Brasslett v. Cota
| Decision Date | 08 June 1984 |
| Docket Number | Civ. No. 83-0007-B. |
| Citation | 609 F. Supp. 948 |
| Parties | Duane P. BRASSLETT, Plaintiff, v. Raymond J. COTA, Jr. and Town of Orono, Defendants. |
| Court | U.S. District Court — District of Maine |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Theodore S. Curtis, Jr., Curtis & Griffin, Orono, Me., for plaintiff.
Andrew M. Mead, Mitchell & Stearns, Old Town, Me., for defendants.
The present civil rights action under 42 U.S.C. § 1983 seeks redress for alleged violations of plaintiff's constitutional rights to due process, free speech, and equal protection of the laws, as well as for certain alleged violations of state law. Defendants deny any violation of plaintiff's constitutional or statutory rights and assert that plaintiff has failed to exhaust available state remedies.1
Plaintiff seeks declaratory and injunctive relief, reinstatement as fire chief of the Town of Orono (Town), damages2 and attorney fees pursuant to 42 U.S.C. § 1988.
The defendant Town is a political subdivision of the State of Maine and operates under a council-manager form of government. At all times relevant to the present action, defendant Raymond J. Cota, Jr. (town manager) was the duly appointed town manager of the Town. The Town Charter (Charter) vests the town manager with considerable authority to manage town affairs, including exclusive authority to appoint, subject to confirmation by the Town Council (Council), and to remove department heads. Charter § 1.1.3. The town manager is responsible for disciplining all supervisory personnel. Id. § 1.13.16(3). The Charter identifies eleven categories of conduct constituting "sufficient cause" for disciplinary action, including removal, see id., § 1.3.12(C); ten of which delineate specific types of conduct. The eleventh category of conduct constituting sufficient cause for disciplinary action consists of "any other such instance or situation of such seriousness that disciplinary action is considered warranted," id. § 1.3.12(C)(11). Charter section 1.13.12(H) entitles a discharged employee to a written statement of the reasons for dismissal.
The Charter establishes formal grievance procedures. The aggrieved employee first must attempt to resolve the matter informally with the town manager, failing which the grievance may be submitted to the Personnel Appeals Board (Board), established under Charter section 1.1.3(C)(3). The three Board members are appointed by the Council for three-year terms. Following review, the Board is empowered to issue its advisory (nonbinding) opinion to the town manager, whose action is final. See id. 1.3.13(E).
Plaintiff was appointed Town Fire Chief for an indefinite term on December 3, 1979. Cota Deposition, at 6. See 30 M.R.S.A. § 3773(1). The record discloses that during his tenure as fire chief plaintiff was considered a good fireman, see Cota Deposition, at 24, 92, but that his performance as a department head had been called into question by the town manager on more than one occasion.
During August of 1982 plaintiff was suspended for 30 days, which was later reduced by the town manager to 15 days in response to a recommendation of the Board,3 for transferring a fire department pickup truck to a private individual, without competitive bidding,4 and for conduct unbecoming a public official. Cota Deposition, at 20. According to the plaintiff, the town manager suggested that plaintiff "get rid" of the pickup truck, which apparently was in a serious state of disrepair. Plaintiff asserts that he made several telephone calls to local junk yards to ascertain the value of the truck before eventually selling it. According to the plaintiff the town manager was aware of the sale of the truck. Brasslett Deposition, at 10-12. Some time later the town manager suspended the plaintiff for failure to account for the sale proceeds during a five-week period following the sale. Plaintiff lamely contends that the delay in accounting for the sale proceeds was due to several major equipment breakdowns and Town budgetary concerns which distracted the plaintiff and consumed a considerable amount of time. Only when questioned by the Town clerk did plaintiff finally account for the sale proceeds. Brasslett Deposition, at 19. Plaintiff points out that the Town had no surplus property ordinance at the time. Id. at 18.
The next incident involved a fire department jeep. According to the plaintiff, several members of the fire department expressed an interest in repairing an old jeep previously used as a support vehicle, but which had been out of service for some time. A fireman asked plaintiff for permission to take the jeep home to make repairs, at no cost to the Town. Plaintiff agreed. Brasslett Deposition, at 20-21. After apparently having been informed by a Council member that the jeep was located in a bus garage in the City of Old Town, the town manager confronted the plaintiff. Cota Deposition, at 80-81. Plaintiff addressed a memorandum to the town manager explaining that the jeep was being repaired by a fireman. The town manager responded by requesting that plaintiff keep him posted, since "past history would indicate this is a sensitive issue." Agreed Statement of Record, Item 11. The jeep was later returned to the Town garage at the request of the town manager. No disciplinary action was taken.
