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Kennedy v. Deschutes County Board of Commissioners

United States District Court, D. Oregon

June 2, 2014

MICHAEL ALLEN KENNEDY, an individual, Plaintiff,


MICHAEL J. McSHANE, District Judge.

Defendant Sunriver Service District (the "District") moves for summary judgment against plaintiff Michael Kennedy's claims of retaliation, wrongful discharge, and whistleblowing. These claims are the sole claims remaining in this action. Kennedy alleges the District unlawfully terminated his employment in violation of his First Amendment rights. Kennedy's relevant speech concerned three issues: (1) an ongoing debate over the legal status of Sunriver's roadways; (2) the District's failure to utilize third-party review of contracts with the Sunriver Owners Association (the "Association"); and (3) civil stalking protective order proceedings involving Sunriver resident Robert Foster and Sunriver police officers. Kennedy's speech is not "protected speech" in the First Amendment retaliation context. And even if Kennedy's speech was protected here, Kennedy fails to link that speech in any way with the decision to terminate his employment. The District's motion for summary judgment (ECF No. 87) is GRANTED.


Kennedy was the Chief of Police of the District from 2000 until 2012. The Deschutes County Board of Commissioners created the District to provide fire and police services in Sunriver. The District if governed by a five-person board of directors, two of whom sit on the Association. Throughout the years, there was some tension between Kennedy, the Association, and the District. In 2012, the District's board voted unanimously to terminate Kennedy's employment. Kennedy's claims revolve around his speech on three issues.

I. The Road Issue

Near the time Kennedy became the Chief of Police, there was a debate over whether Sunriver's roadways were highways or "premises open to the public." Kennedy argued the roads were highways and that the state traffic laws applied (and Sunriver police officers could make traffic stops based on violations of state statutes). The Association argued the roads were "premises open to the public."

Individuals stopped for traffic violations began challenging those stops (and the searches arising from the stops), arguing the roads were not highways. Kennedy testified the roads were highways. The judge agreed.

The matter, however, was not resolved. The Association later purchased an ATV for use on the roadways. Kennedy argued that under Oregon law, ATVs were not allowed on highways. The Association disagreed. This led to more tension between the Association and Kennedy.

The debate continued over the next few years. The Sunriver District Attorney ("DA") said not classifying roads as highways would result in criminals having free reign in Sunriver. Kennedy agreed.

In 2007, the board voted to alter the definition of roads, concluding they were not premises open to the public. The police were prohibited from making minor traffic stops. This made National news and generated much bad publicity for Sunriver. The board was humiliated and blamed Kennedy. Later that year, the Oregon Legislature clarified the matter by declaring the roads highways.

II. The Third-Party Contract Review Issue

By rule, contracts for services and vendors between the District and the Association had to be reviewed by a third party. Kennedy alleges that before he spoke up on the issue, there was no third-party review and the district paid more for the contracts. Kennedy discussed the contract issue with others, who agreed with him and brought it before the board. Kennedy also wrote one email to the Association's General Manager in 2002. The email stated:

With the recent events regarding our former Sheriff's in propriety and the subsequent criticism of the County Commissioners regarding their lack of oversight, I think we are all feeling an increased sense of urgency regarding the adoption of a Contract/Purchasing policy and a legal review of the current Admin contract. I have spoken with several board members regarding this and have mentioned it to Sharon Smith. I hope this will be addressed at the next Board meeting.

Kennedy Ex. F, 7.

Kennedy alleges his speech on the contracts infuriated the Association. After Kennedy raised the issue, third parties began reviewing the contracts. As a result, the price of the contracts fell and the Association received less money from the District. Kennedy wrote the email in 2002 and the contract issue was resolved ten years before his termination.

III. The Robert Foster Issue

In 2008, Kennedy wrote a report to the DA stating:

For the past several years, Robert Benjamin Foster has engaged in repeated and unwanted contact with members of the Sunriver Police Department. This unwanted contact has caused apprehension among our officers and has interfered with their ability to perform their duties. These contacts include challenging officers while they are conducting traffic stops; following officers while they are both on and off duty; confronting officers while they are on and off duty; driving around the Sunriver Police Department, sometimes several times a day; and parking outside the Sunriver Police Department for extended periods of time with no apparent reason.

Kennedy asked the DA to "consider charging Mr. Foster with Stalking." The DA informed Kennedy it would be a tough case.

In February 2010, Joseph Patnode, a Sunriver police officer, alleged Foster followed him home. Patnode pulled over and they had a confrontation. Kennedy went to the Association (who owned the building the police department rented) and asked to trespass Foster from the building. The Association sent Kennedy to the board. Robert Franz, the board's legal counsel, called Kennedy and said the police department would file a stalking order against Foster. Kennedy told Franz of the problems with making that case. Franz said they would file it on behalf of two officers who had run-ins with Foster.

Kennedy contacted the two officers, who agreed to have stalking orders filed against Foster. Foster fought the orders and eventually filed a tort claim notice against the Association, the District, and Kennedy.

Many letters to the local newspaper were published on this topic. It was big news in Sunriver. Kennedy's essentially argues that the Association urged him to initiate the stalking petitions against Foster, Kennedy supported the petitions, the case led to much bad publicity, and then the Association backpedaled and fired him due to the bad press.

Kennedy makes much of a conversation between John Salzer and Foster in the hallway of the courthouse prior to a hearing. Salzer was a board member from 2002-05 and an acquaintance of Foster's. No one remembers when this meeting occurred. Kennedy argues it must have happened in January 2012. Salzer, however, stated the conversation occurred roughly one year before Kennedy's termination. The conversation lasted less-than one minute and was only between Foster and Salzer. Salzer expressed disappointment with the proceedings. The two discussed the case and suggested that maybe if Kennedy was no longer the Chief of Police the case would resolve.

There is no indication any of the 2012 board members knew of this conversation, or that Salzer even spoke of Kennedy with any of the 2012 board members. There are plenty of deposition exhibits of the 2012 board members. They all say Kennedy had to go because Sunriver needed a change. None of them even knew Kennedy was involved of the contract issue and few remembered the roadway issue. The stalking issue was more contemporaneous so they did know of that.

Regarding Salzer, Kennedy also attempts to make a mountain out of a June 2005 "secret memorandum" Salzer (who was leaving the board) sent to Doug Seator, the incoming board chair. Salzer wrote down some concerns he had about Kennedy. He lists four things. One item is the roadway issue. Salzer notes Kennedy's position was in conflict with the Association's and summarized the issues. He also ...

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