AtPac Lawsuit – the Greg Diaz Deposition (updated 5sep2011)

George Rebane

Regular RR readers are familiar with the lawsuit filed by local software company AtPac naming as defendants Nevada County, NC Clerk-Recorder Greg Diaz, and Aptitude Solutions, a Florida software company.  For months the community has been asking the county’s Board of Supervisors to reveal the whys and wherefores of what led to the lawsuit that was settled out of court earlier this summer at a TBD cost that has to date exceeded $2.5M.

A key piece of peeling back the layers of the Rood Center onion is the long-awaited deposition given last May by Mr Diaz.  This deposition has now become available, and is accessible to RR readers here Download Diaz, Gregory ATPAC v. Aptitude.  The deposition, along with the attendant video of Mr Diaz being deposed, is even more revealing as to how business was (is?) being conducted by our county government.  I and others will have more to say about this after digesting the document.

Readers wishing to review some of the background may want to read ‘County Dodges AtPac Bullet, but ...’ and its predecessors.  These can be found by searching RR (upper left panel) with the keyword 'AtPac'.

[1sep2011 update]  Barry Pruett's occasional blog Inside Nevada County Politics makes available (here) some of the Greg Diaz videos mentioned above.

[5sep2011 update]  As promised, my thoughts after reading the Diaz deposition are found here.

Comments

[Barry Pruett]

Should be an interesting read. I will have some time this weekend to "digest" it.

[Mikey McD]

Not much different on the Federal level:

http://abcnews.go.com/blogs/politics/2011/08/solar-energy-company-touted-by-obama-goes-bankrupt/

Solar Energy Company Touted By Obama and FUNDED WITH STIMULUS $ Goes Bankrupt

http://www.zerohedge.com/news/shining-example-obamas-787-billion-fiscal-stimulus-act-solar-energy-company-solyndra-files-bank

[George Rebane]

Mikey - was your 1153am comment for this post or a previous one?

[Michael Anderson]

I just finished reading the Diaz deposition. It confirms everything that I have believed about this case up to now.

I believe that neither Diaz nor county IT had any intention of violating the AtPac EULA and that they worked hard to avoid problems with the conversion.

I believe that AtPac has yet to prove any damages. AtPac should provide more information regarding the nature of their .dat files and especially how the .txt files provided to Aptitude preserved the allegedly proprietary AtPac table information.

[Barry Pruett]

I fouund this interesting. On page 38-39 of his deposition, Diaz denies what "code" is.

In the video below (Diaz debate with Kathleen Smith in 2006), Diaz not only states that he knows what code is, but affirmatively states that he understands the significance of code.

See between 8:39-11:47 http://video.google.com/videoplay?docid=3592865562510135145#

[Michael Anderson]

He said he knew what code was, but not source code. He was making a distinction.

But I don't think there is any doubt to readers of the Diaz deposition that he is hostile to the deposing attornet. At one point he says that the whole thing is a "pain in the ass."

Doesn't change my overall assessment. Now, what about those AtPac damages?

[George Rebane]

MichaelA - I am surprised that you as a software professional are here arguing the plausibility of rapid quantification of damages in cases involving the compromise of IP between competitors. Courts and persons of knowledge in the field know that such estimates are totally unreliable, and therefore the presumption of suffered damage is included as stemming from the raison d'etre for IP protection laws to be on the books in the first place.

This is why the IP damage argument remains alive only in the minds of the naifs. Please explain yourself, because I don't take you to be one to toss in another cheap red herring into this kind of a discussion.

[Michael Anderson]

George, you are correct. It was a setup.

I was hoping someone would take my bait, but you cut me off at the pass. Good show.

What I am really looking for is a discussion of the AtPac EULA. Any takers?

[George Rebane]

Well enough MichaelA - Apparently the provisions of the AtPac EULA (End-User License Agreement) were appropriately stout enough to convince the court in arriving at its interim judgment against the county, and enough to drive the county to a total collapse of its case when presented with AtPac's request for summary judgment. The county had NOTHING to counter AtPac's evidence, and rapidly capitulated on all counts in the subsequent out-of-court settlement.

So, re the EULA discussion, which at this point is academic but may be educational, could you please frame for us what you see as the stakes in the ground?

[Michael Anderson]

You are correct, it appears that the summary judgement request prevented this from going to trial. Which is a shame because we might have gotten an interesting EULA ruling out of the deal if this case had gone to higher courts.

I believe the AtPac EULA was their standard boilerplate from the late 1990s, and EULA court rulings are steadily moving in the direction of protecting consumers and businesses who must deal with their sometimes-onerous restrictions. I believe this to be the heart of this case.

For example, here is a ruling in the early 2000s that started down the road of protecting the rights of software consumers: http://www.theregister.co.uk/2001/11/28/us_court_ruling_nixes_software/

And as I mentioned in a comment above, it appears that important pieces of the AtPac software were not even compiled, so just looking at the .dat files could be construed as reverse engineering, which is just a ridiculous presumption.

Again, it gets to the heart of the EULA. And the fact that in Diaz' deposition we now learn that AtPac kept upping the cost/time ante in what it would take for the county to migrate its own data [extortion??] really starts to fry my bacon.

