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2011-4-Minutes for Meeting December 15,2010 Recorded 1/3/2011DESCHUTES COUNTY OFFICIAL RECORDS CJ 7011'4 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 01/03/201108:19:58 AM 1111111111111111111111 III 2011-4 Do not remove this page from original document. Deschutes County Clerk Certificate Page 6 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, DECEMBER 15, 2010 Present were Commissioners Dennis R. Luke, Tammy Baney and Alan Unger. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Mark Pilliod and Chris Bell, County Counsel; Debbie Legg, Personnel; Patrick Flaherty, District Attorney-elect; several representatives of the local media and ten other citizens. Chair Luke opened the meeting at 2:30 p.m. 1. Meeting with Patrick Flaherty, District Attorney-elect, regarding Communication with the District Attorney's Office in 2011. Patrick Flaherty said that first, do no harm, stop and make certain what is happening. It may be better to do nothing than to risk causing more harm. He thinks this saying applies to this situation. There is no compelling reason for the Board to take action on the proposed union agreement before he takes office. Today is not a deadline to make this decision. This will not impact the Board's ability to either ratify or reject the contract. There are compelling reasons to delay taking action. The contract has no impact on the outgoing District Attorney, but it will impact the incoming D.A. substantially. It will negatively impact his ability to appoint Deputy District Attorneys. Commissioner Luke asked why he feels this way. Mr. Flaherty said as a practical matter, after an appointment is made and a vacancy is created, the County has to accept the new appointment and pay a salary. He feels if the contract is signed, it will impede his ability and sets up taxpayers for expensive litigation. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 1 of 11 Pages Commissioner Luke asked why this would affect the ability to appoint someone. If there is no position in the budget, it cannot be done anyway. Mr. Flaherty said the appointments now in place expire when the current D.A. leaves. Statute 8.870 requires that the District Attorney "shall" appoint Deputy D.A.'s. He stated that there will be a few that will not be offered an extension. He does not think the voters want to be saddled with this situation. At a minimum, they would want the new D.A. to be involved in the negotiation process and sit down at the bargaining table to figure out how this impacts the D.A.'s Office. He is just a private citizen at this point, but believes the voters would want him to take part in these negotiations. He feels there is no reason to rush into this contract prior to January. Commissioner Luke said the only way the D.A. can take part in the negotiations is if the contract is rejected. The union could ask for an impasse at that point, and it could go to an arbitrator. The arbitrator takes what is felt to be the best agreement and often supports the union. It will be approved, but it is a matter of who decides what the agreement will be. Mr. Flaherty said that at some point maybe there might be this scenario, but he feels that there is no need to act right now. There is a total of 150 days allowed, which goes into February. There has been dialogue and he has made his position clear. He needs the opportunity to engage in the bargaining process, as it will affect his department substantially. He has had no input in the process at all. On the surface, the whole concept of changing the long-standing practice and custom in personnel rules and throughout the country from "at will" to a contract for cause does not make good sense. He wants to be involved in the process. Commissioner Luke stated that he understands that if this is postponed, if there are discharges in January with people in the union, there could be a filing with the Employee Relation Board declaring retaliation for union activities, which could take a lot time to address. This leaves the status in the air. Mr. Flaherty believes that lawsuits may be filed. If the current status of "at will" to a tenured position is changed, this guarantees expensive litigation. The second point is that he will not be discharging anyone when he takes office. He will be making appointments. Four of the eighteen will not be receiving appointments. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 2 of 11 Pages Commissioner Luke asked for a copy of the Statute that was named, which was provided. Commissioner Unger said that the legislature created binding arbitration for Deputy D.A. unions, putting them on the same level as police and fire so the system can move forward. There needs to be basic binding arbitration and they have some rights already, under civil service and labor laws per statute. They formed the bargaining unit, which has been recognized by the State. The County bargained with them and got a very fair contract. They wanted a "just cause" provisions. Four other counties have this already, so it is not something new. Whether this agreement is accepted or another one is developed, there will be a "just cause" provision, and other things might not be so favorable to the County. If the Board accepts this contract, Mr. Flaherty will go into office and there will be some who do not get appointed. There will then probably be a grievance and an unfair labor process filing. At that point, there may be a process of deciding and clarifying the authority of the D.A. The law is silent to this and a case is needed to clarify this issue in State law. It would help if there already was case law to depend on. Commissioner Unger feels this could end up being a test case. If the contract is not approved, it will be a case of the County not working in good faith, or it will end up in litigation in some form, either through a grievance or the ERB and outside arbitration. Mr. Flaherty stated that he feels if contract is signed, there will be litigation. The Deputy D.A.'s signed on as at-will employees and knew the policies and practices, subject to the direction of the D.A. as a political office. He feels there are no grounds for a lawsuit if he decides not to appoint them. There have been crystal ball projections made that he disagrees with. If it goes to arbitration, there is no way to know if it will be worse for the County. There is no case showing this. An arbitrator may agree with the D.A. on standard practice in the state and the U.S. He feels that an arbitrator will support the D.A.'s authority. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 3 of 11 Pages Commissioner Luke noted that the Statute shows the Deputy D.A.'s share the D.A.'s qualification and duties, subject to the D.A. There is nothing in the Statute that talks about un-appointing them. He asked if Mr. Flaherty believes that all of the appointments expire. Mr. Flaherty said that it says that the D.A. "shall appoint", and this is consistent with practice. The D.A. is a State official. Commissioner Baney pointed out that the County is asked to pay their salaries and provide office space. Commissioner Unger asked if the Deputy D.A.'s are considered "at will" employees. Mark Pilliod replied that he can only speak to County policy. He has not examined what happens across the nation. Some locales have offered some protection to these employees, so there are exceptions to the "at will" status. County policy and Code provide now that they are "at will" employees. If the Board ratifies the contract, that condition would be nullified. Commissioner Luke asked if they are members of a protected class and also "at will", what happens. Mr. Pilliod replied that this is subject to exception by the Court and by Statute. Protected classes, such as those defined by race, sex, religion and so on, cannot be a part of this. There are limitations on the "at will" concept, and there are ways for employees to deal with discrimination. Commissioner Unger said that it seems like there will be an appointment process and some will not be reappointed. He asked what their recourse might be. Mr. Pilliod continued that potential liability cannot be discussed by counsel in a public session, but a person could submit through a court or other tribunal that the failure of an appointment would be considered a discharge. The court may or may not be drawn into the situation. He said this has never come up while he's worked for the County. He is not aware if a D.A. has to reappoint at all, but has not studied this. Mr. Flaherty asked that the contract be delayed to allow him to get into office. Commissioner Luke stated that he believes the contract still gives the D.A. a lot of flexibility in managing the personnel in his office. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 4 of 11 Pages Mr. Flaherty disagreed. He wants the opportunity to review the contract. He knows some effort was made to define the concept of "just cause" that is not found in a typical labor agreement. This is replete with interpretations of application and is seldom seen in these types of agreements. Commissioner Baney clarified that a copy of the contract and the language was extended to Mr. Flaherty for him to provide comments. That opportunity was given. Commissioner Luke pointed out that public comments were welcomed at the Board meeting last week, and the contract has been available on line for some time. There was also written correspondence and a-mails received. Mr. Flaherty conceded that he did see the contract and provided some comments. Commissioner Unger said that as he looks at it, there are three choices. Rejecting or delaying approval says the same thing. Commissioner Luke added that if it is rejected, it goes back to negotiation since the union already approved it. Mr. Pilliod said that the parties would be required to return to the bargaining table. If the 150 days expires with agreement, it will then be resolved through the court in binding arbitration. Commissioner Luke stated that the County would have to submit a final offer, the union would do the same, and the arbitrator will decide what is best. Mr. Pilliod noted that it would probably be different for the union, as the agreement was based on the premise that the County would agree to "just cause" and a grievance process; the union agreed to all other provisions. The resulting document, which is very favorable to the County, was very different from the original agreement. The union would probably want to go back to the original document. Mr. Kanner said that the arbitrator would compare the agreements to comparable ones in the State, and would select one that is most like what is already out there. