Case 6:11-cv-06115-HO
KEITH
J.
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BAUER, OSB No. 730234
kbauer@pbswlaw.com JONATHAN H. BAUER, OSB NO. 051964 ibauer@pbswlaw.com PARKS, BAUER, SIME, WINKLER & FERNETY LLP 570 Liberty St SE, Suite 200 Salem OR 97301 (s03) 371-3s02; Fax (503) 37r-0429 Attomeys for Defendant Patrick Flaherty
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
EUGENE DIVISION
BRENTLEY FOSTER, JODY VAUGHAN and PHIL DUONG,
Case
Plaintiff,
No. I 1-cv-61 15 HO
DEFENDANT PATRICK FLAHERTY'S ANSWER AND AFFIRMATIVE DEFENSES
PATRICK FLAHERTY, individually and in his personal capacity for actions he took under color of state law as Deschutes County District Attomey and Deschutes County District Attomey-Elect, COUNTY OF DESCHUTES, an Oregon municipal corporalion,
DESCHUTESCOTTNTYBOARDOF
)
COMMISSIONERS, ALAN UNGER, TAMMY BANEY and DENNIS LUKE, individually and in their personal capacity for actions they took under color of state law, Defendants.
COMES NOW defendaยกt Patrick Flaherry, by and through his attomey, Keith
J.
Bauer, and in response to plaintiffs' complaint, admits, denies and alleges as follows: 1
Admits that plaintiffs Brentley Foster ("Foster"), Jody Vaughan ("Vaughan") and Phil Duong ("Duong") were employees of defendant County of Deschutes and worked 1-
DEFENDANTPATRICKFLAHERTY'S ANSWERANDAFFIRMATIVE DEFENSES
as
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Deputy District Attomeys in the Deschutes County District Attomey's Office in Bend, Oregon, and that their employment ended on January 3, 201 1. 2
Admits that defendant County of Deschutes (the "County") is a municipal corporation and
that
defendant Deschutes County Board
of
Commissioners
("Commissioners") is composed of three elected officials who serve as the goveming body of Deschutes County; that dwing 2010, the three County Commissioners were Alan
Unger ("Unger"), Tammy Baney ("Baney") and Dennis Luke ("Luke"); and beginning January 3, 2011, Tony Debone ("Debone") replaced Luke. J
Admits that defendant Patrick Flaherry ("Flaherty") was formerly employed in the Deschutes County District Attorney's Office as a Deputy District Attomey and as Chief
Deputy District Attomey and that Flaherty was previously a Deputy District Attomey in the Lincoln County Dishict Attomey's Office. 4
Admits that Flaherty ran in a contested race for the position of Deschutes County Dishict Attomey against the incumbent Dishict Attomey Michael Dugan ("Dugan") and that Flaherfy was elected to the position of Deschutes County District Attomey in an election which occurยกed in May 2010 and in which Flahefy received approximately 61 percent ofthe votes cast and Dugan received approximately 39 percent ofthe votes cast. 5
Admits that, following the May 2010 election, Flaherty invited a number of the deputy district attomeys employed by the Deschutes County District Attorney's Office to
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DEFENDANT PATRICK FLAHERTY'S ANSWER AND AFFIRMATIVE DEFENSES
Case 6:11-cv-06115-HO
submit resumes
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if they desired to continue to be employed
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as deputy district attorneys
in
the Deschutes County District Attomey's Office; and that he interviewed a number of the Deputy District Attomeys who had submitted resumes. 6
Admits that, on December 20,2010, defendant Flaherty sent correspondence to plaintiffs Foster, Vaughan and Duong, copies of which are atfached hereto as Exhibits A, B and C, respectively. 7
Admits that plaintiffs Foster, Vaughan and Duong supported Dugan during the course of the campaign and election of the Deschutes County District Attorney during the
election that was held in May 2010.
I Admits that there was a vote among the Deschutes County Deputy District Attomeys to form a union during 2010 and that the Commissioners first acted upon and approved a collective bargaining agreement
(.'CBA)
on January
19,201L
9
Flaherty does not have sufficient information and belief to admit or deny a number of the factual statements made by plaintiffs in their complaint and, at this time, save and except as so admitted, denies the rest and remainder of
plaintiffs' complaint and
the whole thereof. 10
Flaherty reserves the right
to further plead during the course of and
completion of discovery herein.
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DEFENDANT PATRICK FLAHERTY'S ANSWER AND AFFIRMATIVE DEFENSES
after
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F'IRST AF'F'IRMATIVE DEF'ENSE
(Failure to State a Claim) 11
Flaherty incorporates herein the admissions, denials and allegations set forth above. 12
Plaintiffs will be unable to prove ultimate facts at trial sufficient to suppof aay of
the claims contained in the complaint; wherefore, plaintiffs' complaint should
be
dismissed as a matter of law.
SECOND AFFIRMATIVE DEF'ENSE
(Qualified Immunity) 13
Flaherty incorporates herein the admissions, denials and allegations set forth above. 14
Flaherty is entitled to the defense of qualified immunity on plaintiffs' 42 USC
$
1983 claims because Flaherty violated no clearly established statutory or constitutional rights held by plaintiffs.
THIRD AFF'IRMATIVE DEFENSE (Oregon Tort Claims Act) 15
Flaherty incorporates herein the admissions, denials and allegations set forth above.
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16
Plaintiffs did not satisfy the requirements of ORS 30.275 wifh respect to their state-law claims.
