COEUR d'ALENE - Kootenai County likely can't enforce a gag order employees were required to sign, according to an expert in employment law.

County employees were forced, under threat of losing their jobs, to cooperate in a sexual harassment investigation and sign an agreement barring them from speaking to any third parties about the investigation - including their spouses and attorneys.

"I don't think (the agreement) is enforceable, especially when you're excluding attorneys," said Ron Coulter, an Eagle, Idaho, attorney with the Idaho Employment Law Solutions law group.

The agreement was signed by at least six employees of the prosecutor's office interviewed during a 2011 investigation of allegations against Deputy Prosecutor Kenneth D. Stone.

According to Prosecutor Barry McHugh, the same "Confidentiality and No Retaliation Agreement" or a variation of the form has been used by the county since before he was sworn into office in January 2009.

"I do not know how many employees from the various county offices have signed the agreements," McHugh said Thursday in an email to The Press. The Press is awaiting the county's response to a records request that might reveal that number.

Multiple sources on Thursday said the form has been used in other county departments in investigations conducted by Kandy Weaver, a third-party investigator the county hired to investigate accusations against Stone and others. McHugh said the forms are not exclusive to Weaver's investigations.

The forms, McHugh said, are intended to keep employees from "discussing claims which may or may not be found to be valid, and to avoid the possibility that witnesses will discuss and compare their memories of the facts.

"Prohibiting a discussion with third parties, including non-county employees, is designed to avoid potentially incomplete facts from being communicated to others," McHugh said.

Not allowing employees to talk to their attorneys troubles Coulter. He said there is an established legal privilege for spouses and attorneys.

"You can talk to your attorney," Coulter said. "It doesn't mean you're not cooperating. I just don't see how you can prevent somebody from doing that."

Talking to an attorney would be the first thing Coulter would recommend an employee do before signing such an agreement.

He questions whether county employees signing the agreement understood exactly what they were signing.

The agreement promises employees who participate in an internal investigation that there will be "no retaliation" or "adverse employment action." Coulter takes issue with the fact that the agreement doesn't list examples of adverse employment actions.

"I'd be asking questions," Coulter said. "What is an adverse action? What do you mean by retaliation? How do I recognize it?"

Examples of adverse actions, Coulter said, would be if an employee "is not hired, fired, fails to be promoted, reassigned with significantly different responsibilities, or has a change in benefits not to the person's liking."

McHugh said the County's Personnel Policy Manual describes adverse employment actions as "oral warning, written warning or reprimand, suspension without pay, demotion and dismissal."

The personnel manual doesn't define retaliation, but McHugh said the county's policy on whistleblowers touches on it.

That policy reads: "No employee who in good faith reports a violation shall suffer harassment, retaliation or adverse employment actions. Any employee who retaliates against someone who has reported a violation in good faith is subject to discipline, up to and including termination of employment."