[Barry Pruett]

Hey Michael: The cost to migrate was not an issue. Diaz conceded that in his deposition. He also conceded that he breached the contract twice. First, he admitted to authorizing the Aptitude access to the server housing AtPac's code. Second, he admitted to not telling AtPac of the breach. Thus triggering attorney fees to prevailing party. These two admissions show conclusively liability on Diaz for breach of contract. As for copyright and trade secrets, we will never know as the server to which Aptitude copied the software was scrubbed to a defense department standard. It is readily apparent, however, that the insurance carrier saw the potential for damages in excess of $1.2 million.

[Barry Pruett]

Maybe it was more than $1.2 million, as I forget the final number.

[Michael Anderson]

Barry,

The breeches you speak of are certainly subject to interpretation. He certainly vacillated on the AtPac costs, I don't think he was clear in his own mind how those interactions with county IT were developing. Probably because he was trying to run the elections office and this lawsuit cum vendor-change was a very annoying distraction, albeit self-imposed.

He didn't tell AtPac what was going on because he didn't trust them. In fact, he didn't trust anybody, which he made clear in his deposition. Probably not a bad idea when you are entrusted with being involved in a county's election certification process.

I think the server-scrubbing issue is completely irrelevant--they did it, get over it. Who knows if it was a mistake or a strategy? It's not important in the big picture of what went on with this scrubbing decision. And there are certainly other ways to find out how AtPac's "copyright and trade secrets, we will never know" problem is real or manufactured.

Michael A.

[Barry Pruett]

Michael: You are talking about your opinion. I am talking about legal facts. Diaz admited that he provided the access and that he concealed it. Both actions are explicit violations of the contract. Now if you want to get into if he was clear, that is a different story. Diaz went to law school for threee years (did not graduate). He admitted to having read the contract and knew the provisions. You say not clear; I say either lying about his clarity or incompetent.

The scrubbing issue is highly relevant to proof of copyright infringement and trade secrer misapproporiation. The sanction provided by the judge states that the jury will assume that Aptitude copied AtPac's software. It does not matter if it was a mistake or strategy...it is what it is.

The insurance company saw the writing on the wall, and I think that you should take that into consideration when formulating your opinions as to damages.

[Steve Wynn]

The only thing that has been proved here is what Barry Pruett real intentions are for this county. Those intentions include trying to make Greg Diaz look incompetent.

Sorry Barry, but if anything you missed that mark and made yourself look like you were involved with this whole plan from the start.

[Michael Anderson]

"The insurance company saw the writing on the wall, and I think that you should take that into consideration when formulating your opinions as to damages."

They settled because it was the easiest way out, not because the case had merit.

I'm leaving town this morning, won't be back until next Tuesday. Have fun w/ the discussion everyone, I look forward to reading all the nuts and bits upon my return.

[Dixon Cruickshank]

My my, I have a hard time with MA's account that the scrub wasn't relenvent?

It stunk to high heaven - considering timing and the fact that I wonder how many other servers used down there are scrubbed and "to defense dept standards".

On to Mr Wynn - Barry was kinda involved - it was his job. Although with the botched election and the fact the county got its ass handed to them in a lawsuit that any layman should have understood - Mr Diaz didn't need alot of help.

Barry did try and save you guys some money though - you should thank him actually - he was right on from day one.

[Steve Wynn]

Well "Dixon".... We all hear that "load of crapola" of "it's my job", but in this day and age if there is something I don't feel is respectable then I would tell my superiors that "I'm not going to be involved with it, as I can't stand by these convictions", especially if you're a lawyer.

Barry "tried" to save us some money - I tell my staff members you don't "try", trying is for losers, you DO, or you do NOT!

A quote I like about "trying" - We need to internalize this idea of excellence. Not many folks spend a lot of time trying to be excellent.

So the question is did Barry succeed, or is he still "trying"?

[Barry Pruett]

Good afternnon Mr. Wynn: This is about telling the truth and obeying the law.
Had you never heard of me, would Diaz not have done what he did to give Aptitude a log into AtPac software before the BOS had approved the contract, in effect giving them access to the AtPac Intellectual Property and in effect costing the taxpayers (indirectly) almost $2 million? Yes, I must admit that I successfully brought these action to the public attention during my campaign. Should we not know about these wrongful actions, and should we just avoid the issue? After all, light is the best disinfectant.

Greg Diaz and his cheerleading squad may think shooting at a whistleblower is a great way to cover up unlawful actions, but I'm confident the people of Nevada County are seeing through that tactic as we speak.

[Bob W]

Diaz needs to be indicted and the whole board needs to be recalled. What the makeup of the Board would end up to be is secondary. On the part of the Board, total incompetence coupled with ignorance. On Diaz, criminal.

[Mike Thornton]

Interesting that a county employee (Jackie Pollard) was colluding with AtPac behind the back of an elected official, who was performing his legal duties and not one of the Regressives has a word to say about it.....
C'mon guys, where's all that "outrage" you're so good at throwing around?
Hey Barry, when was the last time you or any of your associates talked to Ms. Pollard?

[Paul Emery]

Go ahead Bob and start the recall process. You seem to be the only one that interested in pursuing it. How about less talk and more rock.

[George Rebane]

Thornton, I see you're back, and you're already on your way to pissing me off. Who are the "Regressives" you are referring to, and what is your intent in using that obvious pejorative? Recommendation: act as if you were on a short leash.

