michelle r burrows bar no. 86160 618 nw glisan suite...

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FIRST AMENDED COMPLAINT

Michelle R Burrows Bar No. 86160 Attorney At Law 618 NW Glisan Suite 203 Portland, OR 97309 503-241-1955 503-241-3127 [email protected] Attorneys for Plaintiffs

IN THE UNITED STATE DISTRICT COURT

FOR THE DISTRICT OF OREGON

Multnomah Division

BRETT ELLIOT, Plaintiff, vs. SHERIFF DANIEL STATON, CHIEF DEPUTY TIM MOORE, CAPTAIN MONTYY REISER, MULTNOMAH COUNTY, by and through the Multnomah County Sheriff’s office, a political subdivision of the State of Oregon,

Defendants.

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Case No. 3:11-cv-1526ST FIRST AMENDED COMPLAINT First Amendment Retaliation; Due Process; Monell Policy Claims; Whistleblower 42 U.S.C. §§ 1983 Jury Trial Demanded

Case 3:11-cv-01536-ST Document 29-1 Filed 05/08/12 of 44 Page ID#: 150

mailto:[email protected]�

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COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, by and through his attorney, Michelle Burrows, Attorney at Law, brings

hisComplaint herein and state and allege as follows:

INTRODUCTORY STATEMENT

1.

This action is filed by Plaintiff under 42 U.S.C. §§ 1983, for events occurring from 2009

- 2012, in violation of the 1st,14th Amendment of the Constitution, Title VII

2.

This court has jurisdiction over Plaintiffs’ claims of violations of federal Constitutional

Rights under 28 U.S.C. §§ 1331 and 1343.

3.

Venue is proper under 28 U.S.C. § 1391(b), in that one or more of the defendants reside

in the District of Oregon and Plaintiffs’ claims for relief arose in this district.

4.

The court has jurisdiction over Plaintiffs’ pendent state law claims under 28 U.S.C. §

1367.

PARTIES

5.

At all material times Plaintiff Brett Elliot (“Plaintiff”) was a resident of the City of

Vancouver, Clark County, Washington.


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6.

At all material times Defendant Moore was a law enforcement officer working under

color of law for the Multnomah County Sheriff’s Office, an entity of Multnomah County,

Oregon. Defendant Moore is sued in his individual capacity.

7.

At all material times, Defendant Staton was a law enforcement officer working under the


Oregon. Defendant Staton is sued in his individual capacity.

8.

At all material times, Defendant Reiser was a law enforcement officer working under the


Oregon. Defendant Reiser is sued in his individual capacity.

9.

At all material times, Defendant Multnomah County was a political subdivision of the

State of Oregon. As a local government entity, Defendant Multnomah County is a suable person

under 42 U.S.C. § 1983. At all times relevant to this Complaint, Defendant Multnomah County

employed Defendant Moore, Defendant Staton, Defendant Hasler, Defendant Reiser, Defendant

Skipper, and Defendant Does #1-10. At all times relevant to this Complaint, Defendant Moore,

Defendant Staton, Defendant Hasler, Defendant Reiser, were acting pursuant to Defendant

Multnomah County’s laws, customs, and/or policies. As the employer of Defendant Moore,


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Defendant Staton, Defendant Hasler, Defendant Reiser, Defendant Skipper, and Defendant Does

#1-10, Defendant Multnomah County is vicariously liable for all of the tortuous and

unconstitutional acts and omissions of the defendants committed within the course and scope of

their employment, pursuant to ORS 30.265.

10.

All Defendants acted under color of federal and state law at all times relevant to this

Complaint.

11.

All violations occurred while Plaintiff was at work and working as a Multnomah County

Sheriff’s Office employee.

12.

Plaintiff is entitled to an award of attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988.

13.

On February 1, 2011 Plaintiff sent a timely Notice of Tort Claim for all actions of

misconduct and whistleblower violations pursuant to law. The Whistleblower violations

continued after the service of the Tort Claim Notice until the time of the filing of this Amended

Complaint.

FACTUAL ALLEGATIONS

14.


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Plaintiff started his career with the Multnomah County Sheriff’s Office (“MCSO”) in

1985. He was certified as basic corrections deputy in 1985, intermediate corrections deputy in

1992, basic law enforcement in 1992, intermediate law enforcement in 1992, advanced law

enforcement 1994, supervisory law enforcement 2004, management law enforcement 2003 and

Executive law enforcement 2007. He was appointed as a corrections deputy in 1985, law

enforcement ser4geant in 1997, law enforcement lieutenant 2001 and law enforcement captain

2002. He has no disciplinary matters.

15.

Plaintiff has completed over 2000 documented hours of job-related training. Plaintiff is

the recipient of the Basic Police Academy Defensive Tactics Award (1991), MSCO Unit

Commendation for Community Service, Motorcycle Unit (1995), MCS) Distinguished Service

Award (1996), MCSO Letter of Commendation (1996), MCSO Community Service Award

(1997), Oregon Peace Officers Assoc. Non-Criminal Life Saving Award (1997), MCSO Unit

Citation, Civil Process Unit (2000), Oregon Marine Board Award of Excellence (2004), FBI

National Academy Graduate (2006). Plaintiff has served as a subject matter expert in

preparation of multiple promotion exams for Sergeants and Lieutenants, worked as a firearms

instructor for several years, and has participated in multiple state-wide task forces requiring high

level knowledge, expertise, and experience. He is a 2006 Federal Bureau of Investigation

National Academy graduate which is an honor accorded only 1% of law enforcement personnel.

16.


