The saga of Atherton's ex-finance director added some new twists last week, as a judge told John Johns he had to decide between suing the town and avoiding incriminating himself in a criminal investigation.
In addition, Councilwoman Kathy McKeithen, who had been Mr. Johns' staunchest supporter on the council, repudiated a statement the former finance director made under oath.
Mr. Johns was in court on Friday, Feb. 29, trying to block the town from questioning him as part of its defense against his lawsuit for wrongful termination.
A Superior Court judge disagreed with Mr. Johns' argument, clearing the way for Atherton attorneys to take his deposition.
Mr. Johns was fired in October after being put on administrative leave for two months while a private attorney hired by the town conducted an investigation into complaints against him. The investigator's report painted Mr. Johns as a bully who may have improperly done outside work while on the town's time.
Mr. Johns maintains that he was targeted for blowing the whistle on fiscal improprieties in Atherton's building and other departments. He has called the report from the investigation flawed and inaccurate.
The San Mateo County District Attorney's Office is currently investigating whether Mr. Johns used town equipment or town time while doing outside consulting work, said Chief Deputy District Attorney Steve Wagstaffe.
Mr. Johns argued that he didn't know there was a criminal investigation going on, citing a November phone conversation with Councilwoman McKeithen. He said Ms. McKeithen told him the criminal complaint was going nowhere, according to a declaration filed with the court.
Ms. McKeithen, however, filed her own declaration on Feb. 27, saying she didn't tell Mr. Johns anything about a criminal complaint against him. "The statement Mr. Johns attributed to me under penalty of perjury in his declaration ... is not accurate," she said.
Mr. Johns' attorney, George Camerlengo, argued that his client's Fifth Amendment right to avoid incriminating himself in the criminal investigation would make it impossible for Mr. Johns to be questioned as part of the civil lawsuit for wrongful termination. He asked for a 60-day delay so the criminal investigation could wrap up.
Judge Marie Weiner displayed little patience for that argument during Friday's brief hearing, saying that the case law concerns only defendants in civil cases who were also facing criminal charges. Since Mr. Johns is the plaintiff who brought the civil lawsuit, the situation is different, she said.
"I'm not going against case law," she told Mr. Camerlengo. "If you want to make a new law, go ahead."
In her decision, Judge Weiner said, "A plaintiff is entitled to stand on his or her Fifth Amendment rights or to proceed with the civil suit — but a choice must be made."