Amended Verified Petition and Complaint Mcinchak v. City of Carmel

2
MICHELLE A. WELSH, State Bar No. 084127

STONER, WELSH & SCHMIDT
413 Forest Avenue
Pacific Grove, CA 93950-4201
Telephone: (831) 373-1993
Facsimile: (831) 373-1492
Attorneys for Petitioner/Plaintiff
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
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Steven Mclnchak,
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Petitioner/Plaintiff
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v.
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City of Carmel-by-the-Sea, Jason

Stilwell, City Administrator of the City
of Carmel-by-the-Sea, Susan Paul,
Administrative Services Director of the
City of Carmel-by-the-Sea and Does 1
through 50, inclusive,
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Case No. M128062
)
AMENDED VERIFIED PETITION
)
FOR WRIT OF MANDAMUS
)
(CODE OF CIVIL PROCEDURE
)
SECTION 1085)
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AND COMPLAINT FOR
)
DECLARATORY JUDGMENT,
)
BREACH OF CONTRACT,
) DEFAMATION AND INTENTIONAL
) AND NEGLIGENT INFLICTION OF
)
EMOTIONAL DISTRESS
)
)
_ _ _ _ _R_e_s...::.p_o...:..B;l_d_en_t_s_ID_e_{i_en_d_a_n_t_s_ )
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Petitioner/Plaintiff alleges:
PRELIMINARY STATEMENT
Petitioner/Plaintiff Steven Mclnchak is a permanent employee of the City of Carmel-
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by-the-Sea. He has been employed by the City since 1997 as its Information Systems Network
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Manager, responsible for managing and supervising the City's entire computer system.
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Throughout his employment, Petitioner/Plaintiff Mclnchak has performed his duties in an
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exemplary manner and with the highest professionalism and integrity. This action is brought
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to enforce the mandatory requirements of the Ordinances and Personnel System of the City of
Carmel-by-the-Sea, the Constitution and laws of the State of California, and the mandatory
duties of the City Council, the City Administrator and the City Human Resources Director
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.

Verified Petition for Writ of Mandamus and Complaint
Page 1 of19
arising under those laws. In addition to the Petition for Writ of Mandate, Petitioner/Plaintiff
2
also seeks a Declaratory Judgment of his rights and the City's duties, and Petitioner/Plaintiff
states claims for violations of his constitutional rights, breach of contract and defamation of
character.
On June 5, 2013 the City of Carmel-by-the Sea unilaterally placed Petitioner/Plaintiff
on administrative leave from his position as Information Systems Network Manager without
cause, notice or hearing. The City has kept Petitioner/Plaintiff on administrative leave,
preventing him from perfonning his job duties or returning to work since June 6, 2013, a
period of nearly 12 months. The City's actions violated, and continue to violate,
. 10
Petitioner/Plaintiff's rights to due process of law secured by Article 1, Section 2 of the
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Constitution of the State of California by depriving him of liberty and property without cause,
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notice and hearing. Further, the City's actions violated Petitioner/Plaintiffs right to privacy
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and impaired Petitioner/Plaintiff's vested contractual rights in violation of the Constitution of
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the State of California at Article 1, Section 1 and Section 9. The City has also violated its
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ownOrdinances.
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Petitioner/Plaintiff seeks a Writ of Mandate compelling ~he City of Carmel-by-the-Sea,
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through its City Council, City Administrator and Administrative Services Director, to reinstate
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Petitioner/Plaintiff to his position as Information Systems Network Manager forthwith.
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Petitioner/Plaintiff further seeks to recover damages for all economic and general damages
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and losses he has incurred as a result of the continuing failure and refusal of the City of
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Carmel-by-the-Sea, its City Council, City Administrator and Administrative Services Director,
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to perform their mandatory legal duties in violation of Petitioner/Plaintiff's Constitutional and
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legal rights.
PARTIES
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1.
Petitioner/Plaintiff Steven Mclnchak has been employed by Respondent/
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Defendant City of Carmel-by-the-Sea as its Information Systems Network Manager from July
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1, 1997 to the present. Petitioner/Plaintiff is a resident of Monterey County, California.
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
2.
Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Carmel)

Verified Petition for Writ of Mandamns and Complaint
Page 2 of 19
is, and at all times herein mentioned was, a General Law City duly organized and existing
under the laws of the State of California and located in Monterey County, California.
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3.
Respondent/Defendant Jason Stilwell is, and at all relevant times was, the City
Administrator of the City of Carmel-by-the-Sea.
4.
Respondent/Defendant Susan Paul is, and at all relevant times was, the
Administrative Services Director of the City of Carmel-by-the-Sea.
5.
Petitioner/Plaintiff is unaware of the true names and capacities of Respondents/
Defendants designated as Does 1 through 50, inclusive. Petitioner/Plaintiff is informed and
believes that each of the Respondents/Defendants designated as Does 1 through 50 is
10
responsible for the acts, omissions and wrongful conduct alleged herein. Petitioner/Plaintiff
II
will seek leave to amend the Petition/Complaint to state the true names and capacities of Does
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1 through 50 when they are ascertained.

COMMON FACTS
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6.
Petitioner/Plaintiff Steven Mclnchak was employed by the City of Carmel-by-
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the-Sea on July 1, 1997 in the position oflnformation Systems Network Manager. The
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position was created by the City Council of the City of Carmel in 1997 as a management
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position and Petitioner/Plaintiff was the first employee hired as Information Systems Network
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Manager. Petitioner/Plaintiff reported directly to the City Administrator until20 13 when he
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was directed to report instead to the Administrative Services Director.
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7.
As Information Systems Network Manager, Petitioner/Plaintiff was at all
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relevant times responsible for managing the City's computer system development and
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operations activities, providing professional assistance to City staff in information systems
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development analysis, assisting in management of all information systems activities
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throughout the City by coordinating, planning and evaluating operations of the system,
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including programming, computer operations, network administration and management of
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equipment and software acquisitions, installation and repair. Petitioner/Plaintiffs duties
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required him to serve as systems supervisor for managing the computer system including
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network security, passwords, user configurations and changes to accommodate individual and
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW

Page 3 of 19
departmental needs. A true and correct copy of the position description of the Information
2
Systems Network Manager is attached as Exhibit A and incorporated herein.
Petitioner/Plaintiff was required to be accessible to the City, its Administrators, its elected
officials and employees twenty-four hours a day, seven days a week to solve problems or
answer questions about the City's computer system.
8.
At all times during the course of his employment Petitioner/Plaintiff performed
his job duties in an exemplary manner and with the highest degree of professionalism and
integrity. All of his personnel evaluations were satisfactory or outstanding and he received
positive comments and commendations for his job performance. Prior to May 30, 2013
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Petitioner/Plaintiff had never received any notice of dissatisfaction with his job performance
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or disciplinary action of any kind during the previous sixteen years of his employment with
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the City of Carmel.
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9.
Petitioner/Plaintiff is a permanent, long-term employee of the City of Carmel.
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As such, Petitioner/Plaintiff accrued a property interest in his employment as a public
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employee under the Constitution of the State of California, including the right to retain his
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employment in the absence of just cause for termination. Nevertheless, on or about July 1,
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2005 then City Administrator of the City of Carmel presented to Petitioner/Plaintiff a
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document titled "Employment Agreement City of Carmel-by-the-Sea Information Systems
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Network Manager". That Employment Agreement purports to change Petitioner/Plaintiffs
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employment status :from a permanent to "at-will employee" subject to termination by the City
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Administrator without cause or right of appeal. Petitioner/Plaintiff was informed that he was
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required to sign that Agreement as a condition of remaining employed by the City of Carmel.
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Petitioner/Plaintiff received no notice, hearing, or any consideration or other benefit in
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connection with the Employment Agreement. Petitioner/Plaintiff was compelled to sign, and
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did sign the Employment Agreement, with no notice or intent to waive his vested rights and
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under threat that if he did not sign the Employment Agreement his employment would be
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immediately terminated without cause. A true and correct copy of the Employment Agreement
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is attached as Exhibit B and incorporated herein.
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW

