Ashland loses lawsuit, owes $258,000 – Tidings


by Caitlin Fowlkes of the Ashland Tidings Friday, March 29th 2019

A jury found that the City of Ashland owes Pieter Smeenk $258,637 after wrongfully terminating his employment as a senior engineer with the city for engaging in protected whistleblowing in April 2017.

A jury found that the City of Ashland owes Pieter Smeenk $258,637 after wrongfully terminating his employment as a senior engineer with the city for engaging in protected whistleblowing in April 2017.

Smeenk’s attorneys estimated his damages to exceed $1.2 million, but Smeenk agreed to accept the damage amount.

City Attorney Dave Lohman said the city has not decided whether it will appeal the decision or pay the money. It has until April 20, 30 days after the deliberation dated March 21, to decide.

The case was tried in U.S. District Court in Medford.

In the last couple years of the nine years he worked for the city, Smeenk opposed several project processes. Each time his supervisor, Public Works Director Michael Faught, who has since retired, wrote him up for “insubordination.”

According to the initial complaint, one of these instances followed City Council approval of a more than $1 million contract with Keller Associates for preliminary engineering services on the $23.3 million water treatment plant in February 2017. Smeenk was not on the project but decided to look over the details anyway.

He allegedly called the unsuccessful bidders to confirm his suspicions that Keller Associates was the chosen company.

Upon learning that the item was on the council agenda Feb. 21, Smeenk supposedly arrived at the meeting early and expressed his concerns to Lohman and acting City Administrator John Karns that the project involved excessive fees, failed to properly adhere to the public contracting process and was not sufficiently transparent.

Smeenk allegedly threatened to express his concerns during the public forum as a member of the public if the item was not pulled from the agenda.

Faught withdrew the item but placed Smeenk on administrative leave the next day, and about six weeks later, April 7, 2017, Faught terminated Smeenk’s employment with the city.

Smeenk claimed his termination was due to retaliation, but the city claimed it was due to his calls to the unsuccessful bidders and inserting himself into a project to which was not assigned.

Supposedly, Smeenk’s “insubordination” began in 2010 when his job description was changed, which eliminated his ability to oversee public works staff as an engineer.

Smeenk disputed this with the city and eventually sought clarification from the Oregon State Board of Examiners for Engineering and Land Surveying. The board confirmed that a professional engineer must have appropriate oversight of the engineering work product and anything less is a violation, but it did not provide confirmation that he needed to have supervisory authority of his co-workers.

The board also determined that the city’s job description for an engineer violated state law because it did not require a professional engineering license. Faught was present at the meeting and was given instruction to file a complaint with the board, according to the initial compliant document.

Lohman said the city has not changed the job description because there is no need to.

A few days later, June 2010, Faught allegedly retaliated against Smeenk by writing him up for “insubordination” … “an inability to accept the final decision from the city administrator” … and for “a written solicitation to the City Council,” according to the complaint.

Another instance of retaliation allegedly came when Smeenk was asked to complete reference forms for Scott Fleury to attain an engineering license.

Smeenk wrote that Fleury had not performed engineering services under the supervision of a licensed engineer except for the occasional project. The board denied Fleury’s application in the fall of 2014, and in its August meeting minutes stated that violations had occurred in the city’s department.

Faught supposedly told staff that the board’s meeting minutes were wrong, and no violations had occurred, to which Smeenk told members of the department, “Practice violations are occurring in the city, but as far as I know they have thus far not adversely impacted the health or safety of the public.”

Around February 2015, Faught reprimanded Smeenk with another write-up and threatened him with “disciplinary action.”

Faught alleged that the performance memo was in response to Smeenk’s pattern of “inserting himself in other people’s projects” despite being repeatedly told to stop.

According to the complaint, Faught allegedly altered the date on the performance memo from February 2015 to nearly eight months after it was delivered in an effort to hide his retaliatory motive. He also allegedly removed a statement that said Smeenk could only bring his concerns to the project manager or to Faught.

Smeenk filed a tort claim against the city May 19, 2017, claiming the city and Faught had violated his free speech rights, retaliated against him for whistleblowing and wrongfully terminated him.

A few months later, Smeenk’s wife, Christine Dodson, the former senior center manager for 10 years, was laid off in October 2017. She filed a lawsuit against the city May 2018 for $1.1 million.

Lohman said her lawsuit was an entirely different matter and was in no way connected to Smeenk’s termination but was related to the reorganization of the senior center.

Dodson claims the city retaliated against her for a back-wage claim, that she was excluded from conversation about the reorganization of the senior center, and that she had to face “false and defamatory statements” from parks staff and commissioners.

The city informed Dodson in June 2015 that it had misclassified her as a salary employee for eight years when she should have been considered hourly. She fought for the substantial amount of overtime pay she missed out on, according to court documents.

The city allegedly offered her an additional week of vacation, which she refused.

Lohman said that because the Ashland Parks and Recreation Department runs somewhat independently from the city, the misclassification was a mistake of her supervisor. He said someone from the payroll department brought her salary to the city’s attention, and that’s when city officials realized it was not appropriate for the position to receive salary.

According to a court document, Dodson declared, “Once I started to insist on being paid what I was owed, and refusing to work without being paid, I began to experience retaliation in the form of increased scrutiny, unjustified discipline and frustration from my managers.”

Dodson reportedly reached a settlement agreement with the city June 3, 2016. Due to alleged reactions from Rachel Dials and Michael Black, she asked for a job-related protection. The city denied the request, and she alleged that her layoff was actually a “targeted firing,” according to a court document.

The ordeal resulted in an unsuccessful recall effort against parks commissioners Jim Lewis, Mike Gardiner and Rick Landt in 2018.

The retaliation claim was denied by the court because Dodson did not address retaliation in her tort claims to the city within the required time period of 180 days after the layoff, October 2017. The first retaliation accusation was received by the city May 15, 2018.

Dodson claimed she did not learn of the wage discrimination until December 2017, when she received documents from the city as part of a pre-litigation document request.

The most recent update to Dodson’s case was a request for extension filed Feb. 26, 2019, due to the large amount of paperwork required for review.

When contacted by the Tidings, Dodson said she and her husband preferred to let the attorneys comment, but the attorneys retained by the couple did not respond by Friday afternoon.

//inserted by Sharon