Former San Francisco District Attorney George Gascon is currently running for office in Los Angeles. (Kevin N. Hume/S.F. Examiner) (Kevin N. Hume/S.F. Examiner)

SF to settle whistleblower retaliation lawsuit against former DA Gascon for $400K

Spokesperson for current LA DA candidate calls case a ‘farce’

San Francisco is expected to pay a $400,000 settlement to an investigator who sued former District Attorney George Gascon for firing him, allegedly in retaliation for blowing the whistle on potentially illegal conduct by the erstwhile top prosecutor.

A Board of Supervisors committee is scheduled to vote Thursday on the proposed settlement between The City and Henry McKenzie, a former senior investigator with the District Attorney’s Office who filed the federal lawsuit in late 2018.

The lawsuit alleged that Gascon fired McKenzie in October 2017 because he believed the investigator had reported him to the Transportation Security Administration for allegedly carrying guns on planes in violation of federal law.

While law enforcement officers are allowed to fly while armed for certain reasons, Gascon — a former Los Angeles police officer who also served as chief of the San Francisco Police Department — was not a peace officer when he allegedly carried.

Attorneys for Gascon, who is now a candidate for Los Angeles district attorney, have denied that he fired McKenzie in retaliation, and a spokesperson for his campaign called the case a “farce.”

The spokesperson, Max Szabo, said Gascon did fly while armed but always with pre-approval from the TSA.

“The policy changed in 2016 to limit the circumstances in which you could fly armed to officers escorting a prisoner or as part of a security detail, and at that time he stopped flying armed and started flying with a security detail,” Szabo said.

The trouble started for McKenzie in late 2016, when he and other members of the San Francisco District Attorney’s Office Investigators Association began discussing the alleged impropriety. According to the complaint, he did not report Gascon to federal authorities, another investigator did.

Still, Gascon allegedly engaged in a “pattern of retaliation and harassment” against him and other association members for looking into the allegations. Nearly half of the investigators at the office were fired or forced to resign in 2017, according to the complaint.

The situation escalated with a speech Gascon delivered at a shooting range in September 2017, when he allegedly threatened to root out a “cancer” growing within the Bureau of Investigations and suggested he would can members who spoke to the press.

The next day, McKenzie was placed on administrative leave.

Fulvio Cajina, an attorney for McKenzie, called the proposed settlement a “substantial sum” that “vindicates a lot of our claims.”

“The reason that they paid a substantial settlement in my humble opinion was because we were right,” Cajina told the San Francisco Examiner. “The reason he was fired was retaliation.”

But Cajina conceded that The City did not admit to wrongdoing under the proposed agreement.

In court filings, the City Attorney’s Office argued that Gascon fired McKenzie because he provided false information to a federal agency, not in retaliation for blowing the whistle.

When asked to attest to the integrity of a former colleague who was fired for dishonesty, McKenzie allegedly filled out a form stating that the ex-investigator “had no integrity issues, should be eligible for a Government Security Clearance, and was eligible for rehire.”

“Plaintiff’s actions showed, at best, a serious lack of judgment and a causal relationship with the truth,” Trevor Koski of the City Attorney’s Office wrote in court filings.

Gascon stepped down in late 2019 to run for office as district attorney of Los Angeles. He earned enough votes in the March election to trigger a runoff later this year against incumbent Los Angeles District Attorney Jackie Lacey.

Szabo, who was also a spokesperson for Gascon when he was in office in San Francisco, said Gascon wanted the case heard at trial.

“The basis for this lawsuit was as dishonest as the conduct that led to Mr. McKenzie’s termination, namely the falsification of public documents,” Szabo said. “Gascon requested this case be taken to trial so a jury could decide the merits of this farce, but the city attorney made a business decision.”

But Cajina said his client is honest and called the official explanation for the firing “very weak.”

“Under the settlement, they are going to recategorize the termination to resignation with satisfactory performance,” Cajina said. “The reason for this is that after doing minimal discovery in this case, it was very apparent that Mr. McKenzie was a very talented investigator.”

And whether the flying while armed allegations are true or false, Cajina said “you shouldn’t face retaliation for bringing up the concerns.”

Gascon came under investigation by the TSA as a result of the allegations, according to the complaint. The TSA did not respond to a request for comment Wednesday.

The City Attorney’s Office also did not provide a comment on the case.

Gascon was named as a defendant alongside then-Bureau of Investigations brass Jerry Rodriguez and David Crew.

Editor’s Note: This story has been updated with additional information.

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