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Plaintiff was the Operations Captain in 2009 supervising all law enforcement personnel,

the SWAT team and managing the entire patrol and public service aspects of the Sheriff’s Office.

The Multnomah County Sheriff’s office is responsible for managing the jail facilities for all

arrests inside Multnomah County and patrolling unincorpoated areas of Multnomah County.

Plaintiff held this position for several years and was a highly respected law enforcement

commander in Oregon.

17.

In 2006, Defendant Moore was chief deputy of the Corrections Division of the MCSO.

Defendant Moore sought transfer to the Law Enforcement Division but working as a police

officer required state certification in a field to which he held no certifications and no experience.

A mandatory portion of the law enforcement certification requires completion of a Field Training

Evaluation Program (“FTEP”) and an accompanying Field Training Evaluation Manual signed

by coaches who document progress by signature.

18.

FTEP involves extensive in-the-field training and constant evaluation to ensure that the

trainees are ready to work as law enforcement officers. Employees who have not completed

FTEP cannot work solo as law enforcement officers nor may they receive state certification as

required by Oregon’s Department of Public Safety Standards and Training (“DPSST”). During

FTEP, an officer is required to perform many skills in front of a certified FTEP coach in order to

complete the Field Training Manual and become certified. Defendant Moore had received basic,


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intermediate, and advanced corrections certifications during his career. When he was transferred

from Corrections to Law Enforcement on January 17, 2006, he had no police officer certification

nor had he completed his field training program; however, he was appointed Chief Deputy of the

Law Enforcement Division of the MCSO by then-Sheriff Giusto.

19.

Sheriff Giusto was a highly controversial Sheriff engaging in extramarital affairs,

demonstrating a lack of command structure, showed extreme favoritism, was fiscally

irresponsible. The jail management was under particularly harsh attack as a place where

significant disciplinary actions and lawsuits originated. This period of time Deputy Moore

managed the jail. Giusto was decertified by DPSST in 2008. Sheriff Skipper was re-hired as

Sheriff at that time. Sheriff Skipper had not worked as a law enforcement officer for over 10

years and was required by state law to be recertified with DPSST. Due to his long absence from

law enforcement he was required to attend the DPSST academy and qualify both physically and

mentally for certification.

20.

In 2009 Sheriff Skipper delayed attending the academy under suspicion of being unable

to pass the physical requirements of the job due to age and absence from law enforcement. A

special legislative enactment allowed Skipper only to forego the DPSST academy and permitted

his certification if he could pass a written exam. He relied on then Lieutenant, now Sheriff,

Staten, to mentor him. Sheriff Skipper failed the written test twice and was forced to resign.


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21.

Defendant Moore claimed that he completed the state certification requirements as to the

FTEP restrictions, but instead he falsified the documentation demonstrating completion.

Defendant Moore listed Plaintiff as a coach on his Field Training Manual, as well as other

Deputies, none of whom signed off any portion of the Manual nor formally served as FTEP

coaches. Plaintiff was never involved in Defendant Moore’s FTEP training nor did he ever serve

as a coach. Defendant Moore avoided the established FTEP program to which all other trainees

were required to participate supervised by Sergeant Lange. Instead and under time constraint,

lacking field demonstration of the police skills and required coaches’ signatures, Defendant

Reiser signed off on significant portions of Defendant Moore’s manual without ever working in

the field, in uniform, in a patrol district, or in a patrol cruiser, with Defendant Moore.

22.

In February 2009 Plaintiff in his role as Captain received complaints from working law

enforcement deputies that Moore had lied and falsified documents allowing him benefits they

were not entitled to. Plaintiff in response to these complaints began a confidential and informal

investigation to determine whether these rumors were true. As Operations Captain Plaintiff had a

statutory duty to stop or prevent illegal acts and had a duty under his oath of office as well as

Multnomah County standing orders to determine whether any officer was unfit to serve. Any

failure to investigate these allegations was a violation of Captain Elliotts statutory and


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department duties. A police officer’s integrity is often the single most important component of

his job.

23.

In February 2009 Captain Elliott approached his subordinate, then Lt. Staton, to request a

copy of Chief Deputy Moore’s training records—which were all public records with both

Multnomah County and DPSST. These are records which are readily and easily available to any

citizen under the public records acts from either Multnomah County or DPSST. Lt. Staton

accessed the records, advised Captain Elliott, then his superior officer, that Moore had lied and

falsified documents. However, Staton refused to provide the FTEP documents to his commander

when ordered to do so. Instead Staton, who became Sheriff one year later, reported the request

by Elliott to Captain Hasler who in turn reported it to Skipper as some form of misconduct. Until

that point Elliott was simply attempting to verify whether Moore had done anything wrong and

was not accusing him of anything. Staton taking advantage of the opportunity to ingratiate

himself with the sheriff misconstrued the information about Elliott.

24.

At that juncture Captain Elliott had not filed any formal complaint about Moore, but did

send a memorandum to Sheriff Skipper at Skipper’s request outlining his concerns. Shortly after

receipt of the Memo Sheriff Skipper took Captain Elliott to a restaurant away from the Sheriff’s

Office to tell him to “drop the matter”.

25.


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In February 2009, after Staten reported Plaintiff to Skipper, Elliott was ordered to draft a

formal complaint about Moore. At Skipper’s order, Plaintiff submitted a formal complaint and

was told by Skipper he would investigate by referring the complaint to DPSST or an outside

agency. Defendant Skipper told Plaintiff that he would call the Superintendent and send the

complaint to the Oregon State Police for investigation. Neither agency received a complaint or

request to investigate by Skipper. It appears Skipper and Staton reported differently to the media

and Elliott. Skipper never intended to investigate and only intended to hide and cover up the

matter. Staten was involved in this decision.

