Case 6:11-cv-06115-HO
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f Andrew Altschul, OSB No. 980302 E-mail: andrew@,baaslaw.com
BUCHANAN, ANGELI, ALTSCHUL & SULLIVAN LLP 321 SW Fourth Avenue, Suite 600 Portland, OR 97204 Telephone: 503.974.5015
FILED*!! fiPROi iSGSUSDCW
Facsimile: 971.230.0337
Attorneys for Plaintiffs Brentley Foster and Jody Vaughan Judy Dandle Snyder, OSB No. 732834 E-mail: iudv@idsnvder.com LAW OFFICES OF JUDY SNYDER
1000 S.W. Broadway, Suite 2400 Portland, OR 97205
Telephone: (503) 228-5027 Facsimile: (503) 241-2249 Attorney for Plaintiff Phil Duong IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION
BRENTLEY FOSTER, JODY VAUGHAN
CV tlir>6. ^ 1 5
""
and PHIL DUONG, COMPLAINT
Plaintiffs,
v.
PATRICK FLAHERTY, individually and in his
(42 U.S.C. ยง1983; ORS 659A.030; Wrongful Discharge; Breach of Covenant of Good Faith and Fair
personal capacity for actions he took under color
Dealing; Intentional Interference with
ofstate law as Deschutes County District Attorney and Deschutes County District Attorney-Elect, COUNTY OF DESCHUTES, an Oregon municipal corporation, DESCHUTES COUNTY BOARD OF COMMISSIONERS
ALAN UNGER, TAMMY BANEY and
DENNIS LUKE, individually and in their personal capacity for actions they took under color of state law, Defendants.
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Economic Relations) DEMAND FOR A JURY TRIAL
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INTRODUCTION
1.
This is an action for declaratory, injunctive and monetary relief, including
attorneys' fees and costs, to redress unlawful employment practices to which Defendants
subjected Plaintiffs, in violation of Plaintiffs' statutory, common law and contractual rights. JURISDICTION
2.
Jurisdiction is conferred upon this Court by 28 U.S.C. §1331, federal question
jurisdiction, 28 U.S.C. §1343,28 U.S.C. §2201, and 42 U.S.C. §1983. This Court has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. §1367. 3.
Venue is in the District of Oregon pursuant to 28 U.S.C. §1391(b) because the
claims arose in this judicial district. PARTIES
4.
Plaintiff Brentley Foster ("Foster") is currently a resident of Bend, Oregon.
During the relevant period, Plaintiff was an employee of Defendant County of Deschutes and worked in Bend, Oregon.
5.
Plaintiff Jody Vaughan ("Vaughan") is currently a resident of Redmond,
Oregon. During the relevant period, Plaintiff was an employee of Defendant County of Deschutes and worked in Bend, Oregon.
6.
Plaintiff Phil Duong ("Duong") is currently a resident of Bend, Oregon.
During the relevant period, Plaintiff was an employee of Defendant County of Deschutes and worked in Bend, Oregon.
7.
Defendant Patrick Flaherty ("Flaherty") is an individual who resides in
Oregon. Flaherty was sworn in as the Deschutes County District Attorney on January 3, 2011. He was elected into that position on May 18,2010. 8.
Defendant County of Deschutes (the "County") is a municipal corporation
licensed by the state of Oregon. County officials acting in their official capacity were, at all relevant times, acting under color of state law.
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Defendant Deschutes County Board of County Commissioners ("County
Commissioners") is composed ofthree elected officials who serve as the governing body and ultimate policymakers of Deschutes County. During 2010 the three County Commissioners were Alan Unger ("Commissioner Unger"), Tammy Baney ("Commisioner Baney"), and Dennis Luke ("Commissioner Luke"). Beginning January 3, 2011, TonyDebone ("Commissioner Debone") replaced Commissioner Luke. GENERAL ALLEGATIONS
A.
Employment Background of the Plaintiffs and Flaherty
10.
Foster held the position Deputy District Attorney ("DDA") for Deschutes
County from August, 2007 until her termination on January 3, 2011.
11.
Before joining the Deschutes County District Attorney office, Foster worked
as DDA for Coos County andJackson County. At the time of her termination from Deschutes County, Foster had 8 years of experience as a DDA.
12.
Throughout her employment with Coos County, Jackson County and
Deschutes County Foster consistently received positive performance reviews. 13.
Foster was Oregon's DUII Prosecutor of the Year in 2006 and also received
anaward from the Oregon State Police Implied Consent Unit in recognition of outstanding contributions and service to the Intoxilyzer 8000 Program and Implied Consent Program in 2006.
14.
During hertime as a Prosecutor in Deschutes County, Foster never lost ajury
15.
At the time of her termination, Foster's caseload included an aggravated
case.
murder case, two manslaughter cases, a criminal negligent homicide case and several aggravated theft cases.
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In addition to her caseload, Foster also trained at the law enforcement Reserve
and Citizen Police Academies and was routinely asked to present at trainings sponsored by
the Oregon District Attorney's Association and the Oregon Department of Justice. 17.
Plaintiff Vaughan held the position of DDA for Deschutes County from
March 2005 until her termination on January 3,2011.
18.
Before joining the Deschutes County District Attorney office, Vaughan
worked as DDA for Clackamas, Josephine and Columbia counties. At the time of her
termination from Deschutes County, Vaughan had over 22 years of experience as a DDA. 19.
Throughout her employment, Vaughan consistently received positive
performance reviews. In her most recent performance review from Deschutes County in May 2010, Vaughan received an overall "Exceed Standards" evaluation, the highest ranking, and perfect marks on all factors. That review also noted that Vaughan is "always willing to
step up to help others, takes on some of the toughest child abuse cases, and is our office expert on impaired driving cases. She is our specialist in vehicular assault and homicide cases. She currently serves on the Governor's Advisory Committee on DUII and is a soughtafter trainer in DUII conferences for State prosecutors. She gets her work done on time and it is right."
20.
Vaughan was well respected by her peers. For example, in her last 14 months
of employment she received letters of praise from Union County District Attorney Timothy R. Thompson, Deschutes County Sherriff s Office Detective Lieutenant Kevin
Dizney, and Detective Jeff Winters, the BendPolice Department Detective PatrickHartley, the OregonDistrict Attorneys Association Coordinator Carolyn Norris, and Portland-based attorney Gary M. Bullock, who worked with Ms. Vaughan on a matter. 21.
Duong held the position of DDA for Deschutes County from February of 2007
until his termination on January 3, 2011.
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Throughout his employment with Deschutes County, Duong consistently
received positive performance reviews. 23.
At the time of his termination as a DDA in Deschutes County, Duong was
actively responsible for a caseload of misdemeanors and felonies and was satisfactorily
performing all ofthe responsibilities ofhis position. Because ofhis knowledge ofthe DA's office and the misdemeanor unit, Duong was frequently tasked with the training of new interns and DDA hires.
24.
Duong was well respected by his peers andthe agencies with which he
interacted while serving as a DDA.
25.
Flaherty has been an attorney since 1987 and served as a DDA for Lincoln
County from 1989-1992, and as a DDA in Deschutes County from 1992-2001. Flaherty served as ChiefDeputy District Attorney for Deschutes County from 1995-2001. 26.
In 2000, then Deschutes County District Attorney Mike Dugan ("Dugan")
retained consultant Maria Rae to conduct a review of the Deschutes County District
Attorney's Office ("the DA's Office") and provide recommendations onhow to improve the office's functionality.
27.
Ms. Rae's notes reveal that the single biggest problem in the DA's Office was
Flaherty. She wrote that "[e]very conversation comes around to Patrick [Flaherty]" and negative comments about him include that Flaherty has "no people skills," "talks down to staff," "uses high profile cases to reduce his case load," uses "offensive language," and "has upset all the agencies." (Acopy of Ms. Rae's notes is attached as Exhibit 1.) 28.
Ms. Rae advised that Duganneeds to have a "come to Jesus" meeting with
Flaherty. Shortly after Dugan confronted Flaherty with his shortcomings, Flaherty abruptly resigned in anger, effective April 5,2001, weeks before he was to prosecute animportant murder case.
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After resigning from the DA's Office, Flaherty worked as a criminal defense
attorney, defending cases brought by the DA's Office and district attorney offices of other counties until January 3, 2011. Oneof Flaherty's law partners, and fellow criminal defense
attorney, was his wife Valerie Wright, who continues to defend cases brought by the DA's Office.
B.
Conduct During Flaherty's Campaign For Deschutes County District Attorney
30.
Flaherty was elected to the office of Deschutes County District Attorney on
May 18,2010, defeating then-current Deschutes County District Attorney Dugan, who had served as Deschutes County District Attorney for over 20 years.
31.
