Filing – Plaintiffs’ First Amended Complaint

Note, my computer is going crazy. This is contents of motion filed, but not well-posted. dak

BEFORE THE GWINNETT COUNTY ETHICS BOARD

                         STATE OF GEORGIA

D.A. KING, Petitioner
vs
MARLENE FOSQUE, Respondent

December 3, 2019

MOTION FOR LEAVE TO SUPPLEMENT EXHIBIT LIST

Petitioner requests consideration to add to already submitted list of exhibits several supplemental exhibits that with explanation, will show Marlene Fosque knew or should have known the second-hand slander/defamation against me she broadcast in the August 6, 2019 Gwinnett County Commission meeting was not true or accurate and that the original source was – and is – well known by multiple reasonable, neutral people and easily accessed publications, to be unreliable, suspect and politically and financially motivated.

The voluminous response to Petitioners complaint was delivered to his home address sometime in the AM on Friday, November 29, 2019 after he had departed for the holiday weekend. Petitioner was only able to peruse the material on Monday, December 2, 2019 to learn that Respondent has taken the defense that Petitioner is a “limited purpose public figure.” Petitiner had no way of preparing for that part of the last-minute delivered response.

In the event that the Board were to agree with that classification, there seems to be an added legal burden for Petitioner to illustrate intentional malice and that Respondent knew or should have known the accusations she made in her official capacity were false.

Petitioner inquired about this exact possible scenario involving dates of delivery of response and ability to address any unforeseen defense in response and was denied a delay in December 9 hearing when it was requested. Petitioner was told that supplemental exhibits would be considered and believes there is Good Cause for acceptance of supplemental exhibits and granting of this request.

Those exhibits will be sent overnight delivery today, December 3, 2019 to Respondent’s attorney, and the Board.

Photo NR Pulse

Response from the City of Atlanta   – Complaint HERE

Response from DeKalb (Cross Keys HS)   – Complaint HERE

Exhibits to Letter to Chairman Vinson DeKalb:Cross Keys

Response from Glynn County BOE     – Complaint HERE

Response to Complaint against Marietta City Schools     – Complaint HERE

Response to Complaint against Cobb County Schools   – Complaint HERE

Response from Hall County BOE   – Compliant HERE

Response from Bibb County BOE   – Complaint HERE

Response from Whitfield County BOE   – Complaint HERE

Response from Gwinnett County BOE   – Complaint HERE

GLYNN COUNTY SCHOOLS

IERB COMPLAINT Attachment to official complaint, 25 January, 2017                                                                            #4

Violation (s) of OCGA 50-36-1
Glynn County School System
Under Georgia law Public Benefits may only be administered to eligible applicants.

OCGA 50-36-1
“(f) (1) Except as provided in subsection (g) of this Code section, an agency or political subdivision providing or administering a public benefit shall require every applicant for such benefit to:

(A) Provide at least one secure and verifiable document, as defined in Code Section 50-36-2, or a copy or facsimile of such document. Any document required by this subparagraph may be submitted by or on behalf of the applicant at any time within nine months prior to the date of application so long as the document remains valid through the licensing or approval period or such other period for which the applicant is applying to receive a public benefit; and

(B) Execute a signed and sworn affidavit verifying the applicant’s lawful presence in the United States under federal immigration law; provided, however, that if the applicant is younger than 18 years of age at the time of the application, he or she shall execute the affidavit required by this subparagraph within 30 days after his or her eighteenth birthday. Such affidavit shall affirm that:

(i) The applicant is a United States citizen or legal permanent resident 18 years of age or older; or

(ii) The applicant is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, Title 8 U.S.C., 18 years of age or older lawfully present in the United States and provide the applicant’s alien number issued by the Department of Homeland Security or other federal immigration agency.

(2) The state auditor shall create affidavits for use under this subsection and shall keep a current version of such affidavits on the Department of Audits and Accounts’ official website.”

Adult education is listed in the law as a Public Benefit in Georgia law.

