HomeMy WebLinkAboutCommittee of the Whole January 13 20041
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
WHATCOM COUNTY COUNCIL
Committee Of The Whole
January 13, 2004
Council Chair Dan McShane called the meeting to order at 5:50 p.m. in the
Council Committee Room, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Barbara Brenner None
Laurie Caskey- Schreiber
Sam Crawford
Seth Fleetwood
Sharon Roy
L. Ward Nelson
Nelson moved to go into executive session to discuss the agenda items.
McShane stated he would leave the room during the conversation regarding
the BP Cogeneration plan because of a conflict of interest.
Motion carried 5 -0 with Brenner and Fleetwood out of the room.
1. DISCUSSION WITH THE ADMINISTRATION REGARDING A
PERSONNEL ISSUE (AB2004 -018)
2. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO SIGN
MEMORANDUM OF UNDERSTANDING EXTENDING THE EXPIRED
2000 -2002 COLLECTIVE BARGAINING AGREEMENT BY AND
BETWEEN WHATCOM COUNTY AND TEAMSTERS LOCAL 231,
SHERIFF'S SUPPORT STAFF BARGAINING UNIT THROUGH 2003
(AB2004 -054)
3. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO SIGN
MEMORANDUM OF UNDERSTANDING EXTENDING THE EXPIRED
2000 -2002 COLLECTIVE BARGAINING AGREEMENT BY AND
BETWEEN WHATCOM COUNTY AND TEAMSTERS LOCAL 231,
CORRECTIONS OFFICERS BARGAINING UNIT THROUGH 2003
(AB2004 -055)
4. DISCUSSION WITH CHIEF CIVIL DEPUTY PROSECUTOR RANDY
WATTS REGARDING LEGAL DEFENSE OF A COUNTY EMPLOYEE
(AB2004 -018)
McShane stated this item would not be discussed in executive session.
Committee of the Whole, 1/13/2004, Page 1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Randy Watts, Chief Civil Deputy Prosecutor, stated this is based on Whatcom
County Code 2.56. It requires the Council to make some findings, which the
Council can't do in executive session. He won't discuss the merits, only the
allegations.
This is a case of Margo Williams versus Whatcom County. In Roland
Middleton's answer, he's filed a counterclaim for defamation based on the fact that
he alleges the quid pro quo allegation is false, and Ms. Williams disclosed that to
people who were not privileged.
Nelson stated Margo Williams was a patient of his during this period. He
may need to recuse himself because of the client /patient relationship.
(Clerk's Note: Councilmember Nelson left the room.)
McShane stated some of the issues around this should be in executive
session. They are not in executive session now because they have to create
findings of fact.
Watts stated they are talking about allegations contained in a complaint,
which has been filed as a public record. Everything they're talking about is in the
public record.
There is an allegation in the complaint that Ms. Williams was required to
perform oral sex in an effort to keep her job. Mr. Middleton denies the allegation.
In his answer, Mr. Middleton files a counterclaim because Ms. Williams disclosed
this, his allegation of false information, to people who are not privileged, her
mother and a coworker, although she never reported it. Ms. Williams is asking
that the County defend her for the counterclaim. Thus comes the provision of WCC
2.56. In order to qualify for a defense, the findings would have to find that she
was acting in a matter in which the County had an interest. The question is
whether the County had an interest in her disclosing this act, if it occurred, to her
mother and another coworker.
Brenner asked if the County has an interest in defending Mr. Middleton if he
did it. Watts stated their allegation is that the County did because it was in
relationship to her keeping her job. Her allegation is that it was within the scope of
his employment and done for the benefit of the employer. Therefore, the County
provides defense of Roland. The language says that they can provide a defense
even if they find the activity is unlawful and illegal, provided it was within his
employment. The County has a reservation of rights claim because if it is found to
be true, it wasn't done within the scope of Mr. Middleton's employment, and he'll
have to pay the County back for the cost of the defense. The allegation is that it
was done in furtherance of the employer's benefit.
That's not the issue they're talking about, though. They're talking about
defending Ms. Williams for his counterclaim.
Committee of the Whole, 1/13/2004, Page 2
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Caskey - Schreiber stated there should be some limit of how many of these
lawsuits can go back and forth. The County suing the County is crazy. Watts
stated this is Mr. Middleton's claim that she disclosed a false allegation. Mr.
Middleton's allegation is that it's false, and that she told some people she wasn't
privileged to tell. That's defamation. He's alleging defamation.
Crawford asked if Mr. Middleton's allegation is based on evidence he has that
she told. Watts stated it is. It is based on sworn testimony.
Crawford asked the difference between defending Mr. Middleton and
defending Ms. Williams. Watts stated the Council has to find that the employee
was acting in a manner in which the County had an interest. Ms. Williams'
allegation is that Mr. Middleton acted as her supervisor. She's alleging that his
actions are the actions of the County.
Crawford stated the Council agreed with that.
Watts stated Mr. Middleton's allegation against Ms. Williams is that she
didn't have privilege to make a communication, not that she was required to do
something within her employment. She made a communication totally separate
and apart from being employed. The alleged communication was as a result of
something that occurred while she was employed, but her job didn't require her to
make that statement.