During the campaign, the DDAs unanimously voted to individually and
collectively endorse Dugan's reelection bid(DDA Wells Ashby abstained from the vote due to his pending bidfor an open judicial seat). The endorsement was published in theVoter's Guide and received attention in both the Bend Bulletin and The Source Weekly.
32.
On the evening of April 28,2010, during the campaign, Flaherty accused
Dugan of"fear mongering" by suggesting that Flaherty would cause "turmoil" inthe DA's Office by firing current DDAs if he was elected.
33.
Specifically, in a Facebook post onhis campaign page "Flaherty for District
Attorney of Deschutes County," Flaherty started a discussion topic entitled "Fear
Mongering." The posting asserted that the idea that he would not give "all ofthe employees anopportunity to shine under new and competent leadership" "made no sense." Indeed, he said, that would be "the dumbest thing that I could do." 34.
The entire Facebook post read as follows:
"Fear Mongering": One of the most despicable tools available to those in power used to manipulate others to cause them to make a negative choice (a choice made out of fear) instead of a positive choice (a choice made to further goals or ideals). I heard an interesting rumor today. I was told that staff in the District Attorney's office were wearing 'Dugan' buttons
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because they had been told that if I won the election they would all lose their jobs. Initially, upon hearing this, I laughed as it makes no sense—why would I hamper the functioning of the office? Wouldn't that be the dumbest thing I could do?
And why would I think I knew who was functioning well and who wasn't if I didn't give all of the employees an opportunity to shine under new and competent leadership?
But after the initial thoughts I realized what was happening. It wasn't rational, logical thought that was at work. It was fear mongering. Who is behind the fear mongering in the D.A.'s office?
Then I remembered the editorial, the one that conceded that I
was, indeed, qualifiedto be District Attorneybut which went on to suggestthat if I were elected "it wouldcreate turmoil among the office's 18 deputy attorneys." Who initiates such ideas and why?
Is it because fear is the most powerful motivator?
And why do those in power need to use fear? Is it because the powerful knowthat without fear people would be free to pursue ideals, ideals such as justice and fairness and truth? What causes anyone to suggestthat if I were elected "it would create turmoil"? Nothing in my past suggests this to be true. But it sounds scary, doesn't it? I guess that is all they have left. Fear"
Flaherty forDistrict Attorney of Deschutes County Facebook page, Discussion Board on Fear Mongering, previously located at http://www.facebook.com/topic.php?uid=109022095791134&topic=52.
(Acopy of this posting is attached as Exhibit 2 as theFacebook page was been taken down after Flaherty was sworn in as District Attorney.)
35.
The very next day, on April 29,2010, during a League of Woman's Voter
debate, in response to a question about a transparency, Flaherty promised that he "will have an open office."
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Flaherty followed-up on his promise by attacking Dugan citing the fact that
over a year ago, a female attorney had accused another female DA of creating a hostile environment and the allegation was not discussed in the papers or on TV. Flaherty alleged that "a number of prosecutors should have spoken out. It should have been reported; there is no transparency."
37.
Flaherty did not name the accused DDA, but noted that she was still employed
and falsely stated that she had been promoted. 38.
Dugan denied any discriminatory conduct occurred and noted that 50% of the
DDAs in his office are female, the highest percentage of any DA's Office in the state. 39.
Flaherty claimed that he learned about this incident when he started the
campaign.
40.
Like Flaherty, The Bend Bulletin also learned about these unproven
allegations months earlier and requested the related records from the DA's Office. The records show that a complaint was raised by an employee who resigned, that an investigation was started, but long before it was finished for unclear reasons, the County decided to settle
with the complaining employee for $125,000. 41.
The attorney alleged to have created the hostile environment, Vaughan, was
never disciplined as she was never found to have engaged in any wrongdoing. Although
Vaughan was removed from her supervisory role effective April 1,2009, in a March 20, 2009 email from Dugan, informing her about the change, Dugan expressly stated "This
decision is based solely on my management discretion and is not in any way made for disciplinary reasons."
42.
Following the League of Woman's Voters debate, another paper, The Source
Weekly, requested the related documents, and on May 12,2010, The Source Weekly ran an article regarding the "undisclosed" legal settlement that was critical of Vaughan and Dugan. 43.
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A vigorous debate began in the comments to the article.
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On May 13,2010 Foster openly joined the debate. Using her name, Foster
posted the following comment:
I am appalled at the unmitigated hackjob Flowers has done with this piece. It's one thing to FAIRLYand accurately report the news, but this is something else entirely. It's reported that "at least five young female prosecutors left the district attorney's office" while Ms. Vaughan supervised the misdemeanor team. How many of those five were interviewed for this story? Moreover, why isn't it reported that two of those females left to join a private law firm in town, and only lasted at that firm a short time as well? Or is it somehow
Ms. Vaughan's fault that they couldn't hack it there, either?
I am a female attorney. I have worked with Ms. Vaughan for two and a half years. She advocated for my hiring at the DA's office, a DA's office I was dying to work for because it is wellknown among prosecutors that Dugan's DA's office is, without question, one of the best in the state. I have worked on trials with Ms. Vaughan where she was the lead attorney and I was the second. At no time was Ms. Vaughan abusive, retaliatory or discriminatory against me in any way, nor did I ever witness her treat any staff that way. The treatment of this story just goes to show that the Source will always be a two-bit rag only suitable for lining birdcages and wrapping fish. My junior high school newspaper did a better job verifying stories and checking facts before it went to press. It's disappointing that in your rush to run an anti-Dugan piece before the election you missed the chance to actually tell the truth.
45.
Later that same day, Mary Anderson ("Anderson"), who at the time was also a
Deschutes County DDA, posted a similarly themed comment to the article that stated: INACCURATE or INTENTIONALLY MISLEADING?
Either way I am disappointed in the Source for publishing this article without doing a better job of checking their facts and confirming the information that they were provided. Unless the Source intentionally omitted and ignored that information to write an article that would be more sensational.
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I have worked for the District Attorney's Office for over 12
years as a DDA. I worked with Patrick Flaherty as my Chief Deputy until he quit. Mike Dugan is the best candidate for DA, he has dedicated his time as DA to promotingjustice, victim rights, community safety and offender reformation in Deschutes County. He cares about his community, the people that work in his office and our partners in public safety. I endorse Mike Dugan and I hope to continue to serve my community in his office. 46.
The next day May 14, 2010, Foster commented again stating:
Transparency? Hmmmm? Funny—the Dugan supporters on here have all listed their names. How's that for transparency?
You're right, facts are facts. It sure would have been nice if the Source would have chosen to fairly and accurately report ALL of them, instead of a select few. And if the true concern is HONESTY at the candidate forum,
let's talk about the whoppers offered up by Flaherty—the DA's office has one of the lowest conviction rates in the state. Not
true. DA employees were coerced into endorsing Dugan. COMPLETELY not true.
As for your concerns about "hypocrisy"—it's okay for Flaherty supporters to speak about "other's experiences that were not their own," but we shouldn't? Actually, you're right—I'd
rather take the high road. What a shame that the anonymous Flaherty supporters can't say the same. 47.
Another then current Deschutes County DDA, Sheryl Blackman
("Blackman"), entered the debate as well. In addition, to defending Vaughan, Blackman also reminded Flaherty's supporters that Flaherty had promised not to terminate any DDA, including, Vaughan. Specifically Blackman wrote:
Jody Vaughan is being thrown under a bus to serve the Source's anti-Bulletin purposes. This article and its comments indicate that it's about Mike Dugan, but Flowers makes it
about Jody Vaughan. I get it, The Source, you're a bunch of mavericks out to show that an alternative weekly can out-
scandal the traditional media. Well, you have. And in the
process, dragged one of the state's finest prosecutors through the mud with a one-sided story.
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Being a new prosecutoris not for everyone, there is high turnover in every office among entry level DDAs. You handle as many as 1000 cases per year depending on the county. You earn respect and camaraderie in the Deschutes Co DA's office
by working hard. Not becauseof your sex, not because of your age. I didn't start my career here, and have "only" worked here 4 years. The fact that I'm still a newer employee compared to my colleagues speaks volumes about this office. I have never seen any of the behavior or attitude described by the former employees from Vaughan or anyone else in the office. Hmnimmmmmm: Patrick Flaherty has promised "all" of the DA's Office employees on his campaign Facebook that he will not fire us if elected, because he wants to "give us an opportunity to shine under competent leadership." He "feels sorry" for us and believes we will be "happier" working under him according to his statements at the candidate forum. So any of us who would be willing to stay, including Jody Vaughan, including the DDAs who actually handled the Black case, even whoever he thinks is responsible for the "many people wrongfully in jail" (candidates' forum quote) don't need to worry about being fired if he is elected because he says so. I support Mike Dugan because he is the better candidate. He hires and keeps brilliant career prosecutors who I learn from every day. He makes necessary large budget cuts that (so far) have not substantially impacted my ability to do my job. He makes broad policy decisions then leaves me (and us) to do our jobs. These are the qualities that are needed in an elected DA. C.
