Amann v. Office of Utah Attorney Gen.
| Decision Date | 02 September 2021 |
| Docket Number | 2:18-cv-00341-JNP-DAO |
| Parties | PAUL G. AMANN, Plaintiff, v. OFFICE OF THE UTAH ATTORNEY GENERAL, SEAN REYES, BRIDGET ROMANO, CRAIG BARLOW, SPENCER AUSTIN, TYLER GREEN, and DANIEL WIDDISON, in their official and individual capacities, Defendants. |
| Court | U.S. District Court — District of Utah |
Before the court is a Partial Motion to Dismiss Second Amended Complaint (the “Motion”) filed by Defendants Office of the Utah Attorney General (the “OAG”) Attorney General Sean D. Reyes (“Reyes”), Bridget Romano (“Romano”), Craig Barlow (“Barlow”), Spencer Austin (“Austin”), Tyler Green (“Green”) and Daniel Widdison (“Widdison”) (collectively “Defendants”). ECF No. 98. The court entertained oral argument on the pending Motion on July 26, 2021. Having carefully reviewed the parties' memoranda[1] and the relevant law and considered the oral arguments raised, the court grants the Motion in part and denies the Motion in part as set forth below.
BACKGROUND[2]
Hired as an attorney by the OAG in August of 1998, Plaintiff Paul G. Amann (“Mr. Amann”) began working in the Child Protection Division and was later promoted to the Internet Crimes Against Children (“ICAC”) Task Force. In September of 1999, Mr. Amann earned “career service status” at the OAG, becoming a merit employee who could only be terminated for cause. Mr. Amann was successful during his tenure as an OAG attorney, receiving many accolades and much praise. But the tide changed in April of 2013. That is when Mr. Amann began reporting, in good faith, OAG violations of state and federal law and misuse of government funds.
In April of 2013, Mr. Amann learned that his supervisors, Kris Knowlton and Barlow, planned to have a paralegal, Cindy Poulson (“Poulson”), work on state cases and perform the work of an attorney. Because Poulson's position was funded by ICAC, a federal grant program, this arrangement would violate federal grant restrictions. Mr Amann reported his concerns about this misuse of federal funds to the OAG Civil Chief Kirk Torgensen. On April 25, 2013, Mr. Amann was moved from ICAC to the Securities Division. On June 5, 2013, Barlow told Mr. Amann that his pay would be decreased by five percent.
On December 23, 2013, Mr. Amann arrived at his office and found documents that had been slipped under his door. Among the documents were copies of sexually suggestive communications between Poulson and Barlow, indicating that they were having an affair. There was also a copy of Poulson's employment contract, which contained inaccurate statements about how long she had practiced law and her good standing with the Utah State Bar. Mr. Amann scanned these documents and sent them to a friend at the Federal Bureau of Investigation. The same day, Reyes was appointed to serve as the Utah Attorney General. On December 28, 2013, Mr. Amann gave Reyes's campaign communications director, Lee Rech, access to the OAG's Intranet site as she fielded calls and interviews regarding a high-profile case. Reyes never indicated that Mr. Amann's conduct in this instance was inappropriate, but this incident was later cited by Romano as an aggravating factor supporting Mr. Amann's termination.
In January of 2014, the sexually suggestive communications between Barlow and Poulson were reported in the press. A reporter, Lynn Packer (“Packer”), published a story about Barlow's support of Poulson's promotion to attorney. The OAG told Packer that it was investigating the “leaked emails and hiring standards.” The OAG later began investigating “the break in of Poulson's office.” This investigation was focused on Mr. Amann. The OAG copied his computer hard drive and searched his office.
In February of 2014, due to the OAG's unresponsiveness regarding his complaints about Barlow and Poulson, Mr. Amann reported his concerns to the Department of Human Resources Management (“DHRM”). DHRM interviewed another assistant attorney general, Jenette Turner (“Turner”), about Barlow and Poulson's affair.
In March of 2014, Mr. Amann interviewed for a Division Director position with Austin and Brian Tarbet (“Tarbet”). Although Mr. Amann provided a list of fifty-nine references, neither Austin nor Tarbet contacted any of them. Mr. Amann also met with DHRM investigators during this month, shared his concerns about corruption in the OAG-including the harassment of Turner, a whistleblower-and sent the investigators the paperwork that had been slipped under his door. Days later, Reyes and the OAG issued a “gag order” that prevented OAG employees from publicly reporting corruption and threatened “immediate disciplinary actions up to and including termination.” Packer also reported this month that Poulson was having an affair with an attorney other than Barlow.
