Judge denies most claims in Brocato lawsuit

By Jayson Jacoby / The Baker City Herald

By JAYSON JACOBY

jjacoby@bakercityherald.com

A federal magistrate judge recommends the dismissal of all but one of the claims former Baker City Manager Steve Brocato made in a million-dollar civil lawsuit he filed against the city, the four council members who voted to fire him in June 2009, and Baker City resident Gary Dielman.

Brocato, who was hired as city manager in January 2007, filed the lawsuit in May 2010.

He accused councilors Dennis Dorrah, Beverly Calder, Aletha Bonebrake

and Clair Button, along with Dielman, of defaming him by statements

made during City Council meetings, in letters to the editor, emails and

posts on Facebook.

Brocato also accused the councilors of several other things, including

that they fired him in retaliation for his attempt to determine whether

they had conflicts of interest when they made changes to the city's

property maintenance ordinance.

Magistrate Judge Patricia Sullivan, in a 27-page document dated

Wednesday, recommended that all the claims Brocato made against Dielman

be denied, along with all but one of the claims leveled against the

city and the four councilors.

Because Sullivan is a magistrate judge, her recommendations are still

subject to review by a U.S. District Court judge, who will either

endorse or deny them.

In either case, the District Court judge's ruling could be appealed.

The review has not been scheduled.

Dielman declined to comment Thursday, noting that, because Sullivan's

recommendations aren't final, the lawsuit is still pending.

Calder said that although she's disappointed because the lawsuit has

been costly in time, money and stress, she's pleased that Sullivan

recommends the dismissal of all but one of Brocato's claims.

"It was a frivolous lawsuit, and the first magistrate who looked at the claims said it was frivolous," Calder said.

Neither Brocato nor his attorneys, Craig A. Crispin and Shelley Russell

of Portland, could be reached for comment in time for this story.

As is common in civil cases, attorneys representing the city, the

councilors and Dielman had filed motions asking that all of Brocato's

claims be dismissed.

Those motions were filed on April 21, 2011.

In late May of 2011, Brocato voluntarily agreed to cancel his claim

that all the defendants had intentionally caused him emotional stress.

Brocato also dropped his claims of intentional interference with economic relations and conspiracy.

He continues to maintain, however, that the defendants defamed him and cast him in a false light.

Judge Sullivan concluded that the four councilors are not liable for

their statements, whether oral or in writing, because those statements

were made "within the scope of employment" - in their case, as part of

their work as elected city councilors.

"Councilors were serving on the City Council and addressed matters that

were directly related to their positions as Councilors," Sullivan wrote.

The Oregon Tort Claims Act protects councilors from liability in such cases, she wrote.

As for Brocato's claims that Dielman defamed him in letters to the

editor and in an email sent to then-assistant City Manager Jennifer

Watkins, Judge Sullivan concluded that although "Dielman was highly

critical of Brocato and voiced his opinions of Brocato," Dielman's

statements "can be viewed as no more than Dielman's opinion."

Statements of opinion, the judge wrote, are protected by the First Amendment and can't be deemed defamatory.

Judge Sullivan rejected the city's and the councilors' motion to

dismiss Brocato's claim based on what's known as his "deprivation of

liberty interest."

In essence, Brocato contends that the four councilors made false

statements that damaged his public image and thus made it difficult for

him to get another job. He also argues that he was entitled to a

"name-clearing hearing," which the city did not give him.

Judge Sullivan concluded that although Brocato's claim that he has been

unable to find a job could have several causes, statements made by the

four councilors could be among those causes.

Whether those statements were indeed a contributing factor is a matter

for a jury decide, the judge wrote in her recommendations.

Brocato also claims he was wrongfully fired.

Although Brocato did not have an employment contract, and the city

charter allows the City Council to fire a manager without cause, Judge

Sullivan writes that in some cases, the firing of an employee can still

be considered wrongful.

As an example, if an employee can prove that he was fired for

"fulfilling an important public duty," the dismissal could be illegal,

the judge wrote.

Brocato contends that he was fired in part for fulfilling an important

public duty. His claim is based on the city's effort, during the spring

of 2009, to revise the property maintenance ordinance.

As part of that effort, Brocato asked the Oregon Government Ethics

Commission, in April 2009, whether city councilors might have conflicts

of interest because they own property that could be affected by the

ordinance they were charged with revising.

Then, in May 2009, Brocato asked Shannon Regan, then the city's

community service officer, to inspect each councilors' properties to

determine whether any would be affected by changes in the ordinance

that councilors were then considering.

Brocato contends that his actions angered the four councilors and that they retaliated by firing him a month later.

Judge Sullivan concluded that Brocato's actions - calling the ethics

commission and having councilors' properties surveyed - do not amount

to an "important public duty," and that his claim of wrongful discharge

should then be dismissed.

In a related recommendation, the judge rejects Brocato's claim that,

because he reported the councilors' potential conflict of interest to

the ethics commission, he was a "whistleblower" protected from

retaliation by a state law.

Brocato's initial legal maneuver after he was fired came in August

2009, when he asked the city for a severance package totaling about

$120,000.

The City Council denied Brocato's request.

Brocato's firing also prompted a group of Baker City residents to mount

a campaign to recall Dorrah and Calder, two of the four councilors who

voted for the termination.

(The two others, Bonebrake and Button, had been in office for less than

six months, so they were exempt under Oregon law from being recalled.)

City voters, by more than a 2-to-1 margin, rejected the recall measure in a special election in October 2009.

13114487
The Baker City Herald
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