The campaign for Deschutes County district attorney officially ended in May when ex-prosecutor Patrick Flaherty defeated his former boss and longtime D.A. Mike Dugan. Seven months later, though, there are more questions than answers about how the district attorney's office, a vital piece of our local criminal justice system, will operate under Flaherty's leadership. With just a few weeks to go before the official transition, the county has yet to sign off on Flaherty's most important hire, a chief deputy to replace, Dugan's longtime right hand man Darryl Nakahira, whom Flaherty informed earlier this year that he would not be retaining past Dugan's term. Flaherty has already identified Portland area prosecutor Traci Anderson as his top choice for the post.
Anderson, whom Flaherty describes as highly qualified and highly recommended, was in town last week to take part in transition team meetings. But it's unclear if Anderson will actually be on Flaherty's team come January 1. That's because county officials, most notably, County Administrator Dave Kanner, have made clear that they are unwilling to oblige Flaherty's request to start Anderson at a higher salary than other deputy district attorneys - something that Flaherty says is necessary to bring in someone of Anderson's qualifications.
"In the past few days, we have received disturbing information suggesting that deputy district attorneys may have already begun extending favorable offers of settlement or adjusting assigned cases involving Ms. Wright's clients in anticipation of Mr. Flaherty taking office," Pilliod wrote to Kroger on Oct. 26.
The assertion came less than a week after Flaherty had penned a letter to the Deschutes County Commissioners informing them that he planned to exercise his authority as district attorney to hire and fire staff as he saw fit.
It's an issue that has been at the center of the transition discussion since late spring when speculation swirled that Flaherty would sack some of Dugan's staff. Rather than wait for the ax to fall, deputy prosecutors struck first, filing paperwork with the state to form a union. From the start it's been clear that the deputy prosecutors wanted only one thing from the union: job security. Since then, the negotiations with the county have centered on a so-called "just cause" provision. That clause, if adopted, would enumerate the exact circumstances under which Flaherty, or any other district attorney in Deschutes County for that matter, could fire one of the deputy prosecutors. The county already has a similar agreement with its sheriff's deputies, but the move by the deputy D.A.s to unionize is almost without precedent in Oregon, where most prosecutors serve at the pleasure of their employer. While the proposed contract has yet to be ratified by county commissioners, a vote could come as soon as next week, according to county staff.
Not surprisingly, the pending negotiations have inflamed tensions between the D.A.'s office and its soon-to-be leader, who ran on a pledge to change the way the office does business. In August, Flaherty fired back. He sent a letter on his law firm's letterhead to Nakahira. In the one-paragraph letter, Flaherty informed Nakahira, who as a supervisor wouldn't be covered by a collective bargaining agreement, that he wouldn't have a job in January. The news sent minor shockwaves through the district attorney's office, including the roughly two-dozen deputy D.A.s, nearly all of whom had publicly endorsed their boss's re-election bid. Dugan himself publicly rebuked Flaherty's intentions, questioning why he would put long serving and qualified prosecutors out on the street. Flaherty, in turn, called Dugan "vindictive" and speculated that the outgoing D.A. was behind the unionization effort - a sort of parting gift to his handpicked staff. Dugan has denied those charges.
If the standoff between Flaherty and the staff had ended there, it would have been enough to raise serious concerns about how the D.A.'s office would function come January. But it didn't end there. Since that time, both sides have raised the stakes. In late summer, Flaherty sent a letter to deputy prosecutors informing them that they would be required to reapply for their jobs. In the meantime, the county began meeting with the newly certified union, over Flaherty's objections, to begin hammering out the terms of a collective bargaining, the center of which was the just cause provision. While Flaherty was given a copy of the proposed contract to review, he was not invited to the table for negotiations. Flaherty put down his concerns about the proposed contract and his limited role in crafting the agreement in an Oct. 22 letter to County Administrator Dave Kanner. At the top of Flaherty's list of concerns was the issue of tenure.
"The CBA fails to explicitly and without ambiguity make clear that the district attorneys are "at will" employees as Oregon Revised Statutes, Oregon Rules of Professional Conduct, their current employment certificates and Deschutes County Personnel rules declare," Flaherty wrote.
County staff said they considered Flaherty's comments, but did not necessarily incorporate all of his suggestions. Flaherty submitted his comments on Oct. 22 and asked Kanner call to him so they could discuss some of the specifics of the contract that Flaherty believed needed work. Flaherty said he never heard back from Kanner or anyone else. On Nov. 1, Flaherty followed up with a letter to county commissioners asserting his authority and intention to adjust staff as he saw fit. County Administrator Dave Kanner fired back four days later, drawing a line in the sand.
"I am in receipt of your letter to the Board of County Commissioners... the cheerful tone notwithstanding, it is a patently transparent attempt to subvert and circumvent my authority as County Administrator," Kanner wrote.