[Todd Juvinall]

He is at this place George.

http://www.socialequitystrategies.com/

This will help you better understand him.

[Mike Thornton]

Gee, George it sure doesn't take much to "piss you off" does it?
I wonder how the Muslims feel when you call them "Ragheads"?
But what does it matter, they're just "Ragheads", right?
Wow, Todd finally figured out that I'm a "lefty".
Nothing gets by you....
George who do you think the "Regressives" are?
The term is a shorthand identifier and it is exactly the type of thing that you do, when you use the type of stereotyping language you use to identify people that you see as having some sort of commonality that (generally) you don't like or agree with.
So if what you're really saying here is: "Me and my friends get to say anything we want too, but if anyone says anything we don't like, then they are on a short leash."
Then just be up front about it, OK?
Don't talk your concern about "obvious pejoratives" as you let Todd continue to say the absolutely hateful stuff he spews on a daily basis at good ole, RR!

The real question remains: "What about Jackie Pollard and her back door relationship with AtPac?" Who is Jackie Pollard?, Who is she connected too? And was she purposefully undermining the taxpayers of Nevada County to the tune of almost $2 Million?
What is her relationship (if any) with Barry Pruitt or people connected to him?
These are the fundamental questions!
My question is: Why are you (and that means the people who have been beating this case to death) apparently not concerned about these fundamental questions?
I say the answer seems pretty simple, you only cared about hurting Diaz and undermining any faith that people have in government. It's likely that Ms. Pollard would have a lot to say, if someone decided to put her under oath in a deposition.

Do whatever you gotta do, man!

[Todd Juvinall]

George, this nut calls himself a PR guy for the progressives! Wow, I bet the jobs just pour in. What a hoot!

[Mike Thornton]

Once again, the fundamental question is:
What role has Jackie Pollard played in the whole AtPac fiasco?
If a County employee was colluding with a private company and/or a political candidate to undermine an elected official, as part of a scheme, to gain power and/or profit, that seems pretty serious to me!
And it would be just as serious if the person being undermined was a "Conservative"!
I just don't understand why some of you don't seem to care......

[Chuck Whitten]

I just finished reading the entire Diaz deposition. I'm still mulling it, but some things appear clear. The first one is that as an elected official there seems to be an awful lot Greg Diaz does not know about his job. The contradictions are massive. He makes it very clear that he does not trust anyone. He says it, then repeats it for emphasis. Yet, he says he did not read the letter authorizing Aptitude's password for access to the server. It's difficult to reconcile those two ideas. As far as Jackie Pollard goes, there's certainly not enough information in the deposition to claim any malice on her part. Diaz comments regarding Pollard come across as something more than anger over her communications with AtPac. There's clearly more there than meets the eye. The really troubling part of the deposition is Diaz' willingness to throw his staff under the bus.
Probably more important is the board's failure to stop this runaway freight before it did more than $2-million in damage.
As far as a potential recall, the people on this blog are not the only ones discussing it.

[Greg Goodknight]

Thornton, be careful what you wish for, you may get it.

[Mike Thornton]

Gee Chuck, you're a "news guy", don't you want to know what Jackie and AtPac were up too?
Maybe there's nothing to it, but if she was (as Diaz testified to under oath) "reporting to AtPac", I want to know what that really means!
Also, is Jackie connected to Barry? And if so, how? Is she connected to Barry's wife or McClintock?
These are reasonable questions and you can bet that, if this were some conservative elected official and it turned out that an underling was having private conversations with a company or group that was not favored by the conservative RR crowd, they (and perhaps even you) would be going ballistic about it!
But when it comes to good ole Jackie, nothing. And that makes me suspicious!

[Mike Thornton]

And what's that supposed to mean, Greg?

[Bob W]

OK Paul, You and I don't agree. Anyone surprised? I am proud of it.

Paul, I don't do anywhere near the talking you do. I don't need to. As for me pursuing a recall, please remember I have a real job and work more hours than any two of you libs. Take your pick.

And as for more rock, I have 3,429 words, in 5 Public Record Requests to the County in the AtPac case. How many do you have? We not only disagree but I am totally unimpressed with you.

[Chuck Whitten]

I'd like to know what a lot of county officials were and are up to. I could care less if they're conservative or liberal. Mike, you've put a lot of meaning into the deposition that simply isn't there. It may be that Pollard is connected to the Pruetts and to Tom McClintock, but there's nothing in the deposition to suggest that has anything to do with the AtPac v Aptitude Solutions case. If there's something Pollard was up to, spell it out. If you have read the deposition you should know that Pollard's job was to talk with AtPac. Your quotation marks around "reporting to AtPac" are an amateur attempt to lend credibility to your arguments. Grow up. I cannot stand people who engage in innuendo such as you are. Your condescending attitude is extremely distasteful. Forget your platitudes and your propaganda. Give us truth. I've said there's more to this than meets the eye. I just wish people like you had the guts to stand up and speak in fact rather than implications. You give liberals a very bad name.

[Mike Thornton]

I don't know what she's up to or not, Chuck.
It sounds to me like maybe you know that she has connections to political people that want to hurt Diaz though...is that the case?
What I know is that Diaz said in a legal deposition that one of his employees was having private back door conversations with AtPac "She reported to Atpac"
Diaz said that, Chuck, I didn't make it up, did I?
What did she "report to AtPac?"
Was she undermining the County in the lawsuit? Is she receiving some kind of kickback as a result? I don't know that she is or isn't. I just think they're reasonable areas to investigate.
Sounds to me like Jackie Pollard is a bit of a raw nerve and that makes me suspicious too!

