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Martinez v. County of Antelope

United States District Court, D. Nebraska

June 13, 2016

JENNIE MARTINEZ, AND ALBERTA WILLERS, Plaintiffs,
v.
COUNTY OF ANTELOPE, NEBRASKA, Defendant.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE.

         During a hearing held on March 24, 2016, the court granted Defendant’s Motion to Stay Depositions Pending Resolution of Motion to Disqualify Plaintiffs' Counsel, (Filing No. 34), and as to Defendant’s motion to compel, (Filing No. 43), it further ruled that Plaintiffs must provide a computation of damages as required under Rule 26 (1)(a)(iii). The court has not yet ruled on Defendant’s motion to compel, (Filing No. 50) because, as explained below, that motion is related to Defendant’s Motion To Disqualify Plaintiffs’ Counsel, (Filing No. 34).

         This memorandum and order discusses the motion to disqualify. For the reasons stated below, the court finds the motion must be granted.[1] Defendant’s motion to compel will be denied without prejudice to re-filing after new counsel enters an appearance on Plaintiffs’ behalf, or the Plaintiffs advise the court of their intent to pursue this case without counsel.

         BACKGROUND

         Antelope County is a member of the Nebraska Intergovernmental Risk Management Association (“NIRMA”). NIRMA is a not-for-profit, member-owned and operated risk management and self-insurance pool. Its goal is to provide cost-effective and comprehensive coverages and risk management services to its members, including legal counseling services.

         NIRMA member counties and their elected or incoming officials can call NIRMA’s toll-free hotline to speak with a NIRMA attorney regarding legal questions on labor, employment, and human resource topics. The NIRMA hotline may be used only by (1) elected or incoming officials of NIRMA member counties; and (2) authorized representatives of public agencies that are also members of NIRMA. Calls can be made regarding only the county’s legal questions: The NIRMA hotline cannot be used for a county official’s personal legal questions or any questions that are unrelated to county business. Pam Bourne, an attorney with Woods & Aitken LLP, has provided legal counseling services for NIRMA’s member counties for around 12 years, including the years at issue in this case. She has been counsel of record for the defendant from the outset of the above-captioned litigation. (Filing No. 5).

         Antelope County, Nebraska has been a NIRMA member since at least January 15, 1989. Heather McWhorter was the Antelope County Assessor in 2014. As an elected county official and on behalf of Antelope County, McWhorter used the NIRMA hotline on numerous occasions to ask Bourne for legal advice. (Filing No. 55-1, at CM/ECF p. 2, ¶¶ 5-6).

         In the Fall of 2014, McWhorter ran for reelection and lost to Kelly Mueller. After the election, but while she was still the County Assessor, McWhorter called the NIRMA Hotline on the county’s behalf to obtain legal advice on employment issues. On December 2, 2014, at 9:50 a.m., McWhorter left a voicemail on Bourne’s telephone, stating, “Hi Pam this Heather McWhorter in Antelope County. I have a question as far as the incoming assessor and me going outgoing and some of the rights and responsibilities there. My Board has asked me to call and verify some stuff with you.” (Filing No. 55-1, at CM/ECF p. 2, ¶ 9). The following day, on December 3, 2014, at 2:00 p.m., McWhorter left another voicemail on Bourne’s telephone, stating, “Hi Pam. This Heather McWhorter again, um, I need you to return my call so we can ask about a liability question with the County . . . .” (Filing No. 55-1, at CM/ECF p. 2, ¶ 10). Bourne returned McWhorter’s call later that same day, spoke with McWhorter, and provided the legal advice McWhorter had sought at the direction of the County’s Board of Supervisors. (Filing No. 55-1, at CM/ECF p. 2, ¶ 11).

         Plaintiff Jennifer Martinez also contacted Bourne, but Bourne refused to speak with Martinez, explaining she represents the County and cannot provide personal legal advice to County employees. (Filing No. 55-1, at CM/ECF p. 2, ¶ 12).

         Antelope County never authorized McWhorter to reveal communications she had with Bourne or any other attorney on Antelope County’s behalf.

