Deschutes County's motion to dismiss parts of lawsuit filed by fired prosecutors

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PETER R. MERSEREAU, OSB No. 732028 pmersereau@mershanlaw.com THOMAS W. MCPHERSON, OSB No. 750010 tmcpherson@mershanlaw.com MERSEREAU SHANNON LLP 1600 Umpqua Bank Plaza One SW Columbia Street Portland, Oregon 97258 Telephone: 503.226.6400 Facsimile: 503.226.0383 Of Attorneys for Defendants Deschutes County and its Board of Commissioners Alan Unger, Tammy Baney, and Dennis Luke

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION

BRENTLEY FOSTER, JODY VAUGHAN and PHIL DUONG, Plaintiffs, v.

PATRICK FLAHERTY, individually and in his personal capacity for actions he took under color of state 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,

Case No. 6:11-CV-6115-HO MEMORANDUM OF LAW IN SUPPORT OF MOTIONS TO DISMISS OF DEFENDANTS DESCHUTES COUNTY AND BOARD OF COMMISSIONERS UNGER, BANEY, AND LUKE [Fed.R.Civ.P. 12(b)(6)] Request for Oral Argument

Defendants.

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TABLE OF CONTENTS I.

Nature of the Case ............................................................................................5

II.

Summary of Argument ....................................................................................7

III.

Applicable Legal Standard Under Rule 12(b)(6) ........................................10 Judicial Notice of Minutes of Public Meetings................................................10

IV.

Summary of Material Facts ..........................................................................11

V.

First Motion to Dismiss First Claim for Relief – Free Speech Retaliation – 42 U.S.C. §1983 Against Deschutes County and Its Commissioner, Individually......................15 A. Plaintiffs were not employees of the County, but instead State employees who could be appointed, removed, or supervised only by the District Attorney. ............................................16 B. Application to Plaintiffs‟ Free Speech Retaliation Claim ..............20 C. The defendant Commissioners‟ vote to postpone their decision on ratification of the CBA is protected by absolute legislative immunity. ............................................................................22

VI.

Second Motion to Dismiss Third Claim for Relief – Wrongful Discharge Against Deschutes County Only ......................................................................25

VII.

Third Motion to Dismiss Fourth Claim for Relief Breach of Covenant of Good Faith and Fair Dealing Against Deschutes County Only ......................................................................26

VIII. Fourth Motion to Dismiss Fifth Claim for Relief – Sex Discrimination – ORS 659A.030 Against Deschutes County Only ......................................................................28 IX.

Fifth Motion to Dismiss

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Sixth Claim for Relief – Aiding and Abetting Sex Discrimination ORS 659A.030(1)(g) Against the County Commissioners .................................................................29 X.

Conclusion .........................................................................................................32

TABLE OF AUTHORITIES Cases Cited Ashcroft v. Iqbal, ___ U.S.___, 129 S. Ct. 1937 (2009) ........................................10 Bishop v. State of Ore., 2003 WL 24002421 (D.Or. Nov. 3, 2003)...... 16-21, 25-28 Bishop v. Wood, 426 US 341, 350, 96 SCt 2074 (1976) .......................................16 Bogan v. Scott-Harris, 523 U.S. 44 (1998) ............................................... 23-25, 32 Cain v. Rijken, 300 Or 706, 717 P2d 140 (1986) ...................................................17 Cantua v. Creager, 169 Or App 81, 7 P3d 693 (2000) .........................................28 Collins v. City of Harker Heights, Tex., 503 US 115, 112 SCt 1060 (1992) .........16 Duke v. F.M.K. Const. Services, Inc., 739 F Supp 2d 1296 (D.Or. 2010) ...... 30-31 Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999) ..........................................30 Harris v. State Industrial Accid. Comm., 191 Or 254, 230 P2d 175 (1951) ..........19 Hemstreet v. Duncan, 2008 WL 409165 at *4 (Dist. Or. 2008) ...........................11 Kaahumanu v. County of Maui, 315 F.3d 1215 (2003) ................................... 23-24 Klamath Off-Project v. Pacificorp, 237 Or App 434, 240 P3d 94 (2010) ............26 Manzarek v. St. Paul Fire & Marine Ins., 519 F3d 1025, 1030-31 (2008) ...........10

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Multnomah County v. Hunter, 54 Or App 718, 635 P2d 1371 (1981) ............ 17-20 Oregon Univer. System v. O.P.E.U., 185 Or App 506, 60 P3d 567 (2002) ..... 26-27 Schaff v. Ray's Land & Sea Food, Inc., 334 Or 94, 45 P3d 936 (2002).................17 Schram v. Albertson's, Inc., 146 Or App 415, 934 P2d 483 (1997) ......................25 Telesaurus VCP, LLC v. Power, 623 F3d 998, 1003 (2010) .................................10 Univ. Med. Assoc. v. Mult. County, 57 Or App 451, 645 P2d 557 (1982)....... 19-20 Weiner v. San Diego County, 210 F3d 1025 (9th Cir 2000) ..................................16 Oregon Revised Statutes ORS 8.760 ........................................................................................................17, 27 ORS 8.780 ................................................................................. 17, 20-23, 25-27, 31 ORS 30.265(1) ................................................................................................. 29-30 ORS 30.285(7) ................................................................................................ 20; 29 ORS 278.120(4) .....................................................................................................20 ORS 659A.001(4) ..................................................................................................28 ORS 659A.030 ......................................................................................... 6, 9, 28-29 ORS 659A.030(1)(a) and (1)(b) .............................................................................30 ORS 659A.030(1)(g)........................................................................................ 29-31 Oregon Attorney General Opinions 1984 WL 192152 (Or.A.G. – Letter of Advice) ...................................................17 49 Op Atty Gen 14 (1998), 1998 WL 59100 (Or.A.G.).........................................18 Rules of Court Fed. R. Civ. P. 12(b)(6) ...................................................................................10, 32 Rules of Evidence Fed. R. Evid. 201(d) ...............................................................................................11

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The County defendants, Deschutes County and its Board of County Commissioners as constituted in 2010, Alan Unger, Tammy Baney, and Dennis Luke (“the County defendants”), submit the following arguments and authorities in support of their motions to dismiss.