Page 4 of 19
10.
On June 5, 2013, without prior notice or warning, agents of the City of Cannel
appeared at Petitioner/Plaintiffs home together with the Chief of Police and three law
enforcement officers from the City of Cannel and the Monterey County Sheriffs Department
who served upon Petitioner/Plaintiff a search warrant and proceeded to search his residence.
Agents for the City of Cannel, including Respondent/Defendant Susan Paul, entered
Petitioner/Plaintiffs home without his pennission, with no legitimate need to be present, and
over his objections. Agents for the City of Cannel took possession of Petitioner/Plaintiffs
home computer which he shared with his wife, Karen Mcinchak. Also taken were
Petitioner/Plaintiffs City laptop computer and multiple thumb drives and disks, including all
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back-up disks. None ofthe property taken on June 5, 2013 has been returned to
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Petitioner/Plaintiff and, to his knowledge, it remains in the possession of the City of Cannel.
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11.
Petitioner/Plaintiff, together with his wife, Karen Mcinchak, own and operate a
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private business engaged in showing, breeding and sales of oriental shorthair cats. Karen
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Mcinchak is, and at all relevant times was, an internationally-recognized expert certified by
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the International Cat Association to serve as a judge at cat shows, a business in which she is
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regularly engaged. Karen Mcinchak is not now, and never has been, an employee of the City
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of Cannel. Nevertheless, all of the business records, archived photographs, contacts and
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documents necessary for their cat showing and breeding business were stored on
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Petitioner/Plaintiffs home computer and were taken from their home by agents of the City of
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Cannel on June 5, 2013. The home computer and business documents were never returned,
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causing irr~parable damage to their business and loss of irreplaceable archived photographs
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and other business and personal data unrelated to the City of Cannel.
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12.
At the same time on June 5, 2013 agents of the City of Cannel including
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Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he was placed on
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administrative leave pending investigation of criminal charges against him. No criminal or
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other charges have ever been filed and, to Petitioner/Plaintiffs knowledge, neither the Cannel
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Police Department nor any other law enforcement agency has requested the filing of any
criminal charges against Petitioner/Plaintiff, Steven Mcinchak.
Mcinchak v. City of Carmel-by-the-Sea, et al.
Page 5 of 19
13.
The allegations against Petitioner/Plaintiff by the City of Carmel are false. Prior
to the June 5, 2013 search of his home and seizure of his property, Petitioner/Plaintiff had no
knowledge or notice of any allegations against him by the City of Carmel. To date,
Petitioner/Plaintiff has never received notice of charges from the City of Carmel.
Nevertheless, under threat of immediate discharge for insubordination he was directed to
appear at a mandatory investigative interview conducted by an attorney representing the City
of Carmel without any opportunity to review, respond to or to rebut charges, or to review any
evidence of any of the allegations of wrongdoing made by the City of Carmel against him
which have been widely published and republished throughout the community.
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14.
Agents of the City of Carmel made the false allegations of criminal conduct and
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work-related misconduct against Petitioner/Plaintiff and disclosed confidential personnel
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information of and concerning him to other employees of the City of Carmel, to elected
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officials, to news media, to reporters and to the general public. Such false and defamatory
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allegations, including allegations of criminal conduct, irreparably damaged
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Petitioner/Plaintiff's reputation in his profession, his employment and his community, violated
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his privacy, impaired his contract of employment, and violated his liberty interest in his
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employment, all in violation of his right to due process of law under the Constitution of the
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State of California, and in violation of California law.
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15.
Since Petitioner/Plaintiff was placed on involuntary leave of absence on June 5,
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2013 to the present time Petitioner/Plaintiff has been prevented from performing his job
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duties, retrieving his personal property, or accessing his home and office computers.
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Petitioner/Plaintiff has been prevented from pursuing his professional occupation and
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livelihood, all without cause, notice or hearing and in violation of his constitutional rights to
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due process of law, stigmatizing him to the point that he will be incapable of securing
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comparable future employment, all to his damage as alleged herein.
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
16.
Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiff is informed and
believes and thereon alleges, that he is one of at least seven long-term employees over the age
of 40 years who have been terminated, placed on involuntary leave of absence pending an
Page 6 of 19
investigation of allegations of misconduct, placed under disciplinary investigation by the City
of Carmel or forced to resign since on or about March 1, 2013. The City Administrator and
other agents of the City of Carmel have instituted a pattern and practice of discrimination
based on age causing a disparate impact on older employees which is continuing in violation
of California law. Petitioner/Plaintiff has also been subjected to disparate treatment because of
his age. He has never been convicted of any crime of moral turpitude. Yet, Petitioner/Plaintiff
is informed and believes that a female employee who is more than twenty years younger than
himself was convicted of welfare fraud during her employment with the City of Carmel as its
Finance Specialist without suffering any discipline, discharge, involuntary leave of absence or
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investigation of wrongdoing. On May 16, 2014 Petitioner/Plaintiff filed a Complaint of
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Discrimination with the California Department of Fair Employment and Housing against the
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City of Carmel-by-the-Sea and responsible individuals based upon discrimination against him
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because of his age in violation of the California Fair Employment and H9using Act at
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Government Code Section 12900 et seq., which remains under investigation.
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Petitioner/Plaintiff will seek leave to amend the Complaint upon receipt of Notice of Case
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Closure and Right to Sue from the California Department of Fair Employment and Housing.
17.
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On or about December 4, 2013 Petitioner/Plaintiff duly submitted a Notice of
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Government Claim to the City Clerk of the City of Carmel-by-the-Sea. On January 9, 2014
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Respondents/Defendants City of Carmel-by-the-Sea rejected Petitioner/Plaintiffs Government
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Claim. A copy of the Notice of Rejection of Claim is attached as Exhibit C and incorporated
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herein. Petitioner/Plaintiff has exhausted, or attempted to exhaust, all available administrative
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remedies.
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18.
The actions and course of conduct of Respondents/Defendants and other agents
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of the City of Carmel, as alleged herein, constitute arbitrary and capricious conduct within the
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meaning of California Government Code Section 800, and intentional unlawful conduct in
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
violation of California law, and the California Constitution.
Ill
Ill
Page 7 of 19
FIRST CAUSE OF ACTION

Petition for Writ of Mandamus:
Performance of Ministerial Duty (CCP Section 1085)
(Against All Respondents/Defendants in
Official Capacities)
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19.
Petitioner/Plaintiff incorporates by reference each and every allegation of the
Common Facts in paragraphs 1 through 18 as though fully set forth.

