Escolar Documentos
Profissional Documentos
Cultura Documentos
82485
crispin@emploYInentlaw-nw.com
Shelley D. Russell, OSB No. 94068
shelley@employmentlaw-nw.coln
CRISPIN EMPLOYMENT LAWYERS
1834 SW 58 th Avenue, Suite 200
Portland, Oregon 97221-1455
Telephone: 503-293-5770
Telefax: 503-293-5766
Of Attorneys for Plaintiff
DISTRICT OF OREGON
(Pendleton Division)
STEPHEN BROCATO,
CV'10· -
. . CivilN2 9
Plaintiff,
v. COMPLAINT
1. This is an action for monetary relief, including attorney fees and costs, and
punitive damages, to redress the defendants' violations ofplaintiffs federally protected rights,
discrimination in the tenns and conditions of employment on the basis of whistleblowing, and to
make plaintiff whole. This action also addresses defendants' violations of the C01I1lTIon law
2. This court has jurisdiction over the subject lTIatter of this complaint pursuant to 28
u. S. C. § 1331. Supplemental jurisdiction exists over plaintiffs state law claims because those
claims arise frOlTI the same nucleus of operative facts as the federal claims, and would ordinarily
Oregon..
PROCEDURAL REQUIREMENTS
4. Plaintiff provided defendant with a timely tort claim notice as required by ORS
30.275.
PARTIES
Baker City (City), Baker County, Oregon, and was employed by the City as the City Manager.
7. At all relevant times, defendant DENNIS DORRAH was the City's Mayor and
an elected member of the City Council. In his position, defendant Dorrah was an official with
official capacity.
the City Council. In her position, defendant Calder was an official with final policy Inaking
authority. Defendant Calder is sued in her individual capacity and her official capacity.
member of the City Council. In her position, defendant Bonebrake was an official with final
policy making authority. Defendant Bonebrake is sued in her individual capacity and her official
capacity.
10. At all relevant times, defendant CLAIR BUTTON was an elected melnber of the
City Council. In his position, defendant Button was an official with final policy making
authority. Defendant Button is sued in his individual capacity and his official capacity.
11. At all relevant times, defendant GARY DIELMAN was a resident of Baker City.
FACTUAL ALLEGATIONS
. 12. Plaintiff was the City Manager for the City, appointed in February 2007 by the
13.· As the City M.anager, plaintiff was the managelnent head of the City. Plaintiff
was responsible for, among other things: seeing that all city ordinances were enforced; seeing
that the provisions of all franchises, leases, contracts, permits, and privileges granted by the City
were fully observed, and to report to the Council any violations; attending all councillneetings
City, except the councilor the municipal judge; keeping the council advised as to the needs of
the City; and perfonning other such duties as may have been required by the Charter or as the
14. In May 2008, plaintiff received his first perfonnance review by the City Council.
Plaintiff received high marks froln a majority of the councillnelnbers. Defendants Bonebrake
and Button were not yet Inembers of the Council and did not participate in the review.
15. In or about April 2009 and again on May 12, 2009, defendant Dorrah stated that
16. On or about April 28, 2009, plaintiff and the assistant city manager contacted the
Oregon Government Ethics Commission for an opinion regarding potential conflicts of interest
. fo~ the counCil members relating to· pr~poseci revi~i~ns· to the ·City Property ·Maintenance
Ordinance. Plaintiff and the Council had.been working for approximately two years to revise the
17. On or about May 13,.2009, plaintiff asked Community Service Officer Regan to
drive by properties owned by each of the council members to determine if any real or potential
conflicts of interest existed vis a vis the proposed Property Maintenance Ordinance. Regan did
Government Ethics Commission (OGEC) for an opinion and advice on how to handle the
potential and actual conflicts that the Council members might have. with respect to the ordinance.
19. On or about May 20, 2009, during a work session on the ordinance, plaintiff
infonned the council melnbers that he had contacted the OGEC regarding the conflicts issue, and
that the OGEC would forward a written opinion on the issue. Plaintiff informed the Council that
the responsibility for preventing conflicts was on the individual council members, not on the city
management. Plaintiff advised the Councilors each to be cautious with respect to potential
conflicts of interest and that any Council me1nber with a potential or actual conflict may consider
recusing themselves from discussion and voting on the property maintenance ordinance."
20. On or about May 22,2009, plaintiff forwarded the written opinion received from
the OGEC to the Council members and infonned them that some of them maybe affected by the
proposed changes to the Property Maintenance Ordinance, and that each of the Council members
21. On May 26, 2009, during the public session of the Council meeting, plaihtiff
received his performance evaluation. Five of the seven Council members praised plaintiffs
perfonnance. Defendant Calder stated that plaintiff should not be retained without goals.