Post-Election Conduct
48.
Contrary to Flaherty's April 28,2010 Facebook post promising not to
terminate any DDAs, Flaherty told County officials that he had a "hit list" of attorneys he intended to fire.
49.
These rumors, coupled with the concerns about some of the misleading
information Flaherty used during the campaign, as reflected in the comments to The Source Weekly article, caused a number of DDAs to consider forming a union in late June 2010. 50.
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A formal petition to form a union was filed on July 16,2010.
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The ballots for the union were distributed on August 30,2010, withthe vote to
be counted on September 14,2010.
52.
On August 17, 2010 Flaherty officially informed ChiefDeputy District
Attorney Darryl Nakahira("Nakahira") in writing that Flaherty would terminate Nakahira when Flaherty assumed office.
53.
Flaherty informed Nakahira that one factor in Flaherty's decision to terminate
himwas Flaherty's beliefthat Nakahira failed to display sufficient loyalty as he had supported DA Mike Dugan's campaign for re-election.
54.
Although Nakahira was a supervisor and not eligible to vote in the union, the
timing and purpose of the public termination letter referencing Nakahira's lack of loyalty was clear to those attorneys aboutto receive union ballots: vote for the union at your own risk. 55.
Despite Flaherty's thinly veiled threat, or perhaps because of it, the DDAs
voted 10 to 5, with 1 unreturned ballot, in favor of forming a union.
56.
In sharp contrastto his April 28,2010 Facebook post where he promised not
to fire any DDAs because "it would be the dumbest thing I coulddo," on September 14, 2010, when asked about the union vote, Flaherty told The Bend Bulletin that an election
often results in significant staff turnover and that he disagrees with the idea that the DDAs could protect their jobs via collective bargaining. 57.
The union was officially certified on September 27, 2010.
58.
The union voted Vaughan as its President, Foster, Vice President, Anderson,
Treasurer, Kari Hathorn, Secretary, and Kandy Gies as its Sergeant-at-Arms. 59.
On Friday, October 15, 2010 a meeting at the Department of Justice was held
with District Attorneys from aroundthe stateand new District Attorney-elects, including
Flaherty. Sean Riddell, the Chiefof the Criminal Justice Division at Oregon's Department of Justice, attended on behalf of Attorney General Kroger's office.
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At the meeting Riddell told Flaherty not to fire any of the DDAsas it would
be a mistake.
61.
This sentiment, that Flaherty should not fire any of the assistant district
attorneys, was echoedby the other District Attorneys present at the meeting. 62.
Flaherty, however, did not heed their warnings.
63.
Instead, on Monday, October 18,2010 Flaherty publiclyacknowledged in a
letter to the Deschutes County Commissioners that he had already determined that "[cjertain Deputy DistrictAttorneys who are currently employed by my predecessor will not be
appointed at the commencement of my term of office as District Attorney." 64.
Flaherty also acknowledged in that letter that it was his intention to take
action that would mootthe need for a collective bargaining agreement with a just cause provision by dismissing those attorneys he felt supported sucha provision. Specifically, Flaherty "encourage[d] the County to withhold takingany action on any proposed Collective Bargaining Agreement until I take office, appoint my deputies and see if any of these issues are any longer relevant." (Emphasis added.)
65.
Much to Flaherty's disappointment, the County continued with its lawful
obligation to bargain with the union and emailed, as previously promised, a contract proposal to the union on Friday October22,2010 for discussion at a pre-scheduled Saturday, October 23, 2010 bargaining session.
66.
Accordingly, at 1:36 pm on SaturdayOctober 23,2010, Flaherty emailed 15
of the 16 unionized DDAs to inform them that if any of them "wish to be considered for
appointment as a Deputy DA in my office" that theyneedto send him "a letter so indicating with a resume in the next week." Flaherty added that once those are received he would schedule interviews with the applicants.
67.
On October 25,2010, Duong meet with Deschutes County Human Resources
to inquire aboutthe propriety of Flaherty's action and for guidance, as a County employee,
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on how he should respond. Human Resources claimed that they had just learned of Flaherty's email that morning and had yet to formulate an official response.
68.
The one DDA that was not emailed was Wells Ashby ("Ashby") because he
was elected to serve as a Circuit Court Judge and was leaving the DA's office.
69.
Flaherty's actions, requiring that the current DDAs reapply for their ownjobs
via email, violated County hiring policies and procedures, which require that all vacancies be filled by published solicitation.
70.
That night at the collective bargaining session, Assistant County Counsel
Chris Bell, one of the County's negotiators, admitted that Flaherty had provided the Countya verbal list of DDAs he intended to fire.
71.
Upon information and belief, County officials were aware at this point in time
that the list included Vaughan, Foster, Anderson and Blackman.
72.
On Monday, October 25, 2010 Dugan emailed the DDA team leads,
Anderson, Kandy Gies, and Stacy Neil to give them guidance on what to tell DDAs about
Flaherty's October 23 email requesting that all DDAs re-apply for their jobs.
73.
In his October 25 email Dugan made clear that the "re-employment letter you
all received was NOT approved by County Personnel department." Dugan further said that
Flaherty"seems to be attempting to lay the ground work for some changes in the office outside county rules." But Dugan encouraged everyone to comply with Flaherty's request to avoid giving him "an automatic reason for 'not swearing in' lawyers who do not respond." 74.
On October 26,2010 Deschutes County Legal Counsel Mark Pilliod sent a
letter to Attorney General John Kroger expressing concern that Flaherty may be targeting DDAs for discharge, in particular DDAs Vaughan and Foster, in "retaliation for exercising their rights to participate in union activities." 75.
On October 27,2010 Vaughan submitted a cover letter, resume, letter of
references and her most recent performance review to Flaherty and requested the opportunity
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to continue her employment. In her cover letter, Vaughan made clear that she was ready, willing and able to work with and under Flaherty. Specifically, Vaughan stated, in part: "During my tenure as prosecutor, I have had the opportunity to work for six District
Attorneys. I have always been able to follow each District Attorney's prosecutorial philosophy and I will do the same under your administration."
76.
On October 29,2010 Foster submitted a cover letter and resume to Flaherty
and requested the opportunity to continue her employment. In her cover letter, Foster made
clear that she was ready, willing and able to work with and under Flaherty. Specifically, Foster stated, in part, "I look forward to working with you and learning from you. I congratulate you on your victory ... I look forward to meeting with you to further discuss how my qualifications and experience can support your philosophies and goals for the District Attorneys' Office."
77.
On October 29, 2010, Duong submitted his cover letter and resume to Flaherty
and requested the opportunity to continue his employment. In his cover letter, Duong made clear that he was ready, willing and able to work with and under Flaherty. 78.
All totaled 14 of the 15 deputy district attorneys responded to Flaherty's
unsanctioned request that they reapply for their jobs. 79.
The one exception was Blackman. Blackman heard the rumors that she was
on Flaherty's "hit list" and did not want to deal with the stress. Blackman officially resigned in December 2010.
80.
At the same time that Flaherty was improperly pressuring Vaughan to reapply
for her current job, she was also prosecuting a rape case in which the defendant was
represented by Flaherty's wife, Valerie Wright. 81.
Vaughan feared that if she continued to represent the DA's Office with the
vigorous advocacy that she had successfully utilized over the past 22 years, it could jeopardize her re-employment.
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Vaughan contacted the Oregon State Bar Counsel Helen Hierschbiel
("Hierschbiel") to seek ethical guidance on how best to handle this situation.
83.
Hierschbiel helped Vaughan recognize that this situation presents a self-
interest conflict under Oregon Rule of Professional Conduct 1.7(a) (2). Accordingly,
Vaughandetermined that she needed to withdraw and worked with the DA's Office to ensure the appropriate motions regarding her conflict were properly handled. 84.
Dugan realized that Vaughan's problem was not unique, as Flaherty's law
firm, at which his wife works, was currently representing defendants in 25 to 30 matters
currentlybeing prosecuted by the DA's Office. Dugan therefore also consulted with officials at the state bar regarding the ethical concerns and on November 2, 2010 determined that because of the conflict of interest created by Flaherty's request for the DDAs to reapply for
theirjobs, he needed to ask the Department of Justice to take over prosecutionof all cases being defended by Flaherty's law firm.
85.
On Friday November 5,2010, Vaughan, via an attorney, wrote a letter to
Deschutes County Counsel for two purposes. The first purpose was to ensure the County was aware of two hate-filled posts about Ms. Vaughan that appeared on Craigslist earlier in the week. The first expressly criticized her for her role in union organizing and referred to
her as a "money wasting no good bitch" and the second referred to her as a "balding, fat ass" and encouraged her to kill herself.