20.
At all times relevant herein Respondents/Defendants City of Carmel and its
agents had a clear, present and ministerial duty under the Constitution of the State of
California to refrain from depriving Petitioner/Plaintiff of his liberty interest in his
employment by threatening to institute disciplinary action based on false charges that impair
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Petitioner/Plaintiffs reputation for honesty and morality and his standing and associations in
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the community. These false allegations are denied by Petitioner/Plaintiff. The false
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allegations were publicly disclosed by the City of Carmel, which stigmatized and officially
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branded Petitioner/Plaintiff to the point that he is not free to seek other employment, to pursue
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his professional occupation, or even to volunteer his services in the community.
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21.
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agents had a ministerial duty under the Constitution of the State of California to retain
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Petitioner/Plaintiff in his employment with the City of Carmel in the absence of good cause to
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terminate or suspend him involuntarily, and to refrain from depriving Petitioner/Plaintiff of
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his property and his property interest in his public employment without notice, a statement of
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reasons, a copy of the charges and of all materials on which the proposed action is based, and
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the right to a hearing within a reasonable time. A year or more is not a reasonable time.
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22.
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agents had a clear, present and ministerial duty under the Personnel System Ordinances of the
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City of Carmel-by-the-Sea at Section 2.52 .375 to comply with the procedures described in the
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Personnel System Ordinance at the earliest time practicable and to refrain from placing
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Petitioner/Plaintiff on involuntary administrative leave of absence without good cause to
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believe that he is guilty of extreme conduct which warrants disciplinary action and imminently
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threatens to seriously disrupt the City service. On June 5, 2013 agents of the City of Carmel
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT lAW

Page 8 of 19
placed, and now continue to maintain, Petitioner/Plaintiff on administrative leave without
good cause, without investigation and without any evidence of grounds to believe that he is
guilty of conduct which warrants disciplinary action. A year or more is not the earliest
practicable time for the City to comply with its own Ordinances.
23.
agents had a ministerial duty under the Constitution of the State of California to protect
Petitioner/Plaintiffs right to privacy, as specifically guaranteed by Article I Section 1 ofthe
Constitution of the State of California.
24.
At all relevant times the City of Cannel and its agents have been able to perform
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their ministerial duty in accordance with the law. Petitioner/Plaintiff is informed and believes,
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and thereon alleges, that notwithstanding such ability and despite Petitioner/Plaintiffs
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demand for performance, Respondents/Defendants have refused, and continued to refuse, to
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reinstate Petitioner/Plaintiff or to permit him to perform his duties as Information Systems
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Network Manager for the City of Carmel, resulting in the unlawful suspension from his
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employment.
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25.
Petitioner/Plaintiff has exhausted or attempted to exhaust any and all
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administrative remedies available to him. Petitioner/Plaintiff has no plain, speedy or adequate
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remedy at law to redress the acts complained of herein, other than this Petition for Writ of
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Mandate and other relief compelling Respondents/Defendants to reinstate Petitioner/Plaintiff
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to his job duties as Information Systems Network Manager, and to cease giving force and
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effect to any policies, contracts, documents or actions which deprive Petitioner/Plaintiff of his
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liberty and property, together with an award of damages and other relief to which
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Petitioner/Plaintiff is entitled by law.
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
26.
Petitioner/Plaintiff has incurred, and will continue to incur, attorneys fees and
costs. The acts of Respondents/Defendants City of Carmel and its agents were discriminlttory,
arbitrary, capricious, taken in bad faith and contrary to the public interest. Petitioner/Plaintiff
is entitled to recover attorneys fees and costs under Government Code Section 800, Code of
Civil Procedure Section 1021.5 and other statutory or contractual basis.
Verified Petition for Writ of Mandamns and Complaint
Page 9 of 19
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.

2
Petition
Writ Mandate: Abuse of Discretion
Respondents/Defendants in their Official Capacities)
(Against
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4
5
6
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27.
Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 26 as though fully set forth.

28.
To the extent Respondents/Defendants retained any discretion concerning
Petitioner/Plaintiff's employment, Respondents/Defendants abused that discretion by the

actions complained of herein, including but not limited to placing and maintaining
Petitioner/Plaintiff on involuntary leave of absence for approximately one year or more

10
without cause, notice or hearing, making false and defamatory allegations of and concerning
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Petitioner/Plaintiff, confiscating Petitioner/Plaintiffs property, discriminating against

12
Petitioner/Plaintiff because of his age and depriving Petitioner/Plaintiff of his liberty interest
13
in his employment, as alleged herein. The actions of the City of Carmel and its agents were
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arbitrary, capricious, unreasonable and/or a prejudicial abuse of discretion.

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Respondents/Defendants' abuse of discretion has deprived Petitioner/Plaintiff of his

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employment, his reputation and his future means of livelihood.

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THIRD CAUSE OF ACTION

Breach of Written Contract of Employment
(Against Respondent/Defendant Employer Only)
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT lAW
29.

30.
Pursuant to the Employment Agreement, Respondents/Defendants City of
Carmel agreed that the City of Carmel could terminate Petitioner/Plaintiffs employment for
cause without his consent only in the event that Petitioner/Plaintiff is convicted of a felony or
other crime involving moral turpitude or any offense involving a violation of his official
duties or if it is detennined by the City Administrator that Petitioner/Plaintiff misappropriated
Page 10 of19
public funds, commingled public funds with personal funds, engaged in willful corrupt
conduct in office, or conducted himself in a manner to be determined as willful conduct that
constitutes misconduct according to the City's personnel rules. Petitioner/Plaintiff has not
engaged in any such conduct, nor has he been charged or convicted of any crime, nor has the
City given notice or produced any evidence of such conduct.
31.
Respondent/Defendant City of Carmel breached the Employment Agreement by
wrongfully placing and maintaining Petitioner/Plaintiff on involuntary leave of absence since
June 5, 2013, by making false charges against him, by failing to notify him of charges against
him and by failing to conduct or complete an investigation of its charges against
1o
Petitioner/Plaintiff in a timely manner, by wrongfully failing and refusing to reinstate
11
Petitioner/Plaintiff to his employment as Information Systems Network Manager, and by
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impairing Petitioner/Plaintiff's contract, as alleged herein.
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32.
As a direct and proximate result of Respondent/Defendant's breach and
14
impairment of contract, Petitioner/Plaintiff has suffered and continues to suffer substantial
15
losses in earnings, future earnings and employment benefits, all to Petitioner/Plaintiff's
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damage in a sum not yet ascertained. Petitioner/Plaintiff will seek leave to amend this
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complaint to state the amount when it is ascertained, or according to proof at trial.
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FOURTH CAUSE OF ACTION
Defamation
(Against All Respondents/Defendants)
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33.
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SJONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW

34.
Petitioner/Plaintiff is informed and believes that Respondents/Defendants, and
each of them, by the acts alleged herein, conspired to and did negligently, recklessly and
intentionally cause excessive and unsolicited internal and external publications of defamation
of and concerning Petitioner/Plaintiff to third persons and to the community. These false and
defamatory statements included express and implied accusations that Petitioner/Plaintiff
committed crimes, that he violated City policies, that he was a poor performer, that he
Mdnchak v. City of Carmel-by-the-Sea, et al.
Page 11 of 19
deserved disciplinary action, that he was incompetent, and that he was dishonest. All of these
statements are false.

