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The wrongful termination lawsuit against Antelope County by two former employees is at a crossroads until the plaintiffs either find a new attorney, have theirs reinstated or proceed without council.
Last week a judge ruled attorney Kathleen M. Neary “wrongly obtained” privileged information, leaving Jennie Martinez and Alberta Willers, who formerly worked in the county assessor's office, with until July 5 to make a decision.
Martinez and Willers originally filed the lawsuit against Antelope County in U.S. District Court on June 5, 2015. On March 11, 2016, the county asked for the former employees' attorney to be disqualified as council. Magistrate Judge Cheryl R. Zwart granted that motion on June 13.
However, on June 22, Neary filed a request on behalf of Martinez and Willer a request to reconsider allowing Neary to represent them. Failure to inform the court by July 5 of how they will proceed with council would lead dismissal of the suit, according to the judge's decision.
Allegations Against County
According to the the complaint filed in U.S. District Court on June 5, 2015, Jennie Martinez and Alberta Willers, both of Neligh and both former employees of the assessor’s office, allege that “approximately 30 minutes after Ms. Mueller was sworn into office as county assessor on January 9, 2015, she terminated the plaintiff’s employment.”
Court documents show Martinez was employed in the office from January 2, 2013, to January 9, 2015. Willers was employed from April 2014 to January 9, 2015.
Documents filed by the plaintiffs state both Martinez and Willers were told by Ms. Mueller that they would have to reapply for their jobs. Both did so and allege “Ms. Mueller hired less qualified individuals who had supported her 2014 campaign to replace the plaintiffs.”
The complaint also alleges “Ms. Mueller retaliated against the plaintiffs by terminating their employment within minutes of being sworn into office and/or failing to hire them for the positions they had sought with Antelope County.”
Court documents state Martinez applied for a position with the Antelope County Clerk’s office as well, but “due to her their protected speech and conduct noted herein, Ms. Martinez’s application for employment was rejected by Lisa Payne, Antelope County Clerk.”
Antelope County Denies Allegations
Antelope County admitted to knowing Martinez did have a yard sign supporting former assessor Heather McWhorter; however, denied being aware Willers openly supported McWhorter.
The response by the county also denied any wrongdoing by Payne and said the “plaintiffs suffered no tangible employment action connected with any alleged retaliation.”
“Any and all actions defendants took with respect to the plaintiffs’ employment were for legitimate, non-discriminatory, and non-retaliatory reasons and were taken in good-faith exercise of the reasonable business judgement of defendant,” according to court documents.
Disqualification of Attorney
On March 11, 2016, attorney Erin L. Ebeler filed a motion to disqualify Neary from representing Martinez and Willers in the case.
According to documents, then county assessor-McWhorter called the NIRMA Hotline on the county’s behalf to obtain legal advice on employment issues.
Antelope County is a member of the Nebraska Intergovernmental Risk Management Association (“NIRMA”). NIRMA (Nebraska Intergovernmental Risk Management Association) is a not-for-profit, member-owned and operated risk management and self-insurance pool. Antelope County has been a NIRMA member since at least January 15, 1989, documents show.
It's alleged that a conversation between McWhorter ensued with Pam Bourne, an attorney with Woods & Aitken LLP, who has provided legal counseling services for NIRMA.
According to the motion, on December 2, 2014, at 9:50 a.m., McWhorter left a voicemail on Bourne’s telephone, stating, “Hi Pam this Heather McWhorter in Antelope County. I have a question as far as the incoming assessor and me going outgoing and some of the rights and responsibilities there. My Board has asked me to call and verify some stuff with you.”
The following day, on December 3, 2014, at 2 p.m., McWhorter left another voicemail on Bourne’s telephone, stating, “Hi Pam. This Heather McWhorter again, um, I need you to return my call so we can ask about a liability question with the County . . . .” Bourne returned McWhorter’s call later that same day, spoke with McWhorter, and provided the legal advice McWhorter had sought at the direction of the County’s Board of Supervisors.
Martinez also contacted Bourne, but Bourne refused to speak with her, explaining she represents the County and cannot provide personal legal advice to County employees. The motion states Antelope County never authorized McWhorter to reveal communications she had with Bourne or any other attorney on Antelope County’s behalf.
The county alleges that prior to the complaint filed last year by Martinez and Willers, McWhorter told Martinez that she had contacted NIMRA about the legality of that requirement for her to reapply for her job.
It's also alleged that in January 2016, the conversation between McWhorter and Martinez in regard to the NIRMA phone call was shared with attorney Neary. "Without question, the information provided by McWhorter to Martinez, and in turn to Neary, included legal advice Bourne provided to Mueller and the Antelope County Attorney," documents state.
The County is alleging "the attorney-client privilege belongs to the County, not McWhorter as an individual" and should lead to Neary being disqualified as council.
That motion was granted June 13 and Neary was disqualified as council.
Motion Filed To Allow Attorney
On June 22, a motion was filed to allow Neary to continue as council, the plaintiffs argue the communication between McWhorter and Bourne does not qualify for the attorney-client privilege.
Documents state, "Martinez told Neary, McWhorter contacted Bourne to express her concern that her successor, Mueller, might be planning to fire Martinez and Willers because they had campaigned for McWhorter. This is clearly not a request for legal advice, since McWhorter was not planning on undertaking any action in her role as current county assessor. It therefore does not concern matters within the scope of the duties of the employee who initiated the communication (McWhorter). Nor does Bourne’s statement that she would advise Mueller not to fire the Plaintiffs constitute legal advice to McWhorter."
The request states that counsel believed McWhorter had waived any alleged attorney-client privilege by communicating the substance of her conversation with Bourne to Martinez.
The motion to allow Neary also states that the decision places "unnecessary burden" on Martinez and Willers.
"The Court’s order disqualifying Plaintiffs’ attorneys imposes an unnecessary burden on the Plaintiffs, who are now faced with the difficult task of either finding new counsel or proceeding to trial without an attorney, which is untenable in a lawsuit of this complexity. Plaintiffs have expressed their desire to proceed with Neary and the Powers firm as their attorneys. This case has been pending for more than a year, discovery has been undertaken and trial is imminent," documents state.