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 5 of 11 Pages Commissioner Baney asked if they would look at the current agreement. Mr. Pilliod said that this is why the situation is so unusual. The fundamental posture was for them to agree to just about everything as long as "just cause" was included. The assumption was that it would be ratified by year-end. It is a principle in bargaining that the parties do not backtrack. The union would take the position that they should be able to do that. The County could argue that this is regressive bargaining. It is unclear and a dilemma. Mr. Kanner said that about half of the employees in the D.A.'s Office are in a union, but they are not Deputy D.A.'s. Commissioner Luke stated that another option is to approve it. Another option is to delay the vote. A concern was raised that if the vote is delayed, it is too close to the deadline to allow for negotiations. Mr. Pilliod stated that it does not bind the County or County officials. The Deputy D.A.'s would have no protection at that point. A delayed vote is in essence a "no" vote. Mr. Flaherty will take whatever action he wants, and the ones who feel their rights were violated may sue at that point. Commissioner Luke asked if some are discharged or not appointed, and there was already a union vote, how would they then vote again. Mr. Pilliod replied that the union was certified by the ERB. Just because the vote is delayed, even with the change in membership this action is not dissolved. Commissioner Luke noted that some people who took part in the union organization could say they are subject to retaliation for union activities. Mr. Pilliod said that they would have to convince the ERB that not being reappointed is equivalent to a discharge. They would most certainly file this, as it is a protected activity. Commissioner Luke said that just because the D.A. changes does not necessarily mean that the appointment changes. When the County hires a new employee, they get an appointment letter. Mr. Kanner said that it points out starting salary and benefits. The D.A. uses a different appointment form. Commissioner Luke asked if the letter says they are "at will". Debbie Legg confirmed that it does. Mr. Pilliod added that the union agreement would change this. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 6 of 11 Pages Commissioner Unger asked what the County would do with the four people who do not get reappointed. Mr. Kanner stated that one is a supervisor and is not covered by the bargaining agreement. There is an additional process for the others. Commissioner Unger asked if they get a letter of termination. Mr. Kanner replied that if the contract is delayed or rejected, the appropriate personnel forms would be used. If the contract is approved, the D.A. still has the right to terminate, but there is a process to follow. He would certainly want to discuss potential liability in executive session. Commissioner Luke said that the Attorney General seems to feel that the D.A. would be bound by the contract. Mr. Flaherty stated that the e-mails forwarded from Mike Dugan are not from the Attorney General. Commissioner Luke asked what would happen if the agreement had been approved two years ago; would it still be binding? Mr. Flaherty said that the same argument could be made. They started the union for the purpose of obtaining job security, which undermines the outcome of the election and the authority of the D.A. Mr. Kanner said that they are State officials, but are paid by the County and fall under County rules. There are many tests to determine how this could be handled. The employment liabilities of the D.A. are liabilities of the State, not the County. Typically mandatory are grievance procedures, wages and benefits and so on, as determined by the Employment Relations Board. Mr. Flaherty said that these individuals were put on notice, and cannot make false claims because of that. This part of the negotiations should be addressed again. Mr. Pilliod said that negotiating part of the contract means that negotiations on all of it are open again. Commissioner Unger stated that he wants to support Mr. Flaherty but needs to do what is right for all. Commissioner Baney said that the number one function of the office is public safety. She wants the D.A. to be successful. The issues are far greater than those discussed today. Mr. Pilliod stated that, as a member of the management team negotiating in good faith a very management-friendly agreement, he and the team recommend that the contract be ratified. Mr. Flaherty and a few other citizens left the room at this time. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 7 of 11 Pages 2. Decision regarding Document No. 2010-718, a Labor Agreement with the District Attorneys Association. Commissioner Unger stated that the team has put together an excellent agreement for the County. It provides a process for a wide range of just cause issues that recognize some issues raised today, and a grievance procedure that can move the issues through quickly. This puts the agreement under a different light than an arbitrator or the ERB would. He believes that if the contract is ratified, there will be issues to address in any case. He thinks there might be litigation for a long time. He is concerned about potentially greater exposure and litigation against the County if the agreement is not ratified, although there could be litigation in any case. The contract was drawn in good faith, and there is a process to follow if there is litigation. There is a concern about a State official functioning in his office, but there are also County employees to consider. There may be allegations of the Board being complicit with the D.A. if the agreement is not approved. This could reflect unfavorably on the County. He sees that if the contract is rejected, it could put the County in the position of having to deal with labor law regarding good faith, and there might be all kinds of issues in the future with the ERB. This could all take a very long time. The County could be held liable for back pay and attorney fees to a greater extent. He feels the County is stuck between a rock and a hard place, but it is in the best interest of the County to ratify the agreement and let things move forward. Mr. Kanner added that bargaining has concluded. It was done in good faith in a timely manner. Delay or rejection does not constitute bad faith bargaining, as ratification is not a part of the bargaining process. Commissioner Unger asked if there is further liability if it is delayed. Commissioner Luke stated that he does not believe the Board should reject it. It was done in good faith, and there will be a contract one way or another. The next one might not be as good. He respects the new D.A. but disagrees with some of his opinions. Electing the D.A. did not necessarily mean the voters wanted others to be fired. There is concern on how this might affect the backlog of cases as well. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 8 of 11 Pages He said that the County is fortunate in that it has not had to go into binding arbitration in the past. Other bargaining units would have better pay and benefits had that happened. Jefferson County had to do this and had to lay off deputies because of it. He agreed that ratification is not part of bargaining in good faith. There are three or four other bargaining units that are watching what happens here, and this could affect what they do in the future. Some are much bigger and more powerful. There is a bigger picture to consider, one that could negatively affect the County in many ways. He feels that the unions have treated management fairly and visa versa, recognizing the limitations of the economy and other issues. Rejecting the contract is not wise because he is not willing to just roll the dice to see what an arbitrator might do. He agrees it should be approved, either today or later. He will be a private citizen then and will have to live with whatever results. Commissioner Baney said she is not in favor of moving forward today. It is important that this was done in good faith, but it is unfortunate that they are there today talking about another union. She is proud of the work done by staff, and many of the components are favorable to the County. The biggest issue is that this is a contract not for today, and time needs to be taken. The current D.A. was not involved in negotiations. There is a responsibility to wait for the new D.A. to be involved. There has been a lot of talk about litigation, but it is not known what the ramifications might be. She is not as fearful about this as others. Commissioner Luke said that some publications seem to think this is still the 1920's or 1930's. Unions have played a very necessary role in this country. He has a problem only with unions that get out of hand; but unions as a whole have raised the level of employees and improved working conditions for many. Commissioner Unger stated that he appreciates those comments. He has said before that they will have to live with this for a long time. There will be others that will be challenging to the budget. There is an issue of the D.A. looking forward to appointing who he wants, but there will be fallout from that and some litigation resulting. The contract would address a lot of issues that will come up eventually, that are now favorable to the County. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 9 of 11 Pages Ratifying the contract will set the D.A.'s office on a good path to deal with issues for years to come. There will be initial issues to deal with no matter what. However, looking into the future and other potential matters, it is better for the County to ratify this now. The process has been good and fair, and the rules of the State have been followed. UNGER: Move approval of ratifying the agreement. The motion died for lack of a second. BANEY: Move to postpone this action until the second regular business meeting in January. UNGER: Second. VOTE: UNGER: Yes. BANEY: Yes. LUKE: Chair votes yes. 3. Update of Commissioners' Meetings and Schedules. None were discussed. 4. Other Items. None were offered. The meeting adjourned at 4:25 p.m. Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 10 of 11 Pages DATED this r6 Day of j 1~ `lam 2010 for the Deschutes County Board of Commissioners. Dennis R. Luke, Chair a I j" [)_AAf~ Alan Unger, Vice Chair a ATTEST: Tammy Baney, Com sioner Recording Secretary Minutes of Board of Commissioners' Work Session Wednesday, December 15, 2010 Page 11 of 11 Pages h Q .n d ~o N v v N E ° a N a~ v ~ o CL N ~ n Ul N L 4 ~l C •(O it (U 1 < N "k! 1 `V co a au L Q.1 1~ Q) CL Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 2:30 P.M., WEDNESDAY, DECEMBER 15, 2010 - please note later time 1. (Tentative) Meeting with Patrick Flaherty, District Attorney-elect, regarding communication with the District Attorney's Office in 2011 2. Decision regarding Document No. 2010-718, a Labor Agreement with the District Attorneys Association 3. Update of Commissioners' Meetings and Schedules 4. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; or ORS 192.660(2) (b), personnel issues. Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. !f you have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. ,~y~Es c wgG Za Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora AGENDA REQUEST & STAFF REPORT For Board Business Meeting of December 8, 2010 Please see directions for completing this document on the next page. DATE: December 1, 2010 FROM: Dave Kanner Administrator ext. 6565 TITLE OF AGENDA ITEM: Public Comment and consideration of approval of Document No. 2010-718, a Collective Bargaining Agreement between Deschutes County and Deschutes County District Attorney's Association, effective through June 30, 2015. PUBLIC HEARING ON THIS DATE? Yes. BACKGROUND AND POLICY IMPLICATIONS: Earlier this year, deputy district attorneys (DDAs) in the Deschutes County District Attorney's Office petitioned the Employment Relations Board for an election to certify a new bargaining unit to represent the DDAs. The election was held, the union formation was approved by a vote of 10-5 and at the end of September, the ERB certified the new bargaining unit. Following certification, the County, as required by ORS 243, negotiated in good faith with representatives of the new union on a collective bargaining agreement, which has since been ratified by the union. Because DDAs are strike-prohibited under Oregon law, the County faced a stark choice between negotiating an agreement with the new union that we could seek to make as acceptable as possible, or having an agreement imposed on us by an unelected arbitrator, possibly from out-of-state, and likely unacceptable to both the County and the DA. It quickly became clear in these negotiations that the one and only issue that mattered to the union was a "just cause" provision; that is, contractual language spelling out the circumstances under which deputy DAs can be removed from their jobs. Given the likelihood that a contract imposed onus by an arbitrator would contain onerous and unfavorable "just cause" language, we instead worked with the union to create "just cause" language that would be acceptable to all concerned. The resulting contract consists mostly of language written and/or proposed by the County, including the articles on Discipline and Discharge and Grievance Procedure. It is an unusual contract in that it contains no guaranteed pay increases, no guaranteed benefit levels (in fact, the contract devotes only three sentences to wages, compensation and benefits), no guaranteed paid time off and no seniority rights; in fact, almost none of the things one normally sees in a public employee union contract. The contract does, however, contain a lengthy and detailed set of management rights. FISCAL IMPLICATIONS: The contract has no direct fiscal impacts, as it contains no guaranteed pay or benefit levels other than those of non-represented management employees. RECOMMENDATION & ACTION REQUESTED: Approval and signature of a Collective Bargaining Agreement between Deschutes County and Deschutes County District Attorney's Association, effective through June 30, 2015. ATTENDANCE: Dave Kanner, County Administrator Mark Pilliod, County Counsel DISTRIBUTION OF DOCUMENTS: County Counsel's Office COLLECTIVE BARGAINING AGREEMENT BETWEEN DESCHUTES COUNTY AND DESCHUTES COUNTY DISTRICT ATTORNEYS' ASSOCIATION Effective through June 30, 2015 Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 1. PREAMBLE AND SCOPE A. This Agreement is entered into by and between DESCHUTES COUNTY, a political subdivision of the State of Oregon, hereinafter referred to as "County", and the DESCHUTES COUNTY DISTRICT ATTORNEYS' ASSOCIATION, hereinafter referred to as "Association," and shall be in effect through June 30, 2015. B. This Agreement shall apply only to regular full-time deputy district attorneys employed in the Deschutes County District Attorney's Office, excluding elected officials, supervisors, volunteers, and temporary employees, hereinafter referred to as "Members." 2. RECOGNITION The County recognizes the Association as the sole and exclusive representative with respect to wages, hours and specified conditions of employment for Members. 3. ASSOCIATION DUES A. As a condition of employment, every employee within the bargaining unit must, commencing with employment, either (1) become a Member of the Association and sign and deliver to the County an authorization allowing the deduction of the Association's monthly dues from their pay; or (2) sign and deliver to the County an authorization allowing the County to deduct from their pay a fair share fee in lieu of dues. B. Notwithstanding the above, the Association expressly agrees it will safeguard the rights of non-Members based upon bona fide religious tenets or teachings of a church or religious body of which such employee is a member. Such employees shall pay the fair share fee referred to above to a non-religious charity mutually agreed upon by the employee making such payment and the Association, or in lieu thereof, the employee shall request that such fair share fee payments not be deducted and shall make such payment to a charity as heretofore stated and shall furnish written proof to the Association and the County, when requested, that this has been done. C. The amounts to be deducted pursuant to this Section shall be certified to the County by the Treasurer of the Association, and the aggregate deductions of all Members and non-Members shall be remitted to the Treasurer of the Association by the County not later than the 101h day of the following month after such deductions are made. The amounts to be deducted by the County shall be determined in accordance with the provisions of the Association's bylaws. D. The County agrees to furnish the Association a listing of all bargaining unit employees covered by this Agreement upon request of the Association. E. The Association agrees that it will indemnify, defend and hold the County harmless from all suits, actions, proceedings or claims against the County or persons acting on behalf of the County, whether for damages, compensation, reinstatement, or any combination thereof, involving the application of this Section. In the event any forum decides that any part of this Section is invalid and/or that reimbursement of the fair share fee to non-Members must be made to employees affected, the Association and its Members shall be solely, jointly and severally responsible for such reimbursement. Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 4. REPRESENTED EMPLOYEE RIGHTS A. Members shall have the right to form and join the Association, as well as the right to participate in Association activities which relate to matters of "employment relations" as defined in ORS 243.650(7). Members shall also have the right to refuse to join or participate in the activities of the Association. No Member shall be interfered with, intimidated, restrained, coerced, or discriminated against by either the County or the Association because of the exercise of these rights. B. The provisions of this Agreement shall be applied equally to all employees without discrimination as to age, marital status, race, color, sex, creed, religion, national origin, disability, sexual orientation, Association affiliation, or any other classification protected by Oregon or Federal law, except for bona fide job requirements. 