35.
The precise dates of these publications are not known to Petitioner/Plaintiff, but
were discovered within the past year. The publications were false. Publication by .
Respondents/Defendants was outrageous, negligent, reckless, intentional and malicious.
Petitioner/Plaintiff is infonned and believes that the intentional publications by
Respondents/Defendants, and each of them, were and continue to be foreseeably published
and republished by Defendants/Respondents, their agents and employees, recipients, news
media and others in the community. Petitioner/Plaintiff hereby seeks damages for all these
10
publications and all foreseeable re-publications discovered to the time of trial.

36.
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At all times relevant, Respondents/Defendants, and each of them, conspired to
12
and did negligently and intentionally cause excessive and unsolicited publication of
13
defamation of and concerning Petitioner/Plaintiff to third persons who had no need or desire
14
to know. Those third persons to whom Respondents/Defendants published this defamation are
15
believed to include, but are not limited to, other agents and employees of the City of Carmel
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and persons in the community, all of whom are known to defendants, but unknown at this time
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to Petitioner/Plaintiff.
37.
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The defamatory publications consisted of oral and written, knowingly false and
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unprivileged communications, tending directly to injure Petitioner/Plaintiff, his employment,
20
his personal business and his professional reputation. These publications included false and
21
defamatory statements in violation of California Civil Code Section 45 and 46 (1), (3) and (5)
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by expressly and impliedly asserting that Petitioner/Plaintiff should be charged with a crime,
23
that Petitioner/Plaintiff engaged in violations of policy, was incompetent, a poor performer
24
and other allegations as alleged above, all of which directly injure Petitioner/Plaintiff in
25
respect to his profession, trade and business, imputing to him general disqualification and
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other allegations having a natural tendency to inJure Petitioner/Plaintiff in his employment,
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
profession and business. The statements of and concerning Petitioner/Plaintiff are defamatory
per se.
Page 12 of19
38.
Petitioner/Plaintiff is informed and believes that these false and defamatory per
se statements will continue to be published by Respondent/Defendants, and each of them, and
will foreseeably be republished by the recipients, all to the ongoing harm and injury to
Petitioner/Plaintiffs employment, business, professional and personal reputations.
Petitioner/Plaintiff also seeks redress in this action for all foreseeable re-publications,
including his own compelled self publication of these defamatory statements.
8
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39.
None of Respondents/Defendants' defamatory publications about
Petitioner/Plaintiff are true.

40.
The defamatory meaning of all of the false and defamatory statements and the
10
reference to Petitioner/Plaintiff were understood by those third person recipients and other
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members of the community, whose identities are known to Respondents/Defendants, but
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unknown to Petitioner/Plaintiff at this time. The defamatory statements were understood as
13
assertions of fact, and not as opinion.
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41.
None of the false defamatory per se publications as set forth herein were
15
privileged. Any alleged conditional privilege was abused because Respondent/Defendants
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negligently, recklessly and intentionally published defamatory statements in a manner
17
constituting malice since the publiCations, and each of them were made with hatred, ill will,
18
and an intent to vex, harass, annoy and injure Petitioner/Plaintiff, to justify the illegal actions
19
of Respondents/Defendants and to cause further damage to Petitioner/Plaintiffs professional
20
and personal reputation, to cause him to be fired, and to justify his firing.
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42.
Each of the defamatory publications by Respondent/Defendants, and each of
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them, were made with knowledge that no investigation or evidence supported the
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unsubstantiated and obviously false statements. Respondents/Defendants published the
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statements knowing them to be false, and Respondents/Defendants were negligent to such a
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
degree as to be reckless. Respondents/Defendants had no reasonable basis to believe the

statements to be true, they in fact knew the statements to be false, and they published them to
individuals with no need to know. No privilege existed to protect any of the
Respondents/Defendants from liability for the false and defamatory publications and reMclnchak v. City of Carmel-by-the-Sea, et al.
Page 13 of19
publications.
43.
As a proximate result of the publication and re-publication of defamatory
statements by Respondents/Defendants, and each of them, Petitioner/Plaintiff has suffered
injury to his business and professional reputation, and has suffered embarrass~nent, retaliation,
severe emotional distress, shunning, anguish, fear, loss of employment and employability, and
significant economic loss, including loss of past and future wages, loss of health insurance
and other benefits, all to Petitioner/Plaintif"s economic, emotional and general damage in an
amount according to proof at trial.
44.
Respondents/Defendants, and each of them, committed the acts alleged herein
10
recklessly, maliciously, fraudulently and oppressively, with the wrongful intention of injuring
11
Petitioner/Plaintiff, and for the improper and evil motive amounting to malice, as described
12
above. Respondents/Defendants' conduct abused and/or prevented the existence of any
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conditional privilege, and was done with reckless and conscious disregard of
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Petitioner/Plaintiffs rights. All actions of Respondents/Defendants and agents and employees
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of the City of Carmel were known, ratified and approved by Respondents/Defendants, and
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each of them. Petitioner/Plaintiff is entitled to recover punitive and exemplary damagesfrom
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individual Respondents/Defendants Stilwell, Paul and Does one through 50, and each of them,
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in an amount based on their wealth and ability to pay, according to proof at trial.
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FIFTH CAUSE OF ACTION

Intentional Infliction of Emotional Distress
(Against All Respondents/Defendants)
20
21
22
45.
23

24
46.
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
The conduct alleged above was extreme and outrageous and constituted an
abuse of the authority and position of Respondents/Defendants, and each of them. In addition,
on or about June 5, 2013 agents of Respondents/Defendants City of Carmel, including
Respondent/Defendant Susan Paul, entered Petitioner/Plaintiff's home, refused to leave, and
participated in confiscating Petitioner/Plaintiff's property. In doing so Respondents/
Page 14 of 19
Defendants acted outside of the course and scope of their employment with the City of
Cannel. Respondents/Defendants' conduct is intended to cause severe emotional distress, or
was done in conscious disregard of the possibility of causing distress to Petitioner/Plaintiff.
Respondents/Defendants' conduct exceeded the inherent risks of employment and is not the
sort of conduct nonnally expected to occur in the workplace.
47.
Respondents/Defendants, and each of them, abused their positions of authority
toward Petitioner/Plaintiff, and engaged in conduct intended to humiliate and demean
Petitioner/Plaintiff and to convey the message that Petitioner/Plaintiff was powerless to
defend his rights.
10
48.
Respondents/Defendants' conduct as alleged above did, in fact, cause
11
Petitioner/Plaintiff to suffer extreme emotional distress. As a proximate result of
12
Respondents/Defendants' conduct, Petitioner/Plaintiff suffered embarrassment, anxiety,
13
humiliation and emotional distress. Petitioner/Plaintiff will continue to suffer emotional
14
distress in the future, causing physical and emotional injury and damages, as alleged above.
15

SIXTH CAUSE OF ACTION
Negligent Infliction of Emotional Distress
(Against AU Respondents/Defendants)
16
17
18
49.
19

20
50.
Respondents/Defendants, and each of them, owed a duty of care to
21
Petitioner/Plaintiff as an employee of the City of Cannel to provide Petitioner/Plaintiff a

22
workplace free from unfair treatment, discrimination, harassment, retaliation, defamation and
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
abuse of Respondents/Defendants' positions of authority toward him. Respondents/

Defendant's conduct exceeded the inherent risks of employment and was not the sort of
conduct nonnally expected to occur in the workplace. If the conduct of Respondents/
Defendants, and each of them, as alleged above, and their agents and employees was not
intentional, it was negligent and Petitioner/Plaintiff is thereby entitled to general damages for
the negligent infliction of emotional distress.
Page 15 of 19
51.
Respondents/Defendants, and each of them, knew, or should have known, that
their conduct would cause Petitioner/Plaintiff extreme emotional distress. As a proximate
result of Respondents/Defendants' negligent conduct, Petitioner/Plaintiff suffered and will
continue to suffer extreme humiliation, embarrassment, mental anguish and emotional
distress, causing injury and damages as alleged above.
SEVENTH CAUSE OF ACTION

Declaratory Relief
(Against All Respondents/Defendants in their Official Capacities)
8
9
10
11
52.