According to various printed information and solicitation from Glynn County Schools, including one HERE, the Glynn County School System has in place an ongoing program of adult education for parents of K-12 students.

I filed an open records request on January 18, 2017 ( HERE ) seeking the required affidavits and Secure ID documents that should be offered and collected from applicants for these adult education classes. I received a response on January 25, 2017, which I attach here:

“Mr. King,

The Glynn County School System does not offer Adult Education courses as referenced in your request. In compliance with federal guidelines, parents of enrolled students can attend classes designed to help them improve their English skills. The goal is to improve communication between the home and school and enable parents to effectively engage in their child’s education. As these classes do not meet the criteria of an Adult Education course, there is no documentation to provide regarding your request.

Sincerely,

***********************
Jim Weidhaas, APR
Public Relations Director
Glynn County Schools
P.O. Box 1677
Brunswick, GA 31521
(912) 280-1070
jweidhaas@glynn.k12.ga.us

A 1982 SCOTUS decision, Plyler v Doe established the policy that K-12 education must be provided to students regardless of immigration status. The position that educating adults in any public schools system with federal grant money administered by state and local governments is not “adult education” defies reason.

I note that federal law is clear on Public Benefits and is referenced in OCGA 50-36-1. The list of Georgia’s public benefits was taken directly from the U.S. DHS SAVE website for users. Georgia and its local governments have authority to use the SAVE system to verify immigration status for accessing public benefits. Including Adult Education.

The very purpose of OCGA 50-36-1 is to insure that tax dollars and public benefits do not go to ineligible recipients. It is no secret that because of their status as illegal aliens, many of the parents of K-12 students in Georgia, including Glynn County, are not eligible for most public benefits – including Adult Education – regardless of the reasoning behind providing such benefits.

In my educated opinion, the Glynn County School System is in violation of state law regulated by the IERB and – separately and additionally – by the Georgia Attorney General. Again.

Please begin the process of investigation and enforcement.

D.A. King
Marietta
I am a registered voter

 

 

*Update: Mr. Jorge Gomez (really nice guy!) replied this morning to my open records request mentioned below:

Mr. King,

Thank you for our conversation the other day. I have looked into this
matter for your requested documents and there are no documents responsive
to your request (affidavits and/or secure IDs).

If I can be of any further assistance please do not hesitate to contact me.

Jorge Gomez
Executive Director of Administration and Policy
Office of the CEO/Superintendent
Gwinnett County Public Schools
J. Alvin Wilbanks Instructional Support Center
437 Old Peachtree Road, NW
Suwanee, GA 30024-2978

Phone: 678 301-6005
Fax: 678 301-6007

—

January 18, 2017

Official complaint and request for investigation and prosecution

Sent electronically via email

Sheriff Conway,

Please regard this letter as my complaint and request for enforcement action on the violations described and documented below.

Violation of OCGA 50-36-1
Gwinnett County Board of Education, Gwinnett County Public Schools/ International Newcomer Center et al

Under Georgia law Public Benefits may only be administered to eligible applicants.

OCGA 50-36-1
“(f) (1) Except as provided in subsection (g) of this Code section, an agency or political subdivision providing or administering a public benefit shall require every applicant for such benefit to:

(A) Provide at least one secure and verifiable document, as defined in Code Section 50-36-2, or a copy or facsimile of such document. Any document required by this subparagraph may be submitted by or on behalf of the applicant at any time within nine months prior to the date of application so long as the document remains valid through the licensing or approval period or such other period for which the applicant is applying to receive a public benefit; and

(B) Execute a signed and sworn affidavit verifying the applicant’s lawful presence in the United States under federal immigration law; provided, however, that if the applicant is younger than 18 years of age at the time of the application, he or she shall execute the affidavit required by this subparagraph within 30 days after his or her eighteenth birthday. Such affidavit shall affirm that:

(i) The applicant is a United States citizen or legal permanent resident 18 years of age or older; or

(ii) The applicant is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, Title 8 U.S.C., 18 years of age or older lawfully present in the United States and provide the applicant’s alien number issued by the Department of Homeland Security or other federal immigration agency.