5. MANAGEMENT RIGHTS A. The District Attorney and the County each retain all the customary, usual and exclusive rights, decision-making prerogatives, functions, and authority connected with, or in any way incident to their responsibility to manage the affairs of the District Attorney's Office. The County and the District Attorney shall have no obligation to bargain with the Association with respect to any such subjects or the exercise of it's or the District Attorney's discretion and decision-making with regard thereto. The express provisions of this Agreement constitute the only limitations on the rights of the County and District Attorney to manage the business and affairs of the District Attorney's Office. The rights of Members are limited to those specifically limited by the terms of this Agreement. Any subjects covered by the terms of this Agreement are closed to further bargaining for the term hereof, and any subject which was or might have been raised in the course of collective bargaining, except as provided in ORS 243.698, with section (4) of the statute modified by changing the 90-day period to 30 days. B. Without limitation, but by way of illustration, the exclusive prerogatives, functions, and rights of the District Attorney shall include the following: 1. To determine the services to be rendered by the District Attorney's Office and its employees to the citizens of the County and State of Oregon. 2. To direct and supervise all operations, functions and policies of the District Attorney's Office in which Members are employed. 3. To close or liquidate an office, branch, operation or facility, or combination of facilities, or to relocate, reorganize or combine the work of divisions, branches, operations or facilities for budgetary or other reasons. 4. To determine the need for a reduction or an increase in the work force. 5. To determine the method and manner under which a reduction in work force will be performed. 6. To implement new, and to revise or discard, wholly or in part, old methods and procedures. 7. To assign and distribute work. 8. To assign shifts, workdays, hours of work and work locations. Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 9. To designate and to assign all work duties. 10. To introduce new duties and to revise job descriptions and duties. 11. To determine the need for new employees, transfers and promotions. 12. To determine the qualifications for employees, as well as for transfers and promotions. 13. To discipline, suspend, demote or discharge an employee with just cause as defined in Section 13 of this Agreement. 14. To determine the need for additional educational courses, training programs, on-the-job training and cross-training, and to assign employees to such courses or training for periods to be determined by the District Attorney. C. Without limitation, but by way of illustration, the exclusive prerogatives, functions, and rights of the County shall include the following: 1. To fix the budget of the District Attorney's Office and the number of positions and full-time equivalent employees budgeted in the District Attorney's Office. 2. To implement the District Attorney's decisions with regard to a reduction in force. 3. To establish, revise and implement standards for hiring, classification and promotion. 4. To establish, revise and implement levels, grades and standards for monetary and non-monetary compensation and employee benefits. 5. To establish, revise and implement programs concerning paid and unpaid leave, holidays, and other types of employee leave. 6. To provide as the County determines necessary, and in its sole discretion any furnishings, fixtures and equipment to be used and any matters concerning limitations or conditions for their use. 7. To maintain order and efficiency in its work sites, facilities and operations. 8. To make such reasonable rules and regulations, not in conflict with this Agreement, as the County may from time to time deem best for the purposes of maintaining order, safety, and/or effective operation of County facilities, and after advance notice thereof to the Association and Members, and to require compliance therewith by Members. D. Any of the rights, powers, authority and function the County and the District Attorney had prior to the negotiation of this Agreement are retained by the County and the District Attorney and the expressed provisions of this Agreement constitute the only limitations on the rights of the County and the District Attorney to manage the business of the District Attorney's Office. Should the County or the District Attorney not exercise the rights, powers, authority and functions reserved to them, or should they exercise them in a particular way, Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 such conduct shall not be deemed a waiver of said rights, powers, authority and functions by the County or the District Attorney, nor shall such conduct be deemed or considered a waiver of their right to exercise them in some other way not in conflict with a specific provision of this Agreement. 6. NO STRIKES AND NO LOCKOUTS A. The Association and Members are prohibited from striking or recognizing the picket line of a labor organization pursuant to ORS 243.736. The Association and Members, as individuals or a group, will not initiate, cause, promote, permit, participate in or join in any strike, work stoppage, or slow-down, picketing, or any other restrictions or work at any location. Members, while acting in the course of their employment, shall not honor any picket line, except that such picket line may be honored if crossing the picket line would be unreasonably dangerous or hazardous. B. The County and the District Attorney each agree there will be no lockouts of Members during the term of this Agreement. C. In the event of strike, work stoppage, slow-down, picketing, observance of a picket line, or other restriction of work in any form, either on the basis of individual choice or collective employee conduct, the Association will immediately use every good faith effort to secure an orderly return to work. This obligation and the obligation set forth above shall not be affected or limited by the subject matter involved in the dispute giving rise to the stoppage, or by whether such subject matter is or is not subject to the provisions of the Agreement. 7. ASSOCIATION BUSINESS A. Members elected to serve as authorized representatives of the Association shall perform their duties as representatives of the Association on their own time, except as provided in subsection B of this Section. The Association negotiation team shall be comprised of no more than three (3) Members, who shall be deemed to be negotiating on their own time. B. The County shall allow not more than a combined total of fifty (50) hours per fiscal year to the authorized representatives of the Association for the purpose of conducting Association business. Scheduling of time for Association business shall be by mutual agreement with the Association representative's supervisor and shall be documented on payroll records the same as any other time-off request. C. The County shall allow the use of the phones, copier, tape recorders and fax machine located in the District Attorney's Office for Association business. The Association shall reimburse the County for all expenses. The Association will keep track of all expenses incurred on the County's equipment and will submit an accounting, along with full reimbursement for such expenses, within thirty days of incurring the expenses. D. The Association shall notify the County in writing of its staff representative and its officers. The Association representative may be granted reasonable access to the County's physical work premises during working hours to conduct Association business, but shall observe any and all security regulations of the County and shall not interfere with the normal flow of work. 8. BULLETIN BOARD The County agrees to maintain a bulletin board to be used by the Association. Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 9. WAGES, COMPENSATION AND BENEFITS A. Effective at execution of this Agreement all Members shall remain in their current pay grade. In the event non-represented County management employees receive a cost of living increase, the same shall be provided to Members. B. The County agrees to provide salary step increases within the applicable pay grade and paid leave to Members in equal measure to that provided to County non- represented management employees. 10. INSURANCE A. Members shall be entitled to County health, life and LTD insurance. The health insurance, which includes medical, dental, orthodontia, vision, and prescription coverage, is currently provided through the self-funded Deschutes County Employee Health Plan. B. The Member health insurance premium contribution will be no greater than $95.00 per month for the 10/11 contract year, no greater than $110.00 per month for the 11/12 contract year, no greater than $125 per month for the 12/13 contract year, no greater than $140 per month for the 13/14 contract year and no greater than $155 per month for the 14/15 contract year. If the Board of County Commissioners establishes a monthly premium contribution for non-represented management employees that is less than the above stated maximums, Members will pay the lower rate. C. Throughout the duration of the contract, the Association will have one (1) Member on the County Employee Benefit Advisory Committee. D. Insurance benefits will be provided to Members under the same conditions and/or restrictions as provided to all non-represented County management employees. If coverage is adjusted and/or modified for non-represented County management employees, the same will apply to Members. E. In addition to health insurance and other insurance, the County will make available to Members a qualified IRS 125 Plan. 11. REDUCTION IN WORKFORCE A. In the event a reduction in workforce becomes necessary, the manner and method of the reduction shall be determined by the District Attorney, in his or her sole discretion. B. In the event of a reduction in workforce pursuant to this Section 11, the District Attorney and the County agree to make a good faith effort, and when it is feasible to do so, to provide thirty (30) days' advance notice to Members, and the Association of their intent to permanently or temporarily reduce the attorney workforce of the District Attorney's Office as a result of inadequate funding or for operational reasons. The County and the District Attorney will attempt to provide sixty (60)-days' advance notice of any such layoff; but the Association, the County, and the District Attorney each recognize that such sixty (60)-day advance notice may not be possible. 