Long v. North Dakota - Opening Statement - Defendant

Defendant attorney Randy Bakke told the jury at five minute to four PM that he'd been waiting all day for his chance to speak with them.  He said he and Mr. Tuntland had divergent points of views.

Bakke told the jury there were two aspects to the case: liability and damages.  He said there was no way the jury should award damages in this case.  Regarding liability, which he said would take up most of the trial's time, the question would be whether Long was fired in retaliation for protected activity.

Bakke agreed with Tuntland that the timeline was key, but that the timeline would show that Long did not engage with law enforcement for any other reason than trying to save his own job.

Bakke said the role of WSI was to hear injured workers' claims, and that even though WSI is a state agency, it is set up like a private business, with a board of directors, CEO, and an executive team.  Long was part of the executive team, along with 6 others.  There were relationships between all of them.

Blunt was CEO, and later Halvorson, and Long was Chief of Resource Services, and had a relationship with the executive team, the board , and the CEO.

Bakke said that this is an unpleasant subject, that no one wants to be fired.  He stressed that WSI employs in an "At Will" state, which means employees can be fired for any reason.  He said Long was not fired for whistleblowing, and that Long only blew the whistle after he know he would be fired.

Bakke referred to the performance audit that went through much of 2006, and that there was a May meeting between Long, the CEO, and the Execs.  At no time during that meeting did Long say no, we can't do this.  As a result of that audit, Blunt was charged.  Bakke wrote the date 4-11-07 on an overhead projector, and said up until then, Long had not complained.  He told the jury, "you'll see, Long just wanted Halvorson's job."

The next date was 5-07-07;  Halvorson had received a complaint about conduct at Human Resources, and that others were uncomfortable with the conduct (between Long and Billie.) He questioned how the HR manager and supervisor are responsible for handling complaints of such conduct, when they were themselves getting those complaints.

Bakke said a third party investigator was hired, because when Long was supposed to do Pre-investigative notifications, he taped two, but only two of the executive board.  Both were African Americans. He said Long only taped the two of them because of their race, which you cannot do.  As a result, Halvorson was mad.  He told Long it was bad enough Blunt was under investigation, now there would be a new investigation over this matter.  Halvorson convinced Sonja to dismiss, but the other person pursued the investigation.  It was found to not be racist, but the whole thing put stress on management.

Next date:  August 30, 2007 .  This was the date Long went to ND Risk management to get whistleblower protection.  Bakke said the whistleblower law has a noble purpose - it protects those trying to expose illegal activity.  Bakke said Long was trying to use the whistleblower law to protect himself after Halvorson's repremand.  He said the relationship between Long and other management never got better, but only got worse.

There is an issue over the ITTP project.  Long said he did not want a Doug Hintz (name?) on that project; Halvorson said he did want it.

September 24, 2007.  Halvorson writes Long an email saying "I don't trust you."  That, Bakke stressed, was not manufactured, and told the jury they would see such evidence.   At that time, Long had never contacted law enforcement.  He said Long agin went to the board members, trying to undercut them.  Long, he says, wanted to be CEO which caused tension at the executive level; Halvorson at that time made plans to terminate Long.  He was just trying to save his skin, and even if there were illegal activity, Long was in the midst of it with everybody.

October 7, 2007, Halvorson discussed same with Jodi Bjornson, WSI general counsel, and on October 11, 2007, went to the AG's office to explore employee termination.  All of this happened, Bakke said, before Long spoke with law enforcement.

Regarding the retaliation claim, Bakke says, October 15, 2007, Bjornson, during her second deposition, offered the name Long as having information.  October 16, Law enforcement's Quinn meets with Long.  October 18, Long and Kay were in the dark with flashlights digging through Mark Armstrong's desk.  "How," Bakke asked, "does that help morale? They didn't get permission.  How does that make other employees feel? It doesn't matter what was found, they should have gone through proper channels."   WSI's Armstrong's journal, the attorney said, was random notes around the time Sandy left.  He says it will show that Long wanted to be CEO.

That weekend, he said Long filed a whistleblower memorandum with items from 2006 he had never before mentioned.

When Blunt returned to the agency, he kept hands off Long;  attorney Bakke said he couldn't very well evaluate his own whistleblower, and so Halvorson was still in charge of Long, and when journal writer Armstrong made a complaint to HR, he had to follow up.

Ultimately, he said, the impact of all these activities made it necessary to put Long on administrative leave.

Then, attorney Bakke said, Long launched a public campaign to lambast WSI, sending false allegations to the press, TV, and radio.  The government askd WSI to have a third party conduct an independent review, but WSI had to wait for the results, and could not stand by while Long went to the press.  He said Long released a 30 page single spaced document he had created to the media, board members, the Legislature, and Senator Byron Dorgan.

At that point, he says, Halvorson polled his Executive team, asking whether they thought Long could ever come back.  He says no one did.

Bakke said a letter was sent going through the reasons Long was fired, and that a second letter was sent giving Long an opportunity to address the issues.

Bakke went back to the issue of damages, and said maximum damages are two years wages, and that Long had inflated his damages beyond that.  "Even if you get to the issue of damages, it's nowhere near what Long claims.  I don't think we'll get there."

He told the jury it isn't guilty verses not guilty, this is a civil case.  The question will be whether Long was fired in retaliation for protected activity.  Bakke said Long did not engage in protected activity.  If he had, why didn't he complain in 2006?

"WSI," Bakke said, "is not a perfect agency , we all make mistakes.  But WSI did not make a mistake in firing Long."

As I noted in the Plaintiff's opening statement, the evidence will tell the real tale.  Another note: Attorney Bakke spoke much quicker and more softly than did Tuntland, so I wasn't able to write down much of what he said. I am taking notes by hand, then posting later.

Correction:  There are two attorneys for the defendant, Randy Bakke and Mitch Armstrong.  I had reported that Armstrong did the opening statement, but I had them confused.   Randy Bakke was the attorney who presented the opening statement.  I have corrected this post, and regret the error.


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