Written by: Whitney Bermes, Bozeman Daily Chronicle

A former Gallatin County sheriff’s deputy, who a judge ordered to be reinstated after being fired in 2014, has settled his civil lawsuits against the county, agreeing to not come back to the department after receiving a settlement.

Gallatin County agreed to pay David Johnston $400,000 to settle his actions against the county.

Johnston sued the county following his firing, asking to be reinstated. Following a three-day trial in 2015, District Judge Brenda Gilbert of Park and Sweet Grass counties reinstated Johnston and ordered the county to pay him more than $125,000 in lost salary and benefits.

The county appealed the decision to the Montana Supreme Court. In the meantime, Johnston filed additional claims against the county in federal court.

This month, the parties settled all the suits with the county agreeing to pay $400,000. As part of the agreement, Johnston agreed to never seek reinstatement with the sheriff’s office.

Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder after Gallatin County Sheriff Brian Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Lt. Jake Wagner requested that Johnston turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over to Wagner.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio for himself.

Later that month, following a disciplinary hearing, Johnston was fired.

During the trial, Gootkin testified that the recorder was county property that needed to be returned as soon as possible. But Johnston refused to comply with Gootkin’s order, the sheriff said.

And it is important for his deputies to follow Gootkin’s orders because the sheriff’s office is entrusted to the public, Gootkin testified.

“We have a huge responsibility to the people we serve. When you violate that trust, whether it be lying or disobeying an order,” Gootkin said, “I can’t allow that to occur.”

Johnston’s attorney, Todd Shea, on the other hand, argued that Johnston’s firing was a “punishment (that) simply didn’t fit this crime” and that Johnston was entitled to get a copy of the recorder’s contents.

The firing was “cooked up” by the sheriff’s office command staff as a way to get rid of Johnston, who had prior bad incidents with Munter following their breakup, Shea said.
Judge Gilbert sided with Johnston, saying Johnston’s firing was contrary to sheriff’s office policies and state law.

Johnston didn’t refuse to comply with the sheriff’s order, but rather made it clear that he wanted legal advice prior to giving the recorder back to the sheriff’s office.

“Johnston’s short delay in compliance with the sheriff’s order, under the circumstances presented to Johnston, do not equate with a refusal to comply with the order,” Gilbert wrote in her ruling.

And Johnston, a 10-year veteran in the Gallatin County Sheriff’s Office, was fired after a 10-20 minute hearing where no testimony was presented. Additionally, Gilbert noted the order that Johnston was accused of violating was given by Gootkin, who also conducted the disciplinary hearing and who testified that he was “upset, emotional and mad” during both Johnston’s disciplinary hearing and termination meeting.

“The termination hearing that resulted in Johnson’s termination does not pass muster in terms of basic due process rights afforded to any individual facing the potential loss of his or her livelihood,” Gilbert wrote.

Calvin Stacey, a Billings attorney who represented the county during the case, was out of town and unavailable to comment Thursday. Shea declined to comment on the settlement.

By Whitney Bermes, Bozeman Daily Chronicle, March 21, 2017

A District Court judge has ordered that Gallatin County pay more than $125,000 for lost wages and benefits to a deputy wrongfully fired by the sheriff in 2014.

In a judgment issued Friday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that Gallatin County must award David Johnston $125,786 for lost wages and benefits from his July 23, 2014, firing through December of last year.

And the county was also ordered to pay about $3,450 for costs incurred as part of the case.

In addition, Johnston will receive interest payments as well as a $247 per diem payment that he will receive until he is reinstated in the Gallatin County Sheriff’s Office or when the case is settled otherwise.

Johnston has yet to be reinstated.

Johnston sued the county following his firing. The case went to trial for three days in December 2015 before Gilbert, who later ruled in favor of Johnston and ordered that he be reinstated as a deputy and receive damages.

In the more than a year since Gilbert ruled in favor of Johnston, attorneys have battled over how much money Johnston was due.

Johnston’s attorney Todd Shea argued for more than $125,000 for back pay and benefits. But Gallatin County’s attorney Calvin Stacey argued that Johnston was only entitled to about $38,520 before taxes.

Since Johnston’s firing, he has received unemployment benefits and has been employed. By allowing Johnston to be reinstated and receive backpay from when he was fired, all while having earned money in that time frame, would be an “obvious windfall” for the deputy, Stacey argued.

Gilbert issued her final judgment Friday, agreeing with Shea’s proposed judgement.
Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder when Gallatin County Sheriff Brian Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Gootkin’s office asked Johnston to turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio. Later that month, following a disciplinary hearing, Johnston was fired.

During the trial, Gootkin testified that the recorder was county property and needed to be returned as soon as possible but that Johnston refused to comply with Gootkin’s order.

Shea, on the other hand, argued that Johnston’s firing was “cooked up” by the sheriff’s office command staff to get rid of Johnston, a 10-year department veteran who had prior bad incidents with Munter following their breakup.

By Whitney Bermes Chronicle Staff Writer Whitney Bermes – March  2, 2016

A judge has reinstated a former Gallatin County sheriff’s deputy and ruled that Sheriff Brian Gootkin wrongfully fired him in 2014.

In her ruling issued Wednesday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that David Johnston can be reinstated as a deputy and be awarded damages for his lost salary and benefits from his July 23, 2014, firing through the end of the case.