FOURTH AI'F'IRMATIVE DEF'ENSE (Oregon Tort Claims Act) 17
Flaherty incorporates herein the admissions, denials and allegations set forth above. 18
Under the Oregon Tort Claims Act, plaintiffs may pursue theiยก statelaw claims
only against the State or County, ORS 30.265, and their rights to recovery on claims are capped by ORS 30.270.
those
.
FIFTH AFFIRMATIVE DEFENSE @leventh Amendment Immunity)
t9 Flahefy incorporates herein the admissions, denials and allegations set forth above.
20 Regarding plaintiffs' 42 USC g 1983 claims, Flaherly is immrme from liability under the Eleventh Amendment of the United States Constitution.
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SIXTH AÌ'F'IRMATIVE DEÌ'ENSE (Statutory Immunity) 21
Flalerty incorporates herein the admissions, denials and allegations set forth above. 22
Flaherty was graated statutory authority to select and appoint his own deputy district attomeys (oRS 8.780) and is immune from liability for the good faith exercise of that statutory right and duty.
SEVENTH AF'FIRMATIVE DEFENSE
(Individual Liabilify) 23
Flaherty incorporates herein the admissions, denials and allegations set forth above.
24
At all times relevant to the complaint, Flalerty was acting within the course and scope of his employment a¡d is, thus, not subject to individual liability pursuant to 42
usc
$ 1983.
JURYDEMAND 25
Flaherty demands that this case be tried by ajury.
WHEREFORE, having
fully
answered plaintiffs, complaint and the whole
thereof, Flaherty prays that plaintiffs take nothing and that Flaherty have judgment 6
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against plaintiffs for his costs, disbursements and attomey fees incurred in defending this
action and such other relief as the court deems just and equitable. Dated this 6th day of July, 201 1.
PARKS, BAUER, SIME, WINKLER & FERNETY, LLP
By:
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/s/ Keith Bauer Keith J. Bauer, OSB No. 730234 Of Attomeys for Defendant Patrick Flaherty
DEFENDANT PATRICK FLAHERTY'S ANSWER AND AFFIRMATIVE DEFENSES
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PATRICK J. FLAHERTY Deschutes County District Attorney - Elect 1222 NE 4th Street Bend, OR 97701 (541 )383-01 19
December 20,2410 Brentley Foster 3334 NW Bungalow Dr. Bend, OR 97701 Dear Ms. Foster: I regret to inform you
that I will not appoint you as a Deschutes County deputy district when I take attorney office on January 1,2O11. My appointments reflect my obligation and commÂĄtment to take ihe Deschutes County District Attomey's OfĂźce in the new direction upon which I campaigned. You should direct any questions you may have to the Personnel Department. I thank you for your service to Deschutes County and wish you well in your future professional endeavors.
Exhibit A
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PATRICK J. FLAHERTY Deschutes County District Attomey - Elect 1222N8 4th Street Bend, OR 97701 (541)383-0119 December 20, 2010 Jody Vaughn 5023 SW Quarry Avenue Redmond, OR
Dear Ms. Vaughn: I regret to inform you that I will not appoint you as a Deschutes County deputy district attomey when I take offìce on January 1 , 2011. My appointments reflect my obligation and commitment to take the Deschutes County District Attomey's Offce in the nèw direct¡on upon which f campaigned.
You should direct any questions you may have to the Personnel Department. I thank you for your service to Deschutes County and w¡sh you well in your future professional endeavors.
Exhibit B
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PATRICK J. FLAHERTY Deschutes Gounty Dístrict Atiorney - Elect '1222 NE 4th Str€et Bend, OR 97701 (541 )383-0r 19 December 20, 201 0
Phil Duong 1 I 10 NW Quincy Avenue Bend, OR 97701 Dear Mr. Duong: I regret to inform you that I will not appoint you as a Deschutes County deputy disirict attorney when I take office on January 1 ,2011. My appointments reflect my obl¡gation and commitment to take the Deschutes County Distr¡ct Attomey's Office in the new d irection upon which lcampaigned.
You should direct any questions you may have to the Personnel Department. thank you for your service to Deschutes County and wish you well in your future profess¡onal endeavors. I
Exhibit C
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CERTIFICATE OF SERVICE
I
hereby ceftiry that on the 6th day
of July, 2011, I
served the foregoing
DEFENDANT PATRICK FLAHERTY'S ANSWER AND AFFIRMATIVE DEFENSES on the following parties at the following addresses:
Andrew M. Altschul Attorney at Law Buchanan, Angeli, Altschul & Sullivan LLP 321 SW 4b Ave. Suite 600 Portland ORgT;04 Of Attomeys for Plaintiffs Foster and Vaughan Judy Danelle Snyder Attomey at Law 1000 SW Bยกoadway, Suite 2400 Portland OP.97205 Of Attorneys for Plaintiff Duong Peter R. Mersereau aยกd
Thomas W. McPherson Attorneys at Law MERSEREAU SHANNON LLP 1600 Umpqua B mkPlaza One SW Columbia Street Portland, Oregon 97258 Of Attomeys for Defendants Deschutes County, and Commissioners Unger, Baney and Luke by electronic means through the Court's Case Management/Electronic Case File system.
/s/ Keith Bauer Keith J. Bauer, OSB No. 730234 Of Attomeys for Defendaยกt Patrick Flaherty Parks Bauer Sime Winkler & Femety LLP 570 Liberry St SE, Suite 200 Salem OR 97301 (503)371-3502; Fax (503) 371-0429 kbauer@pbswlaw.com
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DEFENDANT PATRICK FLAHERTY'S ANSWER AND AFFIRMATIVE DEFENSES