[Mike Thornton]

Chuck:

This is what's printed in The Union (hardly the tool of the "liberal conspiracy")

"Diaz said Jackie Pollard, who worked in the office from November 2001 to April 2008 as a supervising recorder assistant, would regularly funnel information to AtPac about Diaz's intentions to look for a new software vendor — which, he said, began immediately after his appointment.

Diaz had designated the information confidential and was angry with Pollard for the leaks.

“Jackie reported to AtPac,” he said."

[Paul Emery]

Bob W

I don't appreciate your assuming you know how hard I work at my multiple occupations. You have no Idea what you are talking about.

I don't support recalls unless there are criminal investigations involved. Supes Beason, Scofield and Owens are up for re-election next year so why waste tax payers money, just find and support new candidates. Lamphier was not seated at the time so he should not be a problem to you. That leaves only Weston for you to take a swing at via recall and of course Diaz. Good luck in finding ground troops. You might investigate how much a recall election will cost the county because for sure that will be a big issue. To my knowledge, there has never been a successful recall in Nevada County. Occasionally there's some huffing and puffing but not much more. County historians feel free to fill in the historical blanks (Steve Cottrell)

[Barry Pruett]

First, the BOS did not approve the contract with Aptitude until November 2008. If Pollard was gone in April 2008, I do not see how she could be in any way tied to the events that precipitated the litigation, as such events began in January 2009. Second, a recall would not cost the taxpayers a dime if it is coordinated with the presidential primary. Third, Pollard is a registered Democrat.

[bill tozer]

I voted for Diaz to show everybody I am not a racist and have nothing against Bay Area gov't employees.

[Paul Emery]

Here's an interesting question. If Diaz were to be recalled in the next cycle would he have to be replaced during the election and how much would that cost?

[Mike Thornton]

Well then somebody is lying, Barry.
I think it would be important to find out who and why!
Sounds like you know Jackie fairly well?

[John Galt]

If County departments are supposed to enter contracts openly and fairly, then it seems like Jackie Pollard is a whistle blower.

As Diaz's own testimony reveals, he planned to replace AtPac on his 1st day in office. He didn't like the firm. So he was contracting with bias. That is not professionally serving the Citizens.

He says he's a professional, but he ignores legal language just because its' "boiler plate". His 3 years of law school should be sufficient training to know that all the text in a contract is important, including the boiler plate.

As Chuck W wrote, Diaz's testimony reveals that he's poorly equipped to serve in an executive capacity as Clerk/Recorder.

As Barry wrote, if the recall is timed correctly, their would be no cost.

It would be interesting to see how Diaz's fundraising and endorsements change for the recall.

I suspect that Supervisor Owens and Beason would still support him....but the list would be pretty short.

[Mike Thornton]

Whistle blowers go to the authorities, John. They don't collude with private business interests behind the back of their boss!

[Barry Pruett]

Mr. Thornton: The BOS did not approve the contract with Aptitude until November 2008. If Pollard was gone in April 2008, I do not see how she could be in any way tied to the events that precipitated the litigation, as such events began in January 2009. I think that we all know who is lying and that would be you.

[Paul Emery]

Barry

What is your take as to whether Diaz would have to be recused if there was a recall during a general election?

[Barry Pruett]

I would have to check, but I think if the clerk-recorder is recalled another individual is delegated the responsibility by the BOS for the purposes of the recall of the clerk-recorder.

[Bob W]

Paul, I would only expect that you would not appreciate me knowing how hard you work. As for multiple occupations, There are a lot of people that have to do whatever they can to find work. If you knew how to do something well then you wouldn't need to take whatever you can find. Frankly, I don't care what you do or do not appreciate.

Because of all your pompous BS I have a lot of "ideas" about what you are all about.

Your reasons for and against recall of the Board illustrate that you have no idea what a recall in response to their conduct in the AtPac case is all about. Maybe I am mistaken on my assumption that Lamphier participated in closed session? But then you aren't capable of interpreting the relevance of that anyway.

And Chuck?, Giving liberals a bad name? Isn't that redundant?

[stevenfrisch]

Nice guy that Bob. W. This place is full of nice guys who slam everyone at will. It even makes nice guys like me reciprocate, which is a shame really. I'm sure Todd will weigh in now to say I am not a nice guy, but then again I guess when discourse becomes this unreasonable it is common to reciprocate. I'm really not quite sure what people like Ben think they are gaining here....it is the same tripe, over and over again, without end.

[Steve Enos]

So what are the odds Jackie Pollard was leaking information to Atpac and Barry Purett AKA Atpacs "former" attorney?

Pruett seemed to be "providing" inside information about all this for a long time. Where was Barry getting his inside info?

Barry was providing "info" from the time he started his attacks on Diaz and BS mailers and rants during his failed campaign... like his personal attack attempts with his disgusting "San Francisco values" attacks.

What about Pollard being "connected" to the Pruett's and to Tom McClintock... we know Mrs. Pruett works for McClintock.

So... we wonder what connections Barry Pruett, Tom McClintock and Atpac have to Jackie Pollard. This is a good trail that should be followed.