While no exact cost of damages has been decided, Johnston’s attorney, Todd Shea, said Johnston’s lost salary and benefits will be at least $126,000.

Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder after Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Lt. Jake Wagner requested that Johnston turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over to Wagner.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio for himself.

Later that month, following a disciplinary hearing, Johnston was fired.

During a three-day judge trial in December, Gootkin testified that the recorder was county property that needed to be returned as soon as possible. But Johnston refused to comply with Gootkin’s order, the sheriff said.

Shea, on the other hand, argued that Johnston’s firing was a “punishment (that) simply didn’t fit this crime” and that Johnston was entitled to get a copy of the recorder’s contents. The firing was “cooked up” by the sheriff’s office command staff as a way to get rid of Johnston, who had prior bad incidents with Munter following their breakup, Shea said.

Gilbert sided with Johnston, saying Johnston’s firing was contrary to sheriff’s office policies and state law.

By Whitney Bermes, Bozeman Chronicle, August 22, 2014

A former Gallatin County sheriff’s deputy is suing the office he used to work for and his former boss to get his old job back.

David Johnston filed a suit in Gallatin County District Court on Wednesday against the sheriff’s office and Sheriff Brian Gootkin.

According to the suit:

Johnston had been a deputy in Gallatin County for 10 years.

On July 9, Johnston and his former girlfriend, Deputy Kelly Munter, were working the same shift. Johnston found an unlocked door at Monforton School and Munter responded as backup.

While on scene, Johnston said he had difficulties with Munter. When he asked her to help clear the school, Munter responded, “(Expletive) you, I’m leaving.”  Johnston then called dispatch to request a different deputy as backup.

After the incident, Johnston considered filing a formal complaint against Munter, but ultimately decided he wanted more time to think about it.

On July 15, Undersheriff Dan Springer and Lt. Jake Wagner told Johnston that a complaint had been filed against him with the human resources department and that he would be placed on paid administrative leave. They gave Johnston no details about the nature of the complaint but told him to expect to be out of work for two to three weeks.
On July 17, Wagner requested that Johnston turn over his recorder and its contents form the evening of July 9. Johnston said he wanted to seek advice from an attorney and make a copy of the recording prior to turning it over to Wagner.

“The sheriff’s office and the Bozeman Police Department have both recently been accused of, and acknowledged, deleting select portions of recorded conversations,” Johnston’s attorney Todd Shea wrote in the complaint.

That same day, accompanied by an attorney, Johnston retuned the recorder to the sheriff’s office and a copy of the recording was made for Johnston.

At that time, Johnston was given a letter of discipline advising him that a disciplinary hearing would be held on July 22 on the charge of insubordination because Johnston didn’t immediately surrender the recorder.

The day after Johnston’s disciplinary hearing, Gootkin fired him for not immediately giving the sheriff’s office his recorder.

Johnston said he has still yet to see a copy of the underlying complaint against him and has never been contacted by the human resources department regarding the complaint.
The lawsuit is requesting that Johnston be reinstated as a deputy and receive back pay, reinstatement of seniority, vacation benefits, insurance, sick leave, and all other benefits deputies receive, as well as attorney fees.

The sheriff’s office has not responded to the suit.

JODI HAUSEN, Chronicle Staff Writer | Posted: Thursday, February 9, 2012

City Manager Chris Kukulski’s former executive assistant has agreed to a $20,000 settlement with the city of Bozeman in a wrongful discharge case, the city’s attorney said Wednesday.

Karen Semerau sued the city several months after she was laid off “as part of a reduction in the city’s workforce due to budgetary reasons,” according to the complaint attorney Todd Shea filed in Gallatin County District Court in 2010.

“At the time of Ms. Semerau’s termination, the city had not prepared its budget for the upcoming year,” Shea argued. No other employees were let go and, in fact, city officials approved hiring three more employees two months after Semerau was laid off. They also gave pay raises to 45 city employees, including Kukulski.

But attorneys Kevin Meek and Cathy Lewis argued the city had legitimate reasons for eliminating Semerau’s position.

And though Semerau’s final day was to be June 30, 2010, she asked to leave at the end of April, defense attorneys stated.

Semerau’s “damages were caused, in part, by her own decision to leave her employment” early, they wrote.

Shea, however, argued that Semerau “quickly realized that the city was no longer interested in fully utilizing her services” and she “did not want to be on the city payroll knowing that (her) position was being eliminated.”

“I was under an enormous amount of stress,” Semerau wrote in an affidavit.
The city further argued that Semerau did not file a grievance per city policies and asked District Judge John Brown to dismiss the suit. State law mandates that prior to filing a lawsuit, employees “must first exhaust an employer’s grievance procedure before he or she can bring a wrongful discharge action,” defense attorneys claimed. But Shea contended Semerau was not adequately informed of city policy despite numerous communications to her before and after her termination.

“Ms. Semerau never understood or was ever made aware that the grievance procedures applied to either the elimination of her position or the termination of her employment,” he wrote, calling the policy “ambiguous.”

“Any ambiguity should be construed most strongly against the party who caused the uncertainty to exist,” he wrote.

“Thankfully Karen has secured a new job and she wanted closure with the city,” Shea said Wednesday.

Meek declined to comment beyond stating the settlement amount, referring the, Chronicle to the Bozeman City Attorney’s Office. A call to that office was not returned Wednesday.