26

On February 26, 2009 Elliott forwarded his complaint to Skipper about Moore and

Reiser.

27

On or near March 1, 2009 Skipper called Elliott in for a meeting where Moore was

present. Defendant Skipper told Elliott he would not investigate the claims of deceit and false

swearing about Moore. Shortly thereafter Multnomah District Attorney’s Office became aware

of the complaint and request for investigation. Neither Skipper, Moore nor Staton reported the

matter to the DA. The DA’s office commenced a criminal investigation, but ultimately declined

to prosecute. Despite being under formal criminal investigation, neither Defendant Moore nor

Defendant Reiser were placed on administrative leave. This is contrary to the stated policies of

the Department.


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28.

On March 12, 2009 Defendant Skipper wrote a letter to Plaintiff, accusing Plaintiff of

“lack of loyalty” and telling Plaintiff to “stop spreading discontent.” The memo is a broad, angry

accusation against his Captain for using Staton improperly, asking for an investigation,

challenging Moore’s lack of qualifications due to the falsehoods, and “spreading

discontent”.This memo accuses Plaintiff of improper action in making a request for investigation

when Skipper had invited it. The letter does nothing to address the obvious actions by Moore in

falisifying documents. Skipper’s letter makes the following accusations and threats:

1. I view the request as improper

2. You asked a subordinate to obtain a record for you that, in normal course of events you

would not be able to access. (This is false and a misstatement of the law by Skipper).

3. Lt. Staton showed proper conduct in not complying with the request and by bringing this

issue forward. Staton did comply with the request and then went to the Sheriff.

4. Your inference that Chief Moore lacks the innate qualifications to be Chief Deputy is

frankly incredible.

5. Instead you impugn the fact that he (Moore) later rightfully obtained a Law Enforcement

certification so that he could fully discharge the duties assigned to him.

6. I am disappointed at your general lack of loyalty which is a necessity in a paramilitary

organization.


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7. In a casual count of those you consider unworthy to fulfill the public trust includes five

fellow command officers, all of whom deserve a basic level of loyalty from you as a

colleague. Yet, you have no compunction about impugning their integrity in a public

document.

8. Let me make very clear with you that you have no reason to fear retaliation as a result of

your actions.

9. The fact that you have contributed to discord among the command team and have

undoubtedly damaged the professional relationship with your fellow command officers is

your personal responsibility.

10. It is also my expectation that you will cease spreading your discontent to the line staff

and supervisors and that there will be no more activity from you that undermines the

command structure of this Agency and contributes to disharmony in the workplace.

11. You have a fundamental obligation as a command officer to support the direction and

decisions of the Sheriff. If you cannot fulfill this obligation, then you should notify me of

that decision immediately.

12. In the future if you perceive a matter that requires investigation, please follow the

established and official routes for registering complaints.

29.

There are numerous misstatements of law and fact in the letter and an overall theme that

illegal and unethical conduct will be tolerated by the Sheriff in his command staff despite the fact


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that the integrity of a police officer is of the utmost importance. The sheriff refuses to address the

misconduct by Moore or even investigate it, and by his action as a policymaker makes it part of

the culture and practice of Multnomah County Sheriff office that lying, misconduct,

untruthfulness and forging documents is acceptable. Most of the information in that letter came

from Staton.

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At that same time Sheriff Skipper requested Ms. Kari Kern and Ms. Rebecca Cranor to write a

memo saying Captain Elliott had “talked to them” about Moore’s issues. The request by Skipper

was secret and the memo ultimately written by the two women who worked in Human Resources

was confidential but was leaked to the press either by Skipper, Moore or Staton. Skipper refused

to provide this memo to Captain Elliott or his lawyers. This memo appears to be contrived and a

way to establish that Elliott disobeyed a direct order.

31

On April 9, 2009 Captain Elliott was at a pre-paid training in Lincoln City when he

received a call from the Sheriff’s secretary ordering him to return to the department for a meeting

in the morning with the Sheriff. Captain Elliott advised her that he was in training and perhaps

the meeting could wait until he returned. She told him that the Sheriff wanted him in his office in

the morning. This abrupt order interrupted what would have been 12 hours of mandatory training

and subjected Captain Elliott to scrutiny and adverse treatment.

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On April 10, 2009 Captain Elliott appeared in uniform for his meeting with the Sheriff.

Plaintiff brought his attorney and Sheriff Skipper brought the County Counsel Agnes Sowles

who only advised Elliott that she was merely there to “observe”. The Sheriff did not give Garrity

warnings, did not advise of any investigation and failed to provide written notice of the meeting

or its purpose which was clearly disciplinary in nature. Sheriff Skipper read verbatim from a

prepared written statement. Skipper accused Elliott of “talking” and it appears it was because

Elliott talked to individuals about Moore’s actions and a lack of investigation and Skipper’s

endorsement of those illegal actions.

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Skipper told Elliott that because the Captain had “talked” he was being transferred from

patrol to corrections. Plaintiff was no longer certified in corrections. Skipper further said that

“this is not discipline”. Captain Elliott went from managing the largest group of Multnomah

County deputies and handling significant criminal cases to “courthouse commander”. He lost his

office he had been in for several years, his command post, was physically removed from his staff

and given duties which are normally given to a corrections officer. He was responsible for a

small handful of officers. This move was retaliation for Elliott’s complaint about Moore.