I. NATURE OF THE CASE Plaintiffs are three former deputy district attorneys who, until January 3, 2011, were employed in the office of the former District Attorney for Deschutes County. When, after a contentious campaign, a new District Attorney was elected, plaintiffs feared that they would lose their jobs because of their outspoken support for the old District Attorney during the campaign.

Their response was to form a union and then to attempt to negotiate for a “just cause” provision in a collective bargaining agreement they hoped to reach with the County before the term of office of the new District Attorney began. The District Attorney-elect, however, expressed his view that, because he was to become an officer of the State – not of the County – no such collective bargaining agreement could limit his statutory authority to appoint deputies of his own choosing.

The question whether the County could – or should – attempt to place constraints on the authority of the newly elected District Attorney to remove deputies serving under the former District Attorney and to appoint new deputies became a topic of debate in Deschutes County, both in the media and in public hearings before the County‟s governing body. Although a union was formed and negotiations between the union and the County produced a proposed collective bargaining agreement, the Deschutes County Board of Commissioners did not vote to ratify that agreement until after the new District Attorney had taken office and replaced plaintiffs with his

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own appointees.

Plaintiffs bring five claims for relief against the County and its three Commissioners.

Plaintiffs‟ only federal claim is for free speech retaliation under 42 U.S.C. §1983. They allege that the County and its Commissioners intentionally enabled the new District Attorney to retaliate against them by allowing them to interview with him before his term of office began “without taking leave or docking pay” (¶ 208), and by voting to delay consideration of the proposed collective bargaining agreement until after the new District Attorney had taken office and terminated their employment (¶¶ 209, 210).

Plaintiffs also bring three pendant state law claims for relief against the County only: wrongful discharge for having organized a labor union (¶ 236); breach of the covenant of good faith and fair dealing (¶ 243); and sex discrimination in violation of ORS 659A.030 (¶¶ 256258). Each of these claims is based on the allegation that the County delayed voting on the proposed collective bargaining agreement for the purpose of facilitating the termination of plaintiffs‟ employment by the new District Attorney.

Lastly, plaintiffs bring one pendant state law claim against the Commissioners individually, i.e., a claim of aiding and abetting unlawful sex discrimination allegedly committed by the County (¶ 264) – again, allegedly by delaying the vote on the ratification of the proposed collective bargaining agreement.

/ / / / / / / /

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II. SUMMARY OF ARGUMENT A.

First Claim for Relief: Plaintiffs‟ free speech retaliation claim fails for the

following three reasons: 1.

First, deputy district attorneys are not employees of the county in

which they work. Rather, they are employees of the State of Oregon under the direct supervision and control of the District Attorney, a State officer. Therefore, neither the County nor its Commissioners could have either allowed or disallowed the deputy district attorneys‟ on-the-job interviews with the District Attorneyelect.

2.

The fact that plaintiffs were State employees who could only be

appointed and supervised by the District Attorney defeats plaintiffs‟ second allegation of free speech retaliation, i.e., that the County defendants postponed action on the proposed CBA in order to “facilitate” the new District Attorney‟s action in not appointing plaintiffs as his deputies. Because the new District Attorney already had plenary statutory authority to appoint deputies of his choosing, no action or inaction by the County or its Board of Commissioners could have facilitated or limited that authority.

3.

Lastly, the decision of the County Board of Commissioners to

postpone voting on ratification of the proposed collective bargaining agreement – a decision that was made after public hearings and considerable debate – was a quintessentially legislative action. The individual Commissioners are therefore

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protected from suit or liability arising from such action by the doctrine of absolute legislative immunity.

B.

Third Claim for Relief: Plaintiffs‟ wrongful discharge claim against the County

fails for the reason that only an employer can be liable for wrongful discharge. Because the County was not the employer of the District Attorney‟s deputies, and because the District Attorney alone has the authority to appoint or terminate deputy district attorneys, the County cannot have discharged them – wrongfully or otherwise.

C.

Fourth Claim for Relief: Plaintiffs‟ claim for breach of covenant of good faith

and fair dealing against the County fails for the following three reasons: 1.

First, such an implied covenant may arise only in the context of an

existing contractual relationship, and plaintiffs allege only that the County‟s negotiators promised that the Board of Commissioners would “vote” on the proposed CBA prior to the end of calendar year 2010. Plaintiffs do not claim that ratification of the proposed CBA was promised to them.

2.

Second, prior to ratifying a collective bargaining agreement with

the County, plaintiffs‟ newly formed union had no existing contract upon which to predicate an implied covenant, and even if a CBA had been in place, the duty of the County to act in good faith under such agreement would have been owed to the union itself – not to the individual members of the union such as plaintiffs.

3.

Third, the County was not plaintiffs‟ employer, as discussed above,

because it lacked both (i) the authority to control plaintiffs in the performance of

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their job duties and (ii) the authority to appoint or remove them as deputies. Both such powers are vested by statute solely in the hands of the District Attorney, and for that reason the implied covenant could not have arisen from a contract of employment.

D.

Fifth Claim for Relief: Plaintiffs‟ state statutory claim for sex discrimination

fails for the reason that only an employer can be liable under ORS 659A.030. Again, because the County was not plaintiffs‟ employer, it cannot be liable for the alleged unlawful employment practice.

E.

Sixth Claim for Relief: Plaintiffs‟ state statutory claim against the

Commissioners individually for aiding and abetting sex discrimination in employment fails for the following three reasons: 1.

