Auer alleges refusal to break law led to firing
By JILL SCHRAMM
Minot’s former city attorney has filed a whistleblower complaint, alleging she was fired for refusing orders that she believed violated the law.
Colleen Auer, who was fired May 2, filed the complaint with the North Dakota Labor Department on the heels of a previous filing of an harassment complaint with the department and the federal Equal Employment Opportunity Commission.
“I was asked to do things that I felt, in my job, were unlawful,” Colleen Auer said. “I didn’t do that and in response to that, I was fired and publicly humiliated.”
Interim city manager Cindy Hemphill fired Auer, and the Minot City Council ratified the decision May 5 when Auer appeared at the meeting to question Hemphill’s authority to fire without consulting the full council.
Council president Jim Hatlelid had stated, following the May 2 dismissal, that Auer had been fired for insubordination. Auer stated in her latest complaint that insubordination is not a valid reason for firing, “given that by law I am entitled to refuse orders believed to be unlawful.”
In her complaint, Auer wrote, “The actions of the Interim City Manager, the HR director, the Mayor and the City Council as outlined herein prevented me from performing my legal duties and responsibilities, penalized me for acting in good faith to report violations of the law and for refusing to follow orders and perform actions that I believed to be unlawful, intentionally and maliciously interfered with my enjoyment of my employment, and were, in every respect, retaliatory and in reprisal for my good faith reporting of violations of law and my efforts to perform my duties and responsibilities in accordance with applicable law.”
She asks for reinstatement with back pay and benefits, compensatory and punitive damages, costs and reasonable attorney fees and public retraction of defamatory statements.
Auer’s initial complaint over harassment based on sex pointed to problems that existed between herself and Hemphill, who was her supervisor.
In the new complaint, Auer noted that Hemphill “used threats and intimidation to try to coerce me to violate applicable law and disregard my duties and responsibilities as the City Attorney, and maliciously interfered with, and hindered, my ability to enjoy employment already obtained.” State law makes it a class B misdemeanor to intimidate an employee in the performance of duties and a class A misdemeanor to hinder an employee’s ability to enjoy employment already obtained.
Auer said she is not asking the state’s attorney to pursue criminal charges at this time. She said she likely would seek charges against Hemphill and other public officials once the civil complaints have been addressed. Penalties can include removal from office.
“All of them in one way or another, I am alleging, in fulfilling their duties as public officials or public officers violated their sworn oath of office,” Auer said. “People will be held accountable for the violation of the public duties that occurred because they are serious violations.”
Regarding her employment, Auer specifically alleges that Hemphill:
denied her the ability to advise the city council on contracts involving the airport, downtown parking/housing project and MAGIC Fund.
demanded that she incorporate various material terms into contracts involving the airport, downtown parking/housing project without council approval and despite her advice to the contrary.
demanded that she incorporate language into a settlement agreement in an eminent domain action that exceeded the settlement authority granted by the city council and that conflicted with her professional advice.
demanded she draft and finalize contracts in an impractical, abbreviated time frame without regard to the disadvantages that would result to the city.
objected to her efforts to revise forms in use by the city to conform to law.
Auer said she was given many sample documents indicating how things were to be done that she found inconsistent with law and needed revision.
“I, instead, could not trust anything that was put in front of me as a draft,” she said. “Every time, I rewrote it.”
Auer said she encountered resistance from Hemphill and the Minot Area Development Corp. after rewriting a contract designed to provide a MAGIC Fund grant to KALIX to buy a baler for its recycling program. She said the grant wouldn’t be legal under state law or MAGIC Fund requirements because it didn’t fit the definition of economic development and job creation. After meeting with KALIX to investigate the company’s application, she determined that the project should be funded instead through other avenues based on its merits in retaining jobs for people with developmental disabilities.
Auer’s complaint also suggests she was not pleased with the amount of oversight that Hemphill sought to exercise over her work. Specifically, Auer wrote that Hemphill:
denied her the ability to train council members on laws related to open meetings, public records, conflicts of interest, form and content of minutes and proper exercise of authority.
prevented her from clarifying or correcting the record during public meetings.
dictated the priority of her legal work and the time frame to complete projects, the meetings that she would attend and calls she would participate in and the involvement she would have in various legal negotiations.
Auer said she had concerns when she took the job that the city attorney reported to the city manager rather than the city council.
“This job needs to be independent,” she said. “How can I exercise my authority without fearing for my job?”
Auer alleges she was terminated because she had filed a complaint of unlawful harassment on April 19 that detailed Hemphill’s “unlawful interference with my job duties and responsibilities and efforts to coerce me to violate applicable law.”
“The causal connection between the complaint and firing could not be clearer,” Auer wrote.
Auer’s April 19 complaint was investigated by council members Hatlelid, Scott Knudsvig and Dean Frantsvog, who found the allegation of harassment unfounded.
Auer said she is making the content of her complaints public because she believes residents have a right to know.
“I believe in transparent government,” she said. “I believe that everyone who sits in a position of trust to the public has, if anything, a higher duty to be responsible, transparent and to be very dedicated to promoting the laws and serving the public interest. That’s their right in this community to expect that from public officers.”