Former Deschutes County deputy DAs file appeal

Plaintiffs want to hold county, commissioners at fault

By Shelby R. King / The Bulletin

Published Jan 15, 2014 at 12:01AM

The three former Deschutes County deputy district attorneys who this summer settled a lawsuit with DA Patrick Flaherty for wrongful termination on Monday filed a joint opening brief in their appeal of the removal of the Deschutes County Commission from the lawsuit.

Phil Duong, Brentley Foster and Jody Vaughan allege that the commission’s executive decision to delay the ratification vote of a collective bargaining agreement scheduled for December 2010 until after Flaherty took office in January 2011 constitutes a “breach of the covenant of good faith and fair dealing,” according to court documents.

The plaintiffs, who filed the appeal in U.S. District Court in Eugene, claim that their support during the campaign for former DA Mike Dugan made them feel their jobs would be in jeopardy when Flaherty took office. To ensure they kept their positions, the deputy DAs voted to unionize and create a collective bargaining agreement that would prevent Flaherty from terminating their employment.

The collective bargaining agreement contained a “very broad ‘just cause’ termination provision,” according to the opening brief, that would have restricted the reasons the DA could fire DDAs following a one-year probationary period.

The county commission was scheduled to vote on the collective bargaining agreement on Dec. 8, 2010. Flaherty, before the vote, stated he would not be bound by the agreement, and the commission elected to delay its vote to ratify the agreement because commissioners wanted to hear from Flaherty before voting.

At a December commission meeting, then-Commissioner Dennis Luke suggested the Oregon Attorney General “seems to feel that the DA would be bound by the contract.” Luke also stated he believed the contract would allow Flaherty “flexibility in managing the personnel in his office” and believed the commission should ratify the agreement.

“Flaherty argued that because the contract limited his ability to make the staff changes he wanted, delaying the vote would lessen the county’s liability as he planned on replacing four of the current DDAs even if the (agreement) was in place and even if doing so was a clear violation of the ‘just cause’ termination provision,” according to the brief.

County Counsel Mark Pilliod then stated delaying the vote is essentially voting “no.” He told the commission Flaherty was going to fire who he wanted and “the ones who feel their rights were violated may sue at that point,” according to the brief.

Duong, Foster and Vaughan chose to sue Flaherty, the county and the commission — though the federal court ruled only Flaherty was liable — and, after two years, reached a settlement with the DA awarding them $710,000 total.

The commissioners unanimously voted to delay the ratification until after Flaherty was sworn in, even though, the brief alleges, they “knew that the decision to delay the ratification would result in the termination of well-qualified and well-respected DDAs, which would not be permitted if they ratified the contract, and knew that Flaherty’s motivation for these terminations was improper.”

The plaintiffs assert that the commission decided to delay the ratification of the collective bargaining agreement “in the (false) hope that such a result would limit the county’s financial responsibility,” according to documents. “It is well settled that government officials who have taken a sworn oath to uphold the law and protect their citizens are just as liable when they are more concerned with money than the people their actions harm.”

The briefing requests the judgment disallowing the commission to be named in the lawsuit should be reversed. It also requests the plaintiffs’ claims for relief against the county be allowed to continue. No hearing dates have been set in the appeal.

— Reporter: 541-383-0376, sking@bendbulletin.com