22. On May 26,2009, the City Attorney explained the conflict of interest issue during
the public meeting session. During the meeting, defendant Dorrah stated that the Councilors had
received the May 22, 2009 information from plaintiff which showed that a survey had been
completed by the police department, checking all property owned by the Council. He noted that
the Survey was sent to the OGEC, which opined that an actual or potential conflict existed for
affected Council member must publically announce the conflict and recuse himself or herself
from voting. The survey showed that defendants Dorrah and Calder had actual conflicts of
interest in that each owned properties that showed multiple violations of the proposed ordinance.
23. .Dorrah delayed action on ~he proposed ordinance changes due to concern over the
conflict of interest issues. Neither Dorrah nor defendant Calder recused thelnselves froln
24. During the meeting on May 26,2009, defendant Calder accused plaintiff of
25. Between the May 26, 2009 Council work session and the June 9, 2009 public
meeting, Dorrah and Councilors Button, Bonebrake, and Calder met in violation of public
me~tmg laws under DRS 192.630 and detennln~d to terminate plaintIffs employme~t ~s· CIty
Manager. Prior to June 9, 2009, defendant Darrah contacted Tim Collins and asked ifhe would
26. At approximately 3:00 p.m. on June 9,2009, defendants Dorrah and Bonebra-ke
carne to plaintiff s office. Defendants Dorrah arid Bonebrake asked Councilman Milo Pope to
leave plaintiffs office so they could speak to plaintiff. After Pope left, defendants Dorrah and
Bonebrake asked plaintiff to resign his position of city manager. When plaintiff refused,
defendant Dorrah stated that he had the four votes necessary to terminate plaintiff, and he would
27. During the public councillneeting on June 9, 2009, Dorrah announced that he had
discussion moved to tenninate the City Manager's elnploylnent. Defendant Dorrah refused to
allow public COlmnent on the motion, instead allowing only brief discourse between those
council Inembers surprised by the motion and those who were already aware it would occur.
Only after the motion to terininate passed did defendant Dorrah allow public comment and a
28. During and after the public council Ineeting on June 9, 2009, defendant
a. On June 9, 2009, Bonebrake stated: Plaintiff violated the ethics code with respect
to his actions in lobbying against Dorrah's election as Mayor, or words substantially similar
thereto.
public servant or work with the public's representatjves, or words substantially similar thereto.
c. On June 18, 2009 in Facebook and by elnail, Bonebrake stated: "I had also heard
stories of disrespectful treatment of IneInbers of the public, and took the time to track down the
truth of one of these stories. I found them to be believable, especially since I had also witnessed
violations that appeared to exist on each of our properties under the premise that we needed to
Maintenance Ordinance. The cited violations are inconsequential or untrue. It was a red herring
insoluble problelTI the City has with him as Manager is his unwillingness to accept responsibility
for his bullying tactics and displays oftelTIper toward citizens and Councilors, which denies the
inherent rights of the people to civil discourse, and the struggle the Council has in carrying out
its duties of governance as a result of his misinterpretation of its role as governing body and its
-the State Ethics Code from interfering in Council business..." and that plaint~ff engaged in "a
g. On or about June 18, 2009 in Facebook, Bonebrake stated that "Mr. Brocato had
~ uncontroll~bie- temper that was unsuitable in a position of this stature, that w~s -damaging not
only to individuals, but also to the conduct of public business. It is beyond a 'personality quirk, '
as in 'we all have flaws;' it is a method of lilTIiting public discourse through bullying and
h. On or about June 18,2009 in Facebook, Bonebrake stated that Brocato "does not
1. On or about June 18, 2009 in Facebook, Bonebrake stated that plaintiff s "temper
and philosophy are incompatible with public service. Mr. Brocato has effectively usurped the
delTIocratic process to the extent that the Council is Inarginalized in the decisiol).-making process
of the City."
Editor, Baker City Herald, Bonebrake stated: "Brocato began an intensive campaign against
k. On or about June 22, 2009, in a Letter to the Editor, Baker City Herald,
Bonebrake stated: "During a temn-building session in March * * * Brocato repeatedly stated that
Calder and Dorrah had intentionally boycotted, were non-team players and the source of all
contention on council, past and present. *** Brocato was responsible for creating a City Hall
environment which targeted certain people for willful-and strident character assassination."