It is barred by the Oregon Tort Claims Act, which provides that the

only claim arising out of the alleged torts of public officials shall be against the public body.

2.

Moreover, a claim for aiding and abetting an unlawful employment

practice may only be brought against an employee of the plaintiffs‟ employer, and the Commissioners were not employees of the District Attorney, plaintiffs‟ employer.

3.

Lastly, neither of the ways in which the Commissioners allegedly

facilitated the termination of plaintiffs‟ employment can support aider-and-abettor liability. First, the Commissioners lacked the power to allow or disallow

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plaintiffs interviewing with the District Attorney-elect. Second, the Commissioners‟ votes to postpone action on the proposed collective bargaining agreement protected from suit or liability arising from such action by the doctrine of absolute legislative immunity.

III. APPLICABLE LEGAL STANDARD UNDER RULE 12(b)(6) In the context of this motion to dismiss pursuant to Rule 12(b)(6), all well-pleaded facts – but not mere legal conclusions – contained in plaintiffs‟ complaint are treated as true. The court must disregard “„threadbare recitals of the elements of a cause of action, supported by mere conclusory statements…‟ „To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face;‟ that is, plaintiff must „plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‟” Telesaurus VCP, LLC v. Power, 623 F3d 998, 1003 (2010), quoting from Ashcroft v. Iqbal, ___ U.S.___, 129 S. Ct. 1937, 1949 (2009).

Judicial Notice of Minutes of Public Meetings In addition to all well-pleaded allegations of the complaint, for purposes of this motion to dismiss, the court also may consider matters that are properly subject to judicial notice.

Manzarek v. St. Paul Fire & Marine Ins.Co., 519 F3d 1025, 1030-31 (2008). Moreover, the court is not required to accept as true any allegations of the complaint that contradict matters subject to judicial notice that cannot reasonably be disputed. Id., at 1031. Included among the types of documents that are judicially noticeable are matters of public record provided by a government agency for public review, such as the minutes of public meetings of the governing

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body of a public entity. Fed. R. Evid. 201(d).

The County defendants therefore respectfully ask that this court take judicial notice of the minutes of public meetings of the Board of County Commissioners of Deschutes County, which minutes are submitted herewith as exhibits to the Declaration of Thomas W. McPherson. These minutes are not offered for the truth of any disputed matters contained therein, however.

Hemstreet v. Duncan, 2008 WL 409165 at *4 (Dist. Or. 2008).

IV. SUMMARY OF MATERIAL FACTS Bearing the foregoing legal standard in mind, plaintiffs‟ very lengthy complaint and factual matters properly subject to judicial notice may be briefly summarized as follows.

Plaintiffs are three former deputy district attorneys employed in the office of the former District Attorney for Deschutes County, Mike Dugan (“Dugan”). On May 18, 2010, the voters elected defendant Patrick Flaherty (“Flaherty”) to the position of District Attorney, replacing Dugan. Dugan‟s term of office expired, and Flaherty‟s began, on January 3, 2011. ¶ 7.

During the campaign that led up to the May 18th election, all three plaintiffs outspokenly supported Dugan and opposed Flaherty. ¶ 31. Among the contested issues in the campaign was the question whether Dugan had improperly handled a complaint against plaintiff Vaughan that she had created a hostile work environment. ¶¶ 36-43. Plaintiff Foster participated openly in debating this election issue, taking Vaughan‟s side. ¶¶ 44, 46.

Following his election as District Attorney and before his term of office commenced, defendant Flaherty made it known that he intended to replace some deputy district attorneys with

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his own appointees. ¶ 48. In response, the then current deputy district attorneys formed a union.

After an election, the union was officially certified on September 27, 2010. ¶¶ 49-51, 55, 57.

Notwithstanding the newly formed union, Flaherty sent a letter to the Board of County Commissioners stating that there were “[c]ertain Deputy District Attorneys who are currently employed by my predecessor [who] will not be appointed at the commencement of my term of office as District Attorney.” ¶ 63. In that same letter, Flaherty asked the Board not to take action on any collective bargaining agreement until he took office. ¶ 64.

On October 23, 2010, Flaherty emailed all deputy district attorneys (except one who was elected to the state court bench), informing them that if they “wish to be considered for appointment” as deputies after Flaherty‟s term of office commenced, they should provide to him “a letter so indicating with a resume in the next week.” ¶ 66.

On October 25, 2010, Dugan responded by sending an email to all deputy district attorneys encouraging them to comply with Flaherty‟s request so as to avoid giving Flaherty “an automatic reason” for not appointing those “who do not respond.” ¶¶ 72, 73.

All three plaintiffs submitted to Flaherty resumes with cover letters requesting that they be considered for appointment as deputy district attorneys when Flaherty took office. ¶¶ 75-77.

During the month of November 2010, all three plaintiffs then participated in job interviews conducted by Flaherty. ¶¶ 91-98.

During this same time period, negotiations were in progress regarding the terms of a collective bargaining agreement (“CBA”) between the union representing deputy district attorneys and the Deschutes County Counsel‟s office. ¶ 100. One of the central issues in these

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negotiations was to what extent, if any, the CBA should attempt to impose restrictions upon the District Attorney‟s authority to appoint or terminate deputies in his office. ¶ 101-105.

On November 22, 2010, the County Counsel‟s office informed counsel for the union that the Board of County Commissioners had scheduled a public hearing for December 7, 2010 for the purpose of receiving and considering comments on the proposed CBA from Flaherty. ¶ 110.

On November 24, 2010, the union voted to approve the proposed CBA. ¶ 114-115. Flaherty publicly took the position that a CBA negotiated by the County would not be binding upon him in his capacity as District Attorney. ¶ 124.

