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Deputy marshal settles claim U.S. to pay $400,000 in power-abuse case, Calif.


March 26, 2001
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Deputy marshal settles claim U.S. to pay $400,000 in power-abuse case, Calif.

By Denny Walsh
The Sacramento Bee
March 24, 2001, Saturday

(Sacramento, CA) -- The federal government has agreed to pay a deputy U.S. marshal in Sacramento $400,000 to settle explosive claims that his bosses abused their power and that he was subjected to retaliation and harassment when he complained.

The settlement resolves Deputy Michael Smith's part in two federal lawsuits filed against the U.S. Justice Department, which includes the Marshals Service, and various department officials.

Charges by Smith and Deputy David Orsay regarding conduct of their supervisors - unprecedented in the Sacramento-based 34-county Eastern District of California - has had the 75-person Marshals Service office in an uproar for four years.

The pair's allegations range from sexual harassment and privacy violations to assault with a deadly weapon and the dissemination of false information to block Smith's hiring by the Sacramento County Sheriff's Department.

Orsay, who is on paid leave, is still appealing a ruling against him in a civil suit, while the Justice Department is appealing an administrative decision in his favor.

The settlement with Smith, reached this week during mediation talks in Seattle, calls for the deputy to be assigned for the next three years to the Career Criminal Apprehension Team Task Force at the Sacramento Police Department. The assignment is such that he will not be working for Carolyn Griffin, a supervisory deputy marshal who was accused by Smith of sexually harassing him.

Griffin declined comment Friday.

Also included in the settlement is a note of apology to Smith signed by Enrique Perez, chief deputy marshal in Sacramento.

It says: "The Marshals Service for the Eastern District of California regrets and apologizes for the situation which led to Deputy Michael Smith filing his complaint in 1997. It is the policy of the Marshals Service to maintain a professional workplace free of any harassment for all employees. We acknowledge our responsibility to neither permit nor condone harassment of any kind."

In agreeing to settle, the government admitted no wrongdoing.

"I do not feel we are guilty of anything," U.S. Marshal Jerry Enomoto said Friday. He said the settlement, and particularly the apology, "sticks in my craw, but we've got to get this behind us for the sake of the office."

"We were given strong advice by our attorneys to settle," Enomoto said. "We accepted it reluctantly. I don't believe we need to apologize for a damn thing, but it became a necessary part of the agreement. It is a no-win proposition.

"People have always been treated fairly in this office. I have no personal animosity toward Mike Smith or anyone else," he said.

Perez said everyone in the regional Marshals Service office "wanted the matter laid to rest rather than see it drag on."

Michael Nelson, who preceded Perez as the chief deputy in Sacramento and who, along with Griffin, was a primary target of the two deputies' allegations, was shocked and angry when he heard of the settlement.

"It's unfair and a miscarriage of justice and a waste of government money," said the now-retired Nelson. "We did everything by the book, on the advice of legal counsel and with the approval of headquarters. Now they do this?

"What I most hate to see is what this will do to the morale of the office," Nelson said. "He (Smith) doesn't even deserve to carry the badge of the United States Marshals Service."

A suit filed by attorney Gary Gorski on behalf of Smith and Orsay was tossed out last year by U.S. District Judge Edward J. Lodge, who ruled that the federal Civil Service Reform Act precludes court jurisdiction over the deputies' claims.

Orsay will continue with the appeal of that ruling as it relates to his claims, which are:

* The Marshals Service office in Sacramento maintained certain records which violated his rights under the federal Privacy Act.

* The government failed to comply with requests he made under the federal Freedom of Information Act.

* The Marshals Service unreasonably required him to undergo a fitness-for-duty examination.

* He was the victim of assault with a deadly weapon by then-Supervisory Deputy Michael Claxton, who repeatedly pointed a loaded pistol at him and others in the office.

Claxton, now chief deputy marshal in the Northern District of West Virginia, acknowledged doing that in a telephone interview Friday, "but with no intent to intimidate."

In a suit filed by Gorski on behalf of Smith only, it is alleged that Griffin sexually harassed the deputy, and that she, Nelson and Enomoto retaliated against him when he complained. That suit will be dismissed as part of the settlement.

Smith was reinstated after being off work approximately 13 months as part of a 1999 settlement of an administrative complaint, and Gorski was awarded a $25,000 fee in that matter.

Smith collected approximately $70,000 on a workers' compensation claim that his time off was due to stress from a hostile work environment.

An administrative law judge found last year that Orsay was fired after accusing Griffin of fraud and ordered him reinstated. The Justice Department is appealing that ruling to the Merit Systems Protection Board.

Orsay had complained that deputies brought in from outside the district to work security in connection with the case of Unabomber Theodore Kaczynski were allowed by Griffin to pad their overtime.

Administrative Law Judge Philip Reed found that Orsay was removed from his job for making "protected disclosures."

Copyright 2000 LEXIS-NEXIS, a division of Reed Elsevier Inc. All rights Reserved.




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