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Konzelman v. Jackson

United States District Court, D. Oregon

October 18, 2019

ERIC KONZELMAN, an individual, Plaintiff,
v.
JEFFREY SCOTT JACKSON AS SHERIFF OF BENTON COUNTY, in his individual and official capacity, BENTON COUNTY a political subdivision of the State of Oregon, Defendants.

          OPINION AND ORDER

          Michael McShane United States District Judge

         Plaintiff Eric Konzelman brings this employment action against defendants Jeffery Scott Jackson and Benton County. Generally, Konzelman alleges Defendants retaliated against him after Konzelman backed a potential challenger to Jackson, the Sheriff of Benton County. Defendants move to dismiss claims five and six (i.e., Konzelman's claims under Oregon's Peace Officer Bill of Rights). Defs.' Mot. Dismiss, ECF No. 10. As discussed below, Defendants' motion to dismiss is GRANTED.

         BACKGROUND [1]

         At all relevant times, Konzelman was a deputy for the Benton County Sheriff's Office (BCSO) and Defendant Jackson was the elected sheriff of Benton County. Compl. ¶ 12, 13. At all relevant times, Konzelman was a member of the Benton County Deputy Sheriff's Association (BCDSA). Compl. ¶ 14.

         In June 2017, Konzelman and other BCDSA members discussed BCSO Sergeant Dave Peterson possibly challenging Jackson in the 2018 election for sheriff. Compl. ¶ 14. Around this time, a Facebook page was created for Sergeant Peterson's campaign. Compl. ¶ 14. Konzelman administered the page. Compl. ¶ 14.

         In December 2017, Jackson sent an email to the Benton County District Attorney detailing a conversation Jackson had with members of the BCDSA who alleged that Sergeant Peterson and Deputy Brent Iverson agreed to file multiple grievances and initiate a vote of no confidence against Jackson. Compl. ¶ 17. One deputy informed Jackson “that a Facebook page had been created to vent frustrations about” him. Compl. ¶ 17.

         The BCSO then opened an internal investigation into Sergeant Peterson and Deputy Iverson. Compl. ¶ 18. Several BCSO employees were interviewed, including Konzelman. Compl. ¶ 18. Konzelman's interview took place on February 2, 2018. Compl. ¶ 19. Konzelman “was not previously informed o[f] this interview and was not informed of his right to have representation with hi[m] in the interview. Plaintiff felt the interview was compelled.” Compl. ¶ 19. When questioned about the Facebook page, Konzelman stated he did not recall if he created or administered it. Compl. ¶ 21. At the end of the interview, the investigator “directed Plaintiff to write down his username and password. Plaintiff felt compelled to comply with this direction and gave over the password to his personal Facebook account.” Compl. ¶ 22.

         On March 13, 2018, BCSO opened an internal investigation of Konzelman concerning his truthfulness about the Facebook page discussed in the previous interview. Compl. ¶ 23. Konzelman was placed on administrative leave. Before being interviewed, the Vice President of the BCDSA discouraged Konzelman from bringing his private attorney. Compl. ¶ 24. Unbeknownst to Konzelman, the Vice President of the BCDSA had previously provided Jackson with disparaging information about Konzelman. Compl. ¶ 23. Plaintiff “clearly communicated” his preference that Kim Lovik, the Secretary of the BCDSA serve as his representative. Compl. ¶ 24. The Vice President “continued to insert himself into the matter and actively kept information regarding the investigation from Lovik.” Compl. ¶ 24.

         On March 29, 2018, Konzelman sat for the interview with Lovik as his BCDSA association representative. Compl. ¶ 26. “Plaintiff again denied having significant memories of” the Facebook page. Compl. ¶ 26. Plaintiff acknowledged his Facebook account indicated “that he had scheduled the [Facebook] page for deletion, ” but stated he did not remember deleting the page because it “was not a significant event.” Compl. ¶ 26. Three weeks after the interview, the Vice President sent an email to Lovik stating “[i]t is clear to all of us and all of them that [Plaintiff] was lying.” Compl. ¶ 27 (alterations in original). On May 8, 2018, the Benton County District Attorney's Office Brady Review Committee concluded the investigator found Konzelman “violated the BCSO General Order 7.1 § 2.9 Truthfulness.” Compl. ¶ 31.

Plaintiff felt that both investigations were improperly based on protected union and first amendment activities and were retaliatory in nature. Plaintiff further came to believe that certain high-ranking union members were working against Plaintiff and colluding with management personnel to hurt Plaintiff. Plaintiff lost any confidence that the union [would] stand up for Plaintiff's rights in the face of the illegal retaliation. Plaintiff began working with his private attorney to file an unfair labor practices (“ULP”) complaint against both the County and the Union. The union was well aware that Plaintiff wanted a ULP complaint filed on his behalf.

Compl. ¶ 34.

         On October 31, 2018, Konzelman learned of a new internal investigation based on a citizen's complaint after Konzelman arrested her son. Compl. ¶ 36. On December 13, 2018, a BCSO Lieutenant interviewed Konzelman in regard to the new investigation. Compl. ¶ 40. “Plaintiff attended the interview with his union rep, and Plaintiff's attorney was not allowed to be in the room during the interview.” Compl. ¶ 41. Lovik once again served as Konzelman's union representative during the interview. Compl. ¶ 41. “The BCSO refused to allow Plaintiff a representative of his choosing even in light of pending litigation [i.e., Konzelman's pending unfair labor practices complaint] against the BCSO and the BCSO.” Compl. ¶ 41.

         As noted, Konzelman brings claims five and six under Oregon's Peace Officer Bill of Rights. Konzelman alleges in claim five that the discouragement of having his private attorney present during the March 2018 interview, Compl. ¶ 88, and the denial of his private attorney's presence during the December 2018 interview, Compl. ¶ 94, are violations of ORS § 236.360(2)(b). Konzelman alleges in claim six that Benton County and the BSCO's failure “to institute written procedures to implement the provisions of the Oregon ...


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