|| December 3, 2008
|| Andy Cooley, Attorney
Federal Jury Rules in Favor of Kitsap County in Illegal
A Federal Jury in Tacoma has cleared Kitsap County and two officials of charges of illegal discrimination. The unanimous verdict was delivered
Tuesday evening in the Court of Judge Ronald Leighton, United States District Judge. The verdict followed a trial that stretched over 3
The lawsuit was brought by former employee David Smith and his wife, Maureen Smith, both of Bremerton, Washington. The Smiths filed claims
for damages with the county in excess of $20 million. When they filed suit they alleged violations of the Federal Civil Rights Act, and the
Washington State Law Against Discrimination.
The original lawsuit named Kitsap County, Prosecutor Russell Hauge and his Chief Civil Deputy Jacquelyn Aufderheide. It also named former
Commissioners Chris Endresen and Patty Lent, and current Commissioner Jan Angel. In addition, the Smiths sued former County Administrators
Malcolm Fleming and Cris Gears, Public Works Director Randy Casteel, and Assistant Public Works Director Jon Brand. Penny Starkey, an
employee in the Kitsap County Personnel Division was also named. Of the original 11 defendants, Judge Leighton dismissed the cases against 8,
leaving only Casteel, Brand and the County at the trial.
Smith's suit arose out of his discharge in April 2006. Smith was a Senior Program Manager in the Public Works Department, serving as the
County's traffic engineer. He had been employed since 1990. In 2005 County officials learned that Smith had been secretly tape recording
while on the job. He had been secretly recording subordinates, superiors and public citizens over a period of several years. During the
investigation of the illegal tape recording, County officials ordered Smith to turn over a county owned laptop, without removing any files.
Smith violated this direct order and removed at least one file. He was charged with insubordination and with illegally recording and
In his lawsuit, Smith claimed that his discharge was illegal, and that he had been the victim of retaliation by officials at the County. He
claimed that he had given testimony in two other lawsuits against the County alleging
employment discrimination. Both those lawsuits were settled. Smith claimed that he had been threatened by Brand and Casteel
and encouraged to lie in those lawsuits. He claimed he was fired in retaliation for giving his testimony, and the excuses offered by the
County were mere pretexts masking an illegal discriminatory plan.
The County felt from the beginning that David Smith had to be held accountable for his illegal misconduct. As a senior level manager, Smith held
a position of public trust and confidence. He was secretly recording people at
work, and even citizens in their living rooms. That is gross misconduct and the County had no choice but to fire him. The investigation eventually
disclosed that Smith had kept almost 100 hours of recordings. He recorded conversations on the telephone,
interactions with public citizens and even co-workers using the restroom.
Because the lawsuit named Prosecutor Hauge and Chief Civil Deputy Prosecutor
Aufderheide, the County appointed an outside law firm to represent the agency and its employees. Trial began on November 19, 2008,
after two years of pretrial litigation. It concluded on December 2, 2008. A unanimous jury of 8 decided that the County and its officials had not
violated any state or federal laws and had not committed any improper acts of illegal discrimination. "This was a complete vindication of my
clients" said lead counsel Andy Cooley, of Keating Bucklin & McCormack, the Seattle firm selected to defend the County. Cooley was assisted by
Jayne Freeman. The Smiths were represented by Clayton Longacre of Port Orchard and Randy Loun of Bremerton.