Cover-Up of CalPERS’ CEO Frost’s Misrepresentations of Her History: Document Destruction/Loss at CalPERS, Pressure on The Evergreen State College

We suggest that you start with the first post in this series: CalPERS’ CEO Marcie Frost’s Misrepresentations Regarding Her Education and Work History During and After Her Hiring.

One sign that CalPERS CEO Marcie Frost recognizes that she is skating on thin ice as a result of her misrepresentations about her background during the hiring process and after she joined CalPERS is that CalPERS claims not to have records that would establish whether Frost committed perjury by making false statements on her employment application.

Another sign is that when we started re-checking the information we had gotten from the Evergreen State College about Frost’s enrollment history, records that had been readily accessible were suddenly on restricted access. Fortunately, we were dealing with sufficiently senior administrators so as to be able to be able to surmount this hurdle.

The Serious Legal and Practical Implications of Frost’s Missing Employment Application Pages

We understand from senior officials at CalHR, the department in charge of personnel issues at all state
agencies, that all California state employees, even their CEOs, are required to fill out an employment application STD 678, as a condition of employment.¹ That document is also disclosable in a Public Records Act request.¹

In keeping with this disclosure requirement, we obtained the first four pages of former Chief Financial Officer Charles Asubonten’s employment application earlier his year and have embedded that document at the end of this post. You will see the “Employment” section, on the top of page 2, is completely unredacted.

We later requested Marcie Frost’s employment application, as well as her resume and other records. CalPERS provided only the first page. Pages 2 through 4, where the applicant sets forth their education, licenses, and work history, were missing.

The instructions for filling out Form STD 678 make clear the form must be completed in full (emphasis original):

All questions must be answered completely and accurately, except as noted….

Question 5 – Employment History/Discharges. Question 5 must be answered by all applicants…Applicants are also required to provide factually correct information on the Employment History section of the application….

Education – You must include a complete record of your training and educational background.

My message to the head of CalPERS’ communications department:

From: Susan Webber
Sent: Thursday, August 09, 2018 9:00 AM
To: Pacheco, Brad
Subject: Seeking complete versions of incomplete records from PRA #3867

Dear Mr. Pacheco,

Thank you for overseeing the timely production of records for my recent request, #3867.

However, one record requested specifically was not produced properly, namely (quoting from my request on June 24):

“2. Marcie Frost’s employment application”

The documents supplied include only the first page of her employment application, the then-current version of this form: https://jobs.ca.gov/pdf/std678.pdf.

In response to PRA #3698 [related to Asubonten], CalPERS provided the first four pages of this document, supplying the “Education” and “Employment History” sections. Moreover, as you can see if you compare the responses to the two PRAs, the version number for this form in #3867 is identical to the one in #3698: “STD 678 (REV. 10/2013)”. See page one of “img-411145509-0001.pdf” attached versus page one of “PRA #3867 Webber_Part1.pdf” attached.

Please send me the missing pages from the employment application requested in PRA #3867. Further note that the only portions of the missing pages 2-4 that are subject to redaction are the ones redacted in response to PRA #3698.

Since your staff has already located this record, it should take only minimal effort to find the missing three pages and send them on as required. Since these are overdue items from a supposedly completed PRA response, I trust they will be sent to me promptly. I know the upcoming board week is a busy time for many CalPERS staff members, but I would assume the members of the Public Records Act Unit are well insulated from that. I hope I can receive the missing pages from the employment application by the end of Friday, August 10, or at worst, by the end of day Monday, August 13.

Thanks for your help in this matter.

Susan Webber

The reply:

From: “Pacheco, Brad”
Subject: RE: Seeking complete versions of incomplete records from PRA #3867
Date: August 10, 2018 at 6:03:36 PM EDT
To: Susan Webber

Ms. Webber,

I asked our Human Resources Division to check our records for Ms. Frost’s state employment application, STD 678. You have all the documents responsive to your PRA. There are no additional pages to the employment application in our records…

Brad

Even though CalPERS may be providing a “dog ate my homework” level excuse for impermissibly withholding records that it is required to deliver under the Public Records Act, we have no choice but to take CalPERS claim at face value.³

And that claim does not reflect at all well upon CalPERS and Frost above all.

Since there is every reason to believe that Frost did complete Form STD 678 in full, Pacheco’s remark is tantamount to saying that CalPERS destroyed records. That is a crime:

Government Code 6200.
Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.

However, no prosecutor would ever bother pursuing a state official solely on records tampering; it would most likely be invoked as an additional charge in connection with a different crime, like embezzlement. Moreover, CalPERS would claim, despite it being facially ludicrous, that Frost had provided only the first page of the document and so nothing was amiss. But the statutory language is nevertheless relevant because it shows how serious an offense it is to remove or destroy state records.