On December 8, 2010, the Board of County Commissioners conducted a public hearing and received comments from citizens regarding the question whether the CBA could lawfully – or should politically – attempt to place any limits on the authority of the District Attorney to appoint or terminate deputy district attorneys. ¶ 125; McPherson Decl., Ex. A. Flaherty was not present at this hearing. After lengthy comments from citizens and the Commissioners, the Board voted unanimously to move on to the consent agenda and to consider the proposed CBA further at their next meeting on December 15, 2010. Id. Flaherty was present at the December 15, 2010 meeting. He expressed his opinion that Oregon law clearly vests in the District Attorney the exclusive authority and responsibility of appointing deputies, and he expressed his intention not to appoint some of the current deputies.

Therefore, Flaherty urged the Board either to reject the proposed CBA or, in the alternative, at least to postpone a vote on the CBA until after he took office. The voters, Flaherty argued, expected him, as the newly elected District Attorney, to play an active role in

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negotiations leading to any collective bargaining with deputies in his office. ¶¶ 129-136; McPherson Decl., Ex. B. At the conclusion of the December 15, 2010 meeting, one of the Commissioners moved to ratify the proposed CBA, but that motion failed for lack of a second. Upon the motion of another Commissioner, the Board then voted unanimously to postpone action on ratification of the proposed CBA until the second regular business meeting in January 2011. ¶¶ 137-139; McPherson Decl., Ex. B. On December 20, 2010, Flaherty sent letters to each of the three plaintiffs. Those letters informed them of his decision that, upon taking office in January 2011, he intended not to appoint them as deputy district attorneys in his office. ¶ 146.

On December 29, 2010, the County Administrator emailed each of the three plaintiffs, requesting that they report to the Personnel Office at 9:00 a.m. on Monday, January 3, 2011, the first business day of the new year. ¶ 168. On January 3, 2011, Flaherty presented plaintiffs with letters stating that he “will not be extending an appointment to [them] as a deputy district attorney during [his] term of office.” ¶ 170.

That same day, plaintiffs were presented with letters from the County Administrator 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.” ¶ 169.

(The complaint mistakenly refers to Dave Kanner as County Commissioner. ¶ 116. He is the County Administrator. McPherson Decl., Ex. B, p. 1.)

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The Board of County Commissioners, on January 12, 2011, again considered the question of ratification of the proposed CBA, and Flaherty again voiced arguments against ratification, stating that he wanted to meet with the attorney for the union. ¶¶ 183-188. The Board voted unanimously to postpone consideration of the CBA for one additional week. ¶¶ 189-190.

During the ensuing week, Flaherty expressed his opposition to the proposed CBA, questioning the authority of the office of the County Counsel to negotiate on behalf of the District Attorney‟s office on the ground that the latter is a state agency. ¶ 198. On January 19, 2011, nevertheless, the Board of County Commissioners voted unanimously to ratify the CBA without modification. ¶ 202.

V. FIRST MOTION TO DISMISS FIRST CLAIM FOR RELIEF – FREE SPEECH RETALIATION – 42 U.S.C. §1983 AGAINST DESCHUTES COUNTY AND ITS COMMISSIONERS, INDIVIDUALLY The complaint alleges that the County and its Commissioners retaliated against plaintiffs in two ways. First, it is claimed that the County defendants “encouraged the DDA participation [in Flaherty‟s request that they apply to him if they wanted to be appointed by him as deputies] and even facilitated it by allowing them to interview with District Attorney-elect Flaherty during business hours without taking leave or docking pay.” ¶ 208. Second, plaintiffs claim that the Commissioners “delayed their decision to ratify the contract [i.e., the proposed collective bargaining agreement] to facilitate Flaherty's improper adverse action against Plaintiffs.” ¶ 209.

Neither of these allegedly retaliatory actions can support plaintiffs‟ §1983 claim.

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A. Plaintiffs were not employees of the County, but instead State employees who could be appointed, removed, or supervised only by the District Attorney.

As recently as 2003, this court held that deputy district attorneys are State employees, not employees of the county in which they work. Bishop v. State of Oregon, 2003 WL 24002421 (D.Or. Nov. 3, 2003). In Bishop, the plaintiff, a deputy district attorney, brought an action for sexual harassment under Title VII and constitutional violations under §1983. As defendants, she named the State, Curry County, the District Attorney, and an Assistant District Attorney. This court carefully examined Oregon statutes and case law before concluding that the County could not be liable because it was not the employer of any of the individual parties – the plaintiff, the Assistant District Attorney, or the District Attorney. Magistrate Judge Cooney‟s opinion in Bishop was later supplemented by another opinion in the same case, Bishop v. State of Oregon, 2004 WL 966232 (D.Or.), and both opinions were adopted by order of this court. Bishop v. State of Oregon, 2004 WL 3214423 (D.Or.) dismissing the defendant county from the case. The litigation in Bishop then continued against the State defendants only. A settlement was eventually reached, and the case was dismissed on July 26, 2006.

For the purposes of 42 USC §1983, whether a person is an employee of a public body is a question of state law. Collins v. City of Harker Heights, Texas, 503 US 115, 128, 112 SCt 1060 (1992), citing Bishop v. Wood, 426 US 341, 350, 96 SCt 2074 (1976); Weiner v. San Diego County, 210 F3d 1025, 1028 (9th Cir 2000). Therefore, this court must look to Oregon law to determine whether plaintiffs were employees of the State or the County.

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In determining whether an employer/employee relationship exists, Oregon courts follow the traditional “right to control test.” Schaff v. Ray's Land & Sea Food, Inc., 334 Or 94, 45 P3d 936 (2002); Cain v. Rijken, 300 Or 706, 717 P2d 140 (1986). Whether a person is an employee is a question of law. Schaff, 334 Or at 103. This legal conclusion depends on the extent to which the purported employer has the right to control the manner and performance of the work and services provided by the individual. Id., at 99-101, 103. The right to control – not the payment of wages – is the decisive factor for determining employment. Matter of Compensation of Hunter, 54 Or App 718, 722, 635 P2d 1371 (1981).

