$6 million bill the county didn’t want made public

Legal fees and court costs to defend Thurston County in a sex bias lawsuit brought by three former county prosecutors are approaching $6 million, according to an analysis of newly released public records obtained by The Olympian.

“I think it’s way out of line,” said Thurston County Prosecuting Attorney Ed Holm, whose office was the target of the suit brought by three former county prosecutors who worked for him from 2000 to 2002. “It just wasn’t handled very well.”

The cost information, obtained through a state Public Records Act request filed by The Olympian on Nov. 24, was in the form of an itemized list of $2.3 million in legal fees and other costs paid on behalf of Thurston County by the Washington Counties Risk Pool, an insurance entity representing 28 counties in the state, from 2002 to the present. The risk pool contracts with private insurance companies to cover legal liability and other claims filed against public agencies.

Other costs include:

• $250,000 paid under the county insurance deductible.

• $1.45 million awarded in plaintiff attorney fees.

• $1.52 million jury award to plaintiffs.

• $50,000 estimated cost of appeal.

• $50,000 estimated cost of independent investigator and 2002 public records dispute.

• $200,000 in salary and benefits paid to plaintiff Audrey Broyles when she was reinstated in her job but not allowed to return to work.

The payout is not expected to be a direct hit on Thurston County taxpayers. However, Thurston County’s annual $556,253 premium paid to the risk pool includes an 8.1 percent surcharge assessed as a result of the lawsuit, according to risk pool executive director Vryle Hill. Hill said the sex bias case was charged to the risk pool’s 2002 accounts, and so has already been factored into the insurance calculations by risk pool providers at that time — Swiss ReAmerica of New York and CV Starr of Seattle.

“That’s what we buy insurance for,” said Thurston County Commissioner Diane Oberquell, who said the only direct county taxpayer expense was the first $250,000 paid under the county’s liability insurance policy deductible.

But the sheer size of the price tag is eye-popping, officials say. “A $6 million public employment case is off the charts,” said Hill, whose agency is based in Tumwater. “It is by far the largest public employment case that the risk pool has dealt with since it was founded in 1988.”

Thurston County’s risk manager, Tammy Devlin of the county human resources department, said it was not yet clear if the county’s risk pool premium cost would be altered further by the case. She said three balancing variables were:

• The overall risk is spread among the 28 counties that belong to the risk pool.

• The calculations are spread — or “smoothed out” — over a five-year period to avoid a big spike in any one year.

• The liability insurance records are combined with other Thurston County insurance policies’ claims records in calculating the county’s relative risk.

The lawsuit, Broyles vs. Thurston County, was filed Aug. 23, 2001, by former Thurston County deputy prosecuting attorneys Audrey Broyles, Susan Sackett-DanPullo and Vonda Sargent. The prosecutors, who all worked for Holm, claimed the office was run like a “good-old-boys- network.”

They alleged that they and other women employees faced sexual discrimination in promotions and pay and a hostile working environment — including inappropriate sexual comments such as references to women’s breasts and other female body parts. Much of the testimony at the trial focused on male prosecutors being assigned more high-profile felony cases and having greater authority than the female prosecutors — as opposed to any sexual bantering.

Holm, re-elected to office in November, said last week the allegations were false, but that the case was mismanaged by the county.

“I wasn’t able to do a damn thing, and I frankly think I could have done a better job,” he said.

He said he still believes he “didn’t do anything wrong” and that he tried to give the women pay increases and promotions.

“I made some mistakes, and I could have handled it better, but I didn’t do anything wrong,” he said.

The five years the case has stretched out have not only been expensive in dollars, but also have exacted a huge psychological cost, he said.

“This thing has been tough on me and my family,” Holm said. “All these sexual allegations — and there was nothing sexual going on — and my kids, going to school with that.”

Holm, who has three teenage children who were 7 and 8 years old when the case started, added that his major beef was the lack of coordination. He said there was no teamwork on the case among his office, the county commissioners, the risk pool, the attorneys and the county human resources department.

“They could have had everybody involved sit down at the table and talk about what we were going to do,” he said. “They didn’t do that.”

Jury award

On Nov. 21, a Mason County jury awarded the women a total of $1.52 million in damages and lost wages.

The women’s attorney, Stephanie Bloomfield of the Tacoma law firm Gordon, Thomas, Honeywell, Malanca, Peterson and Daheim, said the award was less than the $2.3 million she had asked for, but said that it was fair and appropriate.

