November 1, 2010
In a one hour presentation which followed Judge Ronald Goodman's preliminary instructions to the jury of six women and three men, Plaintiff attorney Tom Tuntland began by telling the jury that, while the opening statement is not evidence, he was going to provide a roadmap for the jury to follow.
"Who's Jim Long?" Tuntland said he served in the Marine Corps for five years, and understood the chain of command, and that would be important as the defendants would claim Long went outside the chain of command at Workforce Safety and Insurance (WSI.) Tuntland told the jury it was their job to decide what really happened in this case.
He talked about Long being an "at will" employee, a PhD who was hired by WSI and was working his way up the management ladder. As an "at will" employee, he could be fired; "he could be fired for wearing red socks, he could be fired for drinking coffee on Thursday. But he can't be fired for whistleblowing, that's against the law."
Tuntland told the jury they would hear a lot about a state audit which began in 2005. A periodic audit was required by state law, it didn't mean anything was necessarily wrong. He said there were several things happening at the same time as the state audit and would try to clear up confusion.
In 2006, the year after Long was hired, Kay Grinsteinner was recruited to be WSI's new internal auditor, and that she had certain job requirements and a range of power. An internal auditor, Tuntland said, goes through an organization looking for misappropriation of funds, instances of skirting organization rules, or or instances of exposing organizations to potential liability when things were done wrong.
He said we are talking bureaucracy here, and peoples' eyes glaze over, but that Jim Berg (name?) of support services will take the jury through the various layers.
Jim Long was head of Human Resources. The head at the time was a lady named Billie Peltz. Long's training was in HR, and he worked closely with Billie. Tuntland said that attorneys for WSI will try to get you to draw an inference that something improper was going on between Long and Billie. There were inferences of sexual "irregularities" alleging Long and Billie were too close, but Tuntland said there were no sexual advances made. The allegations were investigated, there was no proof, and the case was closed. It did not come up again until the issue of whistleblowing was on the table. Tuntland, as he did many times throughout the opening, told the jury to watch the dates of alleged events.
Tuntland said his client, Jim Long, was involved in whistleblowing long before the Sandy Blunt investigation. It started, he said, with a state mandate to give employees a four percent pay raise. WSI had gotten employees outside the North Dakota civil system, and WSI thought they were exempted from having to pay the 4% increase. The state attorney general ruled that WSI did have to give the pay raise, and Tuntland said that should have been the end of it, but WSI tried to tailor things their own way. Fellow executive John Halverson came up with a way out of paying the raise, but Long objected, saying it wasn't right. Then WSI CEO Blunt told Long if he didn't think it was right, he should take the matter to the attorney general. Long did, and the AG told Halvorson and Blunt they must do the 4% pay increase at WSI. That raise, said Halvorson, was a result of Long's whistleblowing. Blunt was not happy with that decision.
Blunt had come from Ohio, and had hired staff from Ohio to work at WSI. One of those staffers, Dave Spencer, was just not working out and had to be fired. Blunt wanted to give Spencer severence pay, but Long objected, saying you can't give severance pay to someone you've fired. Tuntland said Long informed Blunt there was a state audit currently being conducted, and that the auditor was certain to catch it. Blunt did give Spencer severance pay, the auditor did catch it and other things, and Blunt was eventually charged with two crimes.
Tuntland said that WSI had a retaliatory atmosphere, as noted in a morale study. If you wanted to keep people in line, you could either work with them or threaten them. Carrot or stick? At WSI it was stick. The retaliation was not just to get Long, but to send a message to others: "Don't you rat us out, or this is what will happen."
Tuntland talked about Blunt's relationship with the Chamber of Commerce, and a Chamber meeting where the head of the ND Republican party and Senator George Keyser told the group that "WSI is the crown jewel of the Republican Party in North Dakota, and they were under attack."
It was ordered that WSI employees would have to craft letters to the editor about WSI; those letters, drawn up at WSI, were then sent to the Republican Party to be signed by them, and then sent to the newspaper. Long told Blunt he was going to call Rep. Jason Stverak about it, and Blunt advised Long not to use a government phone to make the call. That got Long thinking, and he called his friend and co-worker Jodi Bjornson if there was a law on the state level similar to the Hatch Act. Jodi advised Long that action was illegal. So Long told Blunt he would not do this as it was illegal. Long was not fired.
So why care? Tuntland said Long's firing did not happen in a vacuum, that Long had shown he was no longer "on the bus" as the saying goes, "If you're not on the bus, you're under the bus."
