Legal experts say the employment-related issues brewing in the Deschutes County District Attorney’s Office could present an interesting test of state law when it comes to public employees, political speech, and the ability of a district attorney to dismiss his or her deputies.

In January, Bend attorney Patrick Flaherty will take over as the county’s top prosecutor, replacing longtime District Attorney Mike Dugan, whom he unseated in the May election.

But more than four months before the transition, the future employment of some of the 18 deputy district attorneys who currently work in the office has become an issue. A group of prosecutors has filed a petition with the state to create a union — a move, some in the office say, to protect their jobs — and Flaherty has writ- ten a letter to one chief deputy, telling him he won’t have a job in January.

It’s not clear what will happen in the office when Flaherty takes over, but county officials and attorneys who specialize in employment and constitutional law say a legal battle could be ahead. There are several issues, ranging from a vague state law on the hiring and firing of deputy district attorneys to the boundaries of free speech for public employees threatened with termination.

Flaherty, who could not be reached for comment, has not spoken publicly about his intentions to retain or fire prosecutors.

But last week, he made his position clear regarding one employee: Chief Deputy District Attorney Darryl Nakahira. In a short letter, Flaherty informed Nakahira that he would not be employed “in any capacity” as of January. Flaherty singled out Nakahira’s failure to contact him after the election and involvement with Dugan’s campaign as evidence that Nakahira is “not interested in being a member of my office anyway.”

Nakahira, who has worked in the office since 1996, was one of 17 deputy district attorneys who endorsed Dugan in the election.

He declined to comment on the letter.

As a supervisor, Nakahira is not eligible to be a member of the proposed union. If a majority of the prosecutors vote to form the union, it’s not clear how it might impact the district attorney’s ability to dismiss his deputies.

County Counsel Mark Pilliod has said the county could be named in a lawsuit if a deputy was fired and then filed a wrongful termination claim.

One potential issue could be the firing of a prosecutor based on his or her political activities.

Bob Estabrook, a spokesman for the Oregon Bureau of Labor and Industries, said an employee’s support for a particular candidate, political party or issue, is typically not something that could be the basis for an employment complaint to his agency.

But under federal law, most public employees do have some protection when it comes to political speech or activity and retaliation at work.

Henry Drummonds, a professor at Lewis and Clark Law School, said several U.S. Supreme Court cases dating back over the last three decades have addressed the issue — though it’s far from black and white.

A 1980 case involving two public defenders in New York who were fired because of their support for a political party not backed by their new boss ended with a decision in favor of the fired lawyers. The court found that firing a public employee because of his or her personal views violated the First Amendment.

Question of rights

But Drummonds pointed out that the case also includes provisions for high-level employees responsible for making policy decisions. The need for a political official to have a chief of staff who shared his or her political views, for example, could outweigh that employees First Amendment right to support an opposite view.

But there’s no guidebook for what jobs might fall in that category, Drummonds said.

“It’s a fine line that’s drawn in these cases, and it depends on particular facts,” he said.

Michael Wise, a professor at the Willamette University College of Law, said it can also depend on what the employee said or did to get them fired. If it was based on a private issue, perhaps related to them as an individual, on the job, it could get them fired. But an issue of “public concern” — speaking out about something bigger than his or herself — it’s more likely to be a protected action.

An issue of public concern could involve an election or could be a discussion about a public topic, like funding for public activities.

But again, Wise said it’s a gray area.

“Even when it’s a matter of public concern, there’s some balancing between whether or not it disrupts the efficient operation of the office or not,” he said.

Also unclear is where Oregon law stands on when and how a district attorney can dismiss his or her deputies.

The mention of the issue in the Oregon Revised Statutes is brief, noting only that a district attorney “shall appoint deputies.”

The issue came up last year in Polk County, where a newly elected district attorney fired two of his deputies. The prosecutors, through their union, fought back. In the end, the district attorney and the county had to back down and reinstated one of the prosecutors, with back pay; The other decided to take a job elsewhere.

Polk County Counsel David Doyle said the dispute was largely related to an agreement between the union, district attorney and county that never made it on the books. But he said the back and forth in Polk County made it clear that there’s not a consensus on a district attorney’s ability to fire deputies.

‘It’s a gray area’

“The issue is if a new DA takes office and says, ‘These are not people I hired, not the people I want to be my deputies, and as I read the statute in the (Oregon Revised Statutes) it says they basically serve at my pleasure,’” Doyle said. “But dig deeper, and it’s a gray area.”

Portland attorney Greg Chaimov, who often advises public officials on ethics issues, said that he doesn’t necessarily see a legal problem with a new district attorney coming in and cleaning house to start over with a staff of his or her choosing. If the employees are at-will — not represented by a union — he said the district attorney doesn’t have to provide a reason for the firing.

“Depending on how high up you are in the food chain, you can be fired for no reason at all,” he said. “I would think the DA could come in and say I am now firing all my deputies … that would probably be appropriate under the law,” he said.

But if politics become an issue, he said that strategy probably won’t work.

“The less you say, the less likely you are to be sued,” Chaimov said.