The law is clear beyond question that Oregon statutes – ORS 8.760 and 8.780 – vest in district attorneys the right to control deputy district attorneys.

The district attorney has the power to appoint deputy district attorneys.

ORS 8.760 and ORS 8.780. Deputy district attorneys are “subject to the direction of the district attorney”. ORS 8.780. Deputy district attorneys serve at the pleasure of the district attorney. 1984 WL 192152 (Or.A.G.).

[Letter of Advice dated August 1, 1984, to Gary Raid, President of SAIF (OP-4519)].

Bishop v. State of Oregon, supra, 2003 WL 24002421 at *5. The above statutes provide: ORS 8.760 Deputies may be authorized and paid by county. The county court or board of county commissioners may empower the district attorney to appoint one or more deputy district attorneys whose compensation shall be fixed by the county court or board of county commissioners and paid out of the county funds in the same manner as county officers are paid.

ORS 8.780 Appointment of deputies; qualifications; duties. A district attorney shall appoint deputies. A deputy district attorney shall have the same qualifications as the district attorney, and subject to the direction of the district attorney, has the same functions as the district attorney.

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Indeed, there exists a strong constitutional reason for interpreting these statutes as vesting the “right to control” deputies solely within the responsibilities of the district attorney.

“Deputy district attorneys are constitutionally designated as „the law officers of the State‟ who „shall perform‟ their law enforcement duties „as the Legislative Assembly may direct.‟ Or Const Art VII, § 17.”

49 Op Atty Gen 14 (1998), 1998 WL 59100 (Or.A.G.). Deputy district attorney are agents of the executive branch of government of the State of Oregon. Id. A employment relationship analogous to that of deputy district attorneys was considered in Multnomah County v. Hunter, 54 Or App 718, 635 P2d 1371 (1981). In Hunter, the Oregon Court of Appeals applied the “right to control” test to decide whether the state or the county was the employer of circuit court reporters for worker‟s compensation purposes. As with deputy district attorneys, the county then paid part of the court reporters‟ salary pursuant to ORS 8.372.

The county also provided their work place and supplies, and it negotiated their labor contracts. Hunter, 54 Or App at 720-21. However, it was the State, through its circuit court judges, that appointed the court reporters, fired them, and established job qualifications for their positions. Id. at 722-23.

In resolving the issue, the court turned to the general definition of

“employer” for worker‟s compensation purposes found in former ORS 656.005(14), which provided: “Employer” means any person, including receiver, administrator, executor or trustee, an estate, state agencies, counties, municipal corporations, school districts and other public corporations or political subdivisions, who contracts to pay a remuneration for and secures the right to direct and control the services of any person.

Hunter, 54 Or App at 720-21. (Emphasis added.)

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The court in Hunter decided that the basic test for determining whether an entity is an employer was to determine: (1) the existence of a contract for hire and (2) the employer‟s right to control the employee‟s services. Id. The court reporters, the court explained, represent a “hybrid” employment situation, because the county paid the wages of the employees, but the State alone had the authority to appoint, fire and control the day-to-day activities of the reporters.

Id. at 721-23. In reaching its holding, the court explained that its earlier decision in Harris v.

State Industrial Accident Commission, 191 Or 254, 230 P2d 175 (1951), stood for the proposition that, in such hybrid employment relationships, as between control and payment of wages, control is the decisive factor for determining employment. Id. Thus, the court held, it was the State – not the county – that was the employer, because the State‟s right to control the court reporters most characterized it as the employer.

The Hunter analysis was subsequently used in another substantially analogous situation in University Medical Associates v. Multnomah County, 57 Or App 451, 645 P2d 557 (1982).

University Medical Associates involved claims for negligence brought against the county based upon the alleged negligence of two circuit court clerks for failing to process writs of attachment and notices of garnishment within a reasonable time. Id., 57 Or App at 453. The Court found the clerks were under the direct control and supervision of the circuit court administrator; the court administrator was, in turn, under the direct control of the circuit court judges; and circuit court judges are, of course, State officers. Id. at 455-456. The court explained that “the duties that plaintiff alleges were negligently performed were duties given by statute to the court administrator to be performed under direction of the circuit court.” Id. Following the analysis of

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Hunter, the court held that, because they were under the direct control and supervision of State officers, the clerks were employees of the State, not the county. Therefore, the county could not be liable for the clerks‟ alleged negligence. Id., 57 Or App at 457.

In addition to ORS 8.780, which unequivocally states that deputy district attorneys are “subject to the direction of the district attorney” and have “the same functions as the district attorney,” other statutes lead directly to the conclusion that deputy district attorneys are State employees, not county employees. Most importantly, the Oregon Tort Claims Act includes “deputy district attorneys” within the statutory definition of “state officer, employee or agent.”

ORS 30.285(7). Furthermore, for purposes of State claims management, ORS 278.120(4) provides that “state officer, employee or agent” includes deputy district attorneys.

In view of the foregoing statutes and case law, including this court‟s thoroughly reasoned opinion in Bishop v. State of Oregon, 2003 WL 24002421 (D.Or. Nov. 3, 2003), it is clear that deputy district attorneys must be regarded as employees of the State of Oregon, not the counties.

This conclusion is of significance as to each of plaintiffs‟ five claims for relief against the County defendants for the reasons set forth in the argument pertaining to each such claim. First, however, the conclusion that plaintiffs are State employees will be applied to plaintiffs‟ claim for free speech retaliation under 42 U.S.C. §1983.

B. Application to Plaintiffs’ Free Speech Retaliation Claim Plaintiffs‟ allege that the County defendants retaliated against them by “allowing” them to interview with Flaherty “during business hours without taking leave or docking pay.” ¶ 208.

