OCPA CEO Brian Probolsky Retains Attorney Seeking Whistleblower Protections Against Board Members Mike Posey and Dan Kalmick
Quick Summary
CEO Brian Probolsky became aware, through information CFO Tiffany Law received from OCPA Board Member(s), that OCPA Board members were planning on holding a special meeting to remove Brian Probolsky from his position as CEO. In response, Probolsky retained an attorney who served a letter seeking whistleblower protections.
What protections are afforded to whistleblowers?
1. An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower.
2. An employer may not retaliate against an employee who is a whistleblower.
3. An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
4. An employer may not retaliate against an employee for having exercised his or her rights as a whistleblower in any former employment.
Under California Labor Code Section 1102.5, if an employer retaliates against a whistleblower, the employer may be required to reinstate the employee’s employment
Excerpts from the letter
“Kalmick attempted to coordinate an official government action outside of a properly noticed meeting, when on or about May 2022, Kalmick called other Board Members asking for their support in next steps to remove existing agency management, including CEO Brian Probolsky. This plot and scheme constituted a meeting, or at the very least a serial meeting, within the scope of the Brown Act. By calling Board Member Sonne, Board Member Jung, Board Member Khan, and others in an attempt to evade a public meeting via individual phones calls (“spoke and wheel”), an illegal violation of the state’s open meeting law occurred, and a serial meeting was conducted in violation of the Brown Act.”
“As has been relayed to many people at various events over the past several weeks, several witness accounts establish that Posey and Kalmick conspired to create a common plan and scheme to insert Kalmick onto OCPA’s Board, fire the CEO, Brian Probolsky, and hire Posey to serve as “Chief Business Officer” – a position neither authorized nor created by the other Board members.”
“On or about May 29, 2022, Board Member Sonne finally outlined the conspiracy to CFO Tiffany Law. In a phone call to Law, Sonne outlined that “there will be a special meeting, there are votes to fire Brian, bring in management from Marin, and hire new Executives.” Sonne also told Law “not to believe anyone who says anything differently.” The reasons cited by Sonne to Law included “lack of experience and transparency.” CFO Law reported this conversation to CEO Probolsky immediately because she believed that it was both inappropriate and untrue.”
“My client, OCPA CEO, Brian Probolsky, is entitled to whistleblower protections under state law. He is an experienced government executive with more than a decade in government management, and fourteen years working in public utilities. Under the leadership of Probolsky, OCPA has enjoyed financial and operational success like other California power agencies and has achieved the single highest proportion of 100% renewable customers in the State. The “cover” of Brian’s “lack of experience” is nothing more than a cover story for Posey, Kalmick, and Sonner to attempt to carry out their conspiracy to take control of the organization and to install their people.”
Brian Probolsky’s Whistleblower Letter
Read entire letter here or below.
Brian Probolsky’s Employment Agreement (for future reference)
- Annual salary of $239,000
- Car allowance $500 per month
- 10 weeks of paid leave (added on January 11, 2022)
- “C-level” executives have option to cash out 50% of their unused time off (added on January 11, 2022)
- $1,200 stipend for medical insurance
- Technology allowance $100 per month
- Severance Pay equal to six months’ salary
5 Comments
ScottK
June 1, 2022 at 6:53 pmWow. That pay package is bonkers. The six month severance pay is flat out offensive.
The brag about ratio of 100% renewable customers is laughable. The sign up was automatic with a very poorly advertised opt-out process. Further, it’s not renewable energy going to those customers. Lol. They’re being billed for it, but that’s not actually what’s happening. Ugh. Incompetence and corruption combined.
Dee Fox
June 1, 2022 at 10:43 pmWonder why Mike Carroll isn’t named in this? Either they plan on a take over or Probolsky doesn’t realize they are all going to vote him out. Much as I think Probolsky was a bad choice, not a cool thing happening here. This whole organization is a joke. A bunch of city council members getting huge benefits off the backs of taxpayers, mostly IRVINE taxpayers. It doesn’t get anymore corrupt then this.
Scott Hansen
June 2, 2022 at 10:15 amI serve as president of a homeowners association in Irvine. Our HOA needs a power source in two remote locations. But there is not sufficient space in those areas for solar panels. So we are pleased that community choice energy through OCPA will allow us to have renewable energy in those areas.
Unfortunately, confidence in the executive leadership of OCPA is declining. And the risk to member cities quickly escalating. Perhaps in the beginning there was a rational basis for appointing a CEO with primarily political skills. To attract additional cities to OCPA, to fend off political attacks from existing large utilities, and the like.
But that hypothesis didn’t work out. OCPA needs respected executive leadership with a proven record of success in the community choice energy space.
I have reviewed the letter from the current CEO’s attorney, alleging he has protection as a whistleblower. But the applicable law applies to folks punished for being a whistleblower.
In this case, an effort to remove him started before he did anything that might qualify as whistleblowing. The law does not protect him as a whistleblower, and the Board should move forward in removing him without delay.
To expedite the matter and to allow OCPA to move forward with its critical work, I suggest the Board offer him a respectable severance package in exchange for a release agreement giving up any legal claims he might feel he has.
Dee Fox
June 3, 2022 at 9:34 amMr. Hansen: You sit on the board of a HOA in Irvine and felt that the OCPA was a good fit to provide “renewable” energy to two remote locations in Irvine. Two problems with this statement. First, it has been well documented that the OCPA will NOT be providing cleaner energy than Southern California Edison AND every location receives the same measure of renewable and fossil fuel, etc. So the two “remote” locations you are referring to is a mute issue, especially since you stated, no solar panels, not that it mattered. What one person gets, we ALL get. Southern California Edison is also less expensive than the OCPA. With the OCPA all you get is inexperienced city council members benefitting in a huge way off of taxpayers and with no accountability. Also, there is no RATIONAL basis to have hired Probolsky. And Posey is by no means a better choice. Posey is losing his council position and needs income and his buddy, Mike Carroll, is happy to oblige. They are pushing Probolsky out because it all works to their advantage and, as much as I dislike Probolsky, they are handling it so inappropriately, if not illegally. The meeting the OCPA called to order yesterday couldn’t even establish a quorum to conduct business. Farrah Khan, Susan Sonne, and yes, Mike Posey were a “no show”. Real good for people relying on this bunch to supply us with power.
Doug Elliott
June 3, 2022 at 2:31 pmBranda, thanks for an excellent article, and for providing the link to Probolsky’s contract, which is very instructive reading. It expressly provides that Probolsky is an at-will employee, subject to termination at any time with or without cause. If he’s terminated for cause, he’s not entitled to any severance pay. If it’s without cause, he’s entitled to six months salary as severance pay–but ONLY if he signs a waiver of any right to appeal or grieve the termination. I believe there are ample grounds to terminate Probolsky for cause, including but not limited to his mistreatment of the former chief operating officer. The above terms were already negotiated and agreed to by Probolsky, so further negotiation–if any–should be focused on the question of whether or not he’s terminated for cause. It’s illegal for public officials to make a gift of public assents, so the Board has an obligation not to give Probolsky any more than he’s legally entitled to. He has a poor hand to play in court, so the Board has to be prepared to call his bluff.
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