(2) The state auditor shall create affidavits for use under this subsection and shall keep a current version of such affidavits on the Department of Audits and Accounts’ official website.”

Adult education is listed in the law as a Public Benefit in Georgia law.

According to various news reports, including one HERE and conversations with staffers at Gwinnett County Public Schools, the Gwinnett County Board of Education, is conducting Adult Education classes at an official entity known as the ‘International Newcomer Center.’ Apparently, there is no system in place to comply with state law that requires verification of eligibility for this public benefit.

In my educated opinion, the leadership of Gwinnett County Board of Education, Gwinnett County Public Schools and the International Newcomer Center are in violation of state law.

I am confident that your office will begin the process of investigation and enforcement and forward the results to the Attorney General’s office and any other office that may have an obligation to enforce or adjudicate state law.

Please note that I have sent similar complaints and documentation to the AG’s office in the past and have not received a reply and am not aware of any action taken.

Please know that I am among the majority of Georgians who value the work you and your officers and staff do every day and that I express my utmost gratitude for your attention to duty and the rule of law.

Very Respectfully submitted,

D.A. King

Marietta, Ga. 30066

September 15, 2016
via email. 1 of 2

Re; citizen complaint, City of Atlanta violation of OCGA 50-36-1 and 36-60-6

Dear Attorney General Olens,

The City of Atlanta has admitted that it cannot produce and does not possess affidavits (and other documents) which are required to be collected when renewing business licenses for the Coca Cola Co. and the Georgia Association of Latino Elected Officials Inc., both of which are licensed to do business in Atlanta and have renewed business licenses each year since applicable laws went into effect.

Using Georgia’s Open Records Act I have requested copies of the required affidavits from the City of Atlanta and eventually (well beyond the three-day time period) received a response that did not include most of the requested documents. I can see an internal note on one of the documents that indicates the City of Atlanta is aware of the missing affidavits.

Included in my request were the SAVE (relative to GALEO) and E-Verify (Coca Cola & GALEO) affidavits for the years 2013, 2014, 2015 and 2016 mandated in OCGA 50-36-1 and 36-60-6. I am including my request and the entire City of Atlanta response for your education and possible investigation.

Please note, I have also asked for copies of the above documents for “the Georgia Power Co.” but have not received any mention of that entity in Atlanta’s response. That may be because I was incorrect in the proper/business name of a well-known Georgia energy corporation that is doing business in Atlanta. I hope that can be cleared up in any investigation.

* If this initial request for action is directed to your office in error, please direct me to the proper authority.

* OCGA 36-60-6
“(j) The Attorney General shall be authorized to conduct an investigation and bring any criminal or civil action he or she deems necessary to ensure compliance with the provisions of this Code section. The Attorney General shall provide an employer who is found to have committed a good faith violation of this Code section 30 days to demonstrate to the Attorney General that such employer has come into compliance with this Code section. During the course of any investigation of violations of this Code section, the Attorney General shall also investigate potential violations of Code Section 16-9-121.1 by employees that may have led to violations of this Code section.”

* OCGA 50-36-1
“(p) The Attorney General shall have the authority to conduct a criminal and civil investigation of an alleged violation of this chapter by an agency or agency head and to bring a prosecution or civil action against an agency or agency head for all cases of violations under this chapter. In the event that an order is entered against an employer, the state shall be awarded attorney’s fees and expenses of litigation incurred in bringing such an action and investigating such violation.”

I am also forwarding my electronic request and the response from the City of Atlanta in an email to follow marked ‘2/2.’

I look forward to a response from your office.

Respectfully,

D.A. King
Marietta, Ga.

Dalton Chief of Police, Cliff Cason. Photo Dalton PD.

Complaints can be read here from my media release.

The below email from Sheriff Chitwood was received here on October 14, 2020 at 9:30 AM. It was actually two complaints. Both here. We also spoke on the telephone when I called him before I saw his email to me.

Sheriff Scott Chitwood. Photo, WCSD

“Your complaint was received, but after reading over it, the Whitfield Co. Sheriffs’ Office would not oversee such a complaint. Your attention should be directed to the City of Dalton.”