Because plaintiffs were employees of the District Attorney, however, the County lacked the

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authority to direct their day-to-day activities on the job. ORS 8.780 (deputy district attorneys are “subject to the direction of the district attorney”). Furthermore, the complaint recognizes the supervisory role of the District Attorney, alleging that Dugan encouraged plaintiffs to comply with Flaherty‟s requests for then current deputies to apply to Flaherty if they wished to be appointed by him when he took office. ¶¶ 72, 73.

The fact that plaintiffs were State employees who could only be appointed and supervised by the District Attorney defeats plaintiffs‟ second allegation of free speech retaliation, as well.

The complaint alleges that Board of County Commissioners voted to postpone action on the proposed CBA until after Flaherty took office in order to “facilitate” Flaherty in not appointing them as his deputies. ¶ 209. But Flaherty, elected by the voters of Deschutes County, had plenary statutory authority to appoint deputies of his choosing in order to implement his prosecutorial policies and decisions. ORS 8.780 (“A district attorney shall appoint deputies.”)

“The district attorney has plenary powers of appointment and removal of deputy district attorneys and deputy district attorneys are personally accountable to the district attorney.”

Bishop v. State of Oregon, supra, 2003 WL 24002421 at *8. (Emphasis added.)

In view of this court‟s ruling in the Bishop case and the authorities relied on therein, neither the County nor its Commissioners had the power to interfere with the District Attorney‟s authority to appoint or remove deputies. Therefore, the County defendants cannot be liable under §1983 for merely acquiescing in Flaherty‟s exercise of that authority by postponing action on the proposed CBA. For this reason alone, plaintiffs‟ §1983 claim against the County defendants must be dismissed.

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C. The defendant Commissioners’ vote to postpone their decision on ratification of the CBA is protected by absolute legislative immunity.

The Supreme Court has held that local legislators are absolutely immune from suit under 42 U.S.C. §1983 for their legislative activities. Bogan v. Scott-Harris, 523 U.S. 44 (1998).

Furthermore, whether an act is “legislative,” so as to confer absolute immunity from suit depends on the nature of the act, not on the motive or intent of the official performing it. Id., at pp. 54-55.

In Bogan, a mayor and city council members had eliminated the positions of 135 municipal employees, including plaintiff, who claimed that the real motive for eliminating her supervisory position was retaliation for having brought charges against an employee under her supervision. As it happened, that employee was politically well-connected and had pulled strings to retain her job, despite plaintiff‟s outspoken recommendation of termination. Id., at pp. 46-47.

The court held that the council members‟ vote to eliminate plaintiff‟s job was, “in form, quintessentially legislative.” Id., at p. 55. Even the mayor, the Court held, was performing a legislative function when he signed the ordinance eliminating city job positions, although that was an executive official, not a voting member of the legislative body. Id. “Whether an act is legislative turns on the nature of the act,” whether the actions taken “were integral steps in the legislative process,” and whether those actions “reflected a discretionary, policymaking decision.” Id. at 55.

In the present case, Commissioners Unger, Baney and Luke were confronted with the political reality – indeed, the electorate‟s political mandate – that Flaherty would replace Dugan as District Attorney on January 3, 2011. They also were aware – both presumptively and as a

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matter of public record – that ORS 8.780 vested in the District Attorney and not in the County the power to appoint deputies. McPherson Decl., Exs. A and B. Moreover, Flaherty had announced his intention not to appoint some of the current deputies when he took office.

The Commissioners held two public hearings to receive and consider the views of interested citizens and Flaherty himself. Id. Informed by comments received at those hearings, the Board‟s vote to postpone action on the proposed CBA was, in fact, the same kind of “discretionary, policymaking decision” that the Supreme Court held to be entitled to absolute legislative immunity. Bogan v. Scott-Harris, supra, 523 U.S. at 55-56.

In applying Bogan, the Ninth Circuit has developed a four-factor test: “(1) whether the act involves ad hoc decisionmaking, or the formulation of policy, (2) whether the act applies to a few individuals, or to the public at large, (3) whether the act is formally legislative in character, and (4) whether it bears all the hallmarks of traditional legislation.” Kaahumanu v. County of Maui, 315 F.3d 1215, 1220 (2003).

Here, the Commissioners‟ vote clearly satisfies each one of the above four factors. First, the vote of the Board was not merely “ad hoc decisionmaking” but the “formulation of policy” by the County‟s governing body. The policy being formulated and implemented thereby was, briefly stated, as follows: As a matter of legislative comity between local government and the executive branch of state government, the County reasonably should afford to the newly elected District Attorney the opportunity, after his term of office began, to express his views to the County‟s governing body regarding the proposed collective bargaining agreement.

Second, the vote did not apply only to “a few individuals.” It affected not only the

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District Attorney and all the deputies whom he might appoint or remove, but also the prosecutorial policies that the newly elected District Attorney intended to implement, thus affecting all residents of Deschutes County.

Third, the action in question was “formally legislative in character.” Following public hearings, the Commissioners publicly discussed the question among themselves. Then, after a motion to ratify the proposed CBA failed for lack of a second, the Board voted unanimously to postpone consideration of the issue until the second regular business meeting in January 2011. ¶¶ 137-139; McPherson Decl., Ex. B. Fourth and finally, the vote bore the “hallmarks of traditional legislation,” because, as the Supreme Court in Bogan found most significant, it “may have prospective implications that reach well beyond” the plaintiffs in this particular case. Bogan, 523 U.S. at 56.

The present case is not in any way similar to the county decision that the Ninth Circuit found not subject to absolute legislative immunity in Kaahumanu v. County of Maui, supra.

