By Michael Howell
In an amended complaint filed on August 3, 2012 and served on the County Commission last Wednesday, former County Road Supervisor David Ohnstad has accused the county of violating both his federal and state constitutional rights as well as various state laws when they fired him.
Ohnstad, who began working for the county in 2004, was fired in January 2012 by the Board of Commissioners following an investigation into his conduct concerning the Woodchuck Road Repair Project.
Back in 2007, under a different set of commissioners, Ohnstad was involved in the repair of Woodchuck Road in the upper 8 Mile area. That project was conducted as part of a settlement agreement with developers of the Saddle Hills Subdivision, Aldo and Niki Sardot. The Sardots sued the county following the denial of the subdivision. As part of the settlement it was agreed that the Upper Woodchuck Road would be paved. That project was completed in 2010.
But in 2011 the Sardots registered complaints with the county about the poor condition of the road, the lack of drainage and the failure to replace some culverts.
In August, Ohnstad was summoned by the commissioners to answer the Sardots’ complaints. At an on site meeting on August 26, the commissioners requested an estimate from Ohnstad of the cost to repair the road as requested by the Sardots. On August 29, 2011, at an inadequately noticed meeting (see accompanying story), the commissioners agreed to spend up to$46,780 to make the improvements and instructed Ohnstad to do the work.
Ohnstad claims that a few weeks later, in early October 2011, Commissioner Ron Stoltz, contrary to county policy, came and removed the Upper Woodchuck Road file from his office.
On October 28, Ohnstad left to visit his mother in Minnesota when he received an overnight letter on November 2, stating that the Commissioners intended to hold a meeting to discuss his continued employment on Monday, November 7. Ohnstad, obviously unable to attend, objected to the meeting being held without him and it was delayed until his return. At that meeting on November 21, Deputy County Attorney Howard Recht presented a lengthy set of allegations against Ohnstad along with a log of photographs of Woodchuck Road taken as part of an investigation by the County Attorney’s office. That meeting was then continued to January 20, 2012 to give Ohnstad a chance to respond to the charges against him.
At the January 20 meeting, Ohnstad’s employment was terminated for making false statements and failing to obtain appropriate engineering for the Woodchuck Road project.
Ohnstad denies these allegations and claims his firing was without just or good cause. In his lawsuit he claims that the procedures used to terminate his employment deprived him of his property interest and/or his liberty interest without due process of law guaranteed by the U.S. Constitution and the Montana Constitution.
Ohnstad claims a violation of the Montana Wrongful Discharge and Employment Act which prohibits discharging employees in retaliation for their refusal to participate in violation of public policy. He claims it would have been against public policy for him to have repaired the road in any way other than what the settlement agreement dictated. Nor could he do work that was not in compliance with the grading and drainage plans, nor could he leave the fencing in the right of way (as requested by the Sardots) without violating policy.
Ohnstad also claims that the Commission violated state law in firing him without good cause and in violation of its own written policy. He claims the Commission violated the Montana open meeting laws as well in a few ways. First, by Commissioner Soltz’s participation in the “investigation” of Ohnstad, as evidenced by his appearance in some of the log photos. Ohnstad claims that there is no record of any decision to conduct an investigation at that time. He also claims that the letter he received from Commissioner Matt Kanenwisher, following his first grievance meeting, contains detailed factual allegations that were not discussed in the open meeting.
Ohnstad asks the court to declare the Commission’s March 13 response to his grievance null and void and award him his costs and attorney fees. He also seeks past and future lost wages and benefits and damages for his mental distress, humiliation, and the unnecessary damage to his reputation. He also seeks punitive damages and demands a trial by jury.
According to the court docket, preliminary pretrial statements and a joint discovery plan are due by August 28, and a pre-trial conference is scheduled for September 4 in the federal courthouse in Missoula before Judge Dana L. Christensen.