In May of 2014, Turner was placed on administrative leave. Turner's tablet, cell phone, and office computer were seized. She was later disciplined for speaking out about Poulson. Also in May, Reyes announced the new Commercial Enforcement and Criminal Justice Division Directors. Mr. Amann was not chosen, even though his qualifications, experience, performance, and tenure substantially exceeded those of the appointed division directors.
In August of 2014, DHRM concluded its investigation of Barlow and Poulson's affair, finding that Barlow did not engage in sexual harassment. The investigation report did not mention the hostile work environment fostered by the affair. The report had also been edited to remove statements that Barlow had exposed the OAG to liability because of his relations with Poulson and recommendations that Barlow and Poulson be sanctioned for IT violations.
In September of 2014, Mr. Amann reported to his Commercial Enforcement Division supervisor that a Securities Division analyst, Skaggs, [3] was violating the Securities Act and contravening the recommendations of the 2008 Legislative Audit of the Utah Securities Division. Mr. Amann was subsequently scrutinized by the OAG through Securities Division Director Keith Woodwell (“Woodwell”) and Commercial Enforcement Director Che Arguello (“Arguello”). On September 18, 2014, Austin emailed Reyes that he wanted to replace Mr. Amann. On September 25, 2014, Woodwell filed a DHRM complaint based on Skaggs's claim that Mr. Amann was “bullying” her. Austin then authorized a DHRM investigation into these allegations against Mr. Amann. The complaint was later dismissed as unsubstantiated.
In October of 2014, Austin informed Mr. Amann that he was being transferred to the Antitrust Division based on a September 25, 2014 co-worker complaint. Mr. Amann requested records regarding this complaint and related investigation. Woodwell stated he would comply with this request, but later refused to turn over the records. Mr. Amann filed a GRAMA request to the DHRM for the records, but to no avail. Mr. Amann appealed this denial to the DHRM director but was similarly unsuccessful. Mr. Amann then appealed to the State Records Committee (“SRC”). The OAG defended against Mr. Amann's GRAMA requests on behalf of DHRM. The SRC ruled in favor of Mr. Amann in January of 2015, and the OAG appealed this ruling to the Third District Court. In April of 2015, Assistant Attorney General Mark Burns had Mr. Amann served with the OAG's appeal by a constable in front of his colleagues.
In January of 2015, then-Solicitor General Romano and then-Civil Chief Deputy Tarbet told Mr. Amann that he could not recover the decrease in pay he suffered when he was transferred from ICAC, even though other managers had received such a recovery or had not had their pay decreased even upon losing their management positions.
In April of 2015, Mr. Amann met with the Director of Human Resources, Susan May (“May”), and a DHRM investigator in support of a complaint made by his colleague, Jason Hanks (“Hanks”), about sexual harassment that Hanks was experiencing in the office. May did not take action based on Hanks's complaint. Hanks appealed this decision to the Utah Labor Commission, and Mr. Amann provided testimony. Also in April, the OAG changed its policy manual to permit challenges to background checks by employees who failed background checks.
In June of 2015, Mr. Amann filed a GRAMA suit in the Third District Court. In July of 2015, Mr. Amann prevailed on summary judgment in state court and obtained the documents that he requested. In the documents he obtained through the GRAMA process, Mr. Amann discovered that Arguello had been seeking information about him as part of an investigation on September 8, 2014, which was before any complaint had been filed against Mr. Amann. Mr. Amann also met with legislative auditors in July of 2015. Mr. Amann and Turner were interviewed about OAG corruption and the absence of employee whistleblower protection. Mr. Amann later provided the auditors with documents regarding OAG corruption, Poulson, and the new policy regarding background checks. Mr. Amann was also named as a corroborating witness in Hanks's lawsuit against the OAG during this month.
In August of 2015, Poulson sent a pardon application to the Utah Board of Pardons, falsely claiming she had no criminal history. At a prosecutor training later that month, Poulson was approached by the Deputy Director of the National Computer Forensic Institute of the Secret Service, Barry Page (“Page”), with documents regarding her criminal history that he had received in the mail. The OAG later terminated Mr. Amann based on an allegation that he had sent the documents to Page.
In September of 2015, Mr. Amann's office was searched, and his computer hard drive was mirror-imaged and...
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