86.
Vaughan noted in her letter that while she understands that the First
Amendment allows these anonymous cowards to engage in their childish, unproductive rants, both messages were forwarded to Vaughan by the email address admin@co.deschutes.or.us:
if they were sent by Countyemployees, the conduct is a serious violation of the County's anti-harassment and retaliation policies.
87.
The second purpose of Vaughn's letter was to present a legal rebuttal to the
cause of these hate-filled attacks: Flaherty's grossly inaccurate letter to the County
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Commissioners on October 18,2010 regarding his views on the County's ability to enter into a union contract with the DDAs.
88.
In particular, Vaughan's November 5,2010 letter pointed outthat the Oregon
Supreme Court has expressly heldthat "county commissioners may impose conditions of due process or cause on [an elected official's] authority to terminate the employment of deputies
...." Graves v. Arnado ("Graves IF), 904 F.2d 40 (9th Cir. 1990) (citing Graves v. Arnado ("Graves /'), 307 Or. 360, 768 P.2d 910, 912 (1989)). Andthat the Oregon Supreme Court hasheld that it is "the affirmative policy of this stateto encourage county civil service and
collective bargaining agreements at theexpense of the [hire and fire] authority granted [by statute to elected officials]." Graves I, 768 P.2d at 913.
89.
The letter further noted that Deschutes County has already exercised this
public policy limitation, by restricting the Deschutes County Sheriffs statutory hire and fire authority by agreeingto a "just cause" contract for his deputies.
90.
The letter, however, made clear that Vaughan's goal was to assist the County
in avoiding litigation with anyone and not in any way "limit Mr. Flaherty's ability to set a new course, and [that] Ms. Vaughan, in particular, is more than ready to follow his direction."
91.
That same day, November 5,2010, Flaherty started calling DDAs to schedule
interviews for November 9 and 10.
92.
Duong was unable accommodate Flaherty's short-notice interview schedule
due to a jury trial scheduled for those dates.
93.
Vaughan and Anderson were not initially contacted for an interview.
94.
After Flaherty received a copy of Vaughan's November 5,2010 letter to
County Counsel, however, Vaughan and Anderson were ultimately scheduled for an interview.
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Specifically, Flaherty did not offer Vaughan an interview until 5:04 pm on
Monday, November 8.
96.
During November 9 and 10 the County allowed, indeed encouraged, and paid
DDAs to interview with Flaherty during regularly scheduled work hours without taking paid time off or any other form of personal leave.
97.
Joining Flaherty at these interviews were Pat Horton ("Horton"), a retired
attorney and former Lane County Attorney from 1973 to 1985, and Traci Anderson, then a Multnomah County DDA, now Flaherty's Chief DDA.
98.
After multiple attempts and phone calls, Duong and Flaherty were able to
schedule an interview for November 15,2010. The interview was conducted at Flaherty's law practice, in his office. Horton was in attendance andparticipated actively in the interview.
99.
ByNovember 17,2010, 10of the 14deputy district attorneys who re-applied
for their jobs received calls from Flaherty informing them that their employment would continue. The five exceptions were Vaughan, Foster, Anderson, Duong, and Hathorn.
100.
That same day, November 17,2010, Bell emailed the union attorney a PDF of
"the 'final' CBA [collective bargaining agreement]." Both sides had tentatively agreed on the contract language, which both sides were expected to vote on and approve before the end of the year.
101.
The proposed collective bargaining agreement("CBA" or "the contract")
contained a very broad "just cause" termination provision that allowed the District Attorney to terminate DDAs for 12 different reasons including such generic reasons as: "Willful
disregard to the District Attorney's philosophies and objectives with respect to the prosecution of criminal offenses"; "Conduct reflecting a discredit upon the County or the District Attorney's Office, which is a hindrance to the effective performance of the functions
of the Office, or which causes an irreparable breach in trust in the employment relationship
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or otherwise makes a continued employment relationship impossible; or "Willful failure to comply with the lawful and ethical directives of the District Attorney or the Chief Deputy District Attorney within thirty (30) days of receiving such a directive." 102.
The tentatively agreed upon contract language did not require progressive
discipline and allowed the District Attorney to go straight to discharge based on the nature of the misconduct and totality of circumstances involved. 103.
The tentatively agreed upon contract language also did not require "just
cause" termination until after a DDA completed a one-year probation period.
104.
This last provision was of great concern to Hathorn as Hathorn had not been
employed for a full year and felt betrayed by the union. Hathorn shared her concerns with
Ashby, who she knew voted against the union and was friends with Flaherty. Ashby said he would talk to Flaherty for her.
105.
On Friday November 19, 2010 Hathorn resigned from her position as
Secretary of the Union. 106.
Several hours after news of Hathorn's resignation from her union position
spread, Flaherty called Hathorn and informed her that her job would continue. 107.
Later that same day on November 19,2010 Flaherty also called Duong and
informed him that his job would continue. Duong was subsequently assigned to the
transition team and tasked to provide Flaherty with a one -hour overview on the state of the Misdemeanor team and a one -hour meeting on the computer case management system. 108.
The union vote on the CBA was set for November 24,2010.
109.
The County Commissioners had agreed to vote on the CBA on December 8,
110.
On November 22, 2010, Bell informed the union counsel that the County
2010.
Commissioners were going to have a public hearing on December 7,2010 at 10:00 am and
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invite Flaherty to appear and provide comments onthe CBA, which he had already been provided a copy of.
111.
The CBA, however, was not goingto be released to the public unless and until
it was approved by the union
112.
The unionattorney expressed concern to Bell about Flaherty being given an
opportunity to address the County Commissioners on the CBA the day before the vote. 113.
Bell assured her that the bargaining team would unanimously recommend the
CBA to the County Commissioners.
114.
On November 24,2010 the union approved the tentatively agreed upon CBA.
115.
The vote was 9 to 6, with one contested ballotthat was inadvertently not
signed. That ballot was cast by Duong who voted in favor of the contract. 116.
That same day, November 24,2010, County Commissioner Dave Kanner
("Kanner") defended the contract in an editorial published in The Bend Bulletin.
117.
Kanner explainedthat Flaherty's suggestion that the County not negotiate
with the union "would have been illegal." 118.
Kanner explained that if an agreement was not reached an Arbitrator would
likely "containonerous and unfavorable 'just cause' language" so it was in the County's interest to negotiate the broader "just cause" language in the tentatively agreed-upon contract.
119.
Kanner explained that Flaherty's "arguments" that he cannot be bound by any
collectivebargaining agreement or just cause language are just "arguments. It's not settled law."
120.
Finally Kanner concluded that the tentatively agreed-upon CBA is not about
what will work best for Flaherty, "but for the future generations of employees, district attorneys and administrators to whom we will bequeath the county organization" and
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"[v]iewed in that context, there is absolutely no question that the county took the best possible course of action." 121.
Flaherty disagreed and had no intention of complying with the CBA.
122.
On Monday November 29,2010 Flaherty contacted the County and told them
that he wanted them to send letters terminating the unionized DDAs that he had no intention of working with.
123.
The County said it would only do that if Dugan agreed. Dugan did not agree.
124.
That evening Monday, November 29, 2010 Flaherty told The Bend Bulletin
that he would not be bound by the CBA.
125.
On December 8, 2010 the County delayed its vote to ratify the CBA until
December 15,2010 because they wanted to hear from Flaherty before the vote and allegedly Flaherty could not do so before December 8,2010.
126.
Flaherty, however, had already met individually with some if not all of the
County Commissioners to privately convey his concerns. 127.
Before the December 15, 2010 meeting, The Bend Bulletin reported that
County Attorney Pilliod indicatedthat "delaying the commission's vote on the contract could put the county in a tough spot." 128.
On December 14,2010, however, the County signaled its intention to
terminate some DDAs by notifyingthe DDAs that 2011 bar dues would not be timely paid in December. Instead the County would wait until January 5,2011 as not everyone would necessarily be employed.
129.
At the December 15,2010 meeting Flaherty begged the County
Commissioners to delay the vote. Flaherty brazenly informed them that he planned on
replacing four of the current DDAs—Nakahira, Anderson, Vaughan and Foster—even if the CBA was in place and even if doing so was a clear violation. Flaherty argued that legal
liability for his actions was less if the County Commissioners delayed the vote.
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Commissioner Ungerstatedat the December 15 meeting that the County
bargained a "very fair" contract. That four other counties had collective bargaining agreements with DDAs containing justcause provisions sothat this "not something new." 131.
Commissioner Luke added that "the Attorney General seems to feel that the
D.A. would be bound by the contract." 132.