53.
California Code of Civil Procedure Section 1060 authorizes this court to grant
12
any person interested under a written instrument or contract to bring an action in Superior
13
Court for declaration of his rights or duties, and to seek other relief. There is an actual and
14
present controversy between Petitioner/Plaintiff Steven Mclnchak and Respondents/
15
Defendants City of Carmel, and its agents, which affects the rights and obligations of
l6
Petitioner/Plaintiff.
17
54.
Petitioner/Plaintiff contends that Respondents/Defendants, and each of them,
18
breached his contract of employment, violated their legal and constitutional duties, and
19
engaged in unlawful and unprivileged conduct which defamed Petitioner/Plaintiff and
20
irreparably damaged his reputation, his employment, and deprived him of his liberty.
21
Petitioner/Plaintiff further contends that the acts of Respondents/Defendants were
22
discriminatory because of his age and violated his right to due process secured by the
23
California Constitution by placing and maintaining Petitioner/Plaintiff on involuntary leave of
24
absence without cause, notice or hearing, and that Respondents/Defendants' conduct also
25
resulted in an unconstitutional impairment of Petitioner/Plaintiffs contract of employment.
26
Respondents/Defendants, and each of them, deny these contentions.
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
55.
Petitioner/Plaintiff requests the court to declare the rights and duties of the
parties in this action, and specifically to declare that Petitioner/Plaintiff has the right to
Page 16 of19
reinstatement as the Information Systems Network Manager for the City of Carmel pursuant
to his contract of employment and pursuant to the Constitution and laws of the State of
California, together with all damages proximately caused by Respondents/Defendants'
conduct as alleged herein.
WHEREFORE, Petitioner/Plaintiff prays judgment as follows:
PRAYER FOR RELIEF
6
7
Petitioner/Plaintiff prays judgment as follows:
1.
9
10
each of them, their agents and employees, and all persons acting under them or on their behalf
to do the following:
A.
11
12
For a Writ of Mandate compelling Respondents/Defendants City ofCarmel and
Reinstate Petitioner/Plaintiff to his employment with the City of Carmel
as Information Systems Network Manager;

B.
13
Cease giving force and effect to any contract, rule, policy or other
14
documents or taking any actions which deprive Petitioner/Plaintiff of his liberty or property or
15
his right to due process of law;
16
C.
Return to Petitioner/Plaintiff possession all property owned by him
17
and/or his family which is in the possession of the City of Carmel, its Administrators, agents
18
or anyone acting on their behalf;
19
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
2.
For a money Judgment for loss of employability, mental pain and anguish and
emotional distress according to proof;

3.
For general, presumed and special damages based upon damage to
Petitioner/Plaintiffs personal reputation, his professional reputation, and his business;
4.
For economic damages, including compensatory damages for lost past and
future wages and employment benefits, and any other economic injury according to proof;
5.
For an award of punitive damages against any and/or all individual
Respondents/Defendants;
6.
For reasonable attorneys fees under any applicable statutory or contractual basis;
7.
For an award of interest, including prejudgment interest, at the legal rate;

Page 17 of 19
8.
For costs of suit; and
9.
For such other and further relief as the court deems proper.
JURY TRIAL DEMANDED
3
4
Plaintiff demands trial of all issues by jury.
5
6
Dated: September .!JL, 2014
STONER, WELSH & SCHMIDT
8
9
10
MICHELLE A. WELSH
Attorneys for Petitioner/Plaintiff,
Steven Mclnchak
11
12
13
14
15
16
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20
21
22
23
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25
26
27
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW

Page 18 of 19
VERIFICATION
PARTY
(466, 2015.5 C.C.P.)
2
3
4
STATE OF CALIFORNIA, COUNTY OF MONTEREY
5
6
I am the Petitioner/Plaintiff in the above entitled action or proceeding. I have read the
foregoing AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS (CODE OF
CIVIL PROCEDURE SECTION 1085) AND COMPLAINT FOR DECLARATORY
JUDGMENT, BREACH OF CONTRACT, DEFAMATION AND INTENTIONAL AND
10
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS and know the contents thereof,
11
and I certify that the same is true of my own knowledge, except as to those matters which are
12
therein stated upon my information or belief, and as to those matters I believe it to be true.
13
14
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
15
16
Executed on September 10,2014, at Pacific Grove, California.
17
18
19
Steven Mclnchak
Petitioner/Plaintiff
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW

Page 19 of 19
CITY OF CARMEL-BY-THE-SEA
INFORMATION SYSTEMS/NETWORK MANAGER

Definition
Under administrative direction, manage the City computer system development and
operations activities; provide professional assistance to City staff in information systems
development analysis. Assist in management of all information system activities throughout
the City by coordinating, planning, and evaluating operation of the system, to include systems
analysis, programming, computer operations, network administration and management, and
equipment and software acquisitions, installation and repair.
Supervision Received And Exercised
The Assistant City Administrator or his/her designee provides general supervision.
Responsibilities include direct supervision of any clerical positions assigned to help on an as

needed basis. This position will also coordinate technology tasks with the Library's
Automated Systems Technician.
Examples Of Duties
Design, acquire, instaU, customize, document and maintain an hardware and software.
Provide a point-of~contact for vendor support to departments. Maintain liaison with
equipment manufacturers and vendors to ensure satisfactory support.
Manage and provide direct technical and administrative support for the operation of the area
Novell networks Citywide.
Receive and prioritize requests for computer application development and assistance and
oversee the implementation process.
Resolve service complaints and implement corrective action on a timely basis. Repair or
return defective hardware/software or coordination with vendors for replacement of defective
equipment/software..
Evaluate and recommend software for purchase and/or programmers who provide services to
the City.
City of Cannel-by-tbe-Sea
InfQrmation Systems/Network Manager (continued)
in all matters
to
cornot1ter operating systems,
Serve as liaison between the

information systems including database
networks, and
Geo~graphicallnfonnation
Systems.
Serve as system supervisor for managing the computer system including

security)
passwords, new user configurations, and d1anges to accommodate individual
departmental needs.
Develops, recommends,justifies and monitors the annual budget f9rthe citywide infonnation
services program.
Drafts, recommends, and implements policies and procedures related to the use of the
citywide information system.
Insures proper maintenance, repair, and servicing of equipment.
As time permits and as prioritized by management develops and programs software systems
for City and departmental applications and oversees implementation of these programs.
Provide 24 hour support to emergency services (Police and Fire) computer operations with
timely response (preferably 1 hour). Assist in coordination of use ofthe Computer System in
the event of an emergency and develop disaster preparedness plans as they relate to the
computer system.
Maintains and updates detailed citywide computer inventory.
Confers with users to identifY training needs and coordina.tes training schedule(s). May
conduct training as needs are detennined.
Serve as Chairperson for Citywide computer users group.

