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Sheriff's office

Case set for hearing

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T.J McDermott defeated former Missoula County Undersheriff Josh Clark to become sheriff in 2014, but the detritus from their bitter campaign may not get cleaned up until well into 2016 or beyond, with taxpayers on the hook for the costs.

A two-day state hearing to determine whether McDermott discriminated against Clark by assigning his former political rival to graveyard patrol and stripping him of supervisory duties is scheduled to begin June 21. But Clark's attorneys have already filed a parallel complaint in Missoula County District Court, which they plan to pursue if the discrimination case before the Montana Human Rights Bureau isn't resolved to their client's liking.

The civil suit, filed Dec. 18, accuses McDermott of wrongfully discharging Clark by creating an "intolerable" working environment and intentionally inflicting emotional distress.

McDermott and county officials have denied the claims since Clark filed a human rights complaint in March 2015. "Most people are aware that Mr. Clark resigned his position without any complaints after working only three shifts," McDermott notes in a statement this week.

In September, however, an HRB investigator found reasonable cause to conclude that the sheriff had retaliated, in a report that painted an unflattering portrait of the sheriff's office. A subsequent "conciliation period" between parties was unsuccessful, so the case will next be heard by an independent officer in the Office of Administrative Hearings.

Such hearings are significantly more detailed than the earlier HRB investigation, involving a discovery and deposition process not unlike that of a district court case, Chief Administrative Law Judge David Scrimm says. The hearing officer could either confirm or reverse the earlier investigator's finding. Of the 57 human rights cases certified for hearings in fiscal year 2015, only 12 resulted in a finding of discrimination, according to bureau statistics.

However, while County Attorney Jason Marks noted in case filings that Clark's proposed $750,000 in damages is 10 times more than the state's largest human rights settlement, affirmative OAH decisions have yielded six-figure awards, Scrimm says.

Clark's attorney, Nicole Siefert, says the requested damages were calculated using criteria specified by the HRB. A copy of the damages worksheet Siefert provided shows requests for five years of lost income, worth over $380,000, plus another $300,000 in reduced pension benefits and $100,000 for emotional distress. She adds that attorney's fees, too, could reach $100,000 by the time the case is resolved.

Marks, in an email, calls Clark's demands "utterly unreasonable," adding Clark was reassigned in accordance with Montana law.

"We look forward to a full review of the facts and the law governing the reassignment of Undersheriffs after an election before the hearing officer in June," Marks writes.

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