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Wenzel v. Klamath County Fire District No.1

United States District Court, D. Oregon, Medford Division

March 14, 2017

JAMES L. WENZEL, Plaintiff,


          MARK D. CLARKE, United States Magistrate Judge

         Plaintiff James Wenzel brings claims against the defendants, Klamath County Fire District No. 1, ("KCFD1"), the KCFD1 Board of Directors ("Board"), attorney Stephen Hedlund, and private investigator Jim Toddy. Plaintiff alleges that he was wrongfully terminated in violation of his due process rights, and related state law claims.

         The case comes before the Court on various discovery disputes. For the reasons below, Plaintiffs Motion for Clarification or Reconsideration (#97) is DENIED. Plaintiffs request for production of the August 6, 2013, Executive Session audio recording is GRANTED in part and DENIED in part. The other disputes are resolved as stated below.


         The factual background of this case has been thoroughly discussed in previous opinions by the Court and briefing by the parties. The Court will only briefly review it here. Plaintiff James Wenzel was the Fire Chief of Klamath County Fire District No. 1 (KCFD1) for six years from January 2008 to December 31, 2013. He alleges an exemplary work history.

         The KCFD1 Board of Directors is a defendant in this case, which arises out of the Board's decision not to renew, or to terminate, Plaintiffs contract as Fire Chief of KCFD1.

         Defendant Stephen Hedlund is an attorney in private practice; he was retained as an independent contractor attorney to KCFD1 and the Board. Plaintiff claims Hedlund went out of his way to try to damage Wenzel's annual performance review, and he began making unfounded accusations against Wenzel, which lead to a flawed employment investigation, a false report that damaged his personal and professional reputation, and ultimately, termination of his position.

         Defendant Jim Toddy is a private investigator who was hired by the Board to conduct an investigation of Plaintiff Wenzel during the spring and summer of 2013. Plaintiff alleges that Toddy was a close personal friend and associate of Hedlund, that Toddy took direction from Hedlund, and that the two of them conducted an intentionally biased investigation in order to create a damaging report. Plaintiff alleges that the investigation was biased, incomplete, and poorly conducted. He alleges that he was not given a chance to respond to any of the accusations or produce evidence or witnesses to support his position.

         In a report dated June 24, 2013 ("Toddy Report"), Toddy set out his findings. Plaintiff alleges that these findings included "a multitude of false, misleading, and highly derogatory statements concerning Wenzel." Plaintiff alleges that the report was "replete with harsh negative judgments about Wenzel" and "vitriolic personal commentary about Wenzel" that was "unfounded and unwarranted, " and displayed a "shocking and inappropriate level of personal animosity against Wenzel." Plaintiff further alleges that the Toddy Report was the first notice he had regarding the specific accusations against him. He claims he promptly requested an opportunity to respond to the accusations, but that he was never given a hearing concerning the Toddy Report.

         On August 6, 2013, the KCFD1 Board held a meeting and executive session to seek legal counsel from attorney Hedlund, and to discuss the Toddy Report. On or about August 19, 2013 the KCFD1 Board held a meeting to vote on whether to terminate Wenzel's employment. Wenzel was not given an opportunity to be heard concerning the Toddy Report, but he did submit a written response, and he asked again to be given a full hearing on the accusations. Plaintiff was not allowed to participate in the August 19 Board meeting, but he alleges that Hedlund encouraged and advised the Board to terminate his employment. The following day, Plaintiff received written notice of his termination. Pursuant to the August 20 notice, Plaintiff Wenzel's employment with KCFD1 was to terminate on December 31, 2013. After receiving the notice, Plaintiff renewed his requests for a hearing. Plaintiff alleges that Hedlund and the Board indicated to him that he would be allowed to get a hearing, but "in a letter dated December 6, 2013, signed by Hedlund, the request for a hearing was denied."


         The parties have a variety of disputes for the Court to resolve. Of them, the most important is the dispute over whether or not the audio recording of the August 6, 2013, Executive Session meeting of the KCFD1 Board of Directors is discoverable. Defendants claim that the recording is privileged and not subject to disclosure. The Court agrees, but only in part. As discussed below, any portion of the recording in which attorney Hedlund is speaking, or being asked a direct question by a member of the Board, should be redacted. However, any part in which a member of the Board is discussing his or her reaction or view of the Toddy Report, and the report's impact on that person's evaluation of Plaintiff s continued employment is discoverable and should be disclosed.

         I. Audio Recording of Executive Session on August 6, 2013 is ordered to be produced in part.

         On August 6, 2013, two weeks after receiving the Toddy Report, the KCFD1 Board of Directors met in public session, and then closed the meeting to the public and met in an Executive Session with their attorney, defendant Hedlund. The audio recording of that executive session has been submitted for ...

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