12. GRIEVANCE PROCEDURE A. A grievance is defined as an allegation that a specific provision of this Agreement Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 has been violated. B. A day is defined as a calendar day. C. In an effort to provide for resolution of disputes, the parties agree to the following procedures: Step is Any Member claiming a breach of any specific provision of this Agreement ("grievant") may refer the matter, in writing, to their immediate supervisor outside the bargaining unit within fourteen (14) days from the occurrence of the alleged breach. A grievant shall also provide a copy of the written grievance to the Association. The grievance shall, at minimum, specify the article and section of the Agreement alleged to have been violated, provide a recitation of facts the grievant believes demonstrate such violation, and specify the requested remedy. References such as "any other provision of the Agreement" shall not be considered specific and shall be deemed inadequate to invoke the provisions of this Section. A Member may submit a grievance only on behalf of him/herself and not on behalf of any other Member or group of Members. The Association may file a grievance on behalf of any Member or group of Members. The supervisor shall respond to the grievance in writing as quickly as possible, but no later than fourteen (14) days after the grievance is received by the supervisor. Step 11: If, after fourteen (14) days from the date of the delivering of the grievance to the supervisor, the grievance remains unadjusted, the grievance may be submitted within fourteen (14) days to the District Attorney, along with a written statement as to why the supervisor's Step I response does not adequately resolve the grievance. The District Attorney shall meet with the grievant, who may request an Association representative at the meeting. The meeting between the District Attorney and the grievant shall be within fourteen (14) days of the District Attorney's receipt of the written grievance. The District Attorney shall respond to the grievance in writing within fourteen (14) days of such meeting. The Step It grievance shall be limited to facts and evidence provided at Step I, except that evidence that was not discoverable at Step 1 may be introduced if discovered after the Step 1 response. If the grievant or the Association intends to introduce such evidence after Step 1, the grievant or the Association shall have the burden to establish such evidence was not discoverable at Step 1. Any allegation of a breach of this Agreement introduced at Step 11 that was not presented at Step i shall be considered untimely filed and shall be dismissed without any further recourse for the grievant. Any evidence submitted at Step II in support of an allegation deemed untimely under the preceding sentence shall not be admissible and will not be considered by the District Attorney at Step II. Step III: If the grievance is not resolved within twenty (20) days from the submission of the grievance to the District Attorney, the Association alone will have fourteen (14) days to serve written notice to the District Attorney and the County of its intent to submit the grievance to final and binding arbitration. The arbitrator's decision shall be in writing and shall set forth findings of fact, reasoning, and conclusions of the issues submitted. The arbitrator's review shall be limited to determining if the specific provision(s) of the Agreement which was the basis for the grievance has been violated. The arbitrator shall have no authority to alter, modify, vacate or amend any of the terms of the Agreement. Arbitrations shall be conducted in the following manner: a. The arbitrator shall be selected by mutual agreement of the parties. If the parties cannot agree on an arbitrator within fourteen (14) days of submitting Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 the grievance to arbitration, the parties will request the list of the Reference Judges from the Deschutes County Circuit Court. Within five (5) days of receipt of this list, the parties shall mutually agree on one of the listed Reference Judges to act as arbitrator. If the parties cannot agree on an arbitrator, the parties shall alternately strike names from the list until one name remains. The party striking the first name shall be determined by coin flip. if for some reason one of the parties has a good faith belief that the Reference Judge selected from the Deschutes County Circuit Court list of Reference Judges is not suitable to act as an arbitrator, the party shall notify the other of that belief. If this occurs, the parties will request from the State Court Administrator a list of ten (10) Reference Judges from any or all of the following Counties: Jefferson, Crook, Linn, Lane, Douglas, and Marion. Within five (5) days of the receipt of this list by each party, the parties shall alternately strike names from the list until one name remains. The party striking the first name shall be determined by a coin flip. b. The arbitrator shall hold a hearing promptly in accordance with the procedures outlined in ORS 3.300 to 3.321, except that a civil action need not be filed under ORS 3.305(1), and the decision shall not be subject to appeal under ORS 3.321(7). c. The Step III grievance shall be limited to facts and evidence provided at Step I, except that the evidence that was not discoverable at Step 1 may be introduced if discovered after the Step 1 response. If the grievant or the Association intends to introduce such evidence after Step 1, the grievant or the Association shall have the burden to establish such evidence was not discoverable at Step 1. Any allegation of a breach of an article or section of this agreement introduced at Step HI that was not presented at Step I shall be deemed untimely filed and shall be dismissed without any further recourse for the grievant. Any evidence offered at Step III in support of an allegation deemed untimely under the preceding sentence shall not be admissible and will not be considered by the arbitrators at Step 111. d. The costs of the arbitrator shall be shared equally by the parties. Each party shall be responsible for costs of presenting its own case to arbitration. D. Each party shall be responsible for compensating its own representatives and witnesses at any step of this procedure. E. Any time limits specified in the grievance procedure may be waived by express, mutual consent of the parties. Failure to submit the grievance in accordance with these time limits without such a waiver shall constitute abandonment of the grievance. Failure by the County to submit a reply after knowledge of the grievance within the specified time will move the grievance to the next step in the grievance procedure. A grievance may be terminated at any time upon receipt of a signed statement from the Association. F. A grievant exercising their rights to pursue a grievance through this procedure may do so without discrimination and without loss of pay if meetings or conferences as called for herein occur during the employee's regularly assigned duty time. G. To the extent allowable by law, all information relative to a grievance and resolution accomplished via the grievance procedure shall be considered exempt from public disclosure in an effort to assure confidentiality to the employee. Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 H. If the parties agree in writing, Steps I, and 11, may be waived. 1. Oral reprimands are not subject to the grievance procedure. J. Written reprimands and performance evaluations which do not result in the denial of a step increase may not be grieved past Step 11. K. The extension of a probationary period shall not be grievable. 13. DISCIPLINE AND DISCHARGE A. Formal Disciplinary actions include the following: 1. Oral reprimand, 2. Written reprimand, 3. Suspension, 4. Demotion or Reduction in pay, and 5. Discharge. B. The County or the District Attorney may formally discipline, discharge, suspend, demote or reduce the pay of a Member for just cause. For purposes of this Agreement, "just cause" includes, but is not limited to: 1. Violation of state or federal law, or the Deschutes County Code; 2. Commission of acts of misfeasance or malfeasance, or of acts that are tantamount to unlawful conduct; 3. Violation of Deschutes County Administrative Policy or District Attorney's Office Departmental Policy; 4. Violation of the Oregon Rules of Professional Conduct, or willful disregard of the ethical, moral or professional standards of the District Attorney's Office; 5. Failure to meet the job performance standards set by the District Attorney; 6. Willful disregard of the District Attorney's philosophies and objectives with respect to prosecution of criminal offenses; 7. Violation of confidentiality agreements or release of confidential materials contrary to County or Office policy; 8. Insubordination; 9. The willful giving of false information, or the withholding of information when such information is reasonably requested by the County or the District Attorney in any investigation; 10. Conduct reflecting poor judgment, meaning indifference to, or a failure to recognize the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the employee is conscious of his or her conduct Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 and knew or should have known such conduct would likely result in a violation of the law or County or Office policy, standards, or procedures; 11. Conduct reflecting a discredit upon the