The final episode began on December 4, 1982, when plaintiff granted an on-camera interview to a local television station to discuss the status of the town's fire protection.5 See McLeod Deposition, at 6. Compare, Brasslett Deposition, at 25. The issue of the Town's fire fighting capability had not generated any community concern or media coverage prior to plaintiff's interview. Cota Deposition, at 41-42. The request for an interview was initiated by the television station, see Brasslett Deposition, at 23, in response to an anonymous telephone call on December 3 advising that the Town had only one operational fire truck. McLeod Deposition, at 3-4. The interview was conducted at the Town's central fire station. The plaintiff appeared on television in his dress uniform.
Prior to the interview, two firemen placed signs, which had the word "Sunkist" written on them, on one of the disabled fire trucks. The "Sunkist" signs were shown on television during the broadcast of the interview. Cota Deposition, at 45. While plaintiff alleges that he requested the interviewer not to film the signs, Brasslett Deposition, at 27, the cameraman does not recall this request, McLeod Deposition, at 16, and the interviewer expressly states that plaintiff made no such request, Bousquet Deposition, at 25. The cameraman states that he asked the plaintiff if he wanted the signs taken down during the interview and that plaintiff did not respond one way or the other, McLeod Deposition, at 9, and that when asked what the signs meant, plaintiff, referring to the truck on which the signs had been placed, said it was their "Sunkist," id. at 12.
The interview was filmed in its entirety at the fire station. Plaintiff was the exclusive source of all of the material contained in the interview. Bousquet Deposition, at 24-25. The interview was extensively edited prior to broadcast and the edited portions are no longer available. See id., at 29.
The day after the interview the Council chairman called the town manager, who had not seen the interview, to inquire about the status of the Town's fire equipment. The town manager received unfavorable comments concerning the television interview, Cota Deposition, at 47, and on December 7 he went to the television station to view the tape of the broadcast. Apparently in response to a growing concern over the condition of the Town's fire equipment, as expressed by the citizenry, Council members, and department heads, the town manager requested a television interview,6 in which plaintiff again participated, which was aired on December 8. Cota Deposition, at 82. In response to adverse publicity, the town manager requested that plaintiff submit a formal letter of apology, which plaintiff did, by apologizing for the unfavorable publicity and expressing his concern for the safety of his firemen. Plaintiffs Exhibit No. 4. In his letter of apology plaintiff indicated that the "Sunkist" signs were intended as a joke and were not intended for the public to see, much less the media. Id. On December 7 the town manager drafted a memorandum to the Council advising of the readiness of the Town's fire fighting equipment. Agreed Statement of Record, Item 12.
On December 13, 1982, largely in response to plaintiff's first television interview and the resulting adverse publicity, see Plaintiffs Exhibit No. 3, the Council met in executive session to discuss both the Town's fire fighting capability and plaintiff's status as fire chief. See Cota Deposition, at 57, 59, 63-64, 69. With plaintiff, the town manager, and all seven Council members in attendance, Council members addressed questions to the plaintiff and in an apparently informal and nonadversarial atmosphere permitted a general airing of relevant concerns. At least two Council members expressed dissatisfaction with plaintiff's remarks during the first television interview. Cota Deposition, at 66. The Council asked the town manager whether he was contemplating any remedial or disciplinary action, in response to which the town manager indicated that further study was necessary. Plaintiffs Exhibit No. 3.
On December 14, 1982, after reviewing a tape of the interview, letters of commendation and the incidents of the previous eight months, see Cota Deposition, at 71, the town manager met with the plaintiff for approximately one hour and informally discussed plaintiff's tenure as fire chief, beginning with the pickup truck incident and including the most recent incident in which plaintiff's capabilities and performance as a department head had been called into question, Cota...
To continue reading
Request your trial
-
Grievance of Morrissey
...in combination with the contemporaneous oral notification, extended notice of adequate specificity to grievant. See Brasslett v. Cota, 609 F.Supp. 948, 968 (D.Me.1984) (incident not mentioned in dismissal letter but discussed with terminated employee held to justify discharge), rev'd on oth......