Crawford asked if Mr. Middleton hired his own attorney to go after her
regarding his counterclaim. Watts stated the attorney they hired to defend Mr.
Middleton has filed this as part of his answer. The County isn't going to pay the
attorney to prosecute the counterclaim. Mr. Middleton is paying for that.
Crawford asked if Mr. Middleton's claim is that she told people outside the
county, not other employees. Watts stated she told a coworker, and told the
coworker not to tell anyone. It wasn't as if she was trying to send it through the
chain for reporting.
Crawford asked if that's part of Mr. Middleton's counterclaim. Watts stated it
is. Ms. Williams also told her mother and another individual.
In order to provide coverage for Ms. Williams, the Council has to find that
Ms. Williams' disclosure is a matter the County has an interest in. The Council has
to also find that the official or employee must have been active in the discharge of
a duty imposed or authorized by law or the employment. The telling of other
people must have been done as a duty of the employment.
Crawford stated the answer on both of those is no.
Committee of the Whole, 1/13/2004, Page 3
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Watts stated criteria three doesn't apply if the answer to one and two are
no.
McShane asked if the Council has to have findings to defend Ms. Williams.
Watts stated that's correct.
McShane stated Mr. Watts is citing the code, which makes it sounds like Ms.
Williams wasn't acting at the behest of the County, so the County would not defend
her. Watts stated that if those are the Council's findings, that would be the result.
McShane stated it sounds that way.
Brenner stated the County is defending Mr. Middleton. If it turns out Ms.
Williams' is correct, the County shouldn't spend money to cause her to have to
spend all her money. If the County is defending Mr. Middleton, there shouldn't be
any countersuits until this is decided. If he prevails, then they can talk about a
countersuit for defamation.
McShane stated they need to focus on these findings, and whether they are
going to authorize a defense for her from Mr. Middleton's claim. If the Council
doesn't find the criteria Mr. Watts read, then they should say no to defending her.
Roy asked if they could argue that she wouldn't have had this claim made
against her in the first place if she weren't a County employee. Watts stated the
question is whether she was performing an official duty of her job when she
communicated the act. It's true that this wouldn't have happened to her if she
hadn't been an employee. However, that's not the allegation.
Roy asked if this is not a separate countersuit, and that it's embodied in Mr.
Middleton's response. Watts stated the counterclaim is embodied in his response.
That's the time one would file a counterclaim. If the counterclaim isn't brought up
during this action, it can't be brought up at all because they're supposed to raise
all the issues between the two at this time. It's an appropriate counterclaim that
the County is not attempting to control or pay for.
Roy asked if Mr. Watts is allowed to give the Council guidance on what he
thinks of the situation. She would like to hear Mr. Watts' thoughts. Watts stated
he can provide guidance. His guidance is that it's not an act that was done in
accordance with Whatcom County code 2.56, and Ms. Williams is not entitled to a
defense. If the act occurred while she was an employee, she had an opportunity to
make a privileged communication to Human Resources or someone else. The
allegation is that she didn't, and that she made communication to other people.
The only way there is liability is if it's false.
Brenner stated she didn't understand how they can go there about
defamation. Watts stated the County is not.
Committee of the Whole, 1/13/2004, Page 4
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Crawford stated that's Mr. Middleton's thing.
Brenner stated that if the County doesn't defend her, the County is giving
financial help to one side over the other side. She's not comfortable giving help to
one side over the other. If Ms. Williams prevails, his defamation claim goes out
the window, but she'll still have spent the money.
Crawford asked if there is any hope of counseling Mr. Middleton to hire a
separate attorney to handle the counterclaim as a separate case.
McShane stated they're deviating from what they should be talking about.
Crawford stated the answer is no to whether the situation meets the criteria
of WCC 2.56.
McShane moved to have findings that the County would not defend her
because there is a lack of findings to meet the criteria in WCC 2.56.030.
Brenner stated she would vote no on the motion.
Caskey- Schreiber stated the conversations were not part of her job.
Roy stated someone needs to explain why this defamation of character is
embedded in the initial lawsuit. Watts stated the countersuit is contained within
his answer, and he brings his countersuit. The County is not going to pay for the
prosecution of the countersuit.
Fleetwood asked if there is anything in the code that helps them define the
County's interest. Watts stated County interest is the pursuit of a County policy or
conducting something in conjunction with employment. One is attempting to gain
a result that the County has an interest in. Had she disclosed the act to a
department head or the Human Resources Division in an effort to be within the
official policy of a hostile work environment and sexual harassment, then the
situation would be different. Telling it to a friend and her mother, and then telling
them to not say anything, is not reporting the act. It's not acting within something
the County has an interest in her doing.
Motion carried 4 -2 with Brenner and Roy opposed and Nelson
abstaining.
S. DISCUSSION WITH SENIOR DEPUTY PROSECUTOR DAVID GRANT
REGARDING BP COGENERATION PLANT ISSUES (AB2004 -018)
Crawford moved to go into executive session to discuss this item.
Motion carried unanimously.
Committee of the Whole, 1/13/2004, Page 5
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at approximately 7:00 p.m.
Jill Nixon, Minutes Transcription
The Council approved these minutes on February 10 , 2004.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dan McShane, Council Chair
Committee of the Whole, 1/13/2004, Page 6