         McWhorter has not worked for Antelope County since Mueller took over as County Assessor in January of 2015. On January 10, 2015, Kathleen Neary, Plaintiffs’ counsel in this lawsuit, received a call from Plaintiff Martinez. Neary created notes of her conversation with Martinez. While the notes “are cryptic, ” Neary understands what they mean when she reads them.[2] (Filing No. 37-1, at CM/ECF p. 2, ¶ 6). According to Martinez, two weeks before Mueller was sworn into office, Mueller told Martinez that she must reapply for her job. McWhorter told Martinez that she (McWhorter) had contacted NIMRA about the legality of that requirement. (Filing No. 37-1, at CM/ECF p. 2, ¶ 7-8). In her conversation with Neary, Martinez stated she did not know who McWhorter spoke to at NIMRA.

         Before filing Plaintiffs’ Complaint, Neary contacted McWhorter. When she spoke with McWhorter, Neary asked for the name of the NIRMA employee McWhorter spoke to, but McWhorter could not remember the name. McWhorter did explain the conversation with the NIRMA contact. McWhorter told Neary that according to the NIMRA contact, NIMRA had talked to both Mueller and the County Attorney regarding the employment issues in this case and had provided advice on those issues. (Filing No. 37-1, at CM/ECF p. 4, ¶ 14; Filing No. 37-3, at CM/ECF p. 2).

         In January of 2016 (after the Complaint was filed) Martinez told Neary that in further conversations between Martinez and McWhorter, McWhorter further repeated the specifics of the NIMRA phone call and identified the “NIRMA employee” as attorney Pam Bourne. (Filing No. 37-1, at CM/ECF p. 4-5, ¶ 15). Without question, the information provided by McWhorter to Martinez, and in turn to Neary, included legal advice Bourne provided to Mueller and the Antelope County Attorney. (Filing No. 37-1, at CM/ECF p. 5, ¶ 16).[3]

         On January 26, 2016, Plaintiffs served the following requests for admission on Defendant:

Request No. 13.Admit that Pam Bourne communicated with Heather McWhorter after the 2014 general election regarding Jennie Martinez’s employment status with the County.
Request No. 14.Admit that Pam Bourne communicated with Heather McWhorter after the 2014 general election regarding Alberta Willer’s employment status with the County.
Request No. 15.Admit that Heather McWhorter raised concerns with Pam Bourne regarding Jennie Martinez’s continued employment with the County after Kelly Mueller had been elected County Assessor.
Request No. 16.Admit that Heather McWhorter raised concerns with Pam Bourne regarding Alberta Willers’ continued employment with the County after Kelly Mueller had been elected County Assessor.
Request No. 17.Admit that after the 2014 general election, Heather McWhorter told Pam Bourne she believed Ms. Mueller would terminate Jennie Martinez’s employment with the County because Martinez had supported McWhorter in the 2014 County Assessor’s election.
Request No. 18. Admit that after the 2014 general election, Heather McWhorter told Pam Bourne she believed Ms. Mueller would terminate Alberta Willers’ employment with the County because she had not supported Mueller in the 2014 County Assessor’s election.
Request No. 19.Admit that Pam Bourne told Heather McWhorter after the 2014 general election that she was going to advise Ms. Mueller to not terminate Ms. Martinez from her employment with the County.
Request No. 20.Admit that Pam Bourne told Heather McWhorter after the 2014 general election that she was going to advise Ms. Mueller to not terminate Ms. Willers from her employment with the County.
Request No. 21.Admit that Pam Bourne told Heather McWhorter after the 2014 general election that she was going to advise Ms. Mueller to not terminate Martinez from employment with the County because it was against the law.
Request No. 22.Admit that Pam Bourne told Heather McWhorter after the 2014 general election that she was going to advise Ms. Mueller to not terminate Willers from employment with the County because it was against the law.
Request No. 23.Admit that during a conversation following the 2014 general election, Ms. Bourne advised Ms. Mueller against separating Ms. Martinez from employment with the County Assessor’s office.
Request No. 24.Admit that during a conversation following the 2014 general election, Ms. Bourne advised Ms. Mueller against separating Ms. Willers from employment with the County Assessor’s office.
Request No. 26.Admit Ms. Bourne was acting in the scope and course of her representation of Antelope County, Nebraska when she advised Mueller to not separate Ms. Martinez from employment with the County following the 2014 general election.
Request No. 27.Admit Ms. Bourne was acting in the scope and course of her representation of Antelope County, Nebraska when she advised Mueller to not separate Ms. Willers from employment with the County ...

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