Counselor says court testimony cost his job

A former counselor for Sound Mental Health says he was fired after Seattle Municipal Court officials retaliated against him for sworn testimony he gave in a domestic-violence hearing by threatening to withhold lucrative referrals from his employer.

Sound Mental Health, the nonprofit agency that hired Richard Clairmont to be its domestic-violence counseling supervisor, decided it had "no option" and fired Clairmont on Nov. 29. Clairmont, a 20-year veteran counselor, responded by filing a federal lawsuit last month against Sound Mental Health and a municipal court probation supervisor, Joni Wilson, alleging wrongful termination and violation of his First Amendment rights. The lawsuit claims Clairmont was subpoenaed to testify, did so truthfully and was then fired for it.

City officials, however, say Wilson also was exercising her free-speech rights and her duties as a court employee when she went to Clairmont's bosses to complain. It wasn't merely his testimony that was troublesome, said Assistant City Attorney Erin Overbey, who represents Wilson. She said there are "broader issues concerning whether Mr. Clairmont was appropriately carrying out his duties" as a domestic-violence counselor. She declined to elaborate, except to say that Clairmont "wasn't monitoring attendance" in his counseling sessions.

"It's an interesting case — it's speech vs. speech," she said.

Legal and ethics experts say the allegations of retaliation for testimony are unusual. It's a crime to attempt to coerce someone's testimony, but there is nothing in the criminal statutes specifically addressing retaliation for testimony after the fact, said David Boerner, a Seattle University law professor, legal ethicist and former prosecutor.

"I'm not sure anyone has anticipated those circumstances," he said.

Clairmont's attorney, Jesse Wing, alleges in the lawsuit that Clairmont was wrongfully fired by Sound Mental Health in violation of "public policy."

Speech offered under oath in court is generally considered protected, and Wing notes that a witness cannot be sued for anything said on the witness stand.

A similar analogy would be that an employer cannot discriminate against a worker who is called for jury duty or military service, Wing said.

"It's our belief that the same principle applies here — that Mr. Clairmont could not be fired for compelled testimony," he said.

Sound Mental Health is the largest provider of mental-health and counseling services in King County, serving more than 7,000 clients every year, according to its latest annual report. Many of those are referrals from courts, and those referrals generate significant revenue for the business, which had revenues in 2006 of more than $30 million.

Clairmont is a registered counselor who was hired by the nonprofit in 2005 to run its domestic violence (DV) program. Most DV offenders are referred to counseling as an alternative to prosecution or jail time.

In October, Clairmont was subpoenaed as an expert witness by public defender Karen Baker to testify in a case in which the Seattle Municipal Court's probation department — where Wilson was a supervisor — was attempting to send someone back to jail for failing to complete counseling.

Baker called Clairmont to ask whether he thought her client's actions warranted having his probation revoked.

"I asked him a hypothetical question," said Baker. "He answered with his opinion — and in this case, the answer was no, which is not what the probation department wanted to hear.

"It was a difficult position I put him in," she said. "He answered to the best of his ability."

According to the lawsuit, Wilson allegedly went to Clairmont's supervisor and said that "so long as Mr. Clairmont remained employed at Sound Mental Health, the Probation Unit would no longer refer patients to Sound Mental Health."

Three weeks after his testimony, the lawsuit alleges, Clairmont was called into his supervisor's office and given a termination letter "signed by or on behalf" of Sound Mental Health executive director David Stone. It said, in part, that the probation union had complained about his "performance and program management."

"The unit reports that they have lost trust in the integrity of the program and consider that the situation is not salvageable. The program is in jeopardy," the letter stated. "They have proposed stop-referral beginning immediately. This leaves Sound Mental Health no option but to terminate your employment ... ."

Stone declined to comment, except to say that "there is more here than meets the eye."

Judy Roberts, a counselor and ethics consultant for the Washington Mental Health Counselor's Association, said counselors have to feel they can be free from influences when they are called to testify.

"You need to be able to say that you believe and what is true," she said. "The courts and the clients deserve that."

Otherwise, she said, "what you have is a conflict of interest, and that violates the foundational element of our professional ethics code."

Mike Carter: 206-464-3706 or mcarter@seattletimes.com