County or the District Attorney's Office, which is a hindrance to the effective performance of the functions of the Office, or which causes an irreparable breach in trust in the employment relationship or otherwise makes a continued employment relationship impossible; or 12. Willful failure to comply with the lawful and ethical directives of the District Attorney or the Chief Deputy District Attorney within thirty (30) days of receiving such a directive. C. Formal Discipline need not be progressive, but shall be appropriate for the nature and severity of the conduct at issue and given the totality of circumstances involved. D. Disciplinary suspension of a Member shall not exceed two weeks. E. The District Attorney shall regularly assess Members based upon their job performance, compliance with the District Attorney's policies, and willingness to follow the professional and philosophical directives of the District Attorney as they relate to Members' job performance. Members shall be given written notice of policies, mission statements, objectives and philosophies, as well as any changes made thereto. F. Forms of performance management that are not disciplinary include, but are not limited to counseling, verbal coaching, letters of instruction, work improvement plans and regular performance evaluations that do not result in denial of a step increase. These forms of performance management may serve as evidence for future formal discipline. Except for performance evaluations and work plans that will be placed in the Member's personnel file, information regarding performance management shall be kept in the working file of the District Attorney or Chief Deputy District Attorney. Performance management is not subject to the grievance process. G. Except for oral reprimands, Members of the bargaining unit have the right to Association representation or Association counsel in any meeting with management regarding formal disciplinary action. H. If the District Attorney determines there is just cause for suspension, demotion, reduction in salary or discharge of a member of the bargaining unit, the District Attorney shall deliver to the Member a written notice of such discipline. Such notice shall specify the principal reason for the action. Upon receipt of such written notice, the Member shall be given an opportunity to meet with the District Attorney and respond to the allegations at a pre- disciplinary hearing. Disciplinary action shall not be effective until an opportunity for such a meeting has been given to the Member. 1. If an investigative report is produced as part of an investigation into the conduct of a Member which the County or the District Attorney believe warrants discipline, the Member will be furnished upon request a complete copy of the investigative report prior to any pre- disciplinary hearing, unless prohibited by law. J. Reasonable efforts should be made to impose discipline in a manner that will not embarrass or humiliate the employee before other employees or the public. Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 K. Probationary Members serve at the discretion of the District Attorney and, as such, are strictly "at-will." For this reason, disciplinary action for probationary Members, including discharge from employment, is not subject to the grievance procedure. A probationary Member is a newly hired or newly promoted deputy district attorney hired to a period of trial service during which the Member's work performance and standing to become a regular employee is evaluated by the District Attorney and the County. Probationary Members shall remain on probationary status until they complete at least twelve (12) full months of continuous employment with the Deschutes County District Attorney's Office, measured from the date of hire or promotion, and they have received from the District Attorney a written one- year performance evaluation for which the probationary Member is given an overall rating of meets or exceeds standards. 14. BAR DUES AND CONTINUING LEGAL EDUCATION EXPENSES A. Annual Oregon State Bar dues for Members shall be paid by the County. B. The County will pay the reasonable costs of continuing legal education classes, programs or seminars. Such payment is subject to the prior approval of the District Attorney, which approval may be denied at the District Attorney's sole discretion, based on funding availability, relevance to essential job functions, and the business needs of the District Attorney's Office. 15. SAVINGS CLAUSE Should any section, paragraph or portion thereof of this Agreement be held unlawful and unenforceable by a court of competent jurisdiction, or any administrative agency having jurisdiction over the subject matter, such decision shall apply only to the specific section, paragraph or portion thereof directly specified in the decision and shall not affect any of the other provisions of this agreement which shall remain in full force and effect. Upon the issuance of any such decision, the parties agree immediately to enter into negotiations for a substitute, if possible, for the invalidated section, paragraph or portion thereof, in accordance with ORS 243.698 with the exception that the time limit under subsection (4) of that section shall be 30 days and not 90 days. 16. COMPLETE AGREEMENT The Agreement expressed in this written document is the complete agreement between the parties and, except as provided in Sections 5. D and 17 of this Agreement, the relations between the parties shall be governed solely by its terms. Any issue not covered by this written Agreement is not a subject of the Agreement, regardless of whether such a subject was a proposal or demand of either party. This Agreement supersedes all previous oral and written agreements either between the County and the Members or the District Attorney and the Members. Except as provided in Sections 5. D and 17 of this Agreement, no prior agreements, understandings, past practices, existing conditions, or prior benefits shall be controlling or in any way affect the relations between the parties, or the wages, hours, and working conditions of the Members, unless and until such agreements, past practices, existing conditions, or prior benefits shall be reduced to writing and duly executed by all parties to this Agreement. 17. MATTERS OUTSIDE OF THE AGREEMENT For all matters not covered by this Agreement, the parties will follow County Policies, County Personnel Rules, and the Policies and Rules of the District Attorney's Office, as the County and District Attorney in their sole discretion may amend from time to time and to the Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 extent they are not inconsistent with the terms and conditions of this Agreement. Should the County choose to amend County Policies or Personnel Rules or should the District Attorney choose to amend the Policies and Rules of the District Attorney's Office, the County and District Attorney agree they will bargain any such changes concerning mandatory subjects of bargaining. 18. DURATION A. This Agreement shall remain in full force and effect through June 30, 2015, when it expires at Midnight on that date. After June 30, 2015, this Agreement shall be automatically renewed from year to year, unless either the County or the Association gives written notice to the other not later than May 1 prior to the aforesaid expiration date of this Agreement of its desire to modify the Agreement. B. This Agreement will remain in full force and effect during all periods of negotiations. FOR THE COUNTY Approved this _ day of December, 2010 for th Deschutes County Board of Commissioners Dennis Luke, Chair Alan Unger, Vice Chair Tammy Baney, Commissioner Dave Kanner, Deschutes County Administrator ATTEST: Recording Secretary FOR THE ASSOCIATION Deschutes County District Attorney Deschutes County District Attorneys' Association, Collective Bargaining Agreement: 2010-2015 Brian E. Fish 61136 Hilmer Creek Drive Bend, OR 97702 December 14, 2010 Tammy Baney, Dennis Luke, and Alan Unger Deschutes County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 ~C 4 2010 L BOARD OF co RAT ONNERS Dear Commissioner Baney, Commissioner Luke, and Commissioner Unger: Thank you for taking the time to answer my questions and address my concerns at the Deschutes County Board of Commissioners on December 8, 2010. First, I would like to apologize for interrupting Mr. Mark Pilliod. I have sent him a personal apology as well. He was very informative and helpful. After review I have several concerns with the proposed collective bargaining agreement between Deschutes County and the Deschutes County District Attorneys' Association. You are negotiating with a very talented group of lawyers who negotiate to some degree every day. Due to this fact I believe any contractual agreement should be approached with a buyer beware mentality. I acknowledge that I am not an attorney, nor a politician. If it is your opinion that to negotiate in good faith with the association, you must allow a "just cause" agreement, please consider and resolve any ambiguity or uncertainty regarding the following issues. Commissioner Baney stated that mediation with a union in Oregon has the tendency to benefit the union. I agree with her opinion that it is in the county's best interest to resolve issues with unions prior to mediation. Section 5.A. of the proposed contract limits the time of all future good faith negotiations from 90 days to 30 days! Removal of two thirds of the days available to negotiate in good faith prior to a demand for mediation appears to benefit the deputy district attorney association members and pose no foreseeable benefit to Deschutes County and its' citizens/taxpayers. Rushing negotiations does not protect the interest of Deschutes County for this contract and certainly does not make sense to commit to for future negotiations. Suggested resolution: Eliminate any reduction of state allowable good faith bargaining times from all areas of proposed contract. Take the time now and retain the standard time allowed for evaluation of potential ramifications for any binding negotiation. Do not forfeit any rights of Deschutes County or its' citizens. In the past deputy district attorneys have benefitted in legal actions by claiming "prosecutorial immunity" (see attached Phipps v. Vaughan-1). There is nothing in this contract that prevents deputy district attorneys from claiming such a defense in any disciplinary or discharge proceeding. In addition this contract stipulates that district judges be designated to mediate employment related issues rather than traditional employment mediators. It is my opinion that a district judge will not have the same level of methodology of employment enforcement as a traditional union/employee mediator. The risk is that because a judge is an elected official that is typically a former deputy district attorney there is an obvious personal conflict that can occur. A likely possible result could be an unfit employee keeping their job due to a technicality rather than action based on truth and facts. Suggested resolutions: Specifically disallow a defense of "prosecutorial immunity" as a defense to disciplinary or discharge related issues. Require traditional Oregon employment mediation for employment related issues: to ensure equal accountability to similar employee unions/associations. Section 12. C. Step I: requires that any member filing a grievance related to the contract, file a copy with the Association. Step 11: requires fourteen days before the grievance can be filed with the District Attorney. Any alleged violations where the Association is not notified fourteen days in advance are deemed invalid. This in no way provides a safe environment for an employee who may have a grievance with a colleague, or a member of the public subject to the deputy district attorney's jurisdiction. In the past, the state has settled -in excess of $100,000 - at least one workplace sexual harassment suit related to allegations against a current member of the Deschutes County District Attorneys' Association. (See attached "Hush Money" The Source Weekly). The allegations that lead to the settlement included claims of retaliation following the report of the original complaint. Because a grievance is deemed invalid in this contract if not reported to the association first, it could lead to a culture of intimidation. The offender would possibly be exempt from removal or reprimand because the report of their violation was not reported through the contractually required chain of command. Suggested resolution: Allowances need to be included for any complaint where the "grievant" may bypass Step I, and report directly to the District Attorney and/or other authority. The grievant should have sole discretion if they feel reporting to a supervisor and/or the Association would possibly result in further violation and/or potential retaliation. Section 12. C. Step II: and Step III: disallow any presentation of support of violation not specifically stated in step 1, that could have been discoverable at that time. This in effect limits the rights of any victim/grievant to provide supporting evidence to counter any defense given by alleged offending party. Focus should be on truth, justice, and accountability: not hiding facts. If this is an association of members that prides themselves on protecting victims, they should applaud changes that prevent victim's further harm and promotes victim's rights. To clarify, the victim is the one violated, not the district attorney accused of the violation and subject to discipline. Suggested resolution: Remove any limitations to provide relevant additional supporting evidence during any stage of the process. This will ensure that the District Attorney and/or Oregon Employment Relations Board have all relevant information to base their decisions on. Many of a deputy district attorney's actions are carried out in private. For example, as I pointed out in the commissioners' meeting, grand jury hearings are not recorded in Oregon. It is a public disservice that this is not common knowledge. Any "just cause" stemming from misleading or unethical behavior related to a Grand Jury hearing compounds the already restrictive requirements regarding dismissal or disciplinary actions. Previous citizen complaints have been dismissed by a claim of "prosecutorial immunity" on behalf of a deputy district attorney. It is my understanding that "prosecutorial immunity" is based on laws of judicial immunity, reserved for the judicial branch of government. If the commissioners are correct in regards to a deputy district attorney's employment is through the Executive branch then any negotiation with the Association will be binding and valid. If deputy district attorneys, as referenced in Oregon statute 8.780 have the same designation as the elected District Attorney - regulated by the judicial branch - then any negotiation outside of wage and compensation related issues is invalid. If it is determined that the elected District Attorney has the right to dismiss an appointed deputy district attorney, but the county forfeits its' right to stop paying that attorney, I fail to see how this does not have a potential financial impact on the county. Suggested resolution: Remove any "just cause" clause from this contract. Those that will most need to be removed from office will be the ones most likely to keep their job based on a technicality and/or obtain a settlement from the taxpayers. The primary issue here should be protecting the public. Approving a collective bargaining agreement between Deschutes County and Deschutes County District Attorneys' Association with a "just cause" component prior to the swearing in of a new D. A. and a new Commissioner, and prior to resolving elected district attorney rights, appears to put tax payers at risk. Under the terms of the proposed contract, the elected District Attorney lacks the ability to remove a deputy that does not support the incoming D.A.'s philosophy outside of the criminal courtroom. It could be argued that a misdemeanor court is not a criminal court. The elected District Attorney cannot allow an unfit employee to have continued contact with the public. However he must fulfill the "just cause" of this contract or the county/tax payer is liable for continuing to compensate a removed deputy district attorney. This is why our forefathers had the foresight to make it an appointed "at will" position. Please don't change that without serious evaluation and considering of all possible options/revisions. Commissioner Luke stated that this contract looked extremely good, he had never seen one quite like it: so favorable. I ask you if as an individual consumer: will you sign any contract that appeared too-good-to-be-true? If your answer is no, then please do not commit the tax payers of Deschutes County to a similar contract designed solely to benefit public service employees and their tenure. Regardless of which government body money comes from, it comes from all of us, the tax payers. This contract as written contains enormous potential financial obligation for the county and its' citizens. In an effort to keep this to readable length, and to be seriously considered by the commissioners, I will refrain from listing further issues I have with this contract. I would be happy to, and request the opportunity, to give a private citizen's review and opinion on any future proposed association contracts/modifications. Please reject this contract as written and continue negotiating in good faith with the association. Please only approve a contract that openly addresses the above concerns. Sincerely, -10~ Brian E. Fish Deschutes County Voter, citizen, and native Phipps v. Vaughan-1 Excerpts from: 20060418_0000239.DOR - James E. Phipps v. Jodi S. Vaughan, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Dated: April 18, 2006 JAMES E. PHIPPS, PLAINTIFF, V. JODI S. VAUGHAN, CHRISTOPHER BURRIS, AND W. BRADFORD JONASSON, JR., DEFENDANTS. The opinion of the court was delivered by: Mosman, District Judge ORDER TO DISMISS Plaintiff, an inmate at the Columbia River Correctional Institution, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to an order entered by the court this date, plaintiff was granted leave to proceed in forma pauperis. However, for the reasons set forth below, plaintiffs Complaint (#2) is dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2). BACKGROUND Plaintiff alleges that a prosecutor and two private attorneys involved in his criminal case and resulting civil case used false and misleading evidence against him, and withheld evidence from the trial courts in violation of his rights to due process and equal protection. Plaintiff seeks $1,500,000 from each defendant and an injunction that prevents them from practicing law. DISCUSSION Plaintiff also brings this suit against defendant Vaughan, whom he identifies as the District Attorney for the City of Bend. State prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official capacity. See Kalina v. Fletcher, 522 U.S. 118, 123-25 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993); Imbler v. Pachtman, 424 U.S. 409, 427, 430-31 (1976). As plaintiffs allegations against Vaughan focus on her actions during his criminal trial, she is immune from suit. Plaintiff therefore fails to state a claim upon which relief may be granted. http://www.tsweekly.com/news/featureslhush-money-undisclosed-legal-settlement-hangs-over- da-race.html Wednesday, 12 May 2010 15:39 Eric Flowers S?]:;EON Dis handling of the high profile David Black case. Recently, he opened up a new front that Dugan may not be able to ignore in the final stretch of his re-election bid. Two weeks ago, Flaherty used the League of Women Voters candidate debate, a