http://www.fixthefoc.com/new/modules/smartsection/item.php?itemid=4by Holly Nelson
Iosco to pay to settle Alcona based Friend of Court
lawsuit by Holly Nelson
TAWAS CITY - A federal lawsuit filed against the 23rd
Circuit Court has been settled and Iosco County has
agreed to pay part of the tab, even though it had no
role in the events leading up to the suit. Alcona
County resident Kim Gonzalez filed the litigation last
April in U.S. District Court against the 23rd Circuit
Court, the circuit's friend of the court, Charlene
Baker, and the deputy friend of the court, Patricia
O'Farrell.
According to the complaint, Gonzalez was employed at
the Alcona County Friend of the Court's Office from
April 1999 until January 2004. Prior to court
reorganization, this office was part of the 26th
Circuit Court, under which Gonzalez was promoted
twice. When state lawmakers reorganized the circuits
in mid 2003, Alcona was moved to the 23rd Circuit, a
change which meant Gonzalez was working under a
different Friend of the Court.
Gonzalez contends she was a skilled and diligent
employee who, after the court reorganization, raised
concerns and complained about some of the practices of
the 23rd Circuit, including possible violations of
law.
Gonzalez suspected the Friend of the Court was
violating the rights of individuals arrested for
contempt for failing to appear for child support
enforcement proceedings by detaining them longer than
72 hours without a hearing, according to the
litigation.
Gonzalez reported her suspicions to the Alcona County
prosecuting attorney, who subsequently met with her
and the Friend of the Court enforcement officer,
allegedly confirming that an arrestee could only be
held 72 hours without a hearing. Despite this,
Gonzalez alleges, the 23rd Circuit continued to detain
arrestees without a hearing for longer periods.
Gonzalez also contends she spoke out about other
matters which her attorney, Julie Gafkay, described in
the lawsuit as public concerns. Listed were:
• A change in the Friend of the Court visitation
abatement policy which delayed giving parenting time
credit refunds until the end of the child support
term.
• An allegation that the court was retaining support
checks misdirected by other states and did not
immediately return these so the money could be
rerouted to the custodial parent.
• A suspicion about the legality of a 23rd Circuit
policy which charged parents $75 to review their
accounts.
The complaint further alleges that both Baker and
O'Farrell knew of Gonzalez's outspoken concerns. Three
days before firing her, they allegedly required her to
provide her password so they could access her e-mails.
One of the e-mails contained instructions on how
Gonzalez could make a formal complaint to the Friend
of the Court Bureau and State Court Administrative
Office, sent in response to an inquiry from Gonzalez.
It is Gonzalez's contention that she was fired before
she could make her report for the reason that she was
about to blow the whistle and also because she spoke
out on matters of public concern.
Gonzalez alleged the Jan. 30, 2004 termination
violated the Whistleblowers' Protection Act and her
right to freedom of speech.
Her suit seeks damages for loss of earnings and career
opportunities, mental and emotional distress, loss of
reputation and esteem, and loss of the ordinary
pleasures of life, including the opportunity to pursue
gainful occupation of choice.
The case was referred to facilitative mediation in
October. Last month, after the attorneys conferred
with the federal judge, a June 2005 date was set for a
jury trial.
Recently, the parties settled and turned to the four
counties in the 23rd Circuit for the funds to do so.
The Iosco County Board of Commissioners met on the
request last Wednesday, reluctantly agreeing to
contribute to the settlement.
Prior to making this decision, Clerk and County
Coadministrator Mike Welsch asked the board to call a
closed session to discuss this litigation.
An objection was registered by an Iosco County
News-Herald and Oscoda Press reporter, contending the
board could only go into closed session if a party to
the suit, further arguing that it was not appropriate
to meet behind closed doors merely to approve a
financial arrangement.
The board, cancelled the closed session after
consulting an attorney, after which Welsch explained
that the chief judge of the 23rd Circuit, Ronald M.
Bergeron, has decided to settle.
A senior attorney with the Michigan Municipal Risk
Management Authority (MMRMA) recommended the matter
not be taken to trial given that MMRMA has lost five
of the last six employee-employer cases which were
tried, all resulting in large judgments.
"Jurors believe employees over employers 78 percent of
the time, according to the attorney," Welsch
explained.
The clerk said the case has been settled for an as of
yet undisclosed amount, plus attorney fees.
Iosco County belongs to the MMRMA insurance pool and
normally does not pay anything out of pocket to settle
litigation.
But there is an insurance coverage problem in this
case. Unbeknownst to Iosco, MMRMA requires a separate
arrangement before it will cover multi-county
organizations. The 23rd Circuit encompasses four
counties -- Alcona, Arenac, Iosco and Oscoda.
Arenac is the only one of the four counties with such
a policy, but it has a $75,000 deductible called a
self insurance retention (SIR).
Arenac's policy will cover the settlement, but the
Arenac County commissioners do not believe Arenac
should have to pay the full SIR, Welsch explained.
They proposed the deductible be split between the four
counties using the same caseload formula which
determines how much each county puts into the court
budgets.
"So, at the most, we would pay 43 percent or $32,250,"
Welsch announced.
"How can we be liable for the actions of another
county?" Commissioner John Moehring asked.
"It's not the actions of a county, but those of the
court," Welsch answered.
"I don't like it, but if it goes to a jury, our
liability could be much higher," Chairman Bob Cudney
remarked. He explained that, if a jury awards an
amount higher than the settlement offer, the counties
would be required to fund the difference.
The board decided to deduct the money from the 2005
Friend of the Court budget and unanimously approved
the 43 percent share on the motion from Commissioner
Patricia Schmidt.
According to Welsch, the chief judge is looking into a
different insurance arrangement to better cover the
court in the future.
Contacted after the meeting, Friend of the Court
Charlene Baker had no comment beyond that which her
attorney filed with the U.S. District Court shortly
after the litigation was initiated.
This denied most of Gonzalez's allegations,
specifically contesting that Gonzalez was ever
involved in protected speech or that her employers
were aware of it. They also claimed the Alcona woman
was discharged for a legitimate business reason, that
being that she was completely disorganized and
careless, further alleging that she had been
repeatedly counseled, both verbally and in writing,
about this and that she was discharged for only those
reasons.
Neither Judge Bergeron nor Gonzalez's attorney could
be reached for comment.
The next proceeding in this lawsuit is a telephone
conference which is scheduled for today, Wednesday.
Copyright © 2006 Oscoda Press
P.O. Box 663, Oscoda, MI 48750