“I believe it was fully supported by the testimony at trial,” Bloomfield said Thursday.

Last month, trial judge David Foscue of Grays Harbor County Superior Court awarded Bloomfield $1.45 million in attorney fees.

“All I can say is, it was a hard-fought case, and there were competent attorneys on both sides,” Foscue said Thursday. “It costs a lot of money to litigate significant issues — when you get involved in a lawsuit, it takes its toll.”

Even if the $3 million in plaintiffs’ awards is overturned on appeal, there is still the $3 million in legal defense costs that Thurston County will have to pay. At least four law firms were hired over the five years, and dozens of expert witnesses were engaged.

Bloomfield said the county might not have expected such a large price tag.

“I believe this case has been extremely profitable work for the defense lawyers involved,” Bloomfield said. “Also, in advising a client regarding litigation in these matters, it’s very important to advise them of the cost of defense in claims settlement — and I don’t believe the county did a good evaluation of their risk in this case.”

Holm and his two senior prosecutors, Jim Powers and Phil Harju, were initially named as defendants, but by 2004, all three had been removed, leaving Thurston County as the sole defendant. Holm, Powers and Harju each had his own attorney, whose fees in the first few years helped contribute to the total $6 million price tag. The fees for attorneys for Holm, Powers and Harju were covered under the initial $250,000 deductible the county paid, according to the invoices examined by The Olympian.

In addition, the risk pool hired Seattle attorney Mike Patterson, of the law firm Lee, Smart, Cook, Martin and Patterson, to represent the county. He became the chief counsel in the case.

“We made every effort to resolve this case early on, for what we thought was a reasonable amount,” Patterson said Thursday. He offered the plaintiffs $450,000 to settle in 2003, but the offer was rejected, he said.

“We never thought we’d be in a position of being vicariously liable for the prosecutor’s office,” said Patterson, who is appealing the case on behalf of the county to the state Court of Appeals in Tacoma. “We are confident that the verdict will be reversed by the appellate court.”

The county’s appeal, which is set for briefings over the summer, hinges on Patterson’s contention that the county should not be held liable for the activities of Holm, since he is an elected official and does not report to the county commissioners. As evidence, Patterson points to the fact that Broyles was fired by Holm and reinstated by the county commissioners, but Holm did not allow her to return to work.

For almost two years, from 2002 to 2004, the county paid Broyles $200,000 in salary and benefits yet she never entered the office, Patterson said.

“The prosecutor’s office acted both legally and factually independent of the county,” Patterson said.

Public records

The Olympian’s analysis is the product of a combative public records dispute over the last four months.

Patterson initially rejected the newspaper’s request, saying it would compromise attorney-client privilege and would jeopardize pending legal actions.

However, on Feb. 24, a day after a state House committee began hearings on a bill to strengthen attorney invoice disclosure requirements under the state Public Records Act, Patterson’s office sent The Olympian copies of bills for the first $250,000 covered by the county’s deductible.

The Olympian also received a printout of risk pool charges totalling $1.87 million representing costs up to — but not including — the trial last fall. Last week, Hill supplied a list of the risk pool payments for the trial and post-trial fees, bringing the risk pool total payments to $2.3 million.

A staff member for state Rep. Brendan Williams, D-Olympia, said the House bill, which Williams co-sponsored, was reported out of the State Government Committee and had its second reading Thursday in the House Rules Committee. It was likely to be set for a vote shortly in the full House, the staff member said.

The current public records request is the second one The Olympian has filed in the Broyles case.

In 2001, the county spent about $30,000 for independent investigator Marcia Ruskin to study the claim filed by the three former prosecutors. When the report was done in early 2002, the county denied The Olympian’s request to release a copy to the public.

But Kitsap County Superior Court Judge Leonard Costello, then the presiding judge in the case, ordered the report made public and ruled that Thurston County had to pay The Olympian’s attorney fees in the dispute.

The Ruskin report, which concluded that Holm’s office atmosphere did not rise to the level of sexual harassment, was excerpted in the paper in April 2002.

“I was saying the whole time that they should release it,” Holm said last week. “There was no reason that shouldn’t have been made public.”

Keri Brenner covers Thurston County and Tumwater for The Olympian. She can be reached at 360-754-5435 or kbrenner@theolympian.com.