Burch v. Rame, Civ. A. No. 287-119.
| Decision Date | 11 January 1988 |
| Docket Number | Civ. A. No. 287-119. |
| Citation | 676 F. Supp. 1218 |
| Parties | Hollis L. BURCH, Plaintiff, v. Eugene B. RAME and Glynn County Board of Commissioners, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Edward E. Boshears, Brunswick, Ga., for plaintiff.
Terry L. Readdick, Brunswick, Ga., for defendants.
Plaintiff, Hollis L. Burch, alleges violations of his constitutional due process rights arising from his suspension without pay and subsequent resignation from the Glynn County Police Department. Defendants, former Police Chief Eugene Rame and the Glynn County Board of Commissioners, move for summary judgment. Defendants contend that the uncontroverted facts establish that the suspension procedure in question comports with due process and that Burch voluntarily resigned, thus waiving the need for follow-up procedures. Because there are no issues of material fact, summary judgment is proper and will be granted in favor of the defendants.
Resolution of this case requires a rather detailed factual background. Lt. Hollis Burch was a 16-year veteran of the Glynn County Police Department. While on duty on January 11, 1985, Burch fired at a vehicle during a high-speed pursuit. In his written report filed that day, he wrote that he fired "5 times at vehicle tire." Three days later, as part of an Internal Affairs investigation regarding the incident, Burch stated that he fired four or five shots. On December 16 and 17, 1986, while testifying under oath in an unrelated civil action, Burch discussed the incident and repeated that he fired no more than five shots at the vehicle.1
After Burch testified, and after a jury verdict was entered for plaintiff in the case, the police discovered that Burch's statements and testimony were false. Burch's partner during the incident, Sgt. William Kempton, disclosed that Burch not only emptied his own gun at the vehicle, but that he also borrowed Kempton's revolver and fired most of its rounds at the vehicle. Kempton disclosed the information to Police Chief Rame on Friday, the 19th of December, 1986. On Sunday, Kempton went to Burch's home where Kempton told Burch about his conversation with Rame. The two discussed the incident and, in Burch's words, Kempton "refreshed my memory and reminded me that ... after I had emptied my revolver that I borrowed his and fired some shots out of it." Burch dep. at 5.
Rame confronted Burch with the information the next day, Monday, December 22. According to Burch, they met in Rame's office in the presence of two other officers to discuss the number of shots fired. Burch stated "Rame accused me of committing perjury in Federal Court and he made the statements that some heads was going to roll." Burch dep. at 6. Burch recollects that Rame said that all of the involved officers would again have to give their statements regarding the incident and that they would have to submit to polygraphs.2
Burch was off duty from December 23 through December 31 for previously scheduled leave. Before he returned to work, Burch was given written notification on December 31 that he was suspended without pay pending the adjudication of certain charges. The notification was hand-delivered by Assistant Chief of Police Peeples to Burch at Burch's home, and states in part:
The specifications recited the written report of January 11, 1985; the Internal Affairs interview of January 14; and the then-recent federal court testimony. The notification also informed Burch that he had the right to appeal the suspension.
The notification was made in accordance with a County policy which states:
Because the suspension was effective immediately, Burch was not given an opportunity to respond to the written charges against him before the sanction was imposed. This is the basis for Burch's first alleged constitutional deprivation.
The allegations of additional constitutional deprivations focus on the events following the suspension. While Peeples remained at Burch's home after delivering the notification, Burch contacted an attorney, George Rountree. Rountree advised Burch to sign the notification acknowledging receipt and to request any supporting documents regarding the charges. Burch did both. Later that day, Burch went to Rountree's office to discuss the situation. While there, Rountree phoned the County Attorney, Tom Lee, and discussed Burch's status. According to Burch, Rountree talked for a short while to Lee and then repeated to Burch: "They said if I would resign that they would not prosecute me for perjury." Burch dep. at 15. The substance of the conversation, although not the date, is confirmed by Rountree's affidavit:
As I recall it, Mr. Lee indicated in these conversations that, unless Hollis Burch resigned, the County felt it would have to make this information known to the United States District Court for the Southern District of Georgia and, more particularly, Judge Alaimo the presiding judge in the Pickens case, because it appeared to them that Hollis Burch had perjured himself during the trial. During our conversations, I secured a promise from Mr. Lee that, if Hollis Burch did resign, the aforesaid information would not be passed along ... and that no further action would be taken against Officer Burch.
Affidavit of George M. Rountree.
On January 7, 1987, Burch received notice of a hearing scheduled for January 9 which states, in part:
The notice informed Burch of his right to be present and to be represented by counsel; that the Hearing Board would consist of three police officers (two majors and a captain); that two other officers would present evidence on behalf of the County; and that Kempton would testify. The members of the Board were selected by Rame, who stated that they were selected on the basis of having ranks superior to Burch. Burch has not refuted that justification, nor made any allegations questioning the impartiality of the Board.
The next day, January 8, Burch, along with his attorney, requested that the hearing be postponed while Burch pursued the possibility of a transfer to another County position. Burch stated that he contacted the County Administrator, Charles Stewart, in an effort to secure a transfer. Stewart expressed interest in Burch's abilities as a heavy equipment operator but concluded by stating that nothing could be done while Burch was on suspension from the police department. Burch then went to Rame's office, where:
I told Rame that I had two weeks vacation coming and I made him an offer that I told him that I would take the ten days suspension and not appeal it and take my two weeks vacation to see if I could get a transfer, and he thought about it a minute, for a few seconds, and he said, no, he couldn't do that because there was some other people involved in the thing that may also have to be terminated.
Burch also contacted his attorney on that day, who repeated the County Attorney's assurances that if Burch resigned the County would not pursue the perjury charge. Additionally, Rountree delivered to Rame an acknowledgment dated January 8, regarding the postponement of the hearing. On the bottom of the letter Rountree wrote, in his handwriting: The hearing was rescheduled for Monday, January 12.
Burch, however, resigned on that day and the hearing was never held. Burch delivered his resignation to Rame's office on Monday morning. He made his resignation effective on January 26, stating that he wanted to comply with the County's two-week notice requirement to insure that he would not lose vested leave time. Burch was willing to take his accrued leave for the two weeks' interim.
Rame rejected the resignation, contending that Burch could not take leave while he was on suspension. Rame offered to waive the two-week notice requirement and asked Burch to make his resignation effective immediately. According to Burch, Rame redrafted Burch's resignation, making it effective immediately, and drafted a memo purporting to waive the two-week notice requirement. Burch doubted Rame's authority to waive the County's requirement, stating:
I wouldn't sign it and he got a little irritated and he threw his pencil down on the desk and he said, "Well, if you don't sign it," he said, "we'll go ahead and have the hearing and fire...
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