usually tame event, as a forum to hammer his former boss, 20-plus-year incumbent Mike Dugan on an issue that Flaherty had been pushing only privately in his campaign to unseat his former boss. Answering an audience question about his views on governmental transparency, Flaherty, a former chief deputy prosecutor, accused Dugan of allowing a prosecutor in his office to sexually discriminate against young female employees and then promoting that prosecutor. Dugan flatly denied the claim, but acknowledged that his office had experienced some personnel issues that were now resolved. That might be true, but what he didn't tell audience members was that it cost Oregon taxpayers $125,000 to handle those issues. On Friday aftemoon, state records shed a little light onto just why it was so expensive to get the DA's office back on track. The records, which were released by the Department of Justice after a public records request, included the resignation letter from former deputy district attorney Mary Jo Mongan, the employee who received that six-figure settlement. The terse two-plus page letter details the treatment that Mongan was subjected to by her manager, Jody Vaughan, a hard-driving female prosecutor who was then head of the misdemeanour team. This team is a proving ground for young attomeys like Mongan, some of whom were fresh out of law school. Among other things that Mongan detailed were allegations that she had been publicly derided by her supervisor, singled out for criticism that wasn't given to her male colleagues, sneeringly micro-managed and ultimately retaliated against when she took the concerns to Dugan's right-hand man, chief deputy Darryl Nakahira. But the treatment persisted and in January of 2008, Mongan quit, providing a detailed account of the reason for her resignation in a letter addressed to Dugan. She wasn't the only one fleeing the prosecutor's office. Including Mongan, at least five young female prosecutors left the district attorney's office while Vaughan was overseeing the misdemeanour team. Some of them are now in private practice and one works for the Department of Justice. Vaughan is still at the DA's office although she is no longer in charge of the misdemeanour team. This seeming mass exodus from the prosecutor's office is common knowledge among the legal community, but it's been all but ignored by the media even in the midst of a political campaign. In an interview Monday morning, Dugan said that The Bulletin has had a copy of the settlement agreement for months. But the paper has yet to publish anything. A story that the paper printed on April 30 after the candidate debate forum made no mention of the exchange about the hostile workplace settlement. A call to Executive Editor John Costa on Monday to find out why the paper was unwilling to follow up on the story hadn't been returned as of Tuesday afternoon. It's not for want of information. Documents released recently by the Department of Justice, copies of which have been provided to The Bulletin, The Source and KTVZ, include accounts from other attorneys detailing the harsh treatment that they had received from Vaughan, which in one case involved Vaughan pulling a young female deputy prosecutor into the jury room bathroom and yelling at her while a local defence attorney sat outside in the jury room, overhearing the exchange. That prosecutor has since quit. Another young attorney, Kelly Hansen, endured some of the same type of treatment and was told by her co-workers that it was part of a pattern with her supervisor. Hansen decided to leave when the opportunity presented itself. "It's been three years, but I didn't feel like I was going to be given a chance to succeed and it was extremely stressful," she said in a phone interview this week. Hansen started documenting the treatment she was receiving while she was still an employee in the office. She sent the notes to the Department of Justice (DOJ) after it opened an investigation following Mongan's resignation. "I have never received such poor training and had such an inept, hostile, crazy manager. It amazes me that a DA's office would want to treat its (deputies) like incompetent people and harass them. I think Jody has a problem with women and with any person who dares stick their neck out. She is a bully," Hansen wrote prior to her resignation. Speaking Monday morning at his office, Dugan acknowledged the past issues at his office, but said they have been dealt with appropriately as a result of the Department of Justice probe -an investigation that Dugan points out was requested by himself, in consultation with Deschutes County Legal Counsel Mark Pilliod after receiving Mongan's scathing resignation letter. DOJ spokesman Tony Green confirmed that its investigators were working on behalf of Dugan at his request and their role was advisory rather than investigatory. "The DA is a state employee. We represent DAs. There is nothing weird about it," Green said. While the DOJ stopped short of issuing recommendations, Dugan said he made changes to his office based on what he learned in the course of the inquiry. Dugan said he is prohibited by state rules regarding the release of personnel information from discussing some of those changes. He did confirm, however, that Vaughan is no longer running the misdemeanour team or supervising employees. Asked why he didn't intervene'ear ier with Vaughan and his misdemeanour team, Dugan said he wasn't aware of the scope of the problem until the outside attorneys began talking to his subordinates and former employees. He said that some of the information that he might have needed in order to act was provided in exit interviews that he didn't have access to at the time. He has since asked to be provided with a summary of the comments given by his departing employees. Hansen said she has a hard time believing that her former boss and his direct subordinates were totally in the dark about what was going on inside his office. In fact he wasn't totally out of the loop. At one point Mongan took her concerns about Vaughan to chief deputy Nakahira who enlisted Dugan's help. The DA confirmed that he sat Vaughan down for a discussion of her management style. That's when things went from bad to worse for Vaughan's employee. Instead of toning down her criticism, Vaughan confronted Mongan, according to both Dugan and Mongan's resignation letter. That's a violation of state labour laws and it opened the DA up to what eventually became the costly settlement. But supervisors including Dugan and Nakahira either didn't know or didn't act on Vaughan's behaviour. Instead, Vaughan continued to supervise Mongan and the other deputies on the misdemeanour team. According to Mongan's letter, Vaughan pulled her into the office of another supervisor and accused her of poor performance. Ultimately, Mongan said she was given a sub par review and the standard pay increase was withheld. Rather than continue to endure, she quit. "I have tried to work within the hostility of the workplace because of the importance of employment to me. However, I am no longer able to handle the hostility of this environment and the repercussions on my mental and physical health outweigh my maintaining employment with Deschutes County,"Mongan wrote in her January 2008 resignation letter. Last May, the state cut her a check for $125, 000 settling all existing and future claims against the county. Dugan said he acted on advice from the DOJ's attorneys when he agreed to settle the case with Mongan and pointed out that the money came from the state-not local taxpayers. A distinction that might matter to some. He takes issue with the notion that the DA's office is anything but a great place to work, despite the past issues on his misdemeanour team. He points out that all of his deputies, with the exception of Wells Ashby, have endorsed his re-election. (Ashby is running for judge and is refraining from making endorsements. Dugan, however, is campaigning on his behalf.) l think that anybody who runs an office of this size over time is going to have some bumps in the road. I'm song that Patrick Flaherty has chosen to raise these issues in the last 10 days of the election,"Dugan said. He characterized Flaherty's decision to broach the issue in the waning stages of the campaign as mudslinging." In an interview Tuesday, Flaherty called Dugan's assertion outrageous." He said that one of the reasons that issue wasn't raised earlier is that Dugan had requested that the League of Women Voters debate be pushed back to the end of April. Flaherty, however, confirmed that the public records request that produced the settlement and some of the investigator's notes was made by a local attorney who had been involved with his campaign. He takes exception to Dugan's assertion that raising the settlement adds up to a political low blow. He accused Dugan of attempting to hide the settlement and the surrounding issues. When you're the DA you have an obligation to be 100 percent truthful. Certainly when you're asked a question in front of the League of Women Voters and you say my office is transparent and then you fail to disclose information that you have about issues that your opponent just raised, that's dishonest-that's not transparent. That's the only word that applies," Flaherty said. Just a few days away from the primary, Dugan says that has been forthright about the settlement. It's his opponent who is misleading people by saying that the issues were related to gender discrimination and that Vaughan had been promoted since the investigation. Neither of which is true, Dugan says. Still, he acknowledged that there were problems that could have been handled better at the time. "I'm not perfect,"he said. l make mistakes. All of us do. I hope and prey that those mistakes that 1 make are not injurious to the public and I don't think they have been,"he said. Written by : M Eric Flowers