Commissioner Luke further stated at the December 15 meeting that he
believes the contract still gives the DAa lot of flexibility in managing the personnel in his office.
133.
Flaherty, however, disagreed with Commissioner Luke andfelt that hisability
to make the staff changes he wanted wouldbe restricted by the contract. 134.
Commissioner Luke stated that he believes the County Commissioners should
ratify the CBA. He noted he respects District Attorney-Elect Flaherty, but disagrees with some ofhis opinions including Flaherty's assertion that his election meant the voters wanted others to be fired.
135.
County Counsel Pilliod stated that"A delayed vote is in essence a 'no' vote.
Mr. Flaherty will take whatever action hewants, and the ones who feel their rights were violated may sue at that point."
136.
Commissioner Unger expressed his beliefthatthat because Flaherty made it
clear that he would violate the contract even if it was approved the County was "looking at hundreds of thousands of dollars in costs no matter what." But that he "would rather see it
on the bottom side of a half-million dollars than on the top side," and felt that ratifying the contract now was in the best interest of the County.
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137.
Accordingly, Commissioner Ungermovedto ratify the Agreement.
138.
No other Commissioner, however, seconded the motion.
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Commissioner Baney then moved to delay the vote until January 12,2011.
Commissioner Luke seconded the motion and all three Commissioners unanimously voted to delay the ratification vote. 140.
The Commissioners knew that delaying the vote would result in the
termination of well-qualified and well-respected DDAs, which might not be permitted if they ratified the contract.
141.
The Commissioners knew that Flaherty's motivations for these terminations
were improper. 142.
For example, while Commissioner Baney publicly claimed that she felt the
vote should be delayed to allow Flaherty to be involved in the negotiations, she and others knew that he was involved in the negotiations.
a.
The negotiations were open to the public and Flaherty often sent a representative, specifically Horton, to watch on his behalf.
b.
Flaherty was given advance copies of the contract and given public and private opportunity to share his opinions, which he did often.
c.
Flaherty met privately with all three commissioners to express his opinions about the contract.
d.
Commissioner Baney publicly admitted her own personal anti-union animus during the December 15, 2010 meeting by stating that she
regretted the County had to deal with another union. 143.
On December 17,2010 Vaughan and Foster informed the County that the
Commissioners' delay of the vote for the sole purpose of allowing Flaherty to terminate
DDAs for improper motives was a violation of public policy. Vaughan and Foster also informed the County that Flaherty's intended terminations would violate a number of other laws including their protected constitutional First Amendment rights (based on their union
organizing, campaign speech and other public comments) and their right to be free from
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genderdiscrimination, nothing the disproportionate number of woman apparently slated for termination.
144.
The letter also served as an official litigation hold to ensure that no relevant
evidence was improperly destroyed. 145.
On information and belief, however, the County never sent out a litigation
hold notice to all relevant parties.
146.
On December 20,2010 Flaherty sent letters to Vaughan, Foster, Anderson and
Duong informing them that when he takes over as District Attorney "on January 1,2011" he will not employthem and that they should direct all inquiriesto the County Personnel Department.
147.
Between November 19,2010, the date Duong was notified that he would be
reappointed as a DDA, and December 20,2010, the date Duongwas notified that he would not be reappointed, Defendants had receivednotice that they would be subjectedto a gender discrimination complaint as a result of Flaherty's decisionto not renew the appointments of certain female DDAs. On information and belief, Duong was the only male DDA who voted
in favor of the union. Duong repeatedly spoke out amongst the DDAs in support of the union, and voted in favor of the union formation. It was known that Duong's vote in favor of the
union contractbrought undue attentionto his vote as a result of his failure to sign the ballot. 148.
On information and belief, it is also asserted that Flaherty believed that
Duong's wife had been involved in the organization of a campaign to recall Flaherty as DA. 149.
Flaherty thus was motivated to terminate Duong's employmentboth so there
would be a male DDA who was not reappointed and in retaliation for either Duong's vote in favor or the union and/or because of Duong's wife's exercise of her First Amendment rights under the U.S. Constitution.
150.
At 4:36 p.m. the next day, Debbie Legg, Deschutes County Personnel
Services Manager emailed Vaughan, Foster, Andersonand Duong to refute Flaherty's
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December 20, 2010 letter. Specifically, Ms. Legg's email said "We wantto be clearno
formal action has been taken toterminate your employment. Until such action is taken by the District Attorney, you will remain onthe County payroll and should observe County policies regarding hours of work, work schedules and reporting times." 151.
Undeterred, and clearly emboldened by having received the unanimous
support of the County Commissioners forthese terminations, on Wednesday December 22,
2010 Flaherty sent a second termination letter to Vaughan, Foster, Anderson and Duong. 152.
This letter instructedthe four DDAs that they must turn in all their
government property and vacate their offices by close of business on December 30,2010 and
that while their employment would expire onJanuary 1, 2011, when he is sworn in, they should report to Debbie Legg for a jointexit interview at 10:00 amon January 3, 2011. 153.
Given the understandable confusion, Vaughan and Foster, via their attorney,
again contacted County Counsel on December 22,2010 and asked for clarification from the County as to whether they were terminated or not.
154.
In that same correspondence, Vaughan and Foster requested a "certified copy"
of their personnel files under ORS 652.750.
155.
Under ORS 652.750 a "certified copy" mustbe provided within 45 days of the
request, or in this instance by February 7,2011.
156.
As of this date, the County has yet to comply with its legal obligation to
provide Vaughan and Fosterany copy, much less a certified copy, of their personnel files. 157.
At 6:20 p.m. on December 22,2010 Kanner contacted Vaughan, Foster,
Anderson and Duong to inform them thatFlaherty hadexceeded his authority andthatthey had not yet been formally terminated.
158.
The next day, however, on December 23,2010, the County informed its health
insurance provider that insurance for Vaughan, Foster, Anderson and Duong should be ceased effective January 31,2011 due to their forthcoming terminations.
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On or about December 23,2010 Dugan also took issue with Flaherty's
assertion in both his December 20 and 22 letters that he would become District Attorney on January 1,2011. His term did not officially begin until January 3, 2011. 160.
Dugan's term expired on January 2,2011, but he submitted his official
resignation effective December 31,2010. That meant for two days there would be no District Attorney.
161.
That two-day vacancy can only be filled by the Governor.
162.
Acting unilaterally, and without the Governor's approval, however, Flaherty
had made arrangements with a state courtjudge to swear him in early. 163.
Dugan contacted the Governor's office and confirmed that the Governor had
not authorized Flaherty to be sworn in early and contactedthe Deschutes County presiding judge to ensure that Flaherty would not be sworn into office until January 3,2011 absent a letter from the Governor authorizing the vacancy appointment. 164.
On December 27, 2010 the County Commissioners were scheduled to meet
165.
Before that meeting, Vaughan and Foster, via their attorney, urged the County
again.
Commissioners to reconsidertheir delay and ratify the agreementto avoid legal action for their wrongfully motivated terminations. To help convince them of the foolishness of
allowing Flaherty to terminate the DDAs they provided the County with a copy of Flaherty's own April 28,2010 Facebook posting proclaiming that "it would make no sense" to
terminateDDAs without giving them "an opportunity to shine under new and competent leadership" and containing his now prophetic question "[w]hat causes anyone to suggest that if I were elected 'it would create turmoil'"?
166.
On the morning of December 27,2010, Dugan also emailed the
Commissioners to compel them to reconsider their ill-advised decision to delay the contract vote, and in essence, endorse the termination of four qualified DDAs.
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At the December 27, 2010 County Commissioner meeting, however, the
County Commissioners did not discuss ratification of the CBA out of fear that their discussion, even if in executive session, could be subject to subpoena. 168.
On December 29,2010, Kanner emailed Vaughan, Foster, Anderson and
Duong to state that given Flaherty's stated intentions to terminate their employment, they
should report directly to the Personnel Office, rather than the DA's office at 9:00 a.m. on Monday, January 3,2011. D.
Conduct After Flaherty Is Sworn In As District Attorney
169.
On January 3, 2011 Vaughan, Foster, Anderson and Duong were presented
with letters from Kanner stating that "by virtue of the actions of the District Attorney,
Deschutes County considers your employment as a deputy district attorney to have been terminated, effective immediately."
170.
That same day, Flaherty presented Vaughan, Foster, Anderson and Duong a
letter stating that he "will not be extending an appointment to [them] as a deputy district attorney during [his] term in office."
171.
During Duong's "exit-interview," interviewer Tracy Scott, Deschutes County
Resources Analyst, stated, "This is wrong."
172.
After Flaherty's actions, of the nine attorneys that voted for the union
contract, only four remained: one, Blackman, resigned, and four others Vaughan, Foster, Anderson and Duong were terminated.
173.
