The Utah School Employees Association will have to find another attorney to handle appeals or settlement offers involving two top administrators who were fired in the wake of a sexual harassment investigation, a 3rd District Court judge ruled Friday night.
Judge William A. Thorne said the association can continue to use the services of Randall K. Edwards, a special counsel hired by the USEA board to investigate sexual harassment charges, on any matters that do not involve former executive officers Kelly Atkinson and Richard McGuire.But Thorne issued a preliminary injunction against Edwards advising or otherwise representing the board in dealing with Atkinson and McGuire, because the two men mistakenly believed he was acting as their attorney at one point before they were terminated.
The court hearing was the latest outburst in a sexual harassment scandal that has rocked the USEA office this past month and resulted in the firing of the association's two top employees.
Court records indicate McGuire, the former executive deputy director of the statewide labor organization serving some 7,000 non-teaching or "classified" school employees, was terminated following a Sept. 27 board hearing.
Atkinson, a former state legislator who is running for mayor in West Jordan, was given the option to resign or retire but chose not to respond, association president Ty Nea Sorenson said Friday.
His attorney was notified of his termination from the $62,000-a-year post Oct. 2. Atkinson confirmed Friday he had received a registered letter earlier Friday notifying him of his dismissal.
Sorenson said Atkinson was an "at-will" employee and exempt from the dismissal, grievance and appeals policy that applies to all other association employees.
Friday's decision, however, delays a hearing USEA board members had scheduled Saturday to consider a reinstatement appeal by McGuire, who is covered by the employment policy.
Sorenson said a hearing scheduled for Pam Westbye, an employee fired by Atkinson last month, will be held Saturday as scheduled.
But she said McGuire's appeal will have to be postponed until the board can hire a new special counsel just for that purpose.
McGuire and Atkinson jointly filed the motion for a preliminary injunction, contending they would be "irreparably harmed" if Edwards were allowed to continue to advise the board about them.
Their attorney, Dale Gardiner, told the court Edwards had established an attorney-client relationship by giving McGuire and Atkinson legal advice. He also contended Edwards' continued involvement would prejudice his clients' opportunity to obtain any kind of settlement from the association.
But Edwards assured the court he had repeatedly advised both men that he represented the association's board of directors and not them.
And attorney Karra Porter, who represented Edward's law firm, said the attempt to push the board's special counsel aside was nothing more than "a desperate last-ditch effort to avoid the consequences of actions that have brought dishonor to the board."
Lawyers are prohibited by statute from taking adversarial positions against persons with whom they have had an attorney-client relationship.
Thorne did not find that such a relationship had been established, and he made it clear that Edwards and his firm, Christensen and Jensen, "did absolutely nothing that was unethical or illegal."
But he did find that both Atkinson and McGuire "could have reasonably misinterpreted" the situation and gave them the benefit of the doubt to "preserve" the integrity of attorney-client relationships.
Following the hearing, Atkinson said the sexual harassment complaint was an act of retribution by a disgruntled employee intent on destroying him politically.
He said one employee had threatened him before filing a grievance, saying "everyone will know about this."
Atkinson said he chose not to resign "because I hadn't done anything wrong."
He also said board members "have not given me a reason why they terminated me."
Atkinson, who collected 52 percent of the votes cast for mayor in the West Jordan primary election last week, said he realized Friday's court action could damage his campaign. But he added he felt compelled to support McGuire, a long-time friend and associate.
"If you believe in justice, you stand up and do the right thing," he said, "and if not being the mayor of West Jordan is the consequence I have to pay for protecting the people that I love, so be it.
"All I can do is ask the citizens out there to trust me," he added.
Sorensen said after the hearing that there were "problems" in the USEA office more than a year ago and that two more sexual harassment complaints filed in September proved to be the last straw.
She said Edwards had performed "a very thorough investigation" and presented his findings to the board Sept. 27.
But Sorenson stressed that it was the board's decision, made after Edwards was sent out of the board room, to discharge Atkinson and McGuire.
"We could no longer sit still," she said. "Things in our office had escalated over the years. There were too many things.
"We wanted our employees to be free of a hostile work environment, free of threats and free of sexual harassment," Sorenson added.
The association president said that following the board meeting and on a subsequent occasion, Atkinson has threatened to sue both her and other board members.
"But this is a strong board," she said. "And we are very unified."
Sorenson also said that with a change in administrative leadership, "a very thorough audit is under way, and has not yet been completed."