_______

Update: 17 Nov 2020: I sent the complaints to the Whitfield County area District Attorney the same day I received the above answer from the Whitfield County Sheriff. But, we think it important to note the guidelines provided by the Georgia Bureau of Investigation on how they get involved in an investigation. From the GBI website, FAQ page:

• How does the GBI get involved in an investigation?

  Under Georgia law, the GBI, as an assisting agency, can ONLY respond to requests for investigations from:

  • Governing officials of a municipality
  • District Attorneys <–
  • Sheriffs <–
  • Superior Court Judges
  • Chief law enforcement officers of any municipality
  • Chiefs of county police departments (in counties with population in excess of 100,000)
  • Chiefs of regular or volunteer fire departments (in suspected arson cases)
  • Governor of Georgia (by directive)

Photo: USCIS

Photo: WCSO.

The below complaint was sent to the Whitfield County Sheriff office this AM. I have recieved confirmation of receipt.

Complaint      #2 of 2. Complaint #1 here.

Re: Possible violations

 OCGA 36-60-6 & OCGA 16-10-20   

To: Scott Chitwood

Sheriff, Whitfield County Georgia

*Please note that throughout this complaint I have inserted hyperlinks to evidence and facts that make the issue much easier to understand and to save time for investigators.

Sheriff Chitwood,

Please regard this as an official complaint against Dalton business owner State Rep Kasey Carpenter alleging possible violations of OCGA 36-60-1 (E-Verify requirement for private employers) and OCGA 16-10-20 (Filing false documents) and a request for an investigation by the GBI.

In my own educated but obviously unofficial investigation of the workings of the City of Dalton’s Occupational Tax Certificate (OTC) office (please see complaint #1), I obtained various documents through open records requests on two Dalton businesses, Oakwood Café and Cherokee Brewing and Pizza (Cherokee Brewing LLC). The purpose of accessing these documents was to understand the system in place for administering public benefits, specifically OTCs and to compare the operation and documents used to clear mandates in state law.

As can be seen in my other recent complaint (#1 of 2), I found multiple actions that I believe are illegal and require official investigation and possible prosecution.

In reviewing the copies of OTC applications and affidavits, I noted that on the November 2014 application for the City of Dalton to issue an OTC for the year 2015, owner Kasey Carpenter completed a notarized affidavit attesting to use of the federal E-Verify program, entered the unique user/ID number issued to his business by USCIS and entered “11-11-’14 as the date of authorization to use E-Verify.

The service provided by USCIS to track E-Verify users (“How to Find Participating Employers”) shows that Oakwood Cafe was authorized to use E-Verify on 1/19/12.

Clearly stated, the dates do not match on a very important document that serves as evidence of eligibility for Oakwood Café to be issued an Occupational Tax Certificate which is required to do business lawfully in Dalton, GA.

My open records request included a time frame of 1 July 2012 to 15 September 2020. It did not produce any copies of any documents from the Dalton OTC office for Oakwood Cafe completed in 2013 for the OTC to be issued for 2014. I am informed that Oakwood Café has been in business since 2004. As I noted on complaint #1, this seems to indicate that although it was apparently diong (doing) business, Oakwood Café was not issued an OTC for 2014.

There may be an easy answer to this confusion of which I am not aware.

—> Cherokee Brewing and Pizza – (Cherokee Brewing LLC)

Much more concerning is the fact that in reviewing the copies of documents sent by the Dalton OTC office, Kasey Carpenter, an owner of Cherokee Brewing and Pizza signed an affidavit attesting to use of the E-Verify, entered the date of authorization to use the system as “9/15/’19” and did not enter the required user/ID number of the E-Verify system which is assigned by the USCIS.

Apparently the OTC office in Dalton accepted this illegal affidavit (see complaint #1) without it being notarized.

The USCIS tracking database for E-Verify users (How to Find Participating Employers) does not produce records of any authorization for Cherokee Brewing and Pizza or Cherokee Brewing Co. or Cherokee Brewing LLC to use E-Verify.