Filling these five vacancies gave Flaherty more than enough opportunity to tip
the balance of the workforce against the union and fulfill his October 18,2010 promise to appoint his deputies "and see if any of these [union] issues are any longer relevant." 174.
Specifically, Flaherty replaced these undeniably qualified DDAs with two
"good old boys" who had not practiced criminal law in over a decade: one of their friends
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who had not practiced criminal law for seven years; and two brand new attorneys fresh out of law school who would be easy to intimidate, including one ofFlaherty's former girlfriends. 175.
First, on January 7, 2011, without ever posting for the position, Flaherty hired
Horton, an old friend, colleague and campaign supporter who assisted Flaherty during his
interviews ofthe DDAs. Horton was initially hired as an "Extra Help Management Analyst," but Flaherty's intention was always for Horton to become a DDA to help Flaherty undermine the union.
176.
Horton, however, a former Lane County District attorney from 1973 to 1985,
gave up hislicense to practice law 11 years ago and needed to apply for reinstatement before
he could practice law. Indeed, the day Flaherty announced hiring Horton as a "consultant,"
the Oregon Bar Bulletin publicly announced Horton had submitted his application to be reinstated as an attorney.
177.
Horton was officially appointed DDA on March 7,2011 after his
reinstatement was approved by the Oregon State Bar.
178.
On Wednesday January 12,2011 three of the four remaining vacancies were
announced: Katie Clason, Eric Marvin and Matthew Nelson.
179.
Matthew Nelson and Katie Clason were both hired fresh out of law school.
180.
Eric Marvin is a former associate of Horton, who he listed as a reference, and
who has not practiced criminal law for over seven years. Instead, since September, 2003, he has been representing a Eugene-based developer of commercial real estate. 181.
The fifth replacement DDA hired by Flaherty was Thomas Howes. Howes
served four years as Deschutes County District Attorney in the mid-1980's before Dugan's tenure, but has spent the last 10 years in private practice.
182.
On Wednesday January 12,2011 the County Commissioners metagain to
consider ratification of the contract.
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At the January 12,2011 meeting, Kanner explained that the "just cause"
provision language is "very broad" and contains language requiring the DDAs to adhere to the philosophical and ethical directives of the DA. 184.
Kanner also expressed anti-union animus noting that the County would prefer
not to have another bargaining unit. Kanner recognized, however, that the DDAs have the
right to organize and that an outside labor attorney had reviewed the contract and "stated that in his opinion, the negotiating team preserved the rights of the DA and the agreement would not be achievable if it involved outside arbitration" which would ultimately occur if not ratified.
185.
Kanner indicated that both he and the outside labor attorney recommended
ratification.
186.
Unger and new County Commissioner Tony Debone expressed interest in
ratifying the agreement at the January 12,2011 meeting. 187.
Flaherty, however, wanted even more time. He claimed he wanted to meet
with the union attorney, although the union attorney was under no obligation to do so.
188.
Flaherty's main intention was to buy time to start a decertification effort.
189.
Commissioner Baney proposed delaying consideration for another week, until
January 19,2011, so Flaherty could continue his efforts. 190.
The County Commissioners again unanimously agreed to delay the vote until
January 19,2011.
191.
During the week of January 12 to January 19, Horton, per Flaherty's direction,
told County investigator Sharon Sweet that Flaherty was concerned that she "wore two hats" and that she cannot "serve two masters." This was a reference to the fact that Sweet did
investigations for the DA's Office as well as the County Counsel.
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The following day, Sweet approached Flaherty to discuss Horton's comment.
Flaherty told her that he cannot trust some of the people who work for him, including her, because he feared she was providing information to the County Counsel. 193.
In an effort to continue to surround himselfwith loyal soldiers, that same
week Flaherty announced thehiring of two other loyal "good old boys" for un-posted and unfunded positions: retired Sheriff Les Stiles, another campaign supporter, and former Bend Police Lieutenant Jerry Stone.
194.
Stiles and Stone were bothgiven part-time positions as investigators and were
given the task of supervising Sweet.
195.
As one of his first assignments, Stiles was tasked with reviewing all emails
from current and former DDAs, which Flaherty requested the County Information Technology Department provide his office, to see if they couldbe used to prove criminal activity of the DDAs.
196.
Flaherty then directed Horton to place a leaflet on the DDAs chairs requesting
that the DDAs "show we support Patrick and that we are on his side" by indicating that"we vote to decertify the CBA." (A copy of the leaflet is attached as Exhibit 3.) 197.
Upon information and belief, no one signed the agreement.
198.
Undeterred, Flaherty also attempted a new attack on the collective bargaining
agreement—this time sending a letter to the Commissioners dated January 19, 2011 arguing that County Counsel lacked authority to negotiate the agreement on the dubious claim that
Flaherty learnedthe week before that the County Counsel had an alleged conflict of interest
because County Counsel was allegedly bargaining on behalfof both Deschutes County and the DA's Office, a state agency.
199.
But the letter was more telling about Flaherty's true motives—the
decertification of the union based on replacing union-supporting DDAs with DDAs loyal to him. Specifically, Flaherty's January 19,2011 to the Commissioner indicates that he
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believes he has fulfilled the intentions first outlined in his October 18,2010 letterto the County Commissioners:
"As you are aware since I took office on January 1 [sic], 2011,
five former Deschutes County District Attorneys are no longer employed at the District Attorney's Office and have been
replaced by new appointees. This mere fact puts the County on notice that the Union attorney, Ms. Gallagher, may no longer have authority from a majority of the remaining Union members to propose this or any other Union Contract to
DeschutesCounty. As such, it is incumbent upon you as the County governing bodyto ask Ms. Gallagher to provide in. writing a statement confirming that (1) she still represents this union, and (2) she has current authority to propose this Contract as written."
(Emphasis in original)
200.
At the January 19,2011, Commissioner Baney, who had previously been
Flaherty's biggest advocate onthe Board of County Commissioners, indicated that Flaherty's attackon the County Counsel's authority was inappropriate. Kanner and Commissioner Debone agreed.
201.
Baneyreiterated her anti-union animus, stating "having anotherunion is
unfortunate;" but agreed the contract was management friendly and it can no longer be disregarded.
202.
The CountyCommissioners then unanimously voted to ratify the agreement in
the exact form that was first presented to them on December 8, 2010.
203.
Before filing this lawsuit Plaintiffs offered Defendants the opportunity to
avoid litigation and see if this matter could be resolved via mediation, but defendant Flaherty declined the offer.
204.
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FIRST CLAIM FOR RELIEF
42 U.S.C. ยง1983 Against the County and
County Commissioners, in their personal capacities
205.
Plaintiffs incorporate by reference the allegations of paragraphs 1 through
206.
Plaintiffs engaged in protected speech when they, as a citizens of Deschutes
204.
County, spoke out about matters of public concern via the conduct described above, including, but not limited to:
a.
organized and voted for a union;
b.
expressed their opinions on what they believed was misleading reporting on issues relevant to the election campaign for the Deschutes County District Attorney on the Weekly Source website;
c.
expressed good faith ethical concerns created by Flaherty's request,
while he was District Attorney-Elect, that they re-apply for theirjobs while litigating cases against his spouse and current law firm;
d.
expressed good faith concerns about Flaherty's disregard for County hiring policies while he was District Attorney-Elect;
e.
expressed good faith concerns about the County's endorsement and
facilitation of Flaherty's improper hiring conduct during his time as District Attorney Elect;
f.
expressed their good faith opinion that Flaherty's legal analysis about the limitations of the applicability of the union contract were incorrect and unlawful;
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expressedtheir good faith opinion that Flaherty's hiring decisions and conduct were motivated in part by his desire to undermine the DDA union.
207.
Plaintiffs' protected speech was a substantial or motivating factor in
Defendants' decision to take adverse action against them.
208.
Senior County officialsknew that Plaintiffs and other DDAs were being
required to comply with requests that they reapply for theirjobs in violation of County policy, but encouraged the DDA participation and even facilitated it by allowingthem to
interview with District Attorney-Elect Flaherty during business hours withouttaking leave or docking pay.
209.
Commissioners Baney, Unger and Luke knew that failing to ratify the union
contract in 2010 would result in Flaherty ending Plaintiffs' employment because of their
protected speech. The Commissioners, acting in their official capacities and personal
capacities under the color of state law, nonetheless exercised their policymaking authority and delayed their decision to ratify the contractto facilitate Flaherty's improperadverse action against Plaintiffs.
210.
The County Commissioners' facilitation of Flaherty's retaliatory motivated
employment termination by purposefully delaying the ratification of a CBA to permit Flahertyto engage in his retaliatory motivated terminations, the County Commissioners and the County violated Plaintiffs' First Amendment rights and constituted actionable state action under 42 U.S.C. ยง1983.