Keep in mind that California requires that Form STD 678 be delivered as a hard copy. I asked CalPERS as a separate Public Records Act request to search and provide scanned and e-mailed versions of Frost’s employments record, since as IT experts will tell you, it is very difficult to remove all of the versions of a document once it has been committed to electronic form.

The original paper version would be part of Frost’s personnel file. Access to that is highly restricted, and likely limited to the head of Human Resources, her secretary and/or deputy, and Frost herself. While the General Counsel Matt Jacobs could certainly ask to see Frost’s records when his job made that necessary, even he would presumably have to go through channels to get to relevant documents. You can’t have subordinates ruffling though confidential information about their boss.

The claim that CalPERS destroyed records to protect Frost may seem like a stretch to some readers. Remember that this is the same CalPERS that has board members signing blank, undated expense forms, has staff members forging board member signatures, and regularly has the General Counsel and other senior executives tell obvious lies on tape at public board meetings.

The interference we encountered in re-verifying Frost’s enrollment history at Evergreen lends credence to the notion that CalPERS, or Frost personally, tried to stymie our investigation. Fortunately, the attempt at Evergreen was both too late as well as ultimately unsuccessful.

Interference at Evergreen State College

I had obtained what by normal standards would be considered to be official information about Frost’s attendance at Evergreen, in the form of a report from National Student Clearinghouse. Evergreen, like many other schools, has agreed to provide data to National Student Clearinghouse, although some information, like transcripts, requires the consent of the student. However, I was already speaking to a senior individual at Evergreen State College about its policies, and said I would like to make sure the report I had gotten was accurate, and that party was able to do so.

Given how inflammatory the findings were, I thought it was critical to re-check both the policy information as well as the fact that Frost had attended for only 2 quarters in 2010. The additional parties I contacted reconfirmed what I had already been told and found on line about Evergreen’s programs. One, who was particularly upset that Frost had claimed to be enrolled in dual bachelor’s/master’s program, went to pull up Frost’s records. That individual found that access to it was limited, and said that was the first time that had ever happened (this officer was very familiar with the student records system). I had asked the first person to recheck. They were also blocked and said it was the first time ever that ever happened in their entire long career at Evergreen. Both agreed that it was no exaggeration to say that someone was trying to cover up for Frost; in fact, one of them called it a “cover up” unprompted.

However, I was introduced to yet another senior administrator who was able to review Frost’s records and validated what I had found.

This is a very long-winded way of documenting a simple point: Frost is acting like she has something to hide. That should give even more weight to the information we provided in our original post.

_____

¹ Even though the language at the beginning of Form STD 678 gives the impression that the agency has the option of whether or not to fill out the form (“for vacant positions where a department requests an application”), senior individuals at the California Department of Human Resources take the position that all state employees must fill out a Form STD as a condition of employment. That would seem to be consistent with the fact that Frost was required to fill out the form even though CalPERS had already committed to hiring her, via giving her a written job offer on June 22 that she had accepted on June 24, and issuing a press release announcing her hiring on July 14. You can see that the date Frost signed the employment application form is July 26, nearly two weeks after CalPERS told the world she was joining. Clearly someone thought it was important to get this form completed even though it was now appeared to be a mere formality.

² From the First Amendment Coalition:

Under section 6254(c) of the California Public Records Act, certain personnel files are protected from disclosure under the personal privacy exemption.However, with respect to public employees such as a school district superintendent and assistant superintendent, the kind of information that would be included in a resume, curriculum vitae or job application to demonstrate a person’s fitness for his or her job, in terms of education, training, or work experience, is not a matter of personal privacy.

The California Court of Appeal has held in Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794 (1982) that “information as to the education, training, experience, awards, previous positions and publications of the (employee) . . . is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.”

We considered and regard as extremely implausible the idea that Frost filled out only the first page of the employment application. As discussed in Footnote 1, Frost signed the form on July 26, more than a month after she had accepted CalPERS’ written job offer and almost two weeks after CalPERS had announced her appointment. Having her fill out the form after the decision was made was a mere formality, but one that was seen as important, otherwise it would never have been done in the first place. Doing anything other than fill out the first four pages of the document would not satisfy a perceived need to dot “i”s and cross “t”s. And Frost had no reason to think anyone would do anything other than toss her form in a tightly locked file cabinet. By contrast, refusing to complete the form in full would have raised red flags.

Abubonten employment application
Frost Employment Application