There, the county was considering whether or not to grant a conditional use permit to a particular landowner. At issue was merely that one landowner‟s desire to conduct a commercial wedding business on his beach front property. Kaahumanu, 315 F3d at 1217-20. That county‟s decision to deny the application for a conditional use permit, in contrast to the present case, really was an instance of “ad hoc decisionmaking” affecting only “a few individuals.” It was not “formally legislative in character,” and it lacked “the hallmarks of traditional legislation.” Id. The Supreme Court in Bogan emphasized that “all considerations of intent and motive” must be “stripped” away when deciding whether a particular action is legislative in character.

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Bogan, 523 U.S. at 55. When viewed in that light and stripped of plaintiffs‟ allegations of supposedly ulterior motives of the County defendants, the vote of the defendant Commissioners in the present case was classically legislative. Therefore, the defendant Commissioners are absolutely immune from suit or liability arising out of the votes they cast to postpone action on the proposed collective bargaining agreement. For this reason as well, plaintiffs‟ first claim for relief should be dismissed.

VI. SECOND MOTION TO DISMISS THIRD CLAIM FOR RELIEF – WRONGFUL DISCHARGE AGAINST DESCHUTES COUNTY ONLY The complaint alleges that the County committed the tort of wrongful discharge by postponing action on the proposed collective bargaining agreement. It is further alleged that the County knew that this postponement “would result in allowing Flaherty to terminate the union supporters.” ¶ 232.

However, the complaint does not allege that the County discharged plaintiffs – and indeed plaintiffs could not have so alleged. The obvious reason for this is that the County did not have the authority to discharge any deputy district attorneys, because the ORS 8.780 vests “plenary powers of appointment and removal of deputy district attorneys” solely in the hands of the District Attorney. Bishop v. State of Oregon, supra, 2003 WL 24002421 at *8.

It is well established in Oregon law that only an employer can be liable for the tort of wrongful discharge. Schram v. Albertson's, Inc., 146 Or App 415, 427, 934 P2d 483 (1997) (“In the case of the tort of wrongful discharge, only an employer can discharge an employee.”)

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Because deputy district attorneys are State employees, capable of being appointed or removed only by the District Attorney, the County cannot be liable under plaintiffs‟ third claim for relief, which should accordingly be dismissed.

VII. THIRD MOTION TO DISMISS FOURTH CLAIM FOR RELIEF BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING AGAINST DESCHUTES COUNTY ONLY To allege a claim for breach of the implied covenant of good faith and fair dealing, a contract must exist between the plaintiff and the defendant from which such a covenant may be reasonably inferred. Klamath Off-Project Water Users, Inc. v. Pacificorp, 237 Or App 434, 44446, 240 P3d 94 (2010). “The duty [to act in good faith] „does not operate in a vacuum[,]‟ rather it „focuses on the „agreed common purpose‟ and the „justified expectations' of the parties, both of which are intimately related to the parties' manifestation of their purposes and expectations in the express provisions of the contract.‟” Id. at 237 Or App 445, quoting from Oregon University System v. Oregon Public Employees Union, Local 503, 185 Or App 506, 515-16, 60 P3d 567 (2002).

Plaintiffs‟ claim for breach of the implied covenant relies solely on the allegation that the County had a duty to ratify the proposed collective bargaining agreement before the District Attorney-elect took office. ¶ 243. However, plaintiffs predicate this supposed duty to ratify only on an alleged promise by the County, made during bargaining, that its Board of Commissioners would “vote” on the question of ratification “before the end of calendar year 2010.” ¶ 241.

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Obviously, voting on whether to ratify the CBA is not the same thing as ratification itself. The Board of County Commissioners cannot be regarded as a mere “rubber stamp” for whatever its labor negotiators might recommend. Therefore, taking the allegations of the complaint as true, the harm complained of – i.e., not ratifying the proposed CBA – lacks any causal nexus with the alleged breach – i.e., not voting on whether to ratify.

Moreover, at the time of the alleged breach of the implied covenant – i.e., December 2010 – there existed no collective bargaining agreement between the parties to which an implied covenant could attach. Even if a collective bargaining agreement had been in place, the duty of the County to act in good faith under such agreement would have been owed to the union itself – not to the individual members of the union such as plaintiffs. See Oregon University System, supra, 185 Or App at 510-11. Oregon law provides a forum dedicated to hearing such claims, i.e., the Employment Relations Board. Id. Finally, as discussed above, because the District Attorney was plaintiffs‟ employer, the County lacked any authority to appoint or to remove deputy district attorneys, as is apparent from ORS 8.780. Bishop, supra, 2003 WL 24002421 at *8. The only authority the County possessed in respect to deputy district attorneys was to create vacant job positions for deputies, to fix the compensation for those positions, and thereby to enable the District Attorney to fill such positions with his own appointees. ORS 8.760.

It follows, therefore, that – as between the County and plaintiffs – there existed no contract from which the implied covenant could arise. Certainly, as pertaining to plaintiffs‟ only allegation that the covenant has been breached – i.e., that the Board of Commissioners did not

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ratify the proposed CBA in December 2010 – plaintiffs lacked the requisite contractual relationship from which the implied covenant could logically be inferred. Therefore, plaintiffs‟ fourth claim for relief should be dismissed.

VIII. FOURTH MOTION TO DISMISS FIFTH CLAIM FOR RELIEF – SEX DISCRIMINATION – ORS 659A.030 AGAINST DESCHUTES COUNTY ONLY Plaintiffs‟ state statutory claim against the County for sex discrimination depends upon the plaintiffs‟ allegation that “DDAs are employed by the County.” ¶ 246. This is so because only an “employer,” as that term is defined for purposes of ORS chapter 659A, may be liable for the “unlawful employment” practice of sex discrimination. The term “employer” is defined as follows: "Employer" means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.

ORS 659A.001(4). (Emphasis added.) As discussed earlier herein, Oregon courts have consistently applied the right-to-control test when determining whether an employment relationship exists, and that same test applies equally for purposes under ORS 659A.030.

