County fined $40,000 for withheld documents in lawsuit from former employees

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Clark County received a $40,000 fine due to a judge’s ruling that it withheld documents in a lawsuit from former county employees of a department dissolved five years ago.

On March 11, Clark County Superior Court Judge Gregory Gonzales granted a motion ordering the county to pay $40,000 to plaintiffs in an ongoing lawsuit of former employees of the now-defunct Clark County Department of Environmental Services, as well as provide “privilege logs” and other withheld documents requested by the plaintiffs.  

The motion request, dated March 4, alleged that the county had withheld “hundreds of pages of significant and relevant discovery under the guise of privilege” as part of the lawsuit. The lawsuit, initially filed in December 2016, alleges that former Washington State Sen. Don Benton was ultimately fired from his position as director of the Department of Environmental Services in part due to “alleging financial wrongdoing” and retaliation against him for those allegations. The department was dissolved in May 2016 by then-county manager Mark McCauley, who himself was fired in 2017.

The suit at the heart of the reason for the fine and order alleges improper behavior on the part of McCauley who the suit characterizes as interfering with Benton’s management of his department and verbally abusing Benton at times. 

The suit names Benton as well as two others, Susan Rice and Christopher Clifford, then-employees of the now-defunct department, as plaintiffs against the county.

The 16-page motion details allegations that since March 2017 the county had improperly withheld documents requested by the plaintiffs for the lawsuit’s discovery process. The county had enumerated withheld documents in the privilege log, claiming that the documents could not be revealed during discovery due to attorney/client privilege and/or work product doctrine, the motion request stated.

Last month the county had begun to provide hundreds of pages of documents for the case, the motion request stated, adding the documents “directly relate to key issues in the case” and “should have never been withheld.” The documents included communications between Benton and the county regarding issues handled by his department, which the motion request noted in many cases did not involve an attorney.

According to the lawsuit involved in the county’s fine, a few weeks before the dissolution of his department, Benton filed a whistleblower complaint against McCauley, accusing the county manager of, among other claims, violating hiring and firing practices found in the county’s charter, misusing funds, violating the Open Public Meetings Act and interfering with Benton’s handling of his department.

On May 11, 2016, Benton was given notice of his termination, according to the lawsuit, which alleges that the action was retaliation for Benton speaking out against McCauley and his perceived violations. 

Apart from past claims of negligence and violating county policies, the complaint also alleges the county violated the First Amendment rights of Benton’s co-plaintiffs, Rice and Clifford. The complaint argues that the two had reported “intimidating behavior” at the hands of McCauley to their supervisors, which allegedly was a motivational factor in the county’s decision to fire them.

Apart from providing some 1,700 pages of documents as part of the order, Clark County has not made much response to the case. An attorney for the county involved in the case, Megan Starks, said that the county had “no statement regarding the pending case” last week, though she noted that the $40,000 fine would be paid by her law firm, “and will not be funded by the county or (its) taxpayers.”

Gonzales’ order also moved the date of the trial from this month to April 26.

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