Keeps infom1ed regarding developments in computer technology and techniques affecting
City operations and distribute pertinent information to departments and users.
Attends outside organization meetings and training seminars as related to City needs.
Examples Of Duties (continued)
City of Cannel-by-the-St;a
Information Systems'Network Manager (continued)
Provide monthly written and/or oral reports to management concerning the status of the
computer system, overall system perfonnance, and status of current computer projects.
Maintains availability via phone and pager. Makes arrangements for computer system
coverage when unavailable, i.e, vacations, seminars.
Maintains accurate and complete records.
Other Job Related Duties
Perform related duties and responsibilities as !equired.

Job Related And Essential Qualifications
Knowledge of:
Novell NetWare operating systems, architecture, and topologies.

Local and Wide Area networking systems design, integration and management.
Ethernet, ARCNet and X.25 protocols.
Microcomputer hardware troubleshooting, maintenance and network integration.
Microcomputer communications technology including Bulletin Board Systems, Internet
connectivity and TCP/IP communications protocols.
MicroSoft Windows installation, maintenance and trouble shooting on a Wide Area Network.
WordPerfect installation, maintenance and trouble shooting on a Wide Area Network
Microsoft applications i.e., Office, Access, Excel; Presentations, Project, and other software
applications which may be installed on a Wide Area Network.
Various programming languages, :including Basic and PVX.
Municipal financial systems and budget preparation.
Ability to:
Trouble shoot errors and quickly identify the source as being Network, DOS, application or
3
City of Carmel-by-the-Sea
Jnfonnation SysremsiNetwork Manager (continued)
hardware.
Design, write, and debug computer programs in a variety of programming languages and
database systems.
Manage multiple priorities.
Communicate effectively with users who possess a widely diverse experience level in aU
matters of computer automation.
Communicate effectively in written documents and oraUy with city staff, users and outside
agency representatives.
Conduct formal and infonnai training sessions.
Prepare written documentation and user& guides for internal systems.
Deal effectively with Department Managers, City Staff and outside vendors.
Experience and Training Guidelines:
Any combination equivalent to experience and training that would provide the required
. knowledge, skills, and abilities would be qualifying. A typical way to obtain the knowledge,
skills, and abilities would be.~
Experieuce:
5 years experience with increasing responsible professional work in No:ven network

administration and Management Information Systems.
Education:
Equivalent to graduation from an accredited 4-year educational institution with a major

course work in Application Programming, Business Data Processing, Computer Science, or
Management Infmmation Systems.
Note: At the sole discretion of the City~ extensive, applicable experience may be substituted
for 2 years of requited education.
License or Certificate:
Possession of, or ability to obtain, an appropriate, valid driver's license.

4
City of Cannel-by-the-Sea
lnfonnation SystemstNetwork Manager (continued)
Possession of a certificate as a Certified Network Administrator) preferred.

Special Requirements:
Essential duties require the following physical skills and work environment:
Ability to sit, stand, walk, kneel crouch, stoop, squat, and lift 50 Jbs.; ability to travel to
different facilities, availability for emergency on-call work dming non working hours; ability
to work in a standard office environment
Eff(l<.:the D11te:
Re~isioils Effective:
March 1997
July 1,1998
XHIBITB
THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA

("CITY") and Steve Mcinchak ("EMPLOYEE") and is dated this 1st day
of July 2005.
RECITALS
1.
EMPLOYEE has been employed as an Information Systems Network

Manager for CITY since July 1, 1997.
2.
EMPLOYEE desires to accept the position of INFORMATION SYSTEMS

NETWORK MANAGER and continue serving CITY in that capacity.
3.
The CITY ADMINISTRATOR, as appointing power, and Steve

Mcinchak desire to agree in writing to the following terms and
conditions for employment of Information Systems Network
Manager.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

. AGREEMENT
1.
DUTIES
A.
CITY agrees to employ Steve Mcinchak as Information
Systems Network Manager of the City of Carmel-by-the-Sea to perform
the .functions and duties specified in the ordinances and
resolutions of the City, and to perform other legally permissible
and proper duties and functions as the CITY ADMINI!?TRATOR may from
time to time assign.
B.
EMPLOYEE shall perform his duties to the best of his
ability in accordance with the highest professional and ethical
standards of the profession and shall comply with all rules and
regulations established by the City.
C.
EMPLOYEE shall not engage in any activity, which is or
may become a conflict of interest prohibited by the contract, or
which may create an incompatibility of office as defined under
California law. Prior to performing any services under .this
Agreement and annually thereafter, EMPLOYEE shall complete and file
all disclosure forms required by law.
Page 1 of 7
2.
TERM
A.
This Agreement shall commence on July 1, 2005, and
continue unless terminated by either party in accordance with the
provisions set forth in Article D. 6 this Agreement, or until
terminated by death or permanent disability of EMPLOYEE.
B.
EMPLOYEE agrees to remain in the exclusive employ of the
CITY during the term of this agreement.
However, EMPLOYEE may
engage in occasional teaching, writing, or consulting performed on
EMPLOYEE'S time off so long as such activities do not either
interfere with EMPLOYEE'S performance of his duties hereunder, or
conflict with EMPLOYEE'S obligation to the CITY .. EMPLOYEE agrees
that such activities are to be subject to prior approval of the
CITY ADMINISTRATOR.
3.
HOURS OF WORK
A.
It is recognized that EMPLOYEE must devote a great deal
of time outside normal business hours to the business, of the CITY,
and to that end EMPLOYEE will be allowed to take reasonable leave
time off as he shall deem appropriate during normal business hours.
However, it is the intent of the CITY ADMINISTRATOR that EMPLOYEE
maintain, whenever possible, normal CITY business hours.
4.
RESIGNATION AND TERMINATION
A.
EMPLOYEE may resign at any time upon providing CITY
ADMINISTRATOR with at least thirty (30) days advance written notice
of the effective date of resignation.
B.
CITY ADMINISTRA'.I'OR may at any time terminate EMPLOYEE
upon thirty (30} days advance written notice.
C.
The parties recognize and affirm that:
1)
EMPLOYEE is an "at will" employee whose employment
may be terminated by the CITY ADMINISTRATOR without cause or right
of appeal; and
2)
There is no express or implied promise made to
EMPLOYEE for any form of continued employment. This Agreement is
the soleand exclusive basis for an employment relationship between
EMPLOYEE and the CITY.
5.
SEVERANCE PAY
Page 2 of 7
A.
Except as provided in paragraph 5.B. of this Agreement,
if EMPLOYEE is terminated by the CITY ADMINISTRATOR while still
willing and able to perform the duti.es of Information Systems
Network Manager, CITY agrees to pay EMPLOYEE a cash payment equal
to four months of the then current, aggregate salary.
Said cash
payments may be paid, at the option of the EMPLOYEE in: 1) lump
sum upon date of termination; 2) lump sum on January 1 of the
calendar year following termination; or 3) four equal monthly
installments. Such payment shall release the CITY from any further
obligations under this Agreement.
B.
In the event EMPLOYEE is terminated . because of his
conviction of any felony, or any crime involving moral turpitude,
6r any offense involving a violation of his official duties or if
the CITY ADMINISTRATOR determines that the EMPLOYEE has: 1)
misappropriated public funds; 2) commingled public funds with his
personal funds; 3) engaged in willful corrupt conduct in office; or
4) conducted himself in a manner to be determined as willful
conduct that constitutes misconduct according to the CITY'S
personnel rules, the CITY shall have no obligation to continue
employment of EMPLOYEE or to pay severance as set forth in
paragraph S.A. of this Agreement.
6.
SALARY
A.
Effective July 1, 2005, the CITY agrees to pay EMPLOYEE
$96,864.00 in salary per annum for his services.