211.
The actions of the County Commissioners were done with deliberate
indifference to Plaintiffs' rights to engage in free speech and association under the First Amendment.
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As a direct and proximate result of Defendants' actions alleged herein,
Plaintiffs have suffered economic loss in the form of back pay, front pay, lost benefits, and out of pocket expenses, in an amount to proven at trial, plus interest. 213.
As a direct and proximate result of Defendants' actions as alleged herein,
Plaintiff has suffered noneconomic harm in the form of emotional and mental distress,
degradation, embarrassment and humiliation, for which Plaintiffs seek compensation in an
amount of up to $500,000 per Plaintiff. 214.
The actions of the County Commissioners as alleged herein were intentional,
willful, and with reckless disregard to Plaintiffs' statutory rights. Such conduct exceeds the bounds of social toleration and is of the type that punitive damages deter. Plaintiffs,
therefore, request an award of punitive damages in the amount of $1,000,000 per Plaintiff. 215.
Plaintiffs have hired legal counsel to prosecute their claims and are entitled to
reasonable attorneys' fees and costs incurred, including expert witness fees, pursuant to 42 U.S.C. ยง1988. SECOND CLAIM FOR RELIEF
42 U.S.C. ยง1983 Against Flaherty in his personal capacity
216.
Plaintiffs incorporate by reference the allegations of paragraph 1 through 215.
217.
Defendant Flaherty in his personal capacity, based on the authority he
possessed due to his position as Deschutes County District Attorney, and Deschutes County District Attorney-Elect, used color of law to intentionally deprive Plaintiffs of their rights. 218.
Defendant Flaherty engaged in actions designed to discourage Plaintiffs'
protected free speech and was motivated in substantial part because Plaintiffs exercised their free speech rights as described above, including, but not limited to: a.
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organized and voted for a union;
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b.
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expressed their opinions on what they believed was misleading reporting on issues relevantto the election campaign for the Deschutes County District Attorney on The Weekly Source website;
c.
expressed good faith ethical concerns createdby Flaherty's request, while he was District Attorney-Elect, that they re-apply for theirjobs while litigating cases against his spouse and current law firm;
d.
expressed good faith concerns about Flaherty's disregard for County hiring policies while he was District Attorney-Elect;
e.
expressed good faith concerns about the County's endorsement and
facilitation of Flaherty's improper hiring conduct during his time as District Attorney Elect;
f.
expressed their good faith opinion that Flaherty's legal analysis about the limitations of the applicability of the union contract were incorrect and unlawful;
g.
expressedtheir good faith opinion that Flaherty's hiring decisions and conduct were motivated in part by his desire to undermine the DDA union.
219.
Defendant Flaherty's adverse actions, for which he was the final decision
making authority, were done with deliberate indifference to Plaintiffs' rights to engage in free speech under the First Amendment.
220.
As a direct and proximate result of Flaherty's actions as alleged herein,
Plaintiffs have suffered economic losses in the form of back pay, front pay, lost benefits, and out-of-pocket expenses, in an amount to be proven at trial, plus interest
221.
As a direct and proximate result of Flaherty's actions alleged herein, Plaintiffs
have suffered noneconomic harm in the form of emotional and mental distress, degradation,
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embarrassment and humiliation, for which each Plaintiff seeks compensation in an amount up to $500,000.00. 222.
The actions of Defendant as alleged herein were intentional, willful, and with
reckless disregard to Plaintiffs' statutory rights. Such conduct exceeds the bounds of social
tolerationand is of the type that punitive damages deter. Plaintiffs, therefore, request an award of punitive damages in the amount of $1,000,000.00 per Plaintiff. 223.
Plaintiffs have hired legal counsel to prosecute their claims and are entitled to
their reasonable attorneys' fees and costs incurred, including expert witness fees, pursuant to 42 U.S.C. ยง1988. THIRD CLAIM FOR RELIEF
Wrongful Discharge in Violation of Public Policy Against The County
224.
Plaintiffs incorporate by reference the allegations of paragraphs 1 through
225.
ORS 243.656 and 243.662 recognizes that the right for public employees to
223.
organize and bargain collectively is the public policy of the State of Oregon. 226.
The Supreme Court of Oregon has held that it is "the affirmative policy of this
state to encourage county civil service and collective bargaining agreements at the expense of the [hire and fire] authority granted [by statute to elected officials.]" Graves I, 768 P.2d at 913.
227.
Plaintiffs participated in forming a union and negotiating a collective
bargaining agreement with the County. 228.
County officials unanimously agreed that the agreed-upon CBA was a good
result for the County and better than one that would be imposed upon them if an agreement was not reached and an arbitrator imposed terms.
229.
County officials were informed by Flaherty that he did not support the union
and opposed the CBA on many occasions.
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230.
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On one occasion, a letterdated October 18,2010, Flaherty requested thatthe
County delaybargaining because after he took over as DistrictAttorney he intended to
remove some of the current DDAs and thatafter thathe believed the union would no longer be an issue.
231.
Flaherty informed the County that he intended to end the employment of the
majority of the union officers, which includedPlaintiffs Vaughan and Foster. 232.
County officials knew that if they delayed ratification of the tentatively agreed
upon CBA, the terms of which they supported, it would result in allowing Flahertyto terminate the union supporters.
233.
County officials knew that delayingthe vote until after January 3, 2011 would
not result in the changing of the terms of the CBA, or would only make those terms worse for the County.
234.
For the sole purpose of allowing Flahertyto terminate the union supporters
before implementing the CBA, County Commissionersagreed to delay the ratification from December 15,2010 to January 12,2011.
235.
County Commissioners ratified the CBA on January 19,2011.
236.
The decision to delay the ratification vote for the sole purpose of permitting
the termination of union supporters and to facilitate other efforts by Flaherty to potentially undermine the union violated the public policy of this state.
237.
As a direct and proximate result of the County's actions as alleged herein,
Plaintiffshave suffered economic losses in the form of back pay, front pay, lost benefits, and out-of-pocket expenses, in an amount to be proven at trial, plus interest thereon at the statutory rate of 9%.
238.
As a direct and proximate result of the County's actions as alleged herein,
Plaintiffs have suffered noneconomic harm in the form of emotional and mental distress,
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degradation, embarrassment and humiliation, for which each Plaintiff seeks compensation in the amount of $500,000.00. FOURTH CLAIM FOR RELIEF
Breach of the Covenant of Good Faith and Fair Dealing Against The County
239.
Plaintiffs incorporate by reference the allegations of paragraphs 1 to 238.
240.
The County was contractually bound by its duty of good faith and fair dealing
in the performance of its obligations related to the negotiations and execution of the CBA. 241.
The County negotiated a tentative agreement with the union and promised the
union that a ratification vote would be held by the County Commissioners before the end of calendar year 2010.
242.
The County Commissioners expressed no objection to the terms of the CBA.
To the contrary, on two occasions in December, 2010 the majority of County Commissioners
expressed their support for the terms of the CBA, and ultimately unanimously voted on January 19,2011 to ratify the CBA without any changes. 243.
By delaying the vote until after January 1,2011, however, the County
Commissioners breached their duty of good faith and fair dealing. 244.
As a direct and proximate result of the County's breach of this duty, Plaintiffs
lost their employment, and suffered economic losses in the form of back pay, front pay, lost benefits, and out-of-pocket expenses, in an amount to be proven at trial, plus compensatory damages of $500,000.00 and interest thereon at the statutory rate of 9%. FIFTH CLAIM FOR RELIEF ORS 659A.030 Sex Discrimination
Against the County
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245.
Plaintiffs incorporate by reference allegations of paragraph 1 to 244.
246.
DDAs are employed by the County.
247.
DDAs are subject to County hiring and firing policies and procedures.
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The employment of four unionized employees, including Plaintiffs Vaughan,
Foster and Duong, were terminated on January 3, 2011. 249.
Three of those four DDAs terminated on January 3, 2011 were women,
including Plaintiffs Vaughan and Foster. 250.
Plaintiffs were qualified to continue their employment.
251.
The four terminated DDAs and a fifth female DDA who resigned in
December were replaced by four males and one female. 252.
Not one of the replacement DDAs had worked as a prosecutor in at least seven
253.
Before Flaherty took over as District Attorney, on January 3,2011, a majority
years.
of the County's DDAs, 10 of the 16, were woman. 254.
Within three months after Flaherty became District Attorney on January 3,
2011, a minority of the County's DDAs, 7 of 15, were female.
255.
The County's policies and procedures were not followed in connection with
the termination of the DDAs terminated on January 3, 2011 and those hired to replace them. 256.
The terminations of Vaughan and Foster were motivated by their sex.
257.
The termination of Duong's employment was motivated by his sex in that he
is a male and was terminated as a part of an effort by Defendant to detract from the fact that only women DDAs were being terminated. 258.
