Cascade County Commissioners approved a $52,500 settlement during an Oct. 4 special meeting over a complaint of discrimination in the election administrator hiring process.

In December, commissioners voted 2-1 to remove election duties from Clerk and Recorder Sandra Merchant after a tumultuous year that included lawsuits regarding the conduct of county elections. 

In February, the county hired Terry Thompson for the newly created election administrator position after a public process and interviews with all four candidates.

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The other candidates included Rina Moore, the former clerk and recorder; Lynn DeRoche, a former elections supervisor; and Nancy Donovan.

Less than two weeks after Thompson was hired, Moore filed a complaint with the Montana Human Rights Bureau alleging political belief discrimination against the county and the commissioners both individually and in their official capacity. 

Moore generally asserted that she was qualified for the job but wasn’t hired due to political belief discrimination, according to Jordan Crosby, one of the county’s outside legal counsels.

Initially, her complaint also named Jeff Mora, the county human resources director; and Josh Racki, county attorney, Crosby said.

The complaint was amended to drop Mora and Racki, but to add the Montana Secretary of State Christi Jacobsen.

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The county’s settlement agreement does not release the state or Jacobsen from the complaint, according to the agreement.

Because the county’s risk management pool, the Montana Association of Counties, doesn’t provide coverage for claims political belief discrimination, the county attorney’s office was initially conflicted out and state law requires defense and indemnification for county officers when sued in the course of performing official duties, the county hired Crosby of Urgin Alexander Zadic to represenent Commissioners Joe Briggs and Jim Larson. 

Commissioner Rae Grulkowski wanted her own representation and the county retained Christensen and Prezeau for her.

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The county is paying all of those legal fees from its budget since they aren’t covered by MACO.

The settlement payment will also be made with county funds.

Crosby said that human rights complaints involve a lengthy administrative process that start with an investigation and then a determination of whether there is reasonable cause to believe discrimination has occurred.

If there’s a finding of reasonable cause, Crosby said that the matter is then referred to the Montana Department of Labor’s hearings office for an administrative hearing, which is similar to a bench trial.

Crosby said for this case, she would expect a five to seven day public hearing and the county would also be required to participate in a conciliatory process.

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If a no cause funding was issued, Moore could still sue in district court or appeal to the Human Rights Commission, which could overturn the finding and Moore could still sue.

The Human Rights Bureau’s deadline to issue a finding is Oct. 8 and Crosby said that the bureau encouraged the parties to sit down before the finding was issued.

The county and Moore and their attorneys went to mediation on Sept. 19 and the mediator provided a proposed settlement that the attorneys continued to negotiate details coming to the settlement agreement that commissioners considered during their meeting.

“Pursuant to further discussions of the parties and the mediator, and to provide closure of all claims and resolve the uncertainty of litigation, the parties agreed to resolve the matter for $52,500,” according to the agenda report.

Crosby told commissioners that she thought they should approved the settlement to avoid further risk.

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She said that during the investigation, it’s on the claimant to prove discrimination and that she thinks it’s highly likely the county would receiving a finding of reasonable cause that discrimination occurred.

Crosby said that based on her discussions with the investigator, she thinks the bureau found the hiring process appropriate but there were concerns related to things that happened during that hiring that they kept coming back to.

She said in her experience, those kind of comments from investigators indicate a likelihood of getting a cause finding and there could be significant damages awarded to Moore through that process.

Under the law, Moore could be awarded monetary damages and the non-prevailing party could be required to pay the claimants attorney’s fees as well as other affirmative relief, which in this case the county could be ordered to hire Moore.

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Crosby told commissioners that a finding hadn’t yet been issued, “but there were some facts that caused me concern that we would get a cause finding.”

She said the $52,500 settlement amount was likely minimal in this case since if the case continued, it could take another year to resolve, with the county paying two attorneys whose fees alone would likely exceed the settlement amount.

Crosby said that if discrimination is found at the end of a hearing, damages could be awarded and she’s seen the typical award of at least four years of wages, which in the case could be about $70,000 per year, so there’s a potential risk for six figures in lost wages, plus other damages.

“There was risk to the county for substantial damages and fees,” Crosby told commissioners in recommending that they accept the settlement agreement, which she said was in the best interest of the county.

Commissioners didn’t ask questions but Grulkowski said her decision was solely financial for the county, but “I disagree with what was alleged by this claim with discrimination occurring.”

She voted against the settlement agreement.

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Multiple commenters said that they didn’t support the settlement agreement and that the issue stems from Briggs and Larson approving the shift of election duties from Merchant to a new position, in what they said was a move that was contrary to the will of the voters.

Beth Cummings, who sued the city last year over the library election, said “we’re a laughing stock in the state to people who know about this stuff, it’s embarrassing.”

Mary Embleton, former county budget and grants manager, said that “Rina didn’t accept defeat graciously and now she’s being given a reward.”

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Those opposed to the settlement said removing the election duties from Merchant had already cost the county more money by paying a new employee and now the settlement payment and attorney’s fees.

Some of them asked Briggs and Larson to resign.

Crosby didn’t detail the specific allegations in Moore’s complaint, but throughout the year, her supporters have talked about the hiring process in which Grulkowski participated, though the December resolution had stated commissioners on the ballot shouldn’t participate in decisions pertaining to that election cycle.

Grulkowski was on the June primary ballot and lost to challenger Eric Hinebauch for the county commission seat.

Grulkowski filed in September as a write-in for the November ballot.

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Moore’s supporters also said that Grulkowski scored Moore low in the interviews so that she wouldn’t get the job since the scores of all three commissioners were combined and used to rank the four candidates.

Grulkowski scored Moore and DeRoche as the last two applicants, though they both hada 16 years of experience each with county elections compared to Thompson and Donovan who did not have experience with elections.

Commissioners scoring sheets are available below for:

• Terry Thompson
• Rina Moore
• Lynn DeRoche
• Nancy Donovan

Montana Secretary of State Christi Jacobsen emailed commissioners from her state email the day before they were scheduled to make an appointment and wrote, “please do not hire Ms. Moore or a member of her administration as Cascade County’s Election Administrator. Doing so would directly undermine the voters of Cascade County, among other reasons.”

Moore is currently running for House District 20 as a Democrat.

In 2022, Moore lost her re-election bid for clerk and recorder to Merchant by 31 votes.

DeRoche also filed a complaint with the Montana Human Rights Bureau.

In July, The Electric requested copies of those complaints.

A case manager at HRB told The Electric over the summer that administrative rules required the bureau to obtain consent from the parties to release anything from investigative files.

Attorneys for the commissioners consented to release documents this summer, but Moore and DeRoche objected.

Since commissioners approved the settlement agreement in Moore’s case, The Electric is again requesting documents pertaining to the complaint and investigative file.