1. On or about June 22, 2009, in a Letter to the Editor, Baker City Herald,
Bonebrake stated: "Brocato has been unwilling to accept responsibility for his bullying tactics
In. On June 18, 2009 in the Record Courier, Bonebrake published the following
statements,. referring to plaintiff: "His temper and philosophy of City governance are
incompatible with public service"; that plaintiff displayed "uncontrollable temper, outburst of
temper"; "Mr. Brocato -tried to manipulate the entire process [relating to the election of Mayor]
ina clear breach of ethics"; and "Mr. Brocato engaged in strident character assassination of
n. In an October 16, 2009, Letter to the Editor, Baker City Herald, Bonebrake stated:
"I have witnessed these two councilors being abused [by Brocato] in public, in private and in a
team building setting by Brocato and his crony councilors. I quickly discovered that Brocato had
created a culture of secrecy and influence that excluded all but his fans. He tried to thwart the
29. From May 26,2009, defendant Calder lnade the following false and defamatory
a. .On May 26, 2009, Calder stated that plaintiff conducted a. "secret surveillance" of
City Councilors.
b On June 10, 2009 in Facebook, Calder stated: "Mr. Brocato had his own vision
for the city and was unwilling to allow the council - as a whole - to participate fully. Beyond
that, Mr. Brocato had attempted to undermine the City Charter and tried to recruit support for the
person he wanted as mayor over the councils [sic] choice. This is a direct violation of state
ethics law."
..... " ' " .' " . .' " .
c. On June 10, 2009 in Facebook, Calder stated: "Areas identified for improvement
in the last years performance evaluation continued to become even bigger conflicts for a majority
of the council."
managers accept that option [to resign] and save the emotional wrenching of a public display
e. On June 10,2009 in Facebook, Calder stated: "This issue [termination] has been
f. On June 22, 2009 in Facebook, Calder stated, referring to plaintiff: "[A]ll of the
issues are linked to communication, temper and refusal to 'effectively work with' members of
used aggressive language and bully tactics to get his way and he was fully defiant of the councils
g. On Septelnber 18, 2009 in Baker City Herald, Calder stated: "1 have witnessed
verbal abuse of citizens and community leaders by Mr. Brocato" and accused plaintiff of
"manipulation of facts."
h. On or about October 9,2009, in the Baker City Herald, Calder stated that plaintiff
no on a recall petition, Calder stated that "the council must create an environment that will not
discourage people from serving," implying that the environment under plaintiffs management
no on a recall petition, Calder stated: "This is no place for inflated egos and power struggles," in
no on a recall petition, Calder stated: "I have witnessed verbal abuse of citizens, explosive anger
30. Following the June 9, 2009 Ineeting, defendant Button made the following false
a. On'June 12,2009 in Facebook, Button stated that plaintiff's relationship with the
with the council as a whole"; and that Plaintiff engaged in some unspecified instance that was
"direct and serious enough that I felt I could no longer trust what he said tome without taking
the time to research the Oregon Revised Statues [sic] for myself."
b. In a June 22, 2009, Letter to the Editor, Baker City Herald, Button stated: "Two
weeks later I was dealing with six separate issues of Mr. Brocato's behavior and cOlnmunication
toward the Council and his representation toward the press and public."
c. In a June 22, 2009, Letter to the Editor, Baker City Herald, referring to plaintiff,
Button stated: "There were still critical issues that could not be discussed in public without
causing a pointless dog fight," implying that plaintiff had serious performance problems.
. no· o~ a recall· petitio~, Button stated that plaintiff had· engag~d· in ·~d Button h~d· witnes·sed a·
"nearly constant pattern of abusive, childish, snide relnarks and slander directed at [Calder]," by
31. Following the June 9, 2009 lneeting, defendant Darrah made the following false
a. On June 13, 2009 by email and on Facebook, referring to plaintiff, Dorrah stated
that Dorrah had copies of emails supporting the tennination decision, "many of which describe
unfavorable encounters with Steve, primarily because of his loss of cOlnposure." "At a meeting
a few weeks ago he was yelling (screaming???) 'Liar, Liar, Liar' over and over at Beverly
[Calder], I thillk about fifteen times, I decided that he needed either psychological help or anger
b. On September 21, 2009, in the Baker City Herald, referring to plaintiff, Dorrah
stated: "My intent is to lnake sure that our city manager understands he has to adhere to some
no on a recall petition, Dorrah stated that "Over tilne, it became clear that Mr. Brocato did not
understand this responsibility [to the citizens of Baker City]. Instead, he chose to react with
anger to councilor questions and COlnments and those froln our citizens. He became accusatory
32. Following the June 9, 2009 meeting, defendant Die1man made the following false
a. In a June 19,2009; Letter to the Editor, Baker City Herald, Dielman accused
plaintiff of violating the International City/County Management Ethics Code by engaging in the
b. In an August 28, 2009, Letter to the Editor, Baker City Herald, Dielman stated:
"In 2007, when City Council hired Steve Brocato to be Baker City manager, it appears to have
taken at face value everything Brocato put into his application. It shouldn't have. * * * But,
Brocato left out a few things. * * * Such as, in 1999, the man who appointed Brocato president,
Cronos chairman Stefan Palatin, was fired for bilking the company out of millions of dollars and
subsequently served several years in an Austrian prison. Such as, within a week of Palatin's
ouster, Brocato' 'resigned' as president ofthe leasing division, according to a trade publication.
