The lawsuit brought against several county government administrators and employees of the Office of the County Assessor has essentially been brought to a close.
This morning, a visiting Circuit Court judge dismissed all the counts against county employees in the $10 million lawsuit filed by fired County Assessor Todd Kaufman.
He was placed on leave April 18 as a result of a complaint from a staff member in his office and was terminated by the Board of Supervisors in June 5 following an investigation.
Kaufman filed a civil complaint in July naming as defendants County Administrator Tim Hemstreet, County Attorney John R. Roberts, Supervising Appraiser John Nelson and James Cross, the outside investigator who conducted a probe of Kaufman’s conduct leading to his firing, along with his company Crossroads Mediation Services. Later, after the affidavits from the number of assessor’s office employees contacted during Cross’ investigation were made public, those employees were added as defendants in the suit.
The lawsuit made public the initial complaint submitted by Nelson last March as well as the report from Cross, including the employees’ statements, that the Board of Supervisors reviewed in closed session in June before voting to terminate Kaufman’s contract. In his letter Nelson described an alleged “hostile work environment” created by Kaufman, and named six “areas of concern” regarding Kaufman's performance: potentially criminal activity; violation of the county's policies on vehicle usage; insubordination; creating a hostile work environment based on discriminatory practices involving age, ethnicity and religious beliefs; sexual harassment; and threats of physical violence.
Kaufman’s lawsuit included 10 counts, including charges of defamation, tortious interference, gross negligence and conspiracy. Kaufman was seeking a total of $10 million in damages—up to $1 million for each count.
But Judge R. Terrence Ney granted the demurrer motions filed on behalf of all the county employees, with attorney Julia B. Judkins arguing against all of the pleadings included in the complaint.
Ney ruled that the information included in the affidavits from the assessor’s office employees described a negative work environment and did not attack Kaufman’s ability as an assessor. He also noted that a majority of the affidavits included in Cross’ report supported Nelson’s original letter—a letter that was made up of things “he observed or heard” and that much was a matter of opinion.
“They’re not [defamation],” Ney said. “These are, ‘I don’t like the way you’re doing this; I don’t like the way you’re doing that.’”
Ney also made the point that Kaufman was an at-will employee and the Board of Supervisors could have fired him “because they didn’t like his shoes.”
Ney ruled that there was no publication of Nelson’s letter and allegations against Kaufman except to the Board of Supervisors on “those persons in the chain of command.” He said both Hemstreet and Roberts were “plainly” acting within the rights of their office and under the qualified privilege position.
Kaufman’s attorney Peter Cohen argued that Hemstreet and Roberts’ qualified privilege did not extend to their actions regarding the former assessor under the malicious exemption. When queried by Ney, Cohen said the two men “knew the statements were false and they knowingly republished false statements to the Board of Supervisors.”
“Their obligation to report does not supersede the requirement not to defame,” Cohen argued.
But Ney countered with a question: “How can the Board of Supervisors ever make an evaluation of any county employee if it can’t be brought to their attention? That’s why it is privileged is it not?”
Ney ruled that Cohen’s argument of malicious intent was not supported by the case, noting specifically that Hemstreet had reported very positively about Kaufman and would have “no reason” to defame him.
As for lawsuit’s claims of tortuous interference and conspiracy, Ney said since the defendants were “all under the same roof, all under the same tent, and all part of the Loudoun County government” they “could not have conspired with each other.” He also ruled that the case was not a negligence case and none of the allegations rose to the level of willful negligence, and said there was “no basis whatsoever” for punitive damages.
“This is a workplace issue,” Ney said in conclusion, saying “Mr. Kaufman might have turned this over more in his mind before bringing this suit.”