A harassment complaint against Ouray County Commissioner Lynn Padgett has no merit and should be dropped, her attorney argued in a letter sent to Ouray County Attorney Leo Caselli last week.
Padgett’s attorney, Roger Sagal, offered her position on the complaint filed by Road and Bridge Superintendent Ty Barger in August, which he made public as ballots went out earlier this month. Barger detailed a series of events in which he said his department was targeted by Padgett in a “continued pattern of hostility” that he wanted to stop.
The complaint is being investigated by the Employers Council, which the county contracts with to handle workplace investigations. It’s not clear when that investigation will be completed.
Response to complaints
The first of Sagal’s arguments is that Barger doesn’t have a valid complaint.
“There are no allegations that Commissioner Padgett engaged in harassment or retaliation as defined in the Personnel Policy Manual. This should have been the end of the matter,” Sagal wrote. “There are no grounds that justify further investigation and the expenditure of county resources to conduct such an investigation. If you disagree, please identify the specific personnel policy that you believe is at issue based on the allegations contained in the complaint.”
In a response for the county, Caselli countered that unlawful harassment includes verbal conduct that has the purpose or effect of “substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment,” according to the county’s policies. He also wrote the county’s policy says it “will take affirmative action to protect employees from unlawful harassment,” and wrote complaints are not limited to protected classes, including age, disability and other situations.
A section of the county’s policies on complaints and grievances specifies, “Employees with complaints or grievances regarding working conditions, violations of policy, harassment, discrimination or other unwelcome intrusions into the work environment, may bring them to the attention of their supervisor.”
Barger detailed a series of incidents in his complaint, in which he accused Padgett of targeting himself and his department, and said he just wanted her behavior to stop so he could do his job.
“The complaint contains numerous allegations regarding working conditions, harassment, or ‘other unwelcome intrusions into the work environment,'” Caselli wrote.
Sagal also took issue with Barger’s characterization of Padgett creating a “hostile work environment,” saying none of his claims fit the definition.
Sagal also said Padgett disputes Barger’s claims that she pledged to support a petition to have him fired, or that she admitted to organizing a demonstration from the public at a meeting where his department was criticized for its response to a flood situation.
Even though Padgett may dispute these claims, it doesn’t mean the county isn’t obligated to investigate Barger’s complaint, Caselli wrote.
“The county is still bound to investigate an employee harassment complaint, even if the subject of that complaint may disagree with the merits of the allegation,” he wrote.
Concerns about going public
The letter to the county also raises concerns about the way the investigation into Barger’s complaint has been handled, and about Barger’s behavior — specifically that he made his complaint public. Sagal wrote that he had concerns that Barger’s release of the complaint damaged the public’s trust and the integrity of the investigation process, and raised concerns about others in the county being notified of the complaint before Padgett.
Sagal also claimed Barger making his own complaint public violated the county’s policy, and constituted disclosure of confidential information.
But this wasn’t something county administrators could control, Caselli wrote.
“I understand you are concerned the Complainant going public with the complaint undermines the integrity of the investigative process, despite the fact that you have also now provided a copy of your recent letter to the press,” Caselli wrote. “I want to assure you and Commissioner Padgett that the initial press disclosure of the complaint occurred on an individual, protected basis and the county manager and I did not encourage this.”
Email records obtained with an open records request show that Hunt contacted Employers Council on Oct. 1, asking to talk to an investigator. That investigator responded the next day, asking to verify the county’s membership in Employers Council and stating, “Ms. Hunt would like to speak with counsel as an employee has threatened to speak with the media about the subject of the investigation.”
Caselli said the county is bound by the Public Employee Protection Act, which requires employees to be protected from retaliation, including discipline or firing, if they exercise their rights to speak about workplace conditions or issues.
When asked why he wanted to make the complaint public this month, after filing it in August, Barger told the Plaindealer he wanted Padgett’s behavior to stop and he hoped making his complaint public would help. He also expressed frustration with how long the investigation process was taking – he filed the complaint on Aug. 29.
“I just want the behavior to stop,” Barger said. “And if it gets made public, people will pay more attention to what she’s saying, and she’ll be more careful and perhaps life will be easier for me and my department.”
Sagal questioned the timing of the complaint’s release, and raised concerns about the fact that Padgett wasn’t made aware of it until Oct. 7, after Barger told the county administrator he had given a copy to the Plaindealer. This was weeks after Padgett’s fellow commissioners were notified of the complaint.
“By his own admission the complaining party intentionally provided a copy of the complaint to the local newspaper before Commissioner Padgett was notified of the complaint by County administration and had an opportunity to respond within the proscribed process,” Sagal wrote. “The fact that the complaining party chose to disclose his complaint to the public before Commissioner Padgett could respond much less before it was formally resolved suggests that there may be other motives at issue here.”
Caselli wrote that while the county’s policy has a required timeline for initiating the investigation into a complaint, it doesn’t have a time requirement for notifying the person accused in the complaint. He said the Employers Council investigator “cautioned the County Manager against providing the Respondent with a copy of the official complaint or otherwise notifying the Respondent” and said the investigator would instead be responsible for contacting Padgett.
Other concerns
Sagal also raised concerns about a request from Hunt and Caselli for Padgett to only interact with the two of them at the same time to discuss county business while the harassment complaint investigation was pending, outside of public meetings.
“While Commissioner Padgett has attempted to comply, she is not bound by that instruction,” Sagal wrote. “She is free to communicate with any member of the county administration on any matter within the scope of her duties as commissioner without your presence being required.”
The county’s response indicates there are concerns about Padgett’s interactions with any employees who are involved in the complaint investigation.
“Going forward, the County Manager is now willing to have other administration employee(s) present for policy, budget, and/or operational meetings with Commissioner Padgett, aside from myself, if desired,” Caselli responded. “I do not need to be present for every meeting. However, given your letter, I would now also request that any discussions between Commissioner Padgett and individual County officials/employees, which involve the above-referenced harassment complaint, should instead be handled through legal counsel until further notice.”
Sagal also asked Caselli if he would recuse himself from the investigation.
“To the extent the investigation unnecessarily continues, please indicate whether you will recuse yourself from this matter given your position both as counsel to the BOCC and a witness in the investigation,” Sagal wrote.
Caselli said he would not be a witness in the investigation, and said he could not ethically participate in an interview with Employers Council because he has served as legal counsel to the county for several matters that are part of the investigation. But he said he would continue to represent the county.
It’s not clear what Padgett’s next steps will be if the county does not agree to cease the investigation into Barger’s complaint. Sagal did not respond to an email and phone call from the Plaindealer.