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The transfer at that time was without a reduction in rank or pay. During this time not

only was Moore under scrutiny for not being properly certified but so was Skipper. It was


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rumored and mentioned that Skipper had to back Moore or his own certification process would

be derailed. Therefore at every step Moore, Staton and Skipper had to keep Elliott from talking.

35.

In April 2009 Elliott was scheduled to attend training in Bend being sponsored by the

FBI. Elliott is the only FBI certified officer in Multnomah County. This training had been

approved in January 2009 but in April Moore denied the training and cancelled it. Elliott had to

pay a cancellation fee. The action in denying training which is required for all police officers was

retaliation and intended to silence Elliott and punish him for his actions thus far. Moore was at

that time on the career path to become Sheriff.

36.

Between April 2009 and December 2009 Elliott was assigned as the court services

captain assigned to the Multnomah County courthouse. He has been stripped of all previous

powers and duties and he was no longer called upon to sit in on disciplinary matters, training

matters or hiring matters which had been normal parts of his duties as a commander. During this

time Elliott was supervised by a civilian employee. At or near the end of this time Skipper failed

his written test with DPSST for the second time and resigned.

37.

When Skipper stepped down he appointed Staten as the Acting Sheriff. Staton had made

a meteoric rise from brand new lieutenant to Acting Sheriff in one year. Staton was also

instrumental in bringing false accusations and information to Skipper about Captain Elliotts


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request for information on Moore. Instead of supporting an environment of truth and

accountability in officers, Staton was going to preserve the status quo of turning a blind eye to

misconduct in officers. He was going to preserve the good old boy system that made him sheriff.

38.

Captain Elliott believed sincerely that Staton would “man up” and “do the right thing” and fix

what had been taken from him. Elliott believed that Staton would reverse the years of corruption

and misconduct which had become the norm under Guisto and Skipper. Captain Elliott believed

that Staton would put him back where he should be.

39.

In December 5, 2009 Interim Sheriff Staton transferred Plaintiff back to Law

Enforcement, under the supervision of the Business Services Director. Staton called Plaintiff

into his office and indicated he was not going to reverse what had been done by Skipper. He

endorsed the actions by Skipper.

40

When Staton was a sergeant he became deathly ill and was unable to work for an

extended period of time, several months. Staton has had numerous complications from his illness

requiring extended absences from work. At the time of the initial onset of his symptoms Elliott

was Staton’s supervisor and was called to the hospital and told that Staton was likely going to

die. Staton was unable to physically perform the essential duties of his job and was given a desk

job with Captain Hasler. Staton’s medical condition has continued to deteriorate.


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41.

In December 2009 Elliott was moved to a small cubicle in the Multnomah Building a

distance from the Hansen Building where his tasks were to be performed. Elliott was assigned to

work in a new position which had been created for him by Staton and Moore. This position had

been previously done by several other individuals mostly sergeants and lieutenants. Elliott was

assigned to be the hearings officer for exclusions, tows, concealed handgun permits. All the files

and work product were in the Hanson building which is on 122d and Sandy while his official

work site was on Hawthorne. Elliott was required to go to the Hanson building gather the files he

needed and come all the way from east county to work downtown.

42

During the 8 months Elliott worked in this position he requested an office in the Hanson

Building with the other officers as well as his work product sometime in January of 2010. Moore

denied him this request. Plaintiff was the only Captain in the 1000 member organization to be

assigned to a cubicle rather than an office. The county incurred significant costs in putting a

Captain into this minor clerical position which included two hours of commuting a day. The

situation was created and maintained by Deputy Chief Moore and Sheriff Staton to force Elliott

into increasingly uncomfortable work environments so that he would quit. Elliott was one of two

police officers in the Multnomah Building during this time. He was subject to constant ridicule

and harassment by staff who saw his situation growing more desperate.

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These extreme and illegal management decisions by Moore and Staton were designed

solely to cause Elliot extreme discomfort, forcing him to resign and were in punishment for

Elliotts attempt to make complaints about corruption in the Sheriff’s office.

44

In February or March 2011 Patrol Captain Gates, who had been promoted to Elliott’s old

position, approached Deputy Chief Moore requesting that Elliott be allowed to work in a spare

and available office at the Hanson Building as it was obviously counterproductive and wasteful

to have him at the downtown location. Moore denied this request as further action to retaliate and

punish Elliott for his complaints.

45.

In January 2011 Staton decided to run for election to Sheriff. He was accused of not

being corrections certified which became a concern as the sheriff is responsible for running two

large jails. During the election Staton promised to become corrections certified, but after he was

elected changed his mind because he cannot pass the medical certification as Fit for Duty

required by DPSST which would enable him to get into corrections academy. By this point

Moore was passed over for Sheriff and is indicated his bitterness and blamed Elliott.

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Instead of becoming corrections certified Staton ordered Reiser and Sgt. Harry Smith to

become correction certified. Moore had just fired Sgt. Smith’s wife from a clerical position.

Reiser did not want to work in the jail to obtain his on the job FTEP coaching. Reiser, like


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Moore, was required to complete an FTEP Manual indicating that he worked various posts over a

short course of time. He was required to have his work observed by a coach who signed off that

the work was completed competently. Reiser did not do this instead had an administrator sign the

book who had no visual confirmation that Reiser had done the work. Reiser represented he had

worked in the jail when that was a false. Not only did Reiser fail to complete the FTEP work but

failed to even show up for corrections duty. Resier, like Moore, submitted the FTEP work to

DPSST who certified Reiser. This action supports the culture and practice of Multnomah County

Sheriff’s office under Staton to reward corruption, lying and falsehoods.

47.

