer Shane Ferriera said. Spencer called his wife from Smith's phone, and she took him to the hospital... The investigating officer interviewed Spencer at the hospital and tested him for driving under the influence...said the test includes looking for the smell of alcohol, slurred speech or red, watery eyes. Ferriera said he did not know if Spencer was given a breathalyzer test.

Panel may ask Spencer to resign from his post...Chris Collins
http://www.mercedsunstar.com/local/story/12439964p-13161513c.html
Merced County Supervisor Jerry O'Banion said Tuesday that embattled District Attorney Gordon Spencer should resign immediately to help restore the District Attorney's Office from months of "turmoil." O'Banion told supervisors at their meeting Tuesday that he wants the board to vote sometime soon on whether Spencer should resign. He later said the vote will be at the supervisors' next meeting on Tuesday. "I'm not going to take any action until we have the attorney general's report," Kelsey said..."I'm not going to let the newspaper tell me what to do and I'm not going to grandstand for the public or for the newspaper." "We don't have all the facts." O'Banion brushed aside Kelsey's accusations
..."I don't look at it as grandstanding, I look at it as a responsibility we have to take back a department that is in turmoil." Supervisor Mike Nelson...when asked if Spencer should resign, he replied. "It would be nice if he would do that, yeah."

Police chief secrecy isn't right way...Our View
http://www.mercedsunstar.com/opinion/story/12439980p-13161532c.html
Plenty of mystery surrounds the disappearance and alleged kidnapping of Kou Xiong, the Merced Police Department officer who was missing for two days before being located in the Madera County foothills. Now, after an internal affairs investigation by the police department, we're told Xiong is no longer on the force. But that's it as far as any official accounting of what may have taken place. The public deserves more of an explanation than that...police officials should divulge some reason for Xiong's termination.

Letters to the editor:
Spencer should step down...Mark Seivert, Merced
http://www.mercedsunstar.com/opinion/story/12439981p-13161523c.html
Editor: How many investigations need to be done on our district attorney from the state Attorney General's Office before we demand he step down? I think three in one year should be more than enough for anyone.
Pazin's actions a let-down...Phil McDaniels, Merced
http://www.mercedsunstar.com/opinion/story/12439957p-13161493c.html
Editor: With Gordon Spencer involved in Cellphonegate and SUVgate, it is not surprising to find him involved in yet another scheme as nefarious as the purchase of land of a jailed man. What is surprising is the behavior and attitude of one of his partners, the sheriff of Merced County... Sheriff Mark Pazin admits to knowing who the seller of the land was in the "final stages of the deal." ...the sheriff let the
chase for big bucks place a cloud over his name and the office of sheriff of Merced County.

7-11-06
Merced Sun-Star
District Attorney Spencer injured in creek car crash...Scott Jason -- Chris Collins; -- Mike De La Cruz; -- The Associated Press
http://www.mercedsunstar.com/local/story/12435800p-13157709c.html
The Merced County district attorney was taken to the hospital Monday night after he rolled his Ford pickup truck into Bear Creek, a California Highway Patrol officer said. For unknown reasons, Spencer let the Ford F-150 pickup truck drift off the road and into the creek, he said. ...CHP Web site said the victim in the crash had minor injuries.

7-8-06
Merced Sun-Star
Spencer purchased land from jailed man...Chris Collins
http://www.mercedsunstar.com/local/story/12425122p-13147572c.html
California Attorney General Bill Lockyer has launched a third investigation into Merced County District Attorney Gordon Spencer, this time examining whether Spencer committed a crime when he and a group of local investors bought a piece of property from a man who was sitting behind bars and facing charges from the District Attorney's Office. The latest investigation comes on top of an ongoing criminal probe into Spencer's potential embezzlement of public funds and an inquiry last December that found Spencer had impersonated an investigator. The attorney general is now looking into a 21-acre lot on Bellevue Road that Spencer, Sheriff Mark Pazin, Ranchwood Homes owner Greg Hostetler, and five other prominent locals purchased in 2004. The intersection of the two events created a clash that was "absolutely impermissible" by attorney ethics standards, said Weisberg, the Stanford law professor. "There was a conflict of interest. " Dougherty, the county's presiding judge, said Spencer never told Byrd's attorney about his involvement in buying Byrd's land. Kelsey said she always has been troubled that the sheriff and district attorney joined one of the county's biggest developers to buy the land.

7-5-06
Merced Sun-Star
Tatum had a smorgasbord...Phil McDaniels, Merced...Letters to the editor
http://www.mercedsunstar.com/opinion/story/12409089p-13133720c.html
Editor: Many thanks to City Editor Mike Fitzgerald for putting in words how many voters feel about the Merced County Board of Supervisors and its constant giveaway of our money to the hierarchy of county government. For someone who flew low under the radar during the Gordon Spencer matter AND the department heads' perks matter, County Executive Officer Dee Tatum surfaced long enough for another feast at the public trough. The board members have been in office too long and have lost sight of who they work for and who their decisions should benefit.