So, what did Brocato do during the 8 eight years between 1999 and being hired as Baker City
manager? He says he was a 'contractual and financial consultant.' But his resume lists not one
c. In an August 27,2009 letter published in the Baker City Herald, Dielman stated:
"In 2007, when City Council hired Steve Brocato to be Baker City manager, it appears to have
taken at face value everything Brocato put into his application. It shouldn't have. * * * But, if
the City had done due diligence, it would have learned that Brocato's employment history left
out a few things. * * * Such as, at the time he appointed Brocato president of the leasing
division, Cronos chairman of the board Stefan Palatin was under investigation by the SEC for
securities fraud. (A Cronos executive told me employees were 'shocked' by the appointment.) *
*'* In "1999,' Cronos·ousted P~l~tln as chaiima~ f~~ bilking the"co~pany out of millions of
dollars, for which he served several years in an Austrian prison. * * * Due diligence by the City
would have also disclosed something else missing from Brocato's reSUIne. Within a week of
Palatin's ouster, Brocato 'resigned' aspresident of the leasing division. * * * after a career of
nearly ~O years, Brocato never again worked in the container business. Why? His reSUIne is
silent. * * * So what did Brocato do during the eight years between his departure froln Cronos
and being hired as Baker City M.anager? He described himself as a 'contractual and financial
consultant.' No details. Brocato listed not one reference of persons to contact or addresses of
contracting companies."
d. In an October 28; 2009, Letter to the Editor, Baker City Herald, Dielman stated
cOlll1nitting two felonies by signing the recall petitions for Calder and Dorrah twice.
Diehnan statt<d that "Brocato has been kicked out of the most important position he ever held in
his career" and "that Brocato was forced from Cronos at the same tilne as Cronos Chairman
StefanM..Palatin, to whom Brocato owed his leadership position, to whom Brocato reported
directly (see resume), and who was booted from the company and ultitnately convicted and
34. While working for the City, plaintiffhad a libet1y interestprotected by the due
process clause of the Fourteenth Amendment of the United States Constitution to be free from
false charges made under color of law which involved or implied personal and professional
dishonesty, immorality or malfeasance in office, which adversely reflected on and datnaged his
standing and ability to continue his elnployment, and his career and future in his profession.
substantially false, and defendants have created and disseminated a false impression about
36. Defendants Dorrah, Bonebrake, Calder and Button were officials with "final
policy-making authority" and their conduct in tenninating plaintiff on the basis of false
allegations without due process thus constitutes an act of official government policy and
practice.
damages, including lost wages, lost benefits of employment, andlor other economic losses from
the date of his tennination through the date of trial, for which he is entitled to recover from
defendants.
39. Reinstatement is not feasible. Plaintiff is entitled to an award for damages for
provisions under which plaintiffbrings his action and to a permanent injunction enjoining
defendants, and each of them, from engaging in unlawful employment practices, upon such terms
41. As a further result of defendants' intentional acts alleged herein, plaintiff suffered
noneconOlnic damages for which he should recover such amount as may be found appropriate by
discriminatory, and retaliatory motive, and with reckless indifference to plaintiffs state and
amount found appropriate by a jury should be assessed against defendants to punish such
defendants and deter defendants and others from such conduct in the future.
43. Plaintiffis entitled to an award of attorney's fees, expert witness fees and costs
45. Between April 2009 and June 9,2009, plaintiff raised concerns both internally
and to the OGEC regarding potential and actual conflicts of interest between several councilors
.. arid the proposed Pr~perty·Maintena~c~ Ordinance. Plaintiff al~o· sought opihions from OGEe
46. Plaintiff reasonably and in good faith believed the potential and actual conflicts of
interest would be violations of the governmental code of ethics and needed to be addressed by
the Council.
47. Defendants retaliated against plaintiff for discussing and providing information to
the OGEC, and for the purpose of preventing the disclosure of, defendants' violations of state
through 39, 41,42, and 45 through 47 as though fully set forth herein.
