PORTLAND — Nearly a year after Patrick Flaherty completed his only term as district attorney of Deschutes County, it remains at issue whether the County Commission should be held liable as part of a wrongful termination lawsuit initiated by three former deputy district attorneys fired at the outset of Flaherty’s tenure.

In oral arguments Thursday before a panel of three judges of the 9th U.S. Circuit Court of Appeals, the fired attorneys, represented by Portland attorney Andrew Altschul, argued the County Commission was complicit in Flaherty’s termination of them without cause.

The plaintiffs, Brentley Foster, Phil Duong and Jody Vaughan, agreed to a $710,000 settlement in their claims against Flaherty in July 2013.

All three were leaders in the newly formed deputy district attorneys’ union and claimed the former district attorney fired them largely for campaigning for his opponent.

Central to that claim is a December 2010 decision by county commissioners to delay a vote ratifying a collective bargaining agreement with the new union. The agreement limited Flaherty’s ability to terminate employees without cause and provided deputy district attorneys with grievance rights.

Altschul contended in court Thursday the county had a role in his clients’ termination, which in turn he argued was an act of free speech retaliation, discrimination and a violation of good faith and fair dealing.

“The county took official action, which had a deterring, chilling effect on my clients’ free speech right,” Altschul said.

In 2011, U.S. District Judge Michael Hogan had dismissed the county from the claims because he did not consider the county the plaintiffs’ employer and because the commission was not compelled to ratify the collective bargaining agreement.

After Flaherty defeated longtime incumbent Mike Dugan in May 2010 and indicated his desire to clean house, the county’s deputy district attorneys formed the union and fought for a just-cause termination clause. Many deputies, including leaders in the union, had openly campaigned for Dugan and sought to protect their positions against the changes Flaherty sought.

“Commissioners postponed the adoption of the (collective bargaining agreement) with the knowledge that Flaherty would use the window of time between the date he was sworn in as District Attorney to the date of the adoption of the (agreement) to terminate plaintiffs,” as Altschul wrote in a brief filed with the Appeals Court in May 2014.

Peter Mersereau, the attorney representing the county, maintained in his rebuttal to Altschul’s argument that the county was immune from the claims on several grounds.

He argued the deputy district attorneys are employees of the state and that Flaherty, a state employee, was responsible for their hiring and firing. The commission did not make the decision to terminate the deputies, he said.

He also contended the County Commission was immune from liability when it delayed the vote because the vote was a “legislative function,” which is loosely defined as policy decisions and actions, and is generally protected from civil legal claims.

Altschul rebutted that the decision was “ad hoc,” or an executive decision made for a specific purpose not intended for the general public. And while the state is technically the employer of the district attorney, Altschul continued, the county was the bargaining entity, setting the terms, conditions and pay of the deputy district attorneys.

Mersereau took care to note his position was merely to advocate for the county’s interest in the matter, not the former district attorney.

“I am not here as an apologist or advocate for the actions of the district attorney,” Mersereau told the bench.

Foster now works for the Jefferson County District Attorney’s Office, while Vaughan works at the Union County District Attorney’s Office. According to the Oregon State Bar’s online directory, Phil Duong’s license to practice law in Oregon is inactive.

Though there is no deadline for when the 9th U.S. Circuit Court of Appeals must decide to affirm or alter the district court’s ruling, most cases are decided within three months.

— Reporter: 541-383-0376, cwithycombe@bendbulletin.com