United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
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.
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.
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.
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.
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.
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. ¶
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.
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.
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 ...