Bjorklund v. Miller
| Citation | 779 F.Supp.2d 1283 |
| Decision Date | 15 March 2011 |
| Docket Number | No. 08–CV–424–TCK–PJC.,08–CV–424–TCK–PJC. |
| Parties | Rick BJORKLUND, Plaintiff,v.(1) Randi MILLER, individually and in her official capacity as former Chairperson and current Member of the Tulsa County Public Facilities Authority; (2) John Smaligo, Chairman of the Tulsa County Public Facilities Authority; (3) James C. Orbison, Vice–Chairman of the Tulsa County Public Facilities Authority; and (4) Fred Perry, Secretary of the Tulsa County Public Facilities Authority, Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
OPINION TEXT STARTS HERE
Charles Loy Richardson, David Royce Keesling, Gary L. Richardson, Melissa Ann Herr, Paul Telhiard Boudreaux, Richardson Richardson Boudreaux, Tulsa, OK, for Plaintiff.Johnathan Louis Rogers, Steven Anthony Broussard, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Defendants.
Before the Court are Defendants' Motion for Summary Judgment (Doc. 78) 1 and Plaintiff's Motion for Partial Summary Judgment (Doc. 77).
The Tulsa County Public Facilities Authority (“TCPFA”) is a public trust organized and existing under the laws of Oklahoma for the purpose of managing activities occurring on the Tulsa County Fairgrounds (“Fairgrounds”). At all relevant times, the Trustees of the TCPFA were Defendant Randi Miller (“Miller”); Defendant James Orbison (“Orbison”); Defendant Fred Perry (“Perry”); and Defendant John Smaligo (“Smaligo”) (collectively “Defendants” or “Trustees”).
On January 1, 2007, Plaintiff Rick Bjorklund (“Plaintiff”) entered into an Employment Agreement (“Agreement”) with TCPFA, whereby Plaintiff held the position of President and Chief Executive Officer of the Fairgrounds. The Agreement was executed by Plaintiff and Miller, as then-chairperson of the TCPFA. As part of his duties, Plaintiff managed the account of Big Splash Water Park (“Big Splash”), a business on the Fairgrounds that leased property from TCPFA. On October 15, 2006, Big Splash failed to make its lease payment. On or around January 2007, Plaintiff had a conversation with Big Splash's then-owner Jerry Murphy (“Murphy”) regarding the payment. Plaintiff contacted Miller and told her that Big Splash's rent check would not clear the bank. Miller allegedly told Plaintiff “we need to just keep it off the radar.” (Bjorklund Dep., Ex. B to Defs.' Mot. for Summ. J. 126:25–127:2.) 2 Plaintiff did not ask her what she meant, but he interpreted her statement to mean “don't let it be a spectacle.” ( Id. at 154:23–24.) Prior to his termination, Plaintiff took certain actions regarding the Big Splash account that he claims were pursuant to Miller's “off the radar” instruction. These actions included instructing TCPFA comptroller, Preston Jackson (“Jackson”), to keep the Big Splash account “off the radar.” Jackson then removed the Big Splash account as an individual item in a report known as the “Summary Aging of Accounts Receivable” (“Report”). Plaintiff learned that Jackson removed the Big Splash account from the Report in May or June of 2007. On October 15, 2007, Big Splash again failed to make its annual rent payment.
On or around June 2008, Big Splash failed certain state inspections. On or around Thursday, June 26, 2008,3 Plaintiff contacted Tom Hilborne (“Hilborne”), TCPFA's legal counsel. Plaintiff told Hilborne “we're concerned that this—that the failure, Murphy's failure over Big Splash—Big Splash's failure of the inspections could trigger more questions or more issues” and asked Hilborne “what do you think we should do?” ( Id. at 158:6–10.) The next morning, on Friday, June 27, 2008, Plaintiff contacted Smaligo, then-chairman of the TCPFA, and raised the same concerns. Around noon on the same day, June 27, 2008, Plaintiff, Jackson, Hilborne, and Smaligo met and discussed the Big Splash account.
The following day, on Saturday, June 28, 2008, a newspaper article was published in the Tulsa World entitled “Big Splash Late on 2007 Rent.” Citing statements from Smaligo, the article reported that Big Splash had yet to pay its 2007 rent and that Big Splash's check for half of its 2006 rent went uncashed for a year. Plaintiff is quoted in this article as saying, “[w]e are obligated to proceed with conservative accounting principles, and in this case we should have required the rent earlier.” ( See Kevin Canfield, Big Splash Late on Rent, Tulsa World, June 28, 2008, available at tulsaworld.com.) 4
On Monday, June 30, 2008, Hilborne instructed Teresa Clayton (“Clayton”), Plaintiff's assistant, to revise the upcoming TCPFA meeting agenda which was to be held July 1, 2008, to include the following agenda item:
Vote to convene executive session to discuss the employment, hiring, appointment, promotion, demotion[,] disciplining or resignation of chief executive officer and/or comptroller pursuant to [state statute]. This agenda (“Revised Agenda”) was posted at 8:24 am on June 30, 2008, and Clayton gave a copy of the Revised Agenda to Plaintiff that morning.