For its part, the county staff has defended the handling of the union negotiations, including the incorporation of the controversial just cause provision in the contract over Flaherty's objections. County counsel Pilliod said the county was legally obligated to sit down with the prosecutor's union at the bargaining table. While the initial proposal submitted by the county didn't contain a "just cause" provision to protect the deputy D.A.s from arbitrary firing, it quickly became clear that was their number one priority, Pilliod said. In fact, the proposed contract makes no stipulation on wage increases for five years and allows the county commissioners to demand prosecutors pick up a larger portion of their health insurance costs, Pilliod said. In exchange for those concessions, the county was willing to offer the just cause provision sought by deputy prosecutors, Pilliod said.
"We felt it was in our advantage to bargain earlier when we had more leverage than later when we had less," he said.
The alternative, Pilliod said, was for the county to dig in its heels and allow the union to send the matter to binding arbitration, which would have put the terms of the contract in the hands of a third party.
"We felt that we were better off negotiating a complete package at the this time. Had we failed to do that, it leads to submitting the matter to binding arbitration. And if we got to that stage the concern from the county's perspective is that the result would be a much less favorable contract in total, he said.
But even if the prosecutors and county commissioners agree on the final language, it appears as though the central piece of the agreement is headed for a challenge. Flaherty confirmed recently that he has already informed several deputy district attorneys that he plans to let them go after the first of the year. Flaherty refused to say which attorneys he has informed of that decision, but one is believed to be Jodie Vaughan, the former head of the D.A.'s misdemeanor team. Vaughan was disciplined last year and transferred from her supervisor position after an investigation revealed that she had publicly berated several of her young female subordinates, three of whom ultimately left the office. At least two of the woman had taken their concerns to Vaughan's supervisor, Dugan's chief deputy Nakahira, who failed to take action against Vaughan. At the end of the investigation, Kroger's office, which represented Dugan in the matter, recommended that the state pay a six-figure settlement to one of the former prosecutors rather than face a lawsuit.
Vaughan has since been elected the president of the prosecutor's union. In the meantime, she took the unusual step of filing an affidavit with the Deschutes County District Court claiming that she didn't know how to proceed with a pending rape case involving a Redmond man who was being represented by Flaherty's wife. Dugan and county staff quickly circled the wagons. The D.A. contacted Kroger's office and asked that they step in to prosecute all cases involving Flaherty's law firm. Pilliod went a step further, raising the possibility that deputy D.A.s had been compromised by the situation and were already offering favorable deals to criminals represented by Flaherty's wife, while shuffling cases like a game of hot potato to avoid taking on work that involved Flaherty's firm. Rather than investigate, however, Kroger's office referred the matter back to Dugan.
Kroger's office let Pilliod know in a Nov. 15 communication that it was essentially taking a pass on the request.
"Dear Mr. Pillard (sic)... In response to your letter, we contacted the current District Attorney, Mike Dugan. We forwarded him your letter and offered our assistance in an investigation of criminal conduct if he felt it warranted. He thanked us for the offer, decided to look into the accusation on his own and would contact us in the future if he needs assistance," wrote Sean Riddell, Kroger's chief criminal counsel.
Pilliod's letter also specifically addressed Vaughan, whom Pilliod acknowledged had some "negative personnel issues in the last few years." However, Pilliod, who does not supervise Vaughan, said she has had "exemplary" reviews as a prosecutor.
"While we realize, at least at this point, both deputies are at-will and Mr. Flaherty can discharge them if he so chooses, our concern is that Ms. Vaughan is the president of the... newly formed union," said Pilliod.
Pilliod goes on to say that Vaughan and another deputy prosecutor, Brontley Foster ,believed to be targeted for dismissal, were "instrumental" in forming the union and getting it certified.
"If Mr. Flaherty decides to immediately discharge Ms. Vaughan and Ms. Foster after he takes office, he may be at risk of a claim for retaliation for exercising their right to participate in union activity," Pilliod wrote to Kroger's office in late October.
For his part, Flaherty said he's not really interested in speculating on what will happen after January, but he's adamant that he won't be beholden to a contract negotiated without his consent that ties his hands on staffing decisions.
"What I do know is that the district attorney's appointment authority is not limited and cannot be limited by a contract. I just don't believe there is any question about that," Flaherty said.
Pilliod said that if the county ends up on the end of a wrongful termination lawsuit as a result of Flaherty's staffing decisions, the county would be sending the bill to the state of Oregon, Flaherty's employer. A call to Kroger's office seeking comment about the situation was not returned last week.
In the meantime, Flaherty said he is forging ahead and hoping to avoid further controversy before Jan. 1. Recently, there have been some signs of a warming of relations, including Dugan's appointment of Flaherty as a special prosecutor to handle a high- profile murder case involving a St. Charles' employee.
"What I'd like to see happen in light of the very recent developments, and in light of Mr. Dugan appointing me, is to see the situation settle down so everyone can focus on the goal of ensuring public safety and ensuring that justice is done," Flaherty said.