51. Defendants, and each of them, by their conduct described in this COlnplaint,
subjected plaintiff to severe emotional distress. Defendants knew or should have known that
their conduct was certain, or substantially certain, to. cause severe emotional distress.
52. Defendants' conduct as described herein was socially intolerable and outrageous
in the extreme.
. . -' . ' .. '.' , .. ." " .
53. Plaintiffhas suffered and continues to suffer severe emotional distress as a result
of defendants' conduct.
54. The individual defendants acted with malice and/or reckless and outrageous
indifference toward a higWy unreasonable risk of harm and with conscious indifference to
plaintiffs health, safety and welfare. Such conduct should not be tolerated, and punitive
damages in an amount found appropriate by a' jury should be assessed against the individual
defendants to punish such individual defendants and deter the individual defendants and others
related to his role as an employee, which rights are of important public interest, i.e., his right and
'duty to report potential govemlnental conflicts of interest, and in violation of duties imposed
(2), which provides that a quorum of a governing body may not Ineet in private for the purpose
58. Plaintiff incorporates by reference the allegations of paragraphs 1 through 32, 38,
41,42, 45 through 47, 51, 54, 56 and 57 as though fully set forth herein.
59. Defendants targeted piaintiff for adverse action for the improper purpose of
retaliating against him for reasons including, but not limited to, reporting the individual Council
melnbers' actual and/or potential conflicts of interest to OGEC, and in order to enable
defendants to re-draft and pass the proposed Property Maintenance Ordinance without those
in secret, unauthorized meetings discussing a plan to terminate plaintiff, were improper lTIeanS
61. Defendants' interference caused the loss ofplaintiffs income and other economic
62. Plaintiff incorporat~s .by reference the allegations of paragraphs 1 through 32, 35,
63. Defendants, and each ofthelTI as set out in paragraphs 28 through 33 herein
above, acted with actual malice, knowing their statements were false or made in reckless
disregard whether su~h'staten~e~ts ~~re faise ~r ~ot, an:d' c~used th~ir" false and defamatory' .
statements to be published in the :news and social media, which statements imputed to plaintiff a
lack of integrity in the discharge of his profession, represented plaintiff as incompetent in his
profession, implied that plaintiff engaged in unethical and possibly criminal behavior on the job,
64. Defendants knew or should have known, or acted in reckless disregard of the fact,
that their published statements about plaintiff were false and would cause plaintiff to be
subjected to.hatred, contempt or ridicule and tended to diminish the esteem, respect, goodwill, or
65. Plaintiff incorporates by reference the allegations ofparagraphs 1 through 32, 35,
38, 41, 42, 47, 50 through 52, 54, 56, 59, 60 and 64 as though fully set forth herein.
66. Defendants' publication in the news and social media of the defatnatory
statements listed in paragraphs 28 through 32 above placed plaintiff in a false light in the eyes of
the public, which false light would be highly offensive to a reasonable person and was highly
offensive to plaintiff
67. Defendants knew or should have known that plaintiff would be reasonably
justified in the eyes of the community in feeling seriously offended and aggrieved by the
.publicity.
. '. . . . "." .. ' " '.. ...., ..
68. Defendants knew that the published statements were false, and/or acted in
reckless disregard as to the falsity of the publicized matter and the false light in which plaintiff
was placed.
through 36, 38, 40 through 43, 45 through 47, 57, 59, 60, 63 and 64 as though fully set forth
herein.
70. Defendants Dorrah, Calder, Bonebrake and Button, and each of them, conspired
for the purpose of impeding, hindering, obstructing, or defeating the due course ofjustice,
law and his Fourteenth A1nendment Rights by their conduct alleged herein.
2. Declare that defendants are in violation of the statutory provisions under which
plaintiff brings his action and grant permanent injunctive relief enjoining defendant City and its
employees, agents, successors, and assigns, and all persons in active concert or participation with
defendant, from engaging in practices as alleged herein, on such terms as the court may direct.
4. Order defendants to make plaintiff whole by compensating him for past and future
. eco~~mic ios~es, including ·expenses; impairment of earnIng e~padty, ·lost· past· ~d· futur~
earnings and benefits, and such other losses as are awarded by a jury or otherwise established at
trial.
noneconomic losses, severe elnotional distress and loss of enjoyment of life in an amount to be
determined by a jury.
JUry.
7. Award plaintiff his costs of suit and reasonable attorney fees, costs and expert
9. Order such further or altemative relief in favor ofplaintiff as the court deems
appropriate.
Plaintiff demands a jury trial on all questions of fact or combined questions oflaw and
By:
Craig A. Crispin, OSB No. 82485
Shelley D. Russell, OSB No. 94068
OfAttomeys for Plaintiff