On June 23, 2010 Staton called Elliott into a meeting without any prior due process

notice, or advise of rights, failed to adminster Garrity warnings nor allow Elliot to obtain

counsel. Staton advised Elliott he was being demoted to lieutenant with a reduction in pay of

approximately $5000 annually at that time. The pay differential is much greater at this time.

Staton gave a form to Elliot to sign indicating that failure to sign the agreement to take the

demotion would result in immediate termination. There was no hearing, no investigation and no

report on the reason for the actions. Elliott signed it on July 29, 2010 in the face of being fired.

48.

At oral argument on April 2012 counsel for Multnomah County admitted that demotion

and loss of pay would be unlawful retaliatory actions. These statements are contained in a

transcript which has been ordered by Plaintiff.


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The demotion by Staton were retaliatory and punishment against Elliott for speaking out

about Moore and were intended by Staton to force Elliott into resignation by creating an

unbearable hostile environment. At this time no other officer within Multnomah County has

come forward to complain about the unethical and illegal actions by Staton, Moore or Reiser

because of what has happened to Captain Elliot—a decorated hero. At court on oral argument on

the last round of motions, counsel for Multnomah County, Ms. Morf, advised Plaintiff counsel

that the sheriff just wanted Elliott to retire and “go away”.

50

On July 6, 2010 Sheriff Staton and Moore moved the demoted Captain Elliott to River

Patrol in a remote office and location. Other officers made comments to Elliott about the

retaliation and were in fear for their own jobs as they perceived how far the Sheriff was willing

to go to punish and abuse his subordinate staff. This move was retaliatory and punishment.

51.

In June 2010, Plaintiff celebrated his 25 years of service to the Multnomah County

Sheriff’s Office. Defendant Staton told Plaintiff that he had “too many captains,” even though

the number of captains had not increased significantly in the recent time. There were no other

captain demotions. The excuses given by Defendant Staton were contrived and the demotion

was further punishment to retaliate against Plaintiff for exposing criminal activity by Defendants

Moore, Skipper, and Reiser.


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52.

In July 2010, Plaintiff received the formal Notice of Demotion. He was transferred by

Defendant Staton to the River Patrol Unit as a Lieutenant. Plaintiff had previously served the

River Patrol Unit as a Captain. Included with the transfer and demotion was a pay reduction, and

a significantly lower potential maximum pay. According to the terms of the classification

acceptance document, if Plaintiff did not accept this new classification, he would be considered

“resigning his employment with Multnomah County.” Plaintiff was told by Defendant Staton

and if he didn’t like it, he could find employment elsewhere. By agency practice, it has been

common for demoted command personnel to receive no pay reduction – instead losing only title

and rank. Through this demotion, Plaintiff suffered considerable anxiety and alarm. This

change was retaliation for Plaintiff’s actions in reporting illegal conduct by MCSO commanders

as alleged herein, and intended to force Plaintiff to resign.

53.

On October 22, 2010, Sheriff Staton issued Special Order 10-16 limiting what weapons

officers were authorized to carry. Plaintiff’s ParaOrdnance LDA .45 was suddenly removed from

the authorized list. It has always been on the list before this order. Plaintiff had purchased this

weapon with his own money and had repeatedly qualified on it. This weapon was one he was

comfortable with and knew intimately.


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An officer’s weapon is often the only difference between life and death. A weapon is a

deeply personal choice by that officer, one which can save his life or others in those critical

moments when deadly force may be required. Sheriff Staton and Undersheriff Moore have very

little street experience with law enforcement. They have little understanding of the importance of

a weapon to an officer. Sheriff Staton issued the order which only addressed Elliott’s weapon

and thus placed Elliott in physical danger by compromising the officers security and safety. No

one has the right to do that to anyone. This directive almost more than any other put Elliott in

direct personal danger and was a signal to Elliott and other officers that Staton was willing to put

his own staff at risk to appease his own ambitions.

55.

On February 1, 2011, Defendant Moore became Undersheriff of the MCSO. Defendant

Reiser was transferred to the Law Enforcement division and was made Patrol Captain effective

June 6, 2011.

56.

As a result of the issuance of Order 10-16 which Captain Elliott obeyed he was forced to

carry a secondary weapon he was not as familiar with, a Sig Sauer 9mm. At that time Captain

Gates became Chief Deputy and indicated that Elliott would be permitted to carry his

ParaOrdance.


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57

On 12/14/10 Sheriff Staton was attending a training session with a number of officers

including Elliott. At a break Staton ordered Elliot to remove himself and took Elliott to a remote,

unobserved private area of the building in order not to be overheard. The conversation with

Elliott concerned a request by school children to receive a water safety course.

58

Staton accused Elliott of “lying” about Staton’s involvement with that situation. Staton

had asked his secretary Julie Long to contact Elliott for water safety class for his own daughter’s

class. Staton also asked Ms. Long to arrange for the law enforcement officers to give a “boat

ride” to the children in the class. This is confirmed in a series of emails.

59

Taking children on a law enforcement boat on the river is dangerous and filled with

extreme potential for harm. The officers must have supervision of the boat, the children,enough

life preservers and remain out of service during the time. Captain Elliott has a policy of not

taking children on his river patrol boats as it is unsafe, but advised Ms. Long he would so if

ordered by the Sheriff. He asked Ms. Long if the tour was for Staton’s daughter. Sheriff Staton

became embarrassed and incensed by this and bluntly told Elliott it was not for his daughter and

that Elliott was “spreading lies”. This was untrue as the entire communication was confirmed in

emails which Staton obviously did not know about. Staton did not pursue the issue but abruptly

transferred and/or demoted Ms. Long who had been the assistant for three Sheriffs. Staton was


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attempting to use sheriff property inappropriately and did not want anyone to know it was for his

own personal use and was hoping Elliott would refuse a direct order. He denied this despite the

confirmation in emails.

