A hearings officer for the Department of Labor and Industry (MDLI) Hearings Bureau issued an eight-page order on November 30, 2011 ordering the Human Rights Bureau to disclose the complaints and amended complaints filed by Deputy County Attorney Geoffrey Mahar against County Attorney Bill Fulbright and Ravalli County. The complaints were withdrawn as part of a settlement agreement reached through a Human Rights Bureau “fast track mediation procedure” on August 24, 2011, prior to the issuance of a final investigative report.
The Bitterroot Star, RC Watchdog, and the Bitterroot Human Rights Alliance have filed a case in District Court challenging the legality of that settlement agreement, alleging insufficient public notice, and, in particular, public notice involving a significant financial expenditure. The cost of the settlement agreement has been variously estimated at $180,000 to $250,000. It is a complex agreement involving continued employment and employment benefits up through March 2013.
Simultaneously, the same three organizations and the Ravalli Republic requested that the Human Rights Bureau disclose the complaints that were involved in the settlement agreement. Those requests were refused based on objections by Mahar that it would violate his rights to privacy. Neither the County nor the County Attorney objected to the release. The Bitterroot Star, RC Watchdog and the Bitterroot Human Rights Alliance appealed that decision by the Human Rights Bureau to MDLI Hearings Bureau. The Ravalli Republic did not.
The order refers to the complaints, which were viewed in camera by the hearings officer, as “political discrimination” complaints.
Mahar was removed from the position of Chief Deputy County Attorney and transferred to civil from prosecutorial duties not long after Fulbright took office. Mahar had been a strong supporter of former county attorney George Corn in the election.
As part of the hearing process Mahar filed a document making his arguments that the complaints should not be released. In that document he argued that the fast track mediation process promised confidentiality in that process and that release of the information would stifle the willingness of others to participate in the process in the future.
“This is especially true where (as is occurring in this case) an employee who withdraws a complaint is then subject to several months of ongoing phone messages, newspaper articles, and incessant questioning from parties who want political fodder or who choose to gossip about Ravalli County employees,” wrote Mahar.
Mahar also claimed to have a reasonable expectation of privacy because it is information about his employment.
“Critically important is the fact that I am not an elected official, but an employee,” he wrote.
Mahar also objected based on the fact that his complaint information refers to two other third parties, not part of the complaint, and would violate their rights to privacy. He also argues that his current status as an active employee requires duties of confidentiality to his employer and that relationship would be adversely impacted by release of the information in the complaints.
Attorney for the requesting organizations, Dustin Gahagan, in his response to Mahar’s objections notes that no memorandums or confidential settlement materials were being requested. Only the complaints that were filed with the Human Rights Bureau and thus are public documents were being requested. Gahagan argues that Mahar had no expectation of privacy after filing the complaints with a public agency. He goes on to note that the courts have extended the reasoning about elected officials not having such reasonable expectations of privacy to public employees who “occupy positions of great public trust,” such as a Deputy County Attorney.
The state Hearings Bureau officer noted in his order that Mahar had specifically acknowledged in his complaint his “understanding that once [the] complaint was filed, it may be accessible to the public.”
The order states that in the case of conflicting constitutional rights, one guaranteeing the public’s right to know and the other guaranteeing rights of privacy to individuals, the courts have ruled that a determination must be made as to whether those privacy interests being claimed clearly outweigh the public’s right to know. The two-part test for determining this is first determining whether the individual has a “subjective or actual expectation of privacy,” the second is to determine if society would find that expectation “reasonable.”
The hearings officer determined that Mahar had no expectation of privacy, in part because the information was not part of his personnel file or his performance evaluations, but was instead information contained in a document that would certainly have become public had the matter proceeded through the hearing process.
The hearings officer reasoned that since Mahar, the county, as a public agency, and the county attorney, as an elected official, have no privacy interest, the final consideration pertained to the “third party individuals” who are named in the complaint.
“Third parties have a reasonable expectation of privacy in their private information. However, the public’s right to know in this case is strong. The underlying matter is related to charges of discrimination, harassment, and retaliation associated with Mahar’s political beliefs involving the county and county attorney. Redaction of the names of the two persons is adequate to protect any privacy rights they may have and does not impact the gist of the complaints,” states the order.
The Human Rights Bureau is ordered to disclose the complaint and amended complaint with the names of the two non-parties redacted, to the requesters on December 15, 2011. Disclosure will occur on that date unless a party obtains a stay from an appropriate higher authority or from the tribunal before that date.