Nearly three years after former Clark County department head Don Benton sued his former employer alleging hostile working conditions, his lawyers are making new claims that the county violated its own home rule charter and the First Amendment.
In 2016, Benton, also a former Republican state senator from Vancouver, filed a lawsuit along with two former subordinates against Clark County. They say they faced hostility and retaliation before losing their jobs as part of a county reorganization.
The lawsuit, filed in Clark County Superior Court, stems from Benton’s time directing the county Department of Environmental Services. The department was dissolved by former County Manager Mark McCauley in 2016 in what he described as a cost-saving move. Benton lost his job as a result of the reorganization but went on to take jobs in the Trump administration. McCauley was terminated by the county council and has since taken a job in Jefferson County.
After he was terminated, Benton filed suit along with Christopher Clifford, former department program coordinator, and Susan Rice, former department administrative assistant, whose jobs were also eliminated. The lawsuit alleges that McCauley singled out Benton for abuse and interfered with his management of the department. The lawsuit alleged that trio experienced a “hostile, intimidating and abusive environment” and illegal retaliation for resisting what it describes as improper actions by McCauley. Prior to filing the lawsuit, Benton and Clifford both filed tort claims, typically precursors to a lawsuit, seeking $2 million each in damages and attorney’s fees. Rice filed a claim for $1 million.
Their first attorney, Portland lawyer Thomas Boothe left the case in March for unclear reasons. The trio is now represented by the Seattle-based law firm Frey Buck.
On Thursday, Benton’s new counsel filed an amended complaint in Clark County Superior Court. The amended complaint makes the same factual allegations and new legal claims.
In 2014, Clark County voters passed a home rule charter that granted expansive executive powers to a county manager, including the ability to reorganize county government. The amended complaint argues that the county failed to follow its own resolutions, ordinances and home rule charter when McCauley dissolved the department.
“The county, by and through Mark McCauley, violated public policy when it terminated plaintiffs by unilaterally dissolving a county department that was approved and budgeted by the Board of County Councilors for the 2016 fiscal year,” reads the amended complaint.
The amended complaint further argues that Rice and Clifford had “property interests in their employment” and were denied due process by McCauley’s decision to dissolve the department.
The amended complaint also argues that the county violated the First Amendment rights of both Clifford and Rice by firing them after making statements of “public concern.” Specifically, the complaint references reports Rice and Clifford made to supervisors and county councilors of McCauley’s allegedly “intimidating behavior.”
The complaint also references an email Clifford wrote to then-county Councilor David Madore “providing information regarding a complaint of racial discrimination.” The complaint of racial discrimination is likely a reference to allegations that Madore targeted Community Planning Director Oliver Orjiako because of his national origin. The allegations were determined to be unfounded by an outside investigator.
“Clifford and Rice’s constitutionally protected statements were a ‘substantial’ or ‘motivational’ factor in the county’s decision to terminate their positions,” reads the complaint.
Additionally, the amended complaint argues that the county discriminated and retaliated against Rice on the basis of her age and for participating in a whistle-blower claim.
Benton’s legal counsel declined to comment for this story.
“The County continues to maintain there is no merit to plaintiffs’ claims,” said Chief Civil Deputy Prosecutor Emily Sheldrick in an email.
Court filings show that counsel for the county, Seattle law firm Patterson Buchanan Fobes & Leitch, objected to the filing of the amended complaint and questioned its legal basis. The county’s attorneys also objected on grounds that they had already taken depositions from Clifford and Rice in June 2019.
“Plaintiffs appear to have realized, two-and-a-half years later, that their original counsel did not plead every claim under the sun,” reads the filing from the county. “Perhaps this was for good reason, as the facts in the original complaint do not support the amended claims, and plaintiffs have not discovered any new facts to support the amended claims.”
A trial date was originally set for this month but court filings show it has been reset to April 20, 2020.