211 S.W.3d 485 (Ark. 2005), 04-1363, Smith v. Brt

Docket Nº:04-1363
Citation:211 S.W.3d 485, 363 Ark. 126
Party Name:Tommy SMITH v. Wallace C. BRT
Attorney:Doug Norwood and Susan Lusby, for appellant. Nga Ostoja-Starzewski and Daniel Wright, for appellee.
Case Date:June 30, 2005
Court:Supreme Court of Arkansas

Page 485

211 S.W.3d 485 (Ark. 2005)

363 Ark. 126



Wallace C. BRT


Supreme Court of Arkansas

June 30, 2005

Appeal from Washington Circuit Court; No. CV-1191-2, Kim M. Smith, Judge.

Doug Norwood and Susan Lusby, for appellant.

Nga Ostoja-Starzewski and Daniel Wright, for appellee.


Page 486


Appellant Tommy Smith, formerly the chief of police for the City of Elkins, sued the City's mayor, Appellee Wallace Brt, alleging a violation of the Arkansas Civil Rights Act of 1993 for retaliatory discharge in violation of his right to freedom of speech under the Arkansas Constitution. Smith now appeals from the circuit court's grant of summary judgment in favor of Mayor Brt. The crux of Smith's argument on appeal is that the circuit court misapplied the applicable law in determining that " there is no genuine issue of material fact in dispute." We affirm the circuit court's dismissal of this case.

Smith attended a meeting of the Elkins City Council on April 10, 2003. At that time, he was Chief of Police for the City of Elkins. During the meeting, Smith decided to inquire about the proposed enforcement of a building moratorium previously imposed by the City Council. His questions at the meeting specifically related to potential litigation costs the City might incur if Leonard Gabbard, the developer of a local subdivision, decided to sue the City upon its enforcement of the building moratorium.

[363 Ark. 127] When Smith took the floor to speak, not only as the police chief but also as a private citizen, he prefaced his comments regarding the building moratorium by acknowledging that it might be against his self-interest to speak: " I work for the city, and I may be shooting myself in the foot." According to Smith, one of the council members, Lacy Randall, responded by stating, " [W]ell, Barney [Fife], if you keep your bullet in your pocket, you wouldn't be shooting yourself through the foot." Smith became so upset as a result of this remark that he left the meeting and went outside. Shortly before the meeting adjourned, Smith went back into the building

Page 487

to speak with the City's mayor, Appellee Wallace Brt. Then, when the meeting was over, Smith proceeded to tell the mayor that something needed to be done about Randall's remarks. Smith also made a comment about wanting to " hit the fat SOB [Randall] in the nose." Later that evening, Smith called Mayor Brt and apologized for getting so angry about Randall's comments because " it wasn't too professional of me doing that."

Kevin Caler, a City employee responsible for the maintenance of the City's parks, streets, and water and sewer systems, was also at the council meeting. After the meeting, he reported to the mayor that he smelled the odor of alcohol on Smith's breath that night. 1 Four days later, on April 14, 2003, Mayor Brt issued a written reprimand in which he reprimanded Smith for drinking at a public meeting and for his unprofessional comments during and after the meeting. A few days later, the mayor discovered that police reports on several vehicle break-ins and thefts in a local neighborhood had not been placed in the police department's files. Upon learning about the missing or incomplete reports, Mayor Brt notified Smith by a letter dated April 25, 2003, that he was discharged as Chief of Police for the City of Elkins, effective April 28, 2003. That letter, however, did not set forth the reasons for Smith's termination as police chief.

In deposition testimony, Smith disputed Mayor Brt's version of the circumstances surrounding the local neighborhood break-ins and the missing reports. He stated that the task of completing the reports had been assigned to a...

To continue reading