Court rules against immunity from suit over officer’s firing

Friday, June 24, 2005 | 8:56 a.m.

CARSON CITY -- A federal appeals court has ruled that Washoe County District Attorney Dick Gammick did not have absolute immunity from a suit that alleges he tried to get a police officer fired from the school district.

The 9th U.S. Circuit Court of Appeals said that Gammick, his deputy John Helzer and Washoe County are not immune from the retaliation suit filed by Rene Botello.

The court overturned the ruling of U.S. District Judge Roger Hunt. Hunt had ruled that Gammick, Helzer and the county enjoyed absolute immunity from the federal court suit.

The suit by Botello alleged that Gammick and Helzer tried to convince the school district not to hire Botello in its police force, that they threatened not to prosecute any cases brought by Botello and that they sought to get the school district to bar Botello from all stages of any investigation.

The appeals court said there was absolute immunity on their decisions not to prosecute any cases investigated by Botello. But the court said the two men did not have absolute immunity from suit on their other actions.

Botello was employed as child sexual assault investigator for the Washoe County sheriff's Office in 2001. But he started questioning the findings of Lily Clarkson, one of the nurses used by the district attorney's office. Clarkson testified in cases about alleged sexual assaults of children. Botello complained that Clarkson's medical findings were wrong.

He asked for an audit of the program. But his suit said the prosecutors became angry and accused him of not being a team player. He alleged Gammick and Helzer threatened to retaliate against him if he continued to call for an audit.

He took his complaints to the Nevada Attorney General's Office and the FBI and then resigned from the sheriff's office. He then applied for and got a job with the school district police.

Botello said the two prosecutors telephoned his new employer making false statements about his character and his performance while working for the sheriff's office in an attempt to sabotage his employment. When that didn't work, he said, the prosecutors then pledged they would not take any case that Botello participated in.

He filed a defamation and intentional infliction of emotional distress suit. Hunt granted the motion of the prosecutors and the county to dismiss the suit on grounds of absolute immunity.

Appellate Judge Raymond C. Fisher, who wrote the unanimous decision, said "actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor."

While a prosecutor is immune from suit in the evaluation of a witness, "it is also well established that an official is not entitled to absolute immunity for conduct involving termination, demotion and treatment of employees," Fisher wrote.

"When they (the prosecutors) involved themselves in the school police department's personnel decision whether to hire Botello, they were at best performing an administrative function and, as such could only be entitled to qualified immunity," Fisher wrote.

In a footnote to the decision, the court said it was not expressing an opinion as to whether the actions of the prosecutors damaged Botello.

The case returns to Hunt to determine if the prosecutors and the county are entitled to "qualified immunity" under the facts of this case.