B. Salary is payable in installments at the same time as other
employees of the CITY are paid, and subject to customary
withholding.
c.
Thereafter and subject to an evaluation of performance on
the anniversary date hereof, the CITY ADMINISTRATOR may increase
EMPLOYEE'S compensation without the need to amend this Agreement.
7.
AUTOMOBILE
A.
The CITY shall provide EMPLOYEE with a CITY vehicle or
provide for a mileage allowance as needed per the current IRS
mileage rate.
Page 3 of 7
8.
SUPPLEMENTAL BE:NE:I?ITS
A.
The CITY shall provide EMPLOYEE with the same type and
extent of benefits as provided to the CITY'S other
management employees as such benefits may be amended from
time to time except for the following:
1. The CITY shall contribute an amount not less than
eighty-five percent (85%) of the full premium on
behalf of the EMPLOYEE and his qualified dependents
for medical insurance available through the CalPERS
CHOICE program for the term of this Agreement until
and unless otherwise amended between EMPLOYEE AND
CITY.
2. The CITY shall continue to provide dental and v1s1on

coverage
through
the
CITY'S
current
self-fund
programs, until and unless otherwise amended between
the EMPLOYEE and the CITY.
3. EMPLOYEE shall be entitled to accrue vacation at a
rate determined by his years of City service, subject
to the City's Municipal Code Sections 2.52.625 through
2.52.~45, and 2.52.655.
4. EMPLOYEE shall accrue eight (8) hours per month of
sick leave, subject to the Carmel...:by-the-Sea Municipal
Code Sections 2.52.660 through 2.52.685.
5. EMPLO):'EE shall receive 100 hours annual administrative
leave per fiscal year.
B.
With the above exceptions all other actions taken by the
CITY ADMINISTRATOR relating to benefits for executive management
employees shall be considered actions granting the same benefits to
EMPLOYEE. As used herein, benefits may include but are not limited
to paid holidays, bereavement leave and general leave, life
insurance, accidentai death and disability insurance, vacation
leave sell-back option, employer paid deferred compensation
contributions, and participation in PERS with employer paid
contributions.
9.
PERFORMANCE EVALUATION
Page 4 of 7
A.
CITY ADMINISTRATOR, or his designee, shall evaluate
EMPLOYEE'S performance at least annually. As part of such annual
performance evaluation the CITY ADMINISTRATOR, or his designee, and
EMPLOYEE shall set goals and objectives for the ensuing year.
10 .
BUSINESS
A.
CITY ADMINISTRATOR agrees- to pay for reasonable CITYrelated business expenses incurred by EMPLOYEE in accordance with
CITY policy.
11.
DUES, SUBSCRIPTIONS,
A.
CITY shall pay such professional dues, subscriptions and
memberships in such organizations necessary for EMPLOYEE to
maintain professional relationships in appropriate national,
regional, state and local associations desirable for continued
professional growth, advancement and benefit to CITY.
12.
NOTICES
A.
Any notices required by this Agreement shall be in
writing and either given in person or by first-class m.ail with the
postage prepaid and addressed as follows:
13.
TO CITY:
Rich Guillen
City Administrator
City of Ca:r:mel-by-the-Sea City Hall
P.O. Drawer CC
Carmel-by-the-Sea, CA 93921
TO EMPLOYEE:
Steve Mcinchak
27590 Via Sereno
Carmel, CA 93.923
DISPUTE RESOLUTION
A.
Should either party to this Agreement bring legal action
against the other (formal judicial proceedings, mediation or
arbitration} the case shall be handled in Monterey County,
California, and the party prevailing in such action shall be
entitled to a reasonable attorney's fee which shall be ixed by the
. Page 5 of 7
judge, mediator or arbitrator hearing the case and such fee shall
be included in the judgment together with all costs.
ARM'S LENGTH NEGOTIATIONS

A.
This Agreement has been negotiated at arm's length and
between persons sophisticated and knowledgeable in the matters
dealt with in this Agreement. Accordingly, any rule of law
(including California Civil Code 1654) or legal decision that
would require interpretation of the ambiguities in this Agreement
against the party that has drafted it is not applicable and is
hereby waived. The provlslons of this Agreement shall be
interpreted in a reasonable manner to effect the purposes of the
parties in this Agreement.
15.
DUTY TO DEFEND
A..
Upon request of EMPLOYEE, and subject to the provisions
of California Government Code Sections 995.2 and 995.4, CITY shall
defend EMPLOYEE in any civil action or proceeding brought against
him, ~n his official or individual capacity or both, on account of
an act or omission in the scope of his/her employment as an
employee with CITY except for civil, criminal or administrative
action initiated by EMPLOYEE.
16.
ENTIRE AGREEMENT
A.
This Agreement is the final expression of the complete
agreement of the parties with respect to the matters specified
herein and supersedes all prior oral or written understandings.
Except as prescribed herein this Agreement cannot be modified
except by written mutual agreement signed by the parties.
17 .
ASSIGNMENT
A.
This Agreement is not assignable by either the CITY or
the EMPLOYEE.
18.
SEVERABILITY
A.
In the event that any provision of this Agreement is held
or determined to be illegal or void by reason of final, nonappealable judgment,
order or decision of a court having
jurisdiction over parties, the remainder of the Agreement shall
Page 6 of 7
remain in full force and effect unless the parts found to be void
are wholly inseparable from the remaining portion of the Agreement,
19.
COUNTERPARTS
A.
This Agreement shall be executed simultaneously in two
counterparts and each of which shall be deemed an original~ but all
of which togethe.r shall constitute one and the same instrument.
IN WITNESS WHEREOF this Agreement is signed and executed and
duly held attested by the City Clerk, the CITY ADMINISTRATOR, and
EMPLOYEE.
ATTEST:
CITY/0! CARMEL-BY-THE-SEA
. ~UJJ~
CITY OF CARMEL-BY-THE-SEA
~?~
CITY ADMINISTRATOR
.r.a '}jtg__AJ
E~OYEE
Page 7 of 7
CAHL \VARREN
COlVJPANY
January 9, 2014
NOTICE OF
OF
Steven Mclnchak
c/o Michelle Welsh
Stoner, Welsh & Schmidt
413 Forest Avenue
Re:
Insured
Date of Loss
Our File No.
City of Carmel-by-the Sea

6/5/13
1875773
Dear Mr. Mclnchak,

Carl Warren & Company is the claims administrator for the City of Carmel-by-the Sea,
relative to the above-captioned claim.
NOTICE IS HEREBY GIVEN that the claim which you presented to the City Council of
the Carmel-By-the-Sea on December 4, 2013 was rejected on January 7, 2014.
WARNING
Subject to certain exceptions, you have only six (6) months from the date this notice
was personally delivered or deposited in the mail to file a court action on this claim. See
California Government Code Section 945.6. The six month time limit referred to in this
notice applies only to claims or causes of action which are governed by the California
Tort Claims Act. Other causes of action, including those arising under federal law, may
have different time limitations.
You may seek the advice of an attorney of your choice in connection with this matter. If
you desire to consult an attorney, you should do so immediately.
AN EMPLOYEE-OWNED COMPANY
P 0, Box 3975 1 Walnut Creek, CJ\
94598
www.carlwarren.corn 1 Tel: 925-674-4660 1 800-998-4763 1 Fax: 800-956-3999
CP.. License No, 2607296
cc: Administrative Services Director
I, Jo Gelinas, DECLARE:
1. I AM OVER 18 YEARS OF AGE;