This could be very telling considering Barry Pruett tried to campaign against Diaz to stop the "Libs" in Nevada County. We all know about the nasty hard right conservative R machine that is always around and funding Tom McClintock and other hard right R's in elections. As reported in the media they have been caught doing some real nasty, under handed stuff during campaigns, even to fellow R's that they are running against.

Looks like a good trail to follow... connect the dots folks.

[Paul Emery]

So go for the recall Bob. Oh I forgot, you're too busy. Speak loudly and carry no stick.

[Mike Thornton]

What am I lying about, Barry?
I'm simply pointing out what Diaz said in his deposition and wanting to know what that really means. I think it's a fair question and the fact that some of you guys seem pretty set on quashing any discussion of Jackie Pollard is,in my mind, a little suspicious.
I notice that the subject of Ms. Pollards connections to you, McClintock and or others who had/have political reasons to go after Diaz is also being avoided.
Once again, I find it all quite interesting, considering that many of the posters on RR demand that even the most discredited topics be investigated and re-litigated over and over and over.

[Barry Pruett]

I confess. In 2007, I secretly met with Dick Cheney. He and GWB got wind that Diaz was going to be appointed to the highly influential position of Nevada County Recorder. We decided to contact their plant within the office, Pollard, in order to thwart Diaz. In April 2008, Diaz got wind of the plan and got rid of Pollard. Frustrated with the situation, and at some point in 2009, we paid Blackwater to copy the software from one server to the other, then had them subsequently scrub the server and framed Diaz. We were all in on it...it was a vast rightwing conspiracy.

[Mike Thornton]

You're still obfuscating Barry. Frankly, I thought you'd be better at it than you appear to be.

[Chuck Whitten]

Mike-
The Diaz deposition is readily available, so I suggest very strongly that you read it. As it stands right now you're making a fool of yourself. In the deposition, Diaz is complaining about Pollard reporting problems to AtPac concerning the functionality of the software. He readily says that that was her job. He also says that when he held the same position Pollard did, that he was not required to report such things to his clerk-recorder, but that he is different from that previous clerk-recorder. There is a point where Diaz says he told Pollard that he was not trying to replace AtPac, but was looking for another software provider. That's a long way from the collusion you're claiming. Only someone who engages in such behavior would so freely make that accusation. As to my knowledge of Jackie Pollard's political connections, I do not know Jackie Pollard, I only know Barry Pruett in the context of my previous job, and I could not care less about those connections. This is a small community, and simply knowing someone is not much of a reason to believe there is unethical or questionable behavior. Frankly as I read this deposition I kept thinking that Greg Diaz political career is over. His own comments have ended it. All anyone who may campaign against him would have to do is provide the public with Diaz own comments to destroy him. I have to say that in 35 years of journalism I have never met a P.R. person I would trust or could respect. You're no exception. Again, I recommend you read the entire deposition before you continue making a fool of yourself.

[Barry Pruett]

Now that you mention it...it was not Diaz who was actually deposed and admitted to breaching the contract. Dick Cheney and I planted a representative from Halliburton to pose as Diaz and force the confession. Steve and Mike have found us all out. LOL.

[Todd Juvinall]

Chuck Witten, it is not possible for a stubborn mule to admit he is stubborn. Thornton is a Einstein in his own mind.

[Chuck Whitten]

Mike-
I finally found what I think you're referencing, but it's a reach. Diaz complains that Pollard was providing AtPac with information about the Request For Proposals when he was looking for a new software provider. He admits he did not let AtPac know about the RFP, but Pollard was talking to them about it. It's apparent that the "confidential" information she was giving to AtPac was the information on the RFP, which AtPac, as the existing provider, should have been receiving, and should have been public information. Diaz' complaint is that Pollard was letting AtPac know about the RFP. You can find those comments on pages 83 and 84 of the deposition. If you continue reading you'll find that Diaz was upset that AtPac was talking with Pollard and he comments, "If Jackie wants to run for clerk-recorder, she can." Diaz testimony documents a man who appears to be paranoid. On the one hand he says he trusts no one, while, on the other, he signs documents without reading them! Once again, I encourage you to read the deposition before continuing with your comments. If you can set aside at least part of your slavish behavior, I fear you'll be embarrassed by your comments. At least you should be.

[Mike Thornton]

Gee, Chuck, you're a little hot under the collar, guy.
Barry, is still paying games about his relationship with Pollard and you clearly have it in for Diaz, so why would anybody take your interpretation as being the objective fact.
It seems to me that I've been pretty clear, that I don't know what Pollard has done or hasn't done. I simply think it should be checked out.
Now if you want to talk about people "projecting" their own faults onto others, maybe you might want to go and stare into the mirror for awhile. You seem pretty quick to start accusing people of nefarious motives. Maybe yours aren't as "pure" as you'd like to convince yourself they are.

[Mike Thornton]

So we finally get to the point that indeed Pollard was having unauthorized communications with AtPac. But we don't really know what those conversations included and if she was having other types of conversations with Diaz' political enemies.
Nor do we know if any of these unauthorized communications put the County (read taxpayers) at financial risk or if they violated any type of employment/confidentiality agreement(s) she may have signed.
But according to Chuck and others, nobody should care about any of this. We should simply say that "Diaz is paranoid." and be done with it.
I know some of you don't care about logic or consistency, but c'mon....