Defendant's actions constitute unlawful discrimination in violation of ORS
659A.030(l)(a)(b).
259.
As a direct and proximate result of the County's actions as alleged herein,
Plaintiffs have suffered economic losses in the form of back pay, front pay, lost benefits, and
out-of-pocket expenses, in an amount to be proven at trial, plus interest thereon at the statutory rate of 9%.
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As a direct and proximate result of the County's actions as alleged herein,
Plaintiffs have suffered noneconomic harm in the form of emotional and mental distress,
degradation, embarrassment and humiliation, for which each Plaintiff seeks compensation in the amount of $500,000.00.
261.
Plaintiffs have hired legal counsel to prosecute their claims and are entitled to
their reasonable attorneys' fees and costs incurred, including expert witness fees, pursuant to ORS 659A.200
SIXTH CLAIM FOR RELIEF
Aiding and Abetting Sex Discrimination ORS 659.030(l)(f) Flaherty, as an individual and The County Commissioners, as individuals
262.
Plaintiffs incorporate by reference the allegations of paragraphs 1 through
263.
Defendant Flaherty, in violation of ORS 659A.030(l)(f), aided and abetted
261.
efforts to unlawfully discriminate against Plaintiffs Vaughan, Foster and Duong because of their sex.
264.
The County Commissioners, in violation of ORS 659A.030(l)(f), aided and
abetted efforts to unlawfully discriminate against Plaintiffs Vaughan, Foster and Duong because of their sex.
265.
The actions of Flaherty were intentional and violated ORS 659A.030(l)(f).
266.
The actions of the County Commissioners were intentional and violated
ORS 659A.030(l)(f).
267.
As a direct and proximate result of Flaherty's and the County Commissioners'
actions as alleged herein, Plaintiffs have suffered economic losses in the form of back pay,
front pay, lost benefits, and out-of-pocket expenses, in an amountto be proven at trial, plus interest thereon at the statutory rate of 9%.
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As a direct and proximate result of Flaherty's actions and the County
Commissioners' actions as alleged herein, Plaintiffs have suffered noneconomic harm in the form of emotional and mental distress, degradation, embarrassment and humiliation, for
which Plaintiffs each seek compensation in an amount up to $500,000.00. 269.
The actions of Flaherty and the County Commissioners as alleged herein were
intentional, willful, and with reckless disregard to Plaintiffs' statutory rights. Such conduct exceeds the bounds of social toleration and is of the type that punitive damages deter.
Plaintiffs, therefore, request an award of punitive damages in the amount of $1,000,000.00 per Plaintiff. 270.
Plaintiffs have hired legal counsel to prosecute their claims and are entitled to
their reasonable attorneys' fees and costs incurred, including expert witness fees, pursuant to ORS 659A.200. SEVENTH CLAIM FOR RELIEF
Intentional Interference With Economic Relations
Against Flaherty as an individual
271.
Plaintiffs incorporate by reference the allegations of paragraphs 1 through
272.
Plaintiffs were employed as DDAs in good standing for the DA's Office
270.
throughout 2010.
273.
Before being sworn in as District Attorney for Deschutes County on
January 3,2011, Flaherty intentionally engaged in a series of actions described above designed to end Plaintiffs' employment, including but not limited to persuading the County to delay ratification of a CBA that would have protected their jobs. 274.
Flaherty's intentional interference was accomplished through improper means
(including misuse of the County's hiring procedures) and improper purpose (including retaliation for Plaintiffs' exercise of protected First Amendment Conduct).
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To the extent Flaherty's actions in 2010 were those of a private citizen, as
opposed to state action, he is personally liable forthe intentional interference to Plaintiffs' economic relations that his conduct caused.
276.
As a direct and proximate result of Flaherty's actions alleged herein, Plaintiffs
have suffered economic losses of back pay, front pay, lost benefits, and out-of-pocket
expenses, in an amount to be proven at trial, plus interest thereon at the statutory rate of 9%. 277.
As a direct and proximate result of Flaherty's actions as alleged herein,
Plaintiffs have suffered noneconomic harm in the form of emotional and mental distress,
degradation, embarrassment and humiliation, for which Plaintiffs each seek compensation in an amount up to $500,000.00.
278.
The actions of Flahertyas alleged herein were intentional, willful, and with
reckless disregard to Plaintiffs' rights. Such conduct exceeds the bounds of social toleration and is of the type that punitive damages deter. Plaintiffs, therefore, request an award of punitive damages in the amount of $1,000,000.00 per Plaintiff. WHEREFORE, each Plaintiff prays for judgment against Defendantsas follows: 1.
On each Plaintiff s First Claim for Relief:
a.
A declaration that Defendants violated Plaintiffs statutorily-protected
rightto engage in protected speech about matters of public concern. b.
A declaration that Defendants, under color of law, deprived Plaintiff of Constitutionally protected rights;
c.
An award of economic damages in the form of back pay, front pay,
lost benefits, and out-of-pocket expenses, plus interest in an amount to be determined at trial;
d.
An award of noneconomic damages in the form of emotional and
mental distress, degradation, embarrassment and humiliation, in an amount up to $500,000 per Plaintiff;
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An award of punitive damages in the amount of $1,000,000 per Plaintiff;
f. 2.
Plaintiffs' attorneys' fees, expert fees and costs incurred herein.
On each Plaintiffs Second Claim for Relief:
a.
A declaration that Defendant-violated Plaintiffs' statutorily-protected
right to engage in protected speech about matters of public concern. b.
A declaration that Defendant, under color of law, deprived Plaintiff of
Constitutionally protected rights; c.
An award of economic damages in the form of back pay, front pay,
lost benefits, and out-of-pocket expenses, plus interest in an amount to be determined at trial;
d.
An award of noneconomic damages in the form of emotional and
mental distress, degradation, embarrassment and humiliation, in an amount up to $500,000 per Plaintiff; e.
An award of punitive damages in the amount of $1,000,000 per Plaintiff;
f. 3.
Plaintiffs' attorneys' fees, expert fees and costs incurred herein.
On each Plaintiffs Third Claim for Relief:
a.
An award of economic damages in the form of back pay, front pay,
lost benefits, and out-of-pocket expenses, plus interest in an amount to be determined at trial;
b.
An award of noneconomic damages in the form of emotional and
mental distress, degradation, embarrassment and humiliation, in an
amount of up to $500,000 per Plaintiff. 4.
On each Plaintiffs Fourth Claim for Relief:
a.
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An award of economic damages in the form of back pay, front pay,
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lost benefits, and out-of-pocket expenses, plus interest in an amountto be determined at trial;
b.
An award of compensatory damages in the amount of $500,000.00 per Plaintiff
5.
On each Plaintiffs Fifth Claim for Relief:
a.
A declaration that Defendant violated Plaintiffs statutorily-protected
right to report wrongful conduct;
b.
All appropriate injunctive relief, including reinstatement;
c.
An award of economic damages in the form of back pay, front pay, lost benefits, and out-of-pocket expenses, plus in an amount to be determined at trial;
d.
An award of noneconomic damages in the form of emotional and
mental distress, degradation, embarrassment and humiliation, in an amount of up to $500,000 per Plaintiff;
e. 6.
Plaintiffs' attorneys' fees, expert fees and costs incurred herein.
On each Plaintiffs Sixth Claim for Relief:
a.
An award of economic damages in the form of back pay, front pay,
lost benefits, and out-of-pocket expenses, in an amount to be
determined at trial, plus interest thereon at the statutory rateof 9%; b.
An award of noneconomic damages in the form of emotional and
mental distress, degradation, embarrassment andhumiliation, in an amountup to $500,000 per Plaintiff;
c.
An award of punitive damages in the amount of $1,000,000 per Plaintiff;
d.
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Plaintiffs' attorneys' fees, expert fees and costs incurred herein.
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On each Plaintiffs Seventh Claim for Relief:
a.
An award of economic damages in the form of back pay, front pay,
lost benefits, and out-of-pocket expenses, plus interestin an amount to be determined at trial;
b.
An award of noneconomic damages in the form of emotional and
mental distress, degradation, embarrassment and humiliation, in an amount up to $500,000 per Plaintiff;
c.
An award of punitive damages in the amount of $1,000,000 per Plaintiff.
8.
Plaintiffs demand a jury trial.
DATED this 1st day of April, 2011. BUCHANAN^cNGEJ^ &SU
Andrew Altschul, OSB No. 980302 E-mail: andrew@,baaslaw.com
Telephone: (503) 974-5015 Attorney for Plaintiffs Foster and Vaughan
ielleSnydepK)SB; 4nail: judvfgiidsnyder.cc 'Telephone: (503) 228-5027 Of Attorneys for Plaintiffs Duong
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