60.

Throughout the entire time from 2009 to the present Captain Elliott has received

references and comments from other officers about the abuse he was receiving. Commanders

would reference him with defamatory names and in December 15, 2010 Captain Reiser sent an

email which was copied to the Sheriff to “Bent” Elliott with the Bent Elliott highlighted in

yellow. “Bent” is a common slang term used by law enforcement officers to describe someone

else in a derogatory manner. The command staff apparently believe they are above the law and

beyond reproach in their use of such language in a public fashion and in writing. Sheriff Staton

did not correct or reprimand Reiser for this action. At the time Reiser was Elliott’s command

offier. In a paramilitary organization such treatment by command staff toward subordinate staff

is improper and likely leads to serious compromise of the safety of those officers who realize

command staff has no concern for their well being.

61.

Before the complaint about Moore Elliott was called as an expert for all the sergeant and

lieutenants exams, and was included in disciplinary matters. He has only been involved in one

disciplinary matter since the Moore incident.

62.


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In January 2012 Captain Elliott complained about an officer who requested 300 hours of

overtime during a time period when normal officers were getting only 230 hours of straight time.

The number of hours was outrageous and inexplicable. This was part of an ongoing problem with

Staton and Moore management which has resulted in extraordinary overtime expenses by line

officers who are making 140,000 to 180,000 a year. Media made several public records requests

for overtime information but Staton and Moore responded that information was not available and

declined to make it available. This was untrue and Staton failed to comply with legitimate lawful

public records requests. When Elliott made a complaint about all the apparently false overtime

the management told him not to talk about it. Elliott was requested by line staff to bring this up

to management and when he was told not to complain he was made the butt of jokes by officers.

63

Elliotts name and number was removed from the Sheriff’s office directory and his

mailbox was removed sometime in late 2010.

64

In 2010 an officer refused to shake Reiser’s hand and was then made a subject of an

internal affairs investigation by Reiser who perceived that the refusal was misconduct and

discourtesy. This officer then submitted a lengthy and detailed accounting of all the misconduct

by Reiser toward himself and which was endorsed by Staton and Moore. This officer wrote

details in a 7 page narrative. The officer was punished for not shaking Reiser’s hand and nothing

happened to Reiser for his mistreatment of subordinate line staff. Reiser likely did not deserve


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the respect and command staff endorsed to line staff that bad command officers who commit

illegal acts and misbehave will always be supported by the Sheriff.

65

On April 24, 2012 Sheriff Staton came to River Patrol because he ran out of gas and

needed a gas card. He could not remember that he had to use his own personal code to use the

card and then could not remember what his own code was. Captain Elliott provided a card and a

code for the Sheriff’s use. The next day at a retirement party Elliott and several other officers

were present. Sheriff Staton went down the line shaking everyone’s hand but refused to shake

Elliott’s hand. This was done to punish, humiliate and embarrass Elliott and show that the other

officers should not support Elliott. Obviously in a life and death profession such demeaning and

poor management style can cause someone death if subordinate staff believe that they should not

support a particular officer. Staton and his command staff have no legal entitlement to treat

subordinate staff in this manner. It is indicative of a culture and policy by Sheriff Staton which

he promotes in his office.

66.

Captain Elliott has engaged in numerous dangerous and high risk law enforcement

activities where he has put his own life in jeopardy for someone else or to protect the

community. He has received numerous awards for his bravery and competency. He must depend

on his other officers and his command staff to support him when he engages suspects, operates

the SWAT team or now traverses flood stage waters for the County. He knows that command


27


staff will not support him and he worries that this type of disrespect shown by command staff

disrespects him and indicates to line staff it is permissible to do so. When command staff act in

this illegal, immature, unethical and despicable manner they place officers at risk of injury and

death. These actions by Staton, Moore and Reiser create a culture of permitting such conduct,

and further endorsing it and contribute to the daily retaliation against Elliott for speaking out

about illegal actions by other officers.

FIRST CLAIM FOR RELIEF: Procedural Due Process Violation 42 U.S. C. § 1983 Violation of the 14th Amendment by Defendants Staton, Moore

67.

Plaintiff realleges all previous paragraphs as if more fully set forth herein.

68.

Plaintiff has a protected property interest in his employment and livelihood. This interest

is subject to procedural due process protection by the Fourteenth Amendment. He has a right not

to be deprived of this employment or adversely effected in his employment without due process

or to be subject to abuse at this employment without proper opportunity for recourse.

69.

Plaintiff’s secured due process rights were intentionally deprived by Defendants herein

who engaged in illegal, malicious, and wrongful conduct, together and individually.

70.

The acts that violated Plaintiff’s protected rights are as follows:


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1. All of the actions alleged in the complaint thus far.

2. Plaintiff was removed from work on several occasions and threatened by two sheriffs.

3. Plaintiff was denied training by Moore which was previously approved for the reason

Plaintiff had complained about Moore.

4. Plaintiff was removed from his position within administration, stripped of his office,

his staff, his duties and placed in a job formerly held by clerical workers.

5. Plaintiff was removed from his duties for talking after complying with a command to

provide a written complaint and verbal explanation about Chief deputy Moore’s falsehoods.