[George Rebane]

IF Ms Pollard only communicated RFP info to AtPac, information that she had no reason not to communicate as a senior member of Clerk-Recorder's staff, THEN would those have been considered "unauthorized communications with AtPac."? If Diaz considers such communications with a legal and qualified RFP respondent 'unauthorized', then was not Diaz conducting a fraudulent procurement process for the county, and in the process violating a slew of laws?

[Mike Thornton]

"If" is the point, George.
We don't know what was discussed.
You don't know, I don't know and neither does Chuck Witten.

I don't know why you seem to think it's unreasonable to even ask the question(s)?

The only answer that I can come up with it that, RR is a rallying venue for the anti-Diaz, pro-Barry crowd. No matter what happens, as far as you guys are concerned it's all about making Diaz look bad.
The other question is: Who is Jackie Pollard and what is her relationship to the folks that are out to get Diaz (including AtPac)?
Maybe there's nothing there, but once again, why is it wrong to even ask if there is?

[George Rebane]

MikeT - What indication have I given that "it's unreasonable to even ask the question(s)?"

RR has maintained all along the primary concern about the proper operation/conduct of our BoS and county exec staff as revealed in the AtPac suit. The qualifications and conduct of Greg Diaz is a secondary matter to me that derives its importance as an indicator or metric.

But so that there's no misunderstanding, from everything I have seen, Mr Diaz does come across as a very unimpressive elected officer who has underserved the people of Nevada County. But my conclusion is not set, and after doing some more noodling, I'll provide details of my take in a future post. In the meanwhile, please let us all keep asking the difficult questions and see where it takes us.

[Chuck Whitten]

Mike-
You don't seem to get the point that Pollard was simply doing her job. Much further on in the deposition he admits that. Diaz' bone of contention is that he was not being told about functionality problems with the AtPac software, not that Pollard was giving AtPac or anyone else information they shouldn't have had based on confidentiality. The only indication of violation of confidentiality is Pollard apparently providing information on the RFP. Information to which AtPac was entitled. You can certainly criticize Pollard for not complying with Diaz order to provide him with cc's of her correspondence with AtPac, but even that would be questionable, since Pollard was performing the functions of her job in her communications with AtPac! The communications were not unauthorized, they were required. Diaz was angry that Pollard did not copy him on every communication she had with AtPac. That sounds like Micromanaging to me. Could you imagine how overwhelmed the Clerk-Recorder would be if he made such a demand of every one of his employees? Again, I would suggest that you provide information, if you have it, that Pollard violated confidentiality requirements, or that she provided information she shouldn't have to any other person. I have no means of collecting such information, unless someone provides it to me. You are basing all of your comments on nothing more than conjecture. There is nothing in the deposition, or any of the other depositions that indicates Pollard, or anyone else, did anything unethical, or illegal. You think I should pursue this based on your opinion?
Sorry to disappoint you Mike, but I'm not hot under the collar. I cannot stand people who take things out of context and use them to push their own agenda. I was truly shocked by Diaz' deposition. I was shocked by what he did not know, and what he did not understand, by his own admissions. I really don't care who the clerk-recorder is, but I don't believe the person should be incompetent. My real concern is with the board of supervisors. I believe they've failed horribly in allowing this to happen. This has cost someone in excess of $2-million! You can say the insurer paid it, but someone paid the insurer, and that someone is you and me, through our taxes.
Gee, Mike, I think you're ignorant.

[Todd Juvinall]

The answer is whomever Thornton likes he treats well all others not so well. This is the tactic of a liberal, nothing more, nothing less. He needs one of Crabbs tinfoil hats.

[Bob W]

At this point, and directly after Chuck's comment, a word to the wise is in order. Don't believe for one minute that the brunt of the cost of this is being absorbed by the Risk Pool. And don't even try to leave Lamphier out of this ether. Just to help out those of you who are intellectually challenged, this is about cost first and closed session second. Third and so on will evolve.

[Eric Anderson]

From what I can tell (I've read the 3 depos available), it may have transpired this way:

