Deschutes County responds to appeal in case against DA

The county says former deputy district attorneys were state employees, not county

By Shelby R. King / The Bulletin

Published Mar 21, 2014 at 12:01AM

The Deschutes County Commission doesn’t think it should be held financially responsible for lawsuits brought against District Attorney Patrick Flaherty by former employees, and it’s asking an appellate court to affirm that opinion.

Attorneys representing the board on Monday filed an answering brief with the Oregon Court of Appeals asking the court to uphold an original judgment that the County Commission was not liable in a 2011 wrongful termination lawsuit, in which the state Department of Administrative Services settled with three former deputy district attorneys for a total of $710,000. They had sued the county and Flaherty for wrongful termination, sex discrimination, violations of their First Amendment rights and unfair labor practices.

The lawsuit, filed by Phil Duong, Brentley Foster and Jody Vaughan in 2011, originally named Flaherty and the county. It states that the commissioners’ executive decision to delay a ratification vote on a collective bargaining agreement from December 2010 until after Flaherty took office in January 2011 constitutes a “breach of the covenant of good faith and fair dealing,” according to the court documents. The collective bargaining agreement would have limited Flaherty’s ability to terminate the deputy district attorneys without “just cause.”

The commissioners voted Dec. 8, 2010, to delay a ratification vote on the agreement. On Jan. 3, 2011, after Flaherty took office, he sent the plaintiffs each a letter stating he would “not be extending appointment to [them] as a deputy district attorney during [his] term of office,” according to the brief.

On Jan. 19, 2011, the commissioners voted unanimously to ratify the collective bargaining agreement, but by then the trio were no longer employed.

In April 2011, Duong, Foster and Vaughan filed a lawsuit in U.S. District Court in Eugene. The group originally asked for reinstatement and more than $22 million in damages.

The county moved to dismiss its inclusion in the plaintiffs’ complaint on the grounds that the DA and all deputy district attorneys are employees of the state, not the county, and therefore the county cannot participate in their termination. The trial court agreed, and the county was removed from liability in October 2011.

The plaintiffs pursued the lawsuit against Flaherty only. The DA opted to settle, and a final order was entered in August 2013. In January, the trio filed an appeal to the county’s removal from the lawsuit.

Thomas McPherson, an attorney at Portland-based Mersereau Shannon representing the county, explained in the brief why the county shouldn’t be held liable.

“As a matter of well-settled Oregon law, DDAs are employees of the State of Oregon. They are not county employees,” he wrote. “The DA, who is also a State officer, is vested by statute with the exclusive authority (a) to appoint DDAs who will work in his office and (b) to control the performance of their job duties.”

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