6-21-06
Merced Sun-Star
County supervisors clarify management policies...Chris Collins
http://www.mercedsunstar.com/local/story/12347503p-13077932c.html
Board of Supervisors approved sweeping changes on Tuesday to Merced County's policies on car and phone allowances given to top-level employees...also set new ethics training requirements and accountability standards for elected officials and department managers. It was the first official action the supervisors have taken in response to District Attorney Gordon Spencer's misuse of government equipment...
county Auditor Stephen Jones said that the county's attorney, Ruben Castillo, had advised him that a state law giving district attorneys and sheriffs the right to charge business expenses to the county may also give Spencer legal grounds for getting both a county phone and an allowance. The revised policy means:
• The 33 "A-level managers" in the county, which includes department heads, supervisors and other elected officials, must now sign a new form each year that says they will use their own car and phone for their jobs if they choose to receive monthly allowances as reimbursements.
• The state-mandated conflict-of-interest disclosure forms that county department heads and elected officials fill out each year will now be frequently audited by an outside firm.
• All department heads and elected officials must now attend an ethics training course once a year or lose out on their phone and car allowances.

6-15-06
Merced Sun-Star
Valley politicians report lands sales, wealth...Michael Doyle, Sun-Star Washington Bureau
http://www.mercedsunstar.com/local/story/12321524p-13054529c.html
WASHINGTON -- San Joaquin Valley lawmakers are a diversified lot, especially when it comes to their personal finances. They own land, though not necessarily as much as they used to. They own stocks. Several have spouses pulling political salaries. Cardoza reported that, last October, he sold 6.2 acres in Atwater. The land at the intersection of Bellevue Road and Redwood Avenue brought the Cardoza & Cardoza Landholding Partnership between $500,001 and $1 million. Cardoza turned to stocks. He reported purchasing some 32 different stocks in November and December. Cardoza's wife works as a physician in Merced.

Crookham is off the mark...Lorraine Dawson, Merced
http://www.mercedsunstar.com/opinion/story/12321534p-13054545c.html
Editor: Some Merced County supervisors dismissed concerns that their allowances were excessive. Supervisor Kathleen Crookham said she was frustrated that questions were being asked about her pay. "It's really unfortunate when this kind of scrutiny takes place." "And then it's really unfortunate when no one wants to run for office because they come under that type of scrutiny." "Does the rest of the world have to justify what they spend? No. This is a thankless job and one you don't get rich on." Mercedians have a right to know where the tax revenue is spent and why. Then there was this comment in a May 2 Sun-Star story: "Supervisor Kathleen Crookham said she's known for the past few months that (District Attorney Gordon) Spencer has been using a county vehicle while receiving a car allowance at the same time, but she said she doesn't think it's a serious violation." Look no further than comments like these as to why Measure A was not passed.

6-13-06
Merced Sun-Star
OES faults Spencer over grant...Chris Collins
http://www.mercedsunstar.com/local/story/12312342p-13045915c.html
The state Office of Emergency Services says it will closely scrutinize Merced County's use of grant funds in the future after a report it released Monday concluded that District Attorney Gordon Spencer violated the terms of an OES grant. State will monitor county closely but funds won't have to be repaid. The report also found that the District Attorney's Office misled OES when it said it would assign a full-time deputy district attorney to prosecuting people who committed rural crimes. The OES report found three other grant violations:... There is no set deadline for when the attorney general's report will conclude.

Letters to the Editor...Last Updated: June 13, 2006, 01:52:58 AM PDT
http://www.mercedsunstar.com/opinion/story/12312355p-13045923c.html
County wears blindfold...James V. Haslouer, Merced...1st letter
Editor: So let me see if I understand this correctly. If you are a county employee and you jeopardize a state- funded program for your own personal pocket stuffing and accept false cell phone and vehicle reimbursements (embezzlement), you can then use those monies to compute and enhance your retirement! ...who was signing the vouchers that District Attorney Gordon Spencer was submitting for five years or perhaps even longer? Pay Spencer more than $150K a year for what? His disdain for the law is obvious.Supervisors, stand up for your constituents and do the right thing.

6-3-06
Merced Sun-Star

Letters to the Editor
Merced Sun-Star B2 Saturday, June 3, 2006
Spencer violated Grant...Chris Collins
http://www.mercedsunstar.com/local/story/12270485p-13006930c.html
District Attorney Gordon Spencer violated the terms of a grant by driving a $27,000 SUV that he was never supposed to use, a report by a private auditing firm has found...conducted by Sacramento-based Macias, Gini and Co. The SUV, a 2005 Ford Expedition, was purchased a year ago with money from a state grant and was intended for Chief Deputy District Attorney Larry Morse. Instead, the vehicle was "assigned solely to the County's District Attorney," the report concluded..."could jeopardize eligibility of the vehicle" and future funding from the grant. "It basically reinforces the fact that the car was not supposed to be used by the individual who was using it," county Supervisor Jerry O'Banion said. Last month, the state Attorney General's Office launched an embezzlement investigation into Spencer's use of county-owned equipment. The Office of Emergency Services is making its own inquiry into Spencer's actions. Both investigations are ongoing.