ABSTRACT: In UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE, STRADLING YOCCA CARLSON & RAUTH, Attorneys for Defendants, CITY OF CARMEL-BY-THE SEA; JASON STILWELL; SUSAN PAUL, filed a DEFENDANTS’ NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE CERTAIN CLAIMS OF PLAINTIFF’S PETITIONCOMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 (ANTI-SLAPP MOTION TO STRIKE); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on August 1, 2014. It states, in part, “Defendants Jason Stilwell, City Administrator (“Mr. Stilwell”), Susan Paul, Administrative Services Director (“Ms. Paul”) and the City of Carmel-by-the-Sea (“City”), (referred herein collectively as “Defendants”), hereby make this special motion to strike (“Anti-SLAPP Motion”) the “Fourth Cause of Action for Defamation” (“Defamation Claim”), the “Fifth Cause of Action for Intentional Infliction of Emotional Distress” (“Intentional Infliction Claim”), and “Sixth Cause of Action for Negligent Infliction of Emotional Distress” (“Negligent Infliction Claim”) alleged in the Complaint-Petition filed by Plaintiff Steven McInchak (“Plaintiff”) on June 4, 2014 (“Complaint”).” Conflicting accounts pertaining to the genesis of the investigation into IT Manager Steve McInchak’s alleged wrongdoing are presented from the SEARCH WARRANT SUPERIOR COURT OF CALIFORNIA County of Monterey, Declaration of Susan Paul in Support of Special Motion to Strike and Expert to get $103K for McInchak, audit of city computers, By MARY SCHLEY, The Carmel Pine Cone, September 13, 2013. Interestingly, "On December 11, 2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only," according to Administrative Services Director Susan Paul, Declaration of Susan Paul in Support of Special Motion to Strike.
On Tuesday, 05-28-13, at approximately 1000 hours, I was contacted by Commander Paul Tomasi of the Carmel Police Department in regards to possible misconduct of another city employee, Steve Mclnchak. Commander Tomasi told me that Mclnchak was suspected of using his position as Information Systems/Network Manager to access sensitive information from the city's computers. Commander Tomasi advised that the city had hired an outside Forensic Examiner to gather proof and facts. He asked that I contact the examiner and initiate an investigation.
On Wednesday, 05-29-13, At approximately 1100 hours, I met with Forensic Examiner, Mark Alcock, in my office. During introductions, Alcock told me that on 02-27-13, he was retained by the city of Carmel to do an examination of Mclnchak's work computer.
Alcock told me that his investigation started on 03-06-13, when he went to Mclnchak office located at Vista Lobos (Torres & 3rd) to search his desk top computer. He was accompanied by City Human Resources Director, Susan Paul and Police Chief Michael Calhoun.
Alcock told me that he had been working with Mclnchak under the ruse that he was conducting an audit of the City's computer system and servers,…
Source: SEARCH WARRANT
SUPERIOR COURT OF CALIFORNIACounty of Monterey
Warrant No.7682
Filed June 13, 2013
In or about March 2013, I became aware of possible misconduct by the Plaintiff including but not limited to possible unauthorized access to City computers, unauthorized access to electronically stored files on City employees' computers and unauthorized transmittal of confidential information from those computers to himself ("IT Misconduct").
Thereafter, two separate investigations of the IT Misconduct took place; one into Plaintiffs possible criminal activity ("Criminal Investigation"), and the second into the IT Misconduct and related job performance of Plaintiff in his capacity as an employee of the City ("Administrative Investigation").
On December 11, 2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only.
I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct.
Executed this 31st day of July, 2014
DEFENDANTS’ NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE CERTAIN CLAIMS OF PLAINTIFF’S PETITIONCOMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 (ANTI-SLAPP MOTION TO STRIKE); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
STRADLING YOCCA CARLSON & RAUTH
Attorneys for Defendants, CITY OF CARMEL-BY-THE SEA; JASON STILWELL; SUSAN PAUL
DATED: August 1, 2014
QUESTIONS:
- Who are the “various City staff members” who allegedly reported to Administrative Services Director Susan Paul “reports” which caused her “to become concerned regarding the integrity of the City's computer network, including the security thereof?”
- Hired on January 15, 2013, is it credible that less than a week later City staff members would “report” to Administrative Services Director Susan Paul information which caused her “to become concerned regarding the integrity of the City's computer network, including the security thereof?”
- Since “On December 11, 2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only,” why did the City pay Forensic Examiner Mark Alcock a total of $87,000 for CONTRACTUAL SERVICES-EXAMINER post-December 2013? Notes: $18,000 Check 127921, 2/27/2014, $36,800 Check 128148, 4/11/2014 and $32,200 Check 128609 6/27/2014. Administrative Coordinators Leslie Fenton and Margi Perotti placed on leave October 2013; fired March 2014.
But Stilwell said this week that contract was for Alcock’s “risk assessment” of the city’s system, not for his investigation into McInchak’s alleged wrongdoing. For that forensic work, Stilwell said, a second $25,000 contract was drawn.
“We originally brought Alcock on to survey our system, and we needed someone expert on technology to be able to do a risk assessment of our computer system and the network and applications, hardware, software and user support,” he said. “That was originally why he came in.”
According to Stilwell, a second contract was drafted later, after Alcock uncovered McInchak’s alleged nefarious computer activity. “We also needed his forensic services to support the investigation,” he said. “So we hired him to do that, too,” because the district attorney’s office did not have anyone available to do the work.
Source: Expert to get $103K for McInchak, audit of city computers, By MARY SCHLEY, The Carmel Pine Cone, September 13, 2013
Second Contract dated May 5, 2013 “information technology consulting and assessment services.”
Third Contract dated June 19, 2013 “appointing a computer forensic examiner,” who will “assist in the coordination of the investigation related to information technology.”
Source: Contracts with IT investigator raise questions, By MARY SCHLEY, The Carmel Pine Cone, September 27, 2013
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