Diaz has good reason to dislike AtPac: Office efficiency issues, better solutions likely, customer service, Pollard and AtPac untrustworthy.
Diaz looks for another solution, Pollard tells AtPac and does so deliberately behind his back.
Pollard dismissed.
AtPac hurt inside and doesn't take business choices against them well.
AtPac asks for good chunk of cash to export data, then ups it, twice. AtPac says it's going to take a looonggggg tiiiiimmmme to convert.
Too long from Diaz's POV. Frustrated Diaz talks to IT.
Monaghan and Russ look at situation but recklessly (probably Russ) say they can come up with covert login for Aptitude: ISPHYDOUX
Monaghan gives it the nod and the login paperwork is sent to Diaz to sign via McClusky who reports to Monaghan through Russ
Diaz signs it and is likely aware of its implications but, for the depo, claims plausibly deniable excuse that it was just too routine to bother reading, (Ha!).
ISPHYDOUX given to Aptitude who use it to gain access to the AtPac server.
Nothing is clear about what Aptitude got other than data (but, any software company (AtPac) that leaves non-binary source code with "valuable trade secrets" in human readable text files on a server outside of their own locked premises needs to get out of the software business, or maybe find a polital mob to latch onto and together make an opportunistic and apparently damageless claim of being wronged even through their pouty busines behavior forced the government officials to look for a way around them (to save time and money Tea Partiers!)).
Anyway contract almost signed between County and AtPac to convert data but since IT had already breached the contract with the unauthorized access why not bail on the contract and let IT convert the data without bothering with AtPac. It'll save time and money too! (but we'll have to be sneaky about it).
Monaghan checks with County Council and says lets do it ourselvves, Diaz says ok. Not clear if County Council knew the whole story (ISPHYDOUX and its already past use and implications).
AtPac getting alarmed and finally tells County about their concerns.
Apparently County didn't convert the data themsleves but Aptitude did!
County IT (Russ, Monaghan, Barale) and Diaz have emergency meeting - too late, we're busted! Barale and Diaz can't really recall the meeting in depos (Ha!).
AtPac enlists political mob at some point and pursues legal case.
Pruitt finds "nice" way to get leverage for his election which will then further the cause of the political mob.
Russ fired for sleeping with his supervisee and maybe AtPac issue too.
Pruitt creamed in election, mob spanked.
At least a year after the breaches, County scrubs server to common DOD standard, reduces chances that mob can speculate about the awesome code Aptitude got from the unprofessional AtPac (Big stinky when mob finds this out).
Depositions happen (we haven't seen Monaghan's or Russ's yet).
Depo's show apparent contract breaking whether or not it materially mattered to AtPac, looks bad to jury even though it might be the very type of frivolous lawsuit mob rails against (but not so when they bring the suit!)
Depos get out to public.
County sees the writing on the wall, settles. Taxpayers out money (some more direct than the other).

If frivolous lawsuit, mob is to blame for Taxpayer loss. If significant lawsuit, Monaghan, Diaz and Russ to blame.
Significance will only be known with Monaghan and Russ's depos, if then.

In my opinion - corruption? Pretty small amount. A mountain out of a molehill but wrong nevertheless. Standard stuff in the private sector, Wall Street anyone? Free markets? Small Business? Pretty much the same story.

[Mikey Mcd]

As a thriving member of the private sector I cannot accept this unethical, immoral behavior as "standard stuff." I would not transact business with anyone that considered such acts as "standard stuff." Somehow it is easy to believe that it is "Standard stuff" for government (yes, perhaps Wall St. too). Is this still standard operating procedure at the Rood center? Taxpayers should thank Atpac for shedding light.

BREAKING: Pruett reluctantly ran for Clerk/Recorder. He felt like someone that considered stealing to be unethical should be in such an important position. He asked others to step forward to run (calling me to brainstorm names- including my own), in the end he threw his own hat into the ring. IMO Pruett underestimated the impact of Diaz's connections at The Union and was hurt by the length of time the court case took to prove Diaz' guilt.

It should be safe to say that whoever runs next for Clerk/recorder's office should have an easier row to hoe.

Time to move on.

[Eric Anderson]

Actually much more easy to beleive it happens in the private sector, its disingenuous to claim otherwise. KBR, Halliburton, BP, Enron ........ How many FOIAs do private companies fear for everything they do?

[Bob W]

As long as you guys continue to accept a BOS that lets this happen you will deserve everything you get. The reason this went as far as it did is because all of you that keep trying to direct the blame somewhere other than the BOS don't have the brains to put two and two together. Amazing!

[Mikey Mcd]

Eric Anderson, I am sure that such behavior does occur in the private sector, but to call it "standard stuff" is unacceptable. It ain't standard for any people I transact biz with. Thankfully, in the private sector we still get to choose who we patronize; often based on trust. If you hate BP don't buy their gas...

[Paul Emery]

Eric Anderson provides a pretty good look at the situation as I see it. I just finished reading all 350 plus pages. AtPac attorneys did a pretty good job setting up Diaz for some pretty rough going if there ever was a trial which of course everyone knows would never happen because it virtually never does because insurance companies usually pull the plug and settle before costs go over the top. Since the case is settled any further information will be for historians or later challengers to Diaz in the next election. Of course there's the possibility of recall but I'd be surprised it that happens at least from this crew since it's time consuming and expensive. It's much easier to blog away and not get your hands dirty. We'll see.

[Eric Anderson]

"Eric Anderson, I am sure that such behavior does occur in the private sector, but to call it "standard stuff" is unacceptable. It ain't standard for any people I transact biz with. Thankfully, in the private sector we still get to choose who we patronize; often based on trust."

I'm completely with you there. Thing is you don't always know do you.

It's too bad our society is that way but it's nothing new, humans have been doing it to each other for tens of thousands of years. Only education and transparency will move us away from it. Too bad there so little transparency in the private sector and the transparency in the public sector seems to primarily serve as manipulatable fuel for the complaining and harrassment by those out of power. The more prone to manipulation and dishonesty the complainers are, the worst off for society as a whole.