During the July 1, 2008 TCPFA public meeting, TCPFA conducted a private, executive session discussing Plaintiff's and Jackson's employment. After Trustees had met for approximately thirty minutes, Plaintiff was invited into the executive session. Plaintiff's comments during the executive session, and the minutes allegedly summarizing the executive session, are disputed questions of fact. Plaintiff admits, however, that the Big Splash issues were discussed with him during the executive session. Plaintiff also admits that, although he was initially reluctant to name any names, he ultimately informed all Trustees during the executive session that any actions he took with regard to Big Splash were pursuant to Miller's “off the radar” instruction. Following the executive session, Miller moved to terminate Plaintiff, and Plaintiff was terminated by unanimous vote of all four Trustees. Trustees did not make any public statements regarding the reasons for Plaintiff's termination at that time.
In a Tulsa World article published July 10, 2008 (“7/10/08 Article”), entitled “Ex–Expo Square Exec Says Commissioner Ordered Him to Ease Off Big Splash,” Plaintiff first told the media about Miller's alleged “off the radar” statement. It provides:
Rick Bjorklund, who was fired as president and CEO of Expo Square, said Thursday that he was instructed by County Commissioner Randi Miller to keep Big Splash Water Park's financial troubles “off the radar.” The fair board last week voted 4–0 to terminate Bjorklund after it was discovered that a check for half of the water park's 2006 rent had gone uncashed for a year and that it had yet to pay its 2007 rent. In addition, Big Splash's outstanding 2007 balance was never listed specifically on the financial reports presented to the fair board. Bjorklund said Miller, who was fair board chairwoman in 2007, spoke to him about the Big Splash situation in about June of that year. “ The conversation (with Miller) was, ‘Ease up on them and get it off the radar,’ ” he said. Bjorklund said he told fair board members about Miller's instructions during the executive session held to determine his fate. “ I turned to Randi and I said: ‘You had given me instructions, Randi, to get it off the radar screen, and we did that.’ ” Miller on Thursday denied she ever told Bjorklund to cover up anything. “ That's a blatant lie,” she said. “ I knew nothing about their rent not being paid, and I knew nothing about any bounced checks or financial problems that occurred.” “ Those decisions could never have been made without the full board's knowledge.” Miller said she and the other board members were opposed to assisting Big Splash the only time the park sought formal relief from the board in 2007. In a letter dated July 11, 2007, Big Splash asked the board to consider alleviating some of its financial responsibility, citing lost revenues caused by construction at the fairgrounds. “I said no, absolutely no way will it be subsidized, and Rick Bjorklund knew that,” Miller said. The fair board is made up of the three county commissioners—John Smaligo, Fred Perry and Miller—and two appointees, Jim Orbison and Daryl Woodard. Miller also challenged Bjorklund's assertion that he told board members she had instructed him to keep Big Splash's account off the radar. “ He did not say that in executive session,” she said. Smaligo, who is the board's current chairman, declined to discuss what was said in the meeting. “The board has been advised by (its) attorney that the discussions in executive session are privileged, and that we should not discuss any of the conversations that occurred,” he said.
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Bjorklund said he was speaking publicly about his termination because the Attorney Gary Richardson, who is representing Bjorklund, said he has sent a letter to the Tulsa County Public Facilities Authority—also known as the fair board—seeking an explanation for Bjorklund's termination “so I will know how to advise him.” Miller received a $5,000 campaign contribution from Loretta Murphy during her unsuccessful run for mayor in 2006. After Big Splash's troubles were revealed, Miller said she would try to somehow return the contribution, but also acknowledged that it had already been spent. As for Bjorklund, she said she could not understand what would prompt him to make such accusations. “Rick is just obviously upset over his termination, and he made some poor decisions we had to act on,” she said.
5
The following day, July 11, 2008, Tulsa World published a similar article entitled “Bjorklund Says the Commissioner Wanted Big Splash But She Says That's A Lie.” ( Id.) On July 12, 2008, Tulsa World published a third article, entitled “Bjorklund Letter Asks for Reason,”...
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