Plaintiff was not given an opportunity to challenge this move nor was the move discussed with

Plaintiff before it was ordered;

6. Plaintiff was given a pretext position within the department at a location several miles

from his duties. He was required to work in a small cubicle and travel daily to work as a

“hearings officer”. Plaintiff was denied the right to work in the location where the work was

actually conducted by Moore and Staton. Plaintiff was denied the right to complain about this

assignment, nor was he provided any due process about this move despite the fact that it caused

significant losses to his daily duties and was retaliatory in nature.

7. Plaintiff was demoted to lieutenant under the false pretense that the MCSO had “too

many captains” and was told in the new employment contract that if he did not accept the

demotion, he would be considered resigning his employment. Plaintiff was not given an

opportunity to object or contest the action without being fired;


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8. Plaintiff’s demotion was the only such act in the department, was made with an

immediate loss in pay and responsibilities without due process or recourse and under the threat

of firing. This was solely due to Plaintiff’s protest of illegal, unethical acts by Moore and Staton.

9. Plaintiff was moved River Patrol without any reason, input from him, or ability to

challenge the move without losing his employment;

10. Plaintiff was never offered any formal process to object or contest the actions taken

by Defendants in concert with each other, and all actions were designed to force Plaintiff to

resign without cause.

11. Plaintiff lost the ability to use the sidearm he had carried for years without

explanation. This was a personal directive from the Sheriff designed to humiliate Plaintiff and to

place him in serious physical danger. Plaintiff was the only officer this action applied to and sent

a message to the entire staff that Plaintiff was expendable. This was done without the opportunity

to protest and was an illegal action by Staton to further punish Elliott to force him to “retire and

go away”.

12. Plaintiff was subject to an interrogation and accusations of misconduct by Staton

when Staton wanted to illegally use a law enforcement vehicle for his own daughter’s class tour.

Staton lied about it despite contrary evidence, accused Elliott of lying and misconduct and

disloyalty. In response Staton unlawfully and without due process transferred his assistant and

interrogated Elliott in private about it.


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13. Plaintiff was treated to the humiliation of having the sheriff refuse to shake his hand

at a very public gathering of officers despite the fact that he had actively punished other

subordinate staff for the same acts. This action was a clear statement to line staff that Elliott

could be disrespected and ignored, thus sending a signal that Elliott was not to be protected by

other officers.

14. Staton, Moore and Reiser regularly and publicly refer to Elliott in derogatory terms

even including those in memos and emails which are publicly distributed.

15. Staton has advised his lawyer who advised Plaintiff counsel that he just wanted Elliott

to retire and go away.

71.

Defendants’ conduct was well-defined by law, and each defendant knew or reasonably

should have known that their conduct was not only well below the standard prescribed by law,

but was illegal per se. Defendants are all command staff and thus are policymakers. Their actions

constitute the creation and maintenance of a culture and policy of allowing dishonesty within

command staff, treating command staff and line staff differently, allowing open mistreatment of

officers who disagree with command, abusing staff who try to correct illegal actions including

dishonesty in other officers, allowing an atmosphere of abuse and mistreatment to pervade

signaling that officers who fall out of disfavor can be put in harms way.

72.


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As a result of Defendants’ actions, Plaintiff suffered physical, emotional, and financial

injury. The extent of Plaintiff’s damages will be more fully determined at trial, but include at

least the loss of pay, contributions to retirement and the value of retirement income. Plaintiff has

been placed in the untenable position of believing that his life may be in danger because of the

atmosphere created by command staff. He has suffered from anxiety and extreme emotional

distress. SECOND CLAIM FOR RELIEF: First Amendment Retaliation

Staton, Moore and Reiser 42 USC 1983

73

Plaintiff realleges all previous paragraphs as if more fully set forth herein.

74.

Plaintiff is guaranteed the right to speak out on matters of public concern without fear of

retaliation or any action by the public employer that infringes upon the employees

constitutionally protected interest in freedom of expression. The county here through a long

series of events starting in 2009 and continuing up to the present day have attempted to retaliate

and punish Plaintiff for bringing a complaint about dishonestly and fraud by a command staff to

the attention of the Sheriff. That act of speaking out on matters of critical public concern—the

integrity of a police officer—are the sole and almost only cause of the acts of abuse, retaliation

and mistreatment by the various defendants in this action toward Elliot to force him to “retire and

go away”.


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75.

Plaintiff’s report to the sheriff about Moore and the report he wrote upon orders by the

Sheriff were constitutionally protected speech and serve as a substantial and motivating factor in

the series of ongoing acts of retaliation including, without limitation those listed in the

paragraphs above together with the transfer, demotions, derogatory name calling, placing Elliott

in danger, removal of his name and mailbox from directories and decommissioning of his

weapon, removal from training, and misconduct toward him by command staff.

76

The actions of mistreatment and abuse constitute retaliation against Elliott for the

exercise of his free speech rights.

77.

The various actions of retaliation and mistreatment by defendants Reiser, Staton and

Moore for Elliots actions violated Elliot’s protected free speech rights guaranteed by the First

Amendment to the United States Constitution in an area of law well established since 1968.

78.

Plaintiff has lost his position, significant loss of pay, been humiliated and placed in

serious physical danger by defendants. He is entitled to be restored to his Captain position, back

pay and front pay, together with non-economic damages and attorney fees.

THIRD CLAIM FOR RELIEF: Monell Claim

Unofficial Policy, Custom or Practice


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1st/14th Amendment Retaliation for Exercise of Speech

79.

Plaintiff realleges all previously matters as if more fully set forth herein.

80.