I AM EMPLOYED BY CARL WARREN & COMPANY;
3. MY BUSINESS ADDRESS IS:

PO Box 3975
Walnut Creek, CA 94598
4. I AM NOT A PARTY TO THE WITHIN-MENTIONED PROCEEDING;
On .January 9, 2014 I SERVED THE ATTACHED NOTICE OF REJECTION OF
CLAIM ON THE CLAIMANT BY PLACING THE NOTICE IN AN ENVELOPE,
WITH US POSTAGE FULLY PREPAID, SEALED, AND ADDRESSED AS
FOLLOWS:
Steven Mclnchak
c/o Michelle Welsh
Stoner, Welsh & Schmidt
413 Forest Avenue
AND THEN BY DEPOSITING SAID ENVELOPE IN THE US MAIL ON THAT

DATE.
PROOF OF SERVICE BY MAIL

(1013A, 2015.5. C.C.P.)
I am a resident of Monterey County, California; I am over the age of eighteen (18)
years and not a party to the entitled within action; my business address is STONER, WELSH
& SCHMIDT,
3 Forest Avenue, Pacific Grove, CA 93950.
I am readily familiar with the business' practice for collection and processing of
correspondence for mailing with the United States Postal Service, and I declare that the
within documents would be deposited with the United States Postal Service on the date set
forth below in the ordinary course of business.
1o
On September _t_l, 2014, I served the within AMENDED VERIFIED PETITION FOR
11
WRIT OF MANDAMUS (CODE OF CIVIL PROCEDURE SECTION 1085)
12
AND COMPLAINT FOR DECLARATORY JUDGMENT, BREACH OF CONTRACT,
13
DEFAMATION
14
EMOTIONAL DISTRESS on the following by placing a true copy thereof in a sealed
15
envelope for collection and mailing on said date, following ordinary business practices,
16
addressed as follows:
17
18
19
20
21
AND
INTENTIONAL
Jeffrey A. Dinkin
Allison E. Bums
David C. Palmer
Stradling Yocca Carlson & Rauth, APC
800 Anacapa Street, Suite A
Santa Barbara, California 93101
Telephone: (805) 730-6800
Facsimile: (805) 730-6801
AND
NEGLIGENT
INFLICTION
OF
Attorneys for Respondents/Defendants

CITY OF CARMEL-BY-THE-SEA;
JASON STILWELL; SUSAN PAUL
22
23
I declare under penalty of petjury according to the laws of the State of California that
24
the foregoing is true and correct. Executed on September
25
California.
_ll,
2014, at Pacific Grove,
26
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STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Steven Mclnchak v. City of Cannel-by-the-Sea, et al.

Case No. M128062

Amended Verified Petition and Complaint Mcinchak v. City of Carmel

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Amended Verified Petition and Complaint Mcinchak v. City of Carmel

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MICHELLE A. WELSH, State Bar No. 084127

Attorneys for Petitioner/Plaintiff

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

City of Carmel-by-the-Sea, Jason

Case No. M128062

Throughout his employment, Petitioner/Plaintiff Mclnchak has performed his duties in an

Mclnchak v. City of Carmel-by-the-Sea, et al.

On June 5, 2013 the City of Carmel-by-the Sea unilaterally placed Petitioner/Plaintiff

Petitioner/Plaintiff's rights to due process of law secured by Article 1, Section 2 of the

and impaired Petitioner/Plaintiff's vested contractual rights in violation of the Constitution of

Petitioner/Plaintiff seeks a Writ of Mandate compelling ~he City of Carmel-by-the-Sea,

Petitioner/Plaintiff to his position as Information Systems Network Manager forthwith.

to perform their mandatory legal duties in violation of Petitioner/Plaintiff's Constitutional and

Petitioner/Plaintiff Steven Mclnchak has been employed by Respondent/

1, 1997 to the present. Petitioner/Plaintiff is a resident of Monterey County, California.

Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Carmel)

Administrator of the City of Carmel-by-the-Sea.

Administrative Services Director of the City of Carmel-by-the-Sea.

Petitioner/Plaintiff is unaware of the true names and capacities of Respondents/

Defendants designated as Does 1 through 50, inclusive. Petitioner/Plaintiff is informed and

believes that each of the Respondents/Defendants designated as Does 1 through 50 is

1 through 50 when they are ascertained.

Petitioner/Plaintiff Steven Mclnchak was employed by the City of Carmel-by-

Manager. Petitioner/Plaintiff reported directly to the City Administrator until20 13 when he

was directed to report instead to the Administrative Services Director.

As Information Systems Network Manager, Petitioner/Plaintiff was at all

operations activities, providing professional assistance to City staff in information systems

development analysis, assisting in management of all information systems activities

including programming, computer operations, network administration and management of

equipment and software acquisitions, installation and repair. Petitioner/Plaintiffs duties

Mclnchak v. City of Carmel-by-the-Sea, et al.

Systems Network Manager is attached as Exhibit A and incorporated herein.

answer questions about the City's computer system.

At all times during the course of his employment Petitioner/Plaintiff performed

the City of Carmel.

Petitioner/Plaintiff is a permanent, long-term employee of the City of Carmel.

As such, Petitioner/Plaintiff accrued a property interest in his employment as a public

2005 then City Administrator of the City of Carmel presented to Petitioner/Plaintiff a

document titled "Employment Agreement City of Carmel-by-the-Sea Information Systems

Network Manager". That Employment Agreement purports to change Petitioner/Plaintiffs

Petitioner/Plaintiff received no notice, hearing, or any consideration or other benefit in

is attached as Exhibit B and incorporated herein.

Mclnchak v. City of Carmel-by-the-Sea, et al.

Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he was placed on

administrative leave pending investigation of criminal charges against him. No criminal or

Nevertheless, under threat of immediate discharge for insubordination he was directed to

appear at a mandatory investigative interview conducted by an attorney representing the City

work-related misconduct against Petitioner/Plaintiff and disclosed confidential personnel

allegations, including allegations of criminal conduct, irreparably damaged

State of California, and in violation of California law.

Since Petitioner/Plaintiff was placed on involuntary leave of absence on June 5,

comparable future employment, all to his damage as alleged herein.

Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiff is informed and

investigation of allegations of misconduct, placed under disciplinary investigation by the City

investigation of wrongdoing. On May 16, 2014 Petitioner/Plaintiff filed a Complaint of

Government Code Section 12900 et seq., which remains under investigation.

On or about December 4, 2013 Petitioner/Plaintiff duly submitted a Notice of

Respondents/Defendants City of Carmel-by-the-Sea rejected Petitioner/Plaintiffs Government

herein. Petitioner/Plaintiff has exhausted, or attempted to exhaust, all available administrative

The actions and course of conduct of Respondents/Defendants and other agents

violation of California law, and the California Constitution.

FIRST CAUSE OF ACTION

Petitioner/Plaintiff incorporates by reference each and every allegation of the