Tuntland said it showed Long had been involved in whistleblowing activity for some time. The state auditor's report pointed out problems within WSI, and Tuntland said that Blunt has essentially told Long to obstruct the audit. "If they ask for 100 pages, send 1,000." It was stonewalling.
The Burleigh County State Attorney's office asked the Highway Patrol to conduct an investigation; Long called the Chief of HP to apologize for stonewalling.
Blunt and Romi Leingang were eventually charged with two crimes. Some unknown person sent an email around WSI showing peoples' salaries. This document was not secret but was in the public record. But Tuntland said Blunt hit the roof, and vowed to find out who did it. That invloved and investigation into peoples' drivers licenses, and Blunt was charged with misuse of information, a felony. Blunt went on unpaid leave; a rule or legislation was then passed saying Blunt's prosecution was political.
John Halverson was then brought in as CEO, and Tuntland said that Halverson claimed that Long did what he did because he wanted to be CEO. That, the attorney said, is why he is bringing in earlier information, that Long had been blowing a whistle all along.
He said Long's personnel file would be an issue, and challenged the jury to see if he could find anything negative in his file.
Back to the allegations of a sexual relationship. That issue was resolved May 2007; on June 13, Halvorson gave Long a glowing performance report.
The case concerning the drivers' licenses was eventually dismissed.
But someone brought up Long's name as having information. Then Mike Quinn, and agent for Bureau of Criminal Investigation contacted Long for information; Long put his meeting with Quinn on a public calendar for all to see at WSI.
Internal auditor Kay Grinsteinner thought that WSI employee Mark Armstrong was not releasing information as he was supposed to under Freedom of Information Act requests. Long, had a second job teaching at Rasmussen College, and went back to WSI after teaching one night and discovered Grinsteinnerin Armstrong's office, rummaging through his desk with a flashlight. She beckoned Long in and showed him a journal. Tuntland said it showed a conspiracy to get Blunt's charges dropped. They made a copy which Long provided to Quinn (law enforcement.)
Quinn then obtained a search warrant for Armstrong's desk to get the original. Long happened to be off the day Quinn showed up with the warrant, but Tuntland said he happened to be on the phone with WSI's Kay Grinsteinner, and could hear his name being paged on the WSI system. Learning that Quinn was there, Long immediately returned to WSI and escorted Quinn to Armstrong's office. While there, Long overheard WSI's Sonja Nellie on the phone with someone - he believed Blunt - informing that Long was taking Quinn to Armstrong's office.
Blunt, in the meantime, had one case dismissed, but another still pending. Long sent a letter to the AG saying he knew Blunt would be reinstated, and that as he had cooperated with and provided information to law enforcement, he was asked for Whistleblower protection.
Blunt returned to the agency; about three weeks later, Long received a letter stating he was suspended with pay. Tuntland asked the jury to question why he was suspended.
Seventy five days after receiving the suspension letter, Long was fired. Long asked why but was met with silence. Tuntland said it took Halvorson all that time to come up with something. He referenced an ITTP project, saying Long had not followed Halvorson's instructions; Tuntland argued that Long did.
Tuntland said it was clear that WSI was going to retaliate against Long for releasing the Armstrong information, and that WSI will say that Kay's actions in securing that journal was outside the WSI charter. Kay will say she had the right and duty to take action.
Back to Long and Billy and allegations that Long had patted Billy's butt, or she his. The issue, Tuntland said, was resolved after one meeting, and was not grounds for termination. Tuntland said he wanted to bite his lip during jury selection, as defendant attorney Bakke asked prospective jurors about their views on sexual harassment. The proper words, Tuntland said, was "Improper Fraternization." Long and Billy both were asked about it, denied it, and there were no witnesses. And that did not merit discharge.
When Blunt returned to WSI, Long, Kay, and Billy all filed for whistleblower protection the same day.
Back to performance reports. Tuntland asked the jury to look at the glowing report given to Long at the same time Halvorson was getting ready to fire him. He said Long would testify that in HR, you don't just fire someone as it takes lots of time and money to train them; you first work with them.
Tuntland said they are alleging manufacturing of documents to justify retaliation.
The last point Tuntland brought up was that Long had tape recorded interviews with two people regarding investigation of alleged sexual harrassment. Halvorson told Long he didn't like that, and Long said while he thought he had done nothing wrong, he would stop. Tuntland said independent investigators said he had done nothing wrong.
That, Tuntland told the jury, is the big outline.
Note: As the judge instructed the jury, opening statements are not evidence. I have personally witnessed opening statements that sounded impressive, but turned out to have no basis in fact. The evidence will reveal the truth, and only the jury gets to decide.