At all times herein Sheriff Staten, Sheriff Skipper, Chief Deputy Moore and Chief

Deputy Reiser were “policymakers” with the Multnomah County Sheriff’s office. Each of them

created, contributed to, developed and promoted an official and unofficial policy or practice

which was the motivating force in the constitutional deprivations alleged herein.

81.

The culture, custom and practice created and promoted by the command staff

policymakers created the following official or unofficial policies:

1. Allowing personnel to perform tasks and engage in supervision in areas where they

are not certified by law to do so.

2. Allowing command staff to falsify official records of their background and training

without repercussion

3. Allowing a culture of lying, misrepresentation in command staff

4. Failing to supervise command staff training

5. Failing to review and correct training and experience failures in command staff

6. Failing to create an atmosphere of accountability in command staff


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7. Allowing subordinate line staff to be held to different standards and rules in the area

of respect, honesty and integrity than command staff

8. Creating a culture and custom of retaliation for any officer who complains about

violations of law by command staff

9. Creating a culture and custom hostile work environment for individuals who

complain about the above in such a way as to place officers in danger.

10. An overall tolerance of wrongdoing and dishonestly in police officers

82.

As a result of the unconstitutional official and unofficial policy or practice which were

promoted, allowed or required within the Multnomah County Sheriff’s office which are a

significant if not primary factor in the retaliatory acts alleged previously and the resulting

injuries suffered by Plaintiff.

83.

As a result of the unofficial policy, custom or practice outlined above which were created,

endorsed, promoted by the command staff defendant policymaker,Plaintiff was subject to

ongoing continuous retaliatory abuses in the workplace from February 2009 to the date of this

amended pleading resulting in enormous physical and emotional injuries including lost wages,

loss of reputation, loss of retirement benefits, back pay, front pay, psychological injuries and

fear.


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SUPPLEMENTAL STATE CLAIMS

FOURTH CLAIM FOR RELIEF: ORS 659A.230 – Whistleblowing violations Multnomah County

84.

Plaintiff realleges all previous paragraphs as if more fully set forth.

85.

It is an unlawful employment practice for an employer to discharge, demote, suspend or

in any manner discriminate or retaliate against an employee with regard to promotion,

compensation or other terms, conditions or privileges of employment for the reason that the

employee has in good faith reported criminal activity by any person, has in good faith caused a

complainant's information or complaint to be filed against any person, has in good faith

cooperated with any law enforcement agency conducting a criminal investigation, has in good

faith brought a civil proceeding against an employer or has testified in good faith at a civil

proceeding or criminal trial. Plaintiff is free from retaliation in the form of hiring, firing,

promotion, compensation, and other terms, conditions and privileges of employment.

86.

The acts that violated Plaintiff’s protected rights are as follows:




36





















37















go away”.







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other officers.





87.

Each of the actions described in paragraph 48 above occurred when Plaintiff was at work

and was an employee at the MCSO.

88.

Defendants’ conduct was well defined by law and each defendant knew or reasonably

should have known that their conduct was not only well below the standard prescribed by law

herein, but was illegal per se.

89.

As a result of the course of conduct by Defendants, Plaintiff has suffered physical,

emotional, and financial injury. The extent of Plaintiff’s injuries will be more fully proven at


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trial, but include at least the loss of pay, contributions to retirement, and the value of retirement

income.

FIFTH CLAIM FOR RELIEF: ORS 659A.199 – Violation of Whistleblowing Act

Multnomah County

90.

Plaintiff realleges all previous paragraphs as if more fully set forth.

91.

Employers cannot discharge, demote, suspend, or in any manner discriminate or retaliate

against an employee with regard to promotion, compensation or other terms, conditions or

privileges of employment for the reason that the employee has in good faith reported information

that employee believes is evidence of a violation of state or federal law, rule or regulation.

Plaintiff is protected from discrimination and retaliation based on this law.

92.

The acts of Defendants individually and in concert that violated Plaintiff’s protected right

against retaliation and discrimination under the Oregon Whistleblowing statute are as follows:






40






















41












go away”.










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other officers.





16. All of these actions were designed to force Plaintiff to resign without cause.

93.

Each of the actions set forth above occurred when Plaintiff was at work and an employee

at the MCSO.

94.

Defendants’ conduct was well defined by law and each defendant knew or reasonably

should have known that their conduct was not only well below the standard prescribed by law

herein, but was illegal per se.

95.

As a result of these violations, Plaintiff has suffered physical, emotional, and financial

injury. The extent of Plaintiff’s damages will be more fully proven at trial, but include at least

the loss of pay, contribution to retirement, and the value of retirement income.

WHEREFORE Plaintiffs request that this Court grant judgment as follows:


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1. Judgment against Defendants for economic damages in an amount to be proven at

trial but no less than $350,000;

2. Judgment against Defendants for non-economic damages in an amount to be

proven at trial but no less than $500,000;

3. Judgment against Defendants for punitive damages in a fair and reasonable

amount to be proven at trial but no less than $50,000 per defendant;

4. Judgment against Defendants for deterrence damages in a fair and reasonable

amount to be proven at trial but no less than $250,000; and

5. Judgment for costs, interests, attorney fees and such other and further relief as the

Court deems just and equitable.

DATED this May 8, 2012.

Respectfully submitted,

/s/Michelle R Burrows OSB86160 Michelle R Burrows Attorney at Law 618 NW Glisan Ste 203 Portland OR 97209 503/241-1955


Michelle R Burrows Attorney at Law

618 NW Glisan Suite 203 Portland OR, 97209

503/241-1955 44 COMPLAINT

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michelle r burrows bar no. 86160 618 nw glisan suite...

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