Cantua v. Creager, 169 Or App 81, 91-95, 7 P3d 693 (2000); Bishop v. State of Oregon, supra, 2003 WL 24002421 at *5-6.

However, for the reasons set forth above in discussing their §1983 claim, plaintiffs were employees of the State of Oregon; they were not employees of the County. Therefore,

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plaintiffs‟ fifth claim for relief fails at the threshold level. No employment relationship existed between plaintiffs and the County, so the County cannot be liable for sex discrimination under ORS 659A.030. Plaintiffs‟ fifth claim for relief should be dismissed.

IX. FIFTH MOTION TO DISMISS SIXTH CLAIM FOR RELIEF – AIDING AND ABETTING SEX DISCRIMINATION ORS 659A.030(1)(g) AGAINST THE COUNTY COMMISSIONERS Plaintiffs‟ sixth claim for relief alleges that: “The County Commissioners, in violation of ORS 659A.030(l)(f) [sic], aided and abetted efforts to unlawfully discriminate against Plaintiffs Vaughan, Foster and Duong because of their sex.” ¶ 264.

Because plaintiffs attempt to allege aider-and-abettor liability, the County must presume that they meant to cite subsection (1)(g), not subsection (1)(f), of 659A.030, which provides: “(1) It is an unlawful employment practice: **** (g) For any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.”

ORS 659A.030(1)(g).

This final claim, like plaintiffs‟ other claims, must be dismissed. The first reason that plaintiffs‟ sixth claim for relief cannot survive is that it is barred by the Oregon Tort Claims Act. ORS 30.265(1) provides in relevant part as follows: “The sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under ORS 30.285 or 30.287 shall be an action against the public body only.”

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There can be no serious question that the Commissioners were, at all material times, “acting within the scope of their … duties,” especially under the expansive view of “scope” followed by the Oregon Supreme Court since Fearing v. Bucher, 328 Or 367, 373, 977 P2d 1163 (1999). Therefore, plaintiffs‟ “sole cause of action for any tort” of the Commissioners, who were “officers” of the County, must be “an action against the public body only.” ORS 30.265(1).

Simply put, the Oregon Tort Claims Act bars aider-and-abettor liability from ever attaching to “officers, employees or agents of a public body,” notwithstanding ORS 659A.030(1)(g).

The second reason that plaintiffs‟ sixth claim for relief must be dismissed is to be found in the text of ORS 659A.030(1)(g) itself: “It is an unlawful employment practice… for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” (Emphasis added.) The underscored clause evinces the intent of the Oregon legislature “only to regulate the conduct of those working for the plaintiff's own employer” – not persons who are stranger to the employment relationship. Duke v. F.M.K. Const. Services, Inc., 739 F Supp 2d 1296, 1306 (2010).

The phrase “any person, whether an employer or an employee” distinguishes subsection (1)(g) from ORS 659A.030(1)(a) and (1)(b), which apply only to employers. Subsection (1)(g) subjects individuals (co-workers, supervisors) who aid and abet plaintiff's employer to liability.

Duke, 739 F Supp 2d at 1306. In Duke, a construction worker brought an action alleging retaliation for his having filed a workers‟ compensation claim. He sued his employer and also the owner of the premises where he had been working, alleging that the premises owner, in

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violation of ORS 659A.030(1)(g), had aided and abetted his employer‟s retaliatory conduct. The court, taking careful note of the statutory description of those potentially liable under the statute (i.e., “any person, whether an employer or an employee…”), applied Oregon rules of statutory construction and concluded that, because the premises owner was not an employee of plaintiff‟s employer, it could not be liable for aiding and abetting an unlawful employment practice under ORS 659A.030(1)(g). Id. In the present case, as in Duke, the Commissioners were not employees of plaintiffs‟ employer, because they were officers of the County, not employees of the State. For this reason also, plaintiffs‟ sixth claim for relief should be dismissed.

There is one further reason that plaintiffs‟ aider-and-abettor claim should be dismissed.

Neither of the alleged ways in which the Commissioners supposedly “facilitated” the removal of plaintiffs from their positions as deputy district attorneys can support liability.

As discussed earlier in this memorandum, the Commissioners did not have the authority to allow or disallow plaintiffs to interview with the District Attorney-elect, Patrick Flaherty, prior to his taking office, because only the then current District Attorney, Mike Dugan, had the right to control plaintiffs in the performance of their jobs. ORS 8.780. However, the complaint specifically alleges that Dugan had sent an email to all deputies encouraging them to cooperate with Flaherty‟s request that they submit application to him, if they wished to be appointed deputies when his term of office commenced. ¶ 73.

The only other way in which the Commissioners are alleged to have “facilitated” the removal of plaintiffs from their position is the Commissioners‟ formal vote to postpone until

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Flaherty took office further consideration of the proposed collective bargaining agreement.

However, the Commissioners are shielded from suit or liability arising from this vote by the doctrine of absolute legislative immunity. Bogan v. Scott-Harris, 523 U.S. 44 (1998). The law on this matter was discussed in some detail earlier herein, and it need not be repeated. For all the foregoing reasons, plaintiffs‟ sixth claim for relief must be dismissed.

X. CONCLUSION Each of plaintiffs‟ five claims for relief against the County and the County Commissioners fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

Plaintiffs‟ complaint should be dismissed as to the defendants Deschutes County, Alan Unger, Tammy Baney, and Dennis Luke.

DATED: June 6, 2011.

MERSEREAU & SHANNON LLP /s/ Thomas W. McPherson ______________________________ PETER R. MERSEREAU OSB No. 732028 pmersereau@mershanlaw.com THOMAS W. MCPHERSON OSB No. 750010 tmcpherson@mershanlaw.com 503.226.6400 Of Attorneys for Defendants Deschutes County, Alan Unger, Tammy Baney, and Dennis Luke

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