–> Stated more clearly, in applying to obtain an OTC, owner and applicant for the OTC, Rep Kasey Carpenter says Cherokee Brewing has been authorized to use E-Verify since Sept 15, 2019. The United States Citizenship and Immigration Services says they have no record of that authorization.

It should be noted that according to the state law on private employers use of E-verify for employers with more than ten employees. Cherokee Brewing has completed documents for a Dalton OTC reporting more than ten employees since 2018.

OCGA 36-6-6:

• Every private employer with more than ten employees shall register with and utilize the federal work authorization program, as defined by Code Section 13-10-90. The requirements of this subsection shall be effective on January 1, 2012, as to employers with 500 or more employees, on July 1, 2012, as to employers with 100 or more employees but fewer than 500 employees, and on July 1, 2013, as to employers with more than ten employees but fewer than 100 employees. *Emphasis mine – dak.

The copies of all documents sent to me by the City of Dalton for Cherokee Brewing and Pizza can be seen here. For Oakwood Café, here.

I want to be clear that I hope I am mistaken in wondering if a state legislator and Dalton business owner has misrepresented his use of E-Verify or violated state law to obtain the OTC required to operate business lawfully.

OCGA 36-60-6(h) Any person presenting false or misleading evidence of state licensure shall be guilty of a misdemeanor. Any government official or employee knowingly acting in violation of this Code section shall be guilty of a misdemeanor; provided, however, that any person who knowingly submits a false or misleading affidavit pursuant to this Code section shall be guilty of submitting a false document in violation of Code Section 16-10-20

(j) The Attorney General shall be authorized to conduct an investigation and bring any criminal or civil action he or she deems necessary to ensure compliance with the provisions of this Code section…. During the course of any investigation of violations of this Code section, the Attorney General shall also investigate potential violations of Code Section 16-9-121.1 by employees that may have led to violations of this Code section.

—>Filing false documents is a serious violation under OCGA 16-10-20, which I respectfully paste below to eliminate confusion:

§ 16-10-20.1. Filing false documents

(a) As used in this Code section, the term “document” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form and shall include, but shall not be limited to, liens, encumbrances, documents of title, instruments relating to a security interest in or title to real or personal property, or other records, statements, or representations of fact, law, right, or opinion. 

(b) Notwithstanding Code Sections 16-10-20 and 16-10-71, it shall be unlawful for any person to: 

(1) Knowingly file, enter, or record any document in a public record or court of this state or of the United States knowing or having reason to know that such document is false or contains a materially false, fictitious, or fraudulent statement or representation; or 

(2) Knowingly alter, conceal, cover up, or create a document and file, enter, or record it in a public record or court of this state or of the United States knowing or having reason to know that such document has been altered or contains a materially false, fictitious, or fraudulent statement or representation. 

(c) Any person who violates subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not less than one nor more than ten years, a fine not to exceed $10,000.00, or both. 

(d) This Code section shall not apply to a court clerk, registrar of deeds, or any other government employee who is acting in the course of his or her official duties.

 I ask that you forward my complaint to Director Vic Reynolds and the Georgia Bureau of Investigation.

Sheriff Chitwood, on a personal note, as a 68 year-old former Marine, grandson of a police officer (Detroit Police Academy, class of 1928) and someone who has devoted the last seventeen years of his life to actively advocating for immigration enforcement, please accept my sincere gratitude for the courageous job you and your deputies and staff do for Whitfield County and Georgia.

At our house we respect and support law enforcement officers and pray for your safety.

Also, I have been an advocate for 287(g) since 2004 and am proud to have assisted in implementing the lifesaving 287(g) program in Gwinnett County. Please know the high level of admiration we have for you for your participation in that commonsense program.

I apologize for the length of this complaint. Please know that I have spent many hours on research and in compiling the information gathered. I was closely involved in the creation of the laws cited here and have great interest in seeing them actually enforced.

Respectfully submitted,

D.A. King

Marietta, GA. 30066