As a federal trial began anew Monday in a lawsuit against state Treasurer Dennis Milligan and his recently retired chief of staff, two people testified that the men should have allowed a fired employee to object before a salacious interoffice email was released to the media.
A disability discrimination claim against Milligan and a defamation claim against Jim Harris, whose retirement was effective Jan. 13, were first tried in August before a federal jury. But after nearly four days of testimony, Chief U.S. District Judge Brian Miller granted a mistrial at the request of the plaintiff's attorneys, who complained that jurors might be too sympathetic toward Harris to decide the case fairly after paramedics took him out of the courtroom on a stretcher.
Harris had been sitting at the defense table listening to one of the last witnesses testify when a pained expression crossed his face, prompting his attorneys to seek medical help. The attorneys said Harris was hospitalized overnight, but his medical condition was never revealed. Harris, 63, announced last month that he was retiring, citing his health.
Luther Sutter, the lead attorney for plaintiff David Singer, said Singer had predicted before the trial began that Harris would fake a heart attack to escape the possibility of a bad verdict.
Attorney Matt Campbell, who along with attorney Lucien Gillham also represents Singer, told the judge the next day that another former treasurer's office employee who had testified on Singer's behalf also had predicted that Harris would stage a "health emergency" if it seemed like a good strategic move. Campbell said former employee Rick Meyer based his prediction on conversations with Harris in which he talked about doing that by stopping his medications.
The judge forbade the plaintiffs from conducting any further discovery before the retrial, but he has said they can call new witnesses.
Singer is suing Harris for writing an interoffice email expressing doubts about Singer's mental stability after the death of his wife and suggesting that Singer was taking advantage of the situation to sexually harass female employees. After Milligan fired Singer, the email was released to some news organizations as a part of Singer's personnel file, which reporters sought through Freedom of Information Act requests.
Singer contends that Milligan fired him April 27, 2015, based on a misperception stemming from Harris' email that Singer was mentally ill. Milligan testified at the previous trial that the email had nothing to do with his firing of Singer. He said he fired Singer for being unable to perform various jobs he was assigned, and for "his continued upsetting of the office."
Milligan also said the email was "never meant to go outside the scope of the management team" in the treasurer's office.
How it ended up being released to reporters isn't clear. The first reporter to request the file testified in August that the email wasn't included, but a reporter with KATV, Channel 7, testified that Harris delivered it to her, telling her it was "the real story," a day after Singer complained about the treasurer's office in a televised interview.
Christina Duke, the human resources director at the treasurer's office, testified Monday that some documents in an employee's personnel file are subject to the Freedom of Information Act, but the employee must first receive a notice that the file has been requested and have a chance to object. The attorney general's office then drafts an opinion advising the office whether to release all or part of the file. Duke agreed that anything in the file that is not related to an employee's suspension or termination cannot be released.
Duke testified that she sent a notice to Singer that his personnel file had been requested, but she wasn't aware that the email was in the file, or even that an email existed. She agreed that if the email was being considered for release, Singer should also have been notified of that. Duke said "it's up to each agency" to decide whether to include emails in personnel files.
Amy Ford, a former senior assistant attorney general who advised the treasurer's office and other state agencies at the time, testified Monday that "No, I did not" authorize the release of the email.
Ford also testified that before a state employee's personnel file can be released, the employee must be notified and have a chance to object, and that she would have relayed that information to the management staff. She said that if the employee or former employee objects to the release of any part of the file, a different section of the attorney general's office would determine if a compelling public interest existed to justify releasing the debated information. The attorney general's office would issue an advisory opinion to the agency, which would decide on its own what to release.
The trial is expected to last several days.
Metro on 01/31/2017