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Burke wins unemployment claim, city will appeal

Former Montesano public works supervisor Russ Burke has won his unemployment claim before the state Office of Administrative Hearings Board, proving to a hearings examiner that the city should never have terminated his employment for misconduct and that he has earned the right to unemployment compensation.

“This decision does not question the employer’s right to discharge claimant (Burke), nor the wisdom of that act,” wrote Administrative Law Judge Joshua Sundt. “It is decided only that the evidence presented will not support a denial of benefits under the statute.”

The ruling reverses an earlier decision by the state Employment Security Department, which denied the unemployment benefits back in August of last year.

Montesano City Administrator Kristy Powell says the city will appeal the decision.

Burke is currently suing the city of Montesano for wrongful termination in Grays Harbor Superior Court.

Burke is alleging “emotional distress” following a series of investigations into his actions, including whether he stole city-owned paint for his private business. Following a criminal investigation, the Grays Harbor Prosecutor’s Office declined to file charges. Burke also alleged retaliation because he supported Mayor Ken Estes’ challenger during the last mayoral election.

Burke was terminated on June 17 after being on administrative leave for more than four months as the city investigated various allegations. Records turned over by the city show that Burke was fired not because of the paint allegations, but because he and his attorney wouldn’t come in for an interview. Burke’s attorney said they were distrustful of an independent investigator that had previously labeled Burke a “liar.”

“During the course of this investigation, Mr. Burke offered to submit answers to written questions or to an interview with a different investigator,” writes attorney Trevor Osborne, representing Burke, to the administrative law judge. “Nevertheless, it is apparent from the record that the city had one goal in mind: terminating Mr. Burke. It even disciplined him multiple times for failing to be available at his home, even though he was only required to be available by home or cell phone. It is apparent from the circumstances of this case that the city began targeting Mr. Burke from the time the mayor took office. The mayor admitted on re-direct that a substantial portion of the funding for the new public works director position was to come from Mr. Burke’s salary. When the city hired Rocky Howard, it was clear that it had already decided to let Mr. Burke go, long before any investigation began.”

Attorney Jason Rosen, representing the city of Montesano, noted that Mayor Estes “expressed to Mr. Burke, not just once, but twice, that he felt Mr. Burke was an excellent candidate for the position of public works director and had offered the position to Mr. Burke both times.”

Burke declined the position, according to Rosen, because it would have meant leaving the union and becoming an at-will employee.

“There is absolutely no compelling evidence that Mr. Burke’s discipline, including his termination, was for any reason other than the undisputed and well-documented misconduct,” Rosen wrote to the judge. “… His claims of retaliation and targeting should be seen as nothing more than a smokescreen to deflect attention from what can only be considered a very clear pattern of deliberate misconduct with appropriate discipline. Because Mr. Burke has failed to present evidence that his termination was somehow predicated upon his political support for Mayor Estes’ opponent of otherwise pretextual, this appeal must fail and the decision of the Employment Security Department denying his benefits sustained.”

Judge Sundt said in his opinion that the employer “has not met its burden of proving the claimant was discharged for misconduct.”

Sundt notes that while Burke’s refusal to come in for an interview before the investigator without council “was undoubtedly unsatisfactory, it did not, under the circumstances of this case, signify a deliberate disregard of the city’s interests, but rather a good faith effort to navigate a legally complex set of events, which included multiple personnel investigations, a criminal investigation, a union grievance procedure and related civil litigation. Furthermore, the record demonstrates (Burke’s) objections to attending the ordered interview were both reasoned and limited. Certainly, in such a complicated legal landscape, a reasonable person may well wish to be represented by counsel.”

Sundt also says that it was “not patently unreasonable to insist upon an investigator who has, in another matter, already made negative credibility findings against the subject of the interview.”

Sundt said that the city should have also been more reasonable in re-scheduling its interviews with Burke so that his attorney could be present.

“Given the length of delay that had already been injected into the process by virtue of the criminal investigation, the employer has not shown that it would have been prejudiced by moderate further delays to accommodate (Burke’s) request to have his attorney with him at the interview,” Sundt wrote. “In sum, the claimant’s decision to rely on his attorney’s advice throughout the disciplinary process may have amounted to a good faith error in judgment or unsatisfactory conduct, but did not arise to the level of willful or wanton disregard of employer’s interests.”