[Chuck Whitten]

Eric-
You've written a great deal, some of which I can accept, some of which is quite a reach, and some of which I completely disagree. You're immediate statement, "Diaz has good reason to dislike AtPac" is a tremendous leap. You support that with, "Office efficiency issues, better solutions likely, customer service, Pollard and AtPac untrustworthy." First of all, the office efficiency issue could be based in a variety of things other than the software, for example, bad management, bad employees, bad morale, poor training, etc. The better solutions point and customer service were posed by Diaz in the deposition, but he's the only person who has expressed those issues, and apparently only expressed that to Jackie Pollard and apparently to no one else. He says he complained about it to AtPac, but never put anything in an official form, even as an email. As to Pollard and AtPac being untrustworthy, I don't know how many times I have to point out that it was Pollard's job to maintain contact with AtPac. Diaz even says that. Take a look at pages 92 and 93 of the deposition. Diaz agrees there that Pollard is supposed to be talking with AtPac. His complaint was that Pollard was not informing him enough about problems with the functionality of AtPac's software. As to Diaz' complaint that Pollard was talking to AtPac about the RFP, SOMEONE was supposed to be telling them about the RFP, and Diaz freely admits he was not. She, it appears, was trying to comply with a requirement that the existing vendor be informed of the RFP. It appears that Diaz made the discussions with his staff confidential in order to specifically keep AtPac in the dark and blindside them. I'd like someone to explain to me how that is "professional" on Diaz' part. Are employees supposed to blindly follow the edicts of their bosses, even though those edicts may be in violation of ethics, law or policy?
I agree entirely that government and business, bend or break the rules, but that does not make it right. It may be that AtPac's charge for getting the materials needed by the county and Aptitude off the server were exorbitant, and that their timeline should have been more definite, but that's what happens when people are in conflict. It does not justify violating AtPac's expectation that the county will protect its intellectual property. It seems you would agree that if I leave my wallet on the seat of my car, and forget to lock the door when I leave, that I, rather than any thief, am at fault if the wallet's stolen. That's a flaw in logic from my standpoint.

[Eric Anderson]

"that I, rather than any thief, am at fault if the wallet's stolen".

I'm not saying its AtPac's fault Aptitude got access to their server, I'm just poiinting out that AtPac seems unprofessional and that's further cause for Diaz to want to switch vendors. Makes the value of their "trade secrets" suspect as well. Just my opinion, as a software developer.

[Chuck Whitten]

What I know about software development could be written not on the head of a pin, but on its point. I'll leave that to others. As I keep saying, I'm more concerned about the board of supervisors, although I'm incredibly disappointed in Greg Diaz, the entire Clerk-Recorder's office, and the I.T. Department. It's cost someone a hell of a lot of money. Someone, in addition to suddenly and conveniently retired Michael Jamison, needs to lose their job(s). Diaz seems a likely candidate, but someone needs to take a close look at I.T., Rick Haffey, and the entire clerk-recorder's office. Then it's time to call the board of supervisors to account. If a recall is necessary, so be it.

[Eric Anderson]

Who was County Council in December 2009?

[Eric Anderson]

Sorry I meant December 2008 when ISPHYDOUX was created? Shulman?

[Chuck Whitten]

Yes, Shulman was county counsel in 2008, but Jamison should have been counseling far different than he was after it hit the fan. Still, I get the idea he was the new guy on the block and became designated fall guy.

[Bob W]

I understand what you are saying Chuck, about Jamison becoming the "fall guy". This illustrates what I have been trying to get across now for months. It seems that the common frame of thought is that the BOS can't be held responsible. This must be because they didn't have anything to do with the decisions made in the recorder's office or that they just relied on County Counsel not for legal advice but to actually make legal decisions. If that way of thinking is appropriate then why is it we don't elect County Counsel? Just who hires and fires County Counsel? Did we elect the BOS to do what they are told to do by County employees? Is the BOS just five people assigned to give cover to County employees? I think the BOS were involved soon enough to be involved in the workings of the Recorder's office, if for no other purpose than to blow a whistle. The idea that the BOS was mislead by County Counsel or any other paid professional should reveal that not even one of the Supervisors was or is competent, intelligent, or responsible enough to make the kind of decisions they were elected to make. And they can't hide behind closed session ether. Any one of them could have stood up at any time and taken exception to what was going on in closed session to the point of removing himself from that closed session in an effort to at least make the public aware that something very wrong was happening and he was taking exception to it. Instead every one of them was thinking that he couldn't be held responsible because the law protects anything about those closed sessions being divulged to anyone under any circumstances other than a judge in connection with Brown Act violations in the closed session.

And THAT is why they all need to go!

[Chuck Whitten]

I agree! Actually I have a tendency to view Pollard as a kind of whistle blower. I definitely do not think the board should be allowed to escape unscathed in this mess. The board members, aside from Lamphier, supported Diaz, while this mess was developing. They had numerous closed sessions to discuss the issues involving AtPac, and, apparently failed to ask any tough questions of the county counsel, the IT people, and Greg Diaz. Assuming they asked the tough questions and got bad information, one of them (Actually ALL of them) should have started looking at the depositions once The Union and KNCO started reporting on them. Instead, board members began complaining that The Union and I were covering the story! What's with that? Kill the messenger?! There just seems to be all kinds of blame in this mess. Jamison may rightly have been called to account, but Diaz, members of the executive, AND each member of the board should be held to answer. I've always wondered if Schulman left under pressure for this thing. It's probably impossible to ever know.

[Bob W]

Impossible to know is correct. What we do know is that not one of them had a problem with what was going on including Lamphier. If any one of them did take exception he didn't have the competence / brains to figure out how to handle it. We are being governed by an ignorant self-serving pack of sheep. The Brown Act is a tool for elected officials and lawyers to cover their actions by having closed sessions. And remember, closed session is only authorized for legal and personnel purposes.