Employees in Missoula County’s Road Works Division say their private conversations were illegally recorded, including phone calls to attorneys, spouses, doctors and union officials, according to a draft lawsuit recently served on the county and its Public Works Department.
The 27 unidentified plaintiffs’ names were removed from the draft complaint provided to the Missoulian to protect their identities, on the advice of their attorney, Greg McDonnell, according to an email from Mac Bloom with the Missoula County Attorney’s Office.
Bloom added that Missoula County also believes “several other employees discussed in the draft complaint have privacy interests related to these unsubstantiated allegations,” and removed their names from the documents given to the Missoulian.
In the draft complaint, the county employees say that in September 2018, managers installed at least eight digital audio and video recording devices in Public Works vehicles.
“The devices were set up to record video images out the front windshield and/or rear of the Public Works vehicles,” the draft complaint states.
Erica Grinde, the county's director of risk management and benefits, said the video and GPS devices are used regularly in evaluating claims brought against the county involving accidents or property damage.
“Unbeknownst to plaintiffs, the devices also recorded audio from the inside of the passenger compartment of Road Division vehicles,” the draft complaint notes.
That video and audio data was transmitted to Missoula County officials for viewing and storage, then given to a third-party vendor. The devices also are thought to have recorded and/or transmitted global positioning satellite data.
The employees say at times, they spend up to 10 hours per day in their vehicles and that, like a private office, the passenger compartments served as their workplace.
“Plaintiffs had a subjective and actual expectation of privacy in the enclosed vehicle compartment they worked in,” the draft lawsuit states. “For many years … plaintiffs conducted personal business in Public Works vehicles while on approved break times.”
Those recorded conversations included not only discussions regarding union and county negotiations, but also calls with union supervisors, spouses, medical providers, banks and other lending institutions, and attorneys, the draft complaint states.
“Little did plaintiffs know that Missoula County was secretly listening to and storing their private conversations via the devices in the vehicles,” the draft complaint states.
In January 2019, the employees learned that certain managers in the Public Works and Road Division had both desktop and mobile phone access to live streaming video and audio transmittals from the Public Works vehicles. They contacted their unions, and made clear their objections to the devices.
Chris Lounsbury, the county's chief operating officer who also negotiates with the Public Works unions, said as soon as it was brought to the county's attention at the January meeting, the audio was turned off.
"There were concerns related to the fact that there were audio recording without the employees knowing that," Lounsbury said. "We agreed the audio needed to be turned off."
But the damage was done, the draft lawsuit notes, with at least one manager allegedly bragging to some of the employees that he had been listening to their private conversations for months.
On March 12, 2019, some of the employees questioned whether the recordings had been saved. Within a day or two, Missoula County’s Technology Department removed several hard drives from Road Division computers without explanation. The plaintiffs later allegedly were told that the files and logs showing who accessed the data were deleted and the audio recording capability of the devices had been disabled.
“When confronted about the audio recordings (the name is redacted) informed some plaintiffs that they should ‘sweep (the recording device issue) under the rug and they would be awarded a clothing allowance,’” the draft lawsuit states.
However, the employees learned in April that the audio recording function and data weren’t completely gone and that the third-party installer who maintained the devices could retrieve the data upon request by Missoula County.
Although the county and employees are negotiating about modifications to allow for the devices, they’re still installed and operating, at least in partial capacity, inside the employees’ work spaces, the draft lawsuit claims.
“It is unknown what private data has been saved, who had access to the private data, and whether Missoula County continues to listen in on private employee conversations,” the draft complaint states.
Lounsbury said no employee conversations were ever used as part of the county's negotiations with the unions.
"That's not something we would use. That would be an unfair labor practice," Lounsbury said. "You have to negotiate in good faith."
The draft complaint claims the employees’ privacy rights under the Montana Constitution were violated, as was the state’s Privacy in Communication codes. They also claim to have suffered severe emotional distress, and accuse the county of destroying evidence when it removed the computer hard drives and deleted data.
“Defendants’ conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and should be considered intolerable in a civilized society,” the draft document states.
McDonnell said he doesn’t have a timeline for when he may file the actual lawsuit.
“We are trying to do our best right now to work with the county on resolving these issues before filing,” he said. “We’re just doing our best to protect the interest of our clients.”
Grinde said the county is in informal settlement negotiations with the employees.
"It's prudent to have these discussions, but particularly in this matter," Grinde said. "It's important to us as an employer to try to get this resolved before we have 27 employees engaged in litigation against their employer. That doesn't generally improve the work environment."
If the complaint is filed, the employees are asking that the county be prohibited from using the audio and video recording and transmission devices, and are seeking for compensatory damages in an amount to be proven in a trial.