Hargray v. City of Hallandale

• Decision Date: 30 August 1993
• Docket Number: No. 91-6661-CIV.,91-6661-CIV.
• Citation: 830 F. Supp. 1467
• Parties: Vernon E. HARGRAY, Plaintiff, v. CITY OF HALLANDALE, Defendant.
• Court: U.S. District Court — Southern District of Florida

830 F. Supp. 1467

Vernon E. HARGRAY, Plaintiff, v. CITY OF HALLANDALE, Defendant.

No. 91-6661-CIV.

United States District Court, S.D. Florida.

August 30, 1993.

Robert E. Weisberg, Martha A. Chapman, Law Offices of Robert E. Weisberg, Coral Gables, FL, for plaintiff, Vernon E. Hargray.

Richard Kane, City Atty. for Hallandale, Hallandale, FL, for defendant, City of Hallandale.

MEMORANDUM OPINION AND FINAL JUDGMENT

GRAHAM, District Judge.

Plaintiff, Vernon E. Hargray ("Hargray"), filed suit against Defendant, City of Hallandale ("City"), pursuant to 42 U.S.C. § 1983, seeking damages for the alleged deprivation of his property interest in continued employment with the City in violation of the Fourteenth Amendment to the United States Constitution. This case was tried before the Court sitting without a jury on June 24, 1993. Having heard and considered the testimony of the witnesses and the arguments of counsel, and reviewed the exhibits presented, the Court makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

Hargray is a forty-two year old male who has been married for seventeen and a half years. He and his wife have a four year old son. On November 2, 1979 Hargray commenced employment with the City. From 1979 to July 1983 Hargray was the Program Coordinator with the City's Social Services Department. In July 1983, Hargray was transferred to the City's Public Works and Utilities Department ("DPW") as an Administrative Supervisor and assistant to the Director of DPW, John Depp ("Depp"). In May 1989, Hargray was promoted to the position of Operations Manager in the DPW, a position he held until his resignation on August 24, 1990. The City considered Hargray a "star employee" to the extent that on February 5, 1990, Depp nominated Hargray for the City's Employee Excellence Award. (Pl.'s Ex. 1).

Sometime in 1989, Hargray saw an acquaintance, Richard McDonald ("McDonald"), at a church function and later recommended him for the position of superintendent over grounds and maintenance which had been vacant for months. Hargray had previously recommended that the City hire someone with a landscape background and the City had refused. The City Manager, R.J. Intindola ("Intindola"), made the final decision to hire McDonald.

At all material times, Intindola was (and is) the City Manager and, as such, is responsible for establishing, implementing and maintaining the policies and practices of the City. Intindola has final policy-making authority for the City with respect to personnel and administration.

In June 1990, three or four employees of the DPW went to Richard Wroblewski ("Wroblewski"), the City's Personnel Director, with allegations that Hargray and McDonald were involved in taking City property. Wroblewski sent the employees to speak with Depp. In June 1990, Hargray became aware of rumors regarding stealing in the DPW and heard that there had been a meeting between Depp and McDonald.

On Saturday, August 4, 1990, Hargray and a number of his employees worked on City projects. Hargray went to Sheridan Lumber and picked up thirteen (13) 4 × 4 pieces of lumber listed on a purchase order. Hargray took said lumber to the DPW's compound. On Monday, August 7, 1990 or Tuesday, August 8, 1990 Hargray's wife informed him that a party for her office¹ was going to be held at their home on the coming Saturday, August 11, 1990.² On the day that he was told of the party or the following day, Hargray took home seven (7) pieces of the 4 × 4 lumber in order to mark off a parking area in his yard for the party. In addition, Hargray checked out a garbage can³ from the City and told Grover Jones, a sanitation foreman with the City, that he was going to use the garbage can for a party at his home. Grover Jones allowed Hargray to borrow the garbage can.⁴ Hargray intended to return the lumber and garbage can after the party. It was customary for City employees to borrow items such as tables and chairs, etc. for personal use.

On August 8, 1990, City officials, including Depp, received an anonymous letter accusing Hargray and McDonald of gross misuse of the City's equipment and supplies (Def.'s Ex. 1). Intindola, the City Manager, directed the City police department to conduct an investigation of the allegations contained in the August 8th letter. Lieutenant William Owens ("Lt. Owens") and Investigator Tommy Long ("Inv. Long") were primarily responsible for the investigation.

During the course of their investigation, Lt. Owens and Inv. Long photographed Hargray's house⁵ and interviewed twenty-eight (28) City employees. On August 20, 1990, McDonald resigned and admitted to violating City policy by using City equipment or property for his personal use. (Pl.'s Ex. 8). On August 23, 1990, the police department offered McDonald the option of resolving the criminal investigation against him through administrative rather than criminal channels. A written agreement was presented to McDonald who was allowed to consider the offer overnight and discuss it with an attorney. On the following day, August 24, 1990, McDonald signed the agreement. (Pl.'s Ex. 19). McDonald spoke with the officers about the items he took from the City and repeatedly denied that Hargray had any involvement in or knowledge of McDonald's theft of City property. (See, Pl.s Ex. 20).

Lt. Owens had three meetings with Intindola, the City Manager, prior to August 24, 1990. At the third meeting, Lt. Owens told the City Manager that he had probable cause to bring criminal charges of grand theft against Hargray. The misappropriations that Lt. Owens relied on were the 4 × 4 timber from Sheridan Lumber and the yellow garbage can. Lt. Owens and the City Manager then discussed the situation. It was Lt. Owens' goal to obtain Hargray's resignation if he confessed to wrongdoing. Lt. Owens was not aware that Hargray received permission from Grover Jones to borrow the garbage can for a party but thought that Hargray went solely to pick up the lumber he wanted for his home. At the trial, Lt. Owens could not recall whether he understood from Hargray's interview that the lumber was to be used permanently or temporarily.

At approximately 1:45 p.m. on August 24, 1990, Depp informed Hargray that the police wanted to talk to him. Hargray arrived at the police station at approximately 2:00 p.m. Lt. Owens and Inv. Long commenced Hargray's interrogation at approximately 3:30 p.m. in an interrogation room⁶. The interview was taped but the recording did not commence until five to ten minutes after the beginning of the interrogation. During those pre-taping minutes, Lt. Owens informed Hargray that he was the subject of a grand theft investigation. Lt. Owens handed Hargray a memo from the Chief of Police offering Hargray the option of resolving the allegations of impropriety in the DPW through administrative rather than criminal channels.⁷ Hargray had only a few minutes to consider the offer. The police officers did not offer him additional time to discuss the matter with an attorney.

Lt. Owens left the room for a short period prior to the taping of the interrogation and upon his return, Hargray chose to handle the matter administratively.⁸ The tape recorder was turned on approximately five minutes after Hargray signed the memo. (Pl.'s Ex. 10).

Hargray felt intimidated during the interrogation. He had never been previously arrested or interrogated. During the interview, Hargray repeatedly denied taking any City property, except that he admitted to having borrowed some 4 × 4 lumber and the yellow garbage can. (Pl.'s Ex. 9B at 31, 33, 40, 42). Lt. Owens informed Hargray that even borrowing City property with notice and permission is a crime. Lt. Owens stated as follows:

LT. OWENS: The bottom line of this interview is, the only property of the City of Hallandale that you misappropriated to your own personal use, or to use another word, to steal for your own personal use, either temporary — see, you have to understand what theft says.

The theft statute says temporarily or permanently. Okay? So to take temporarily or permanently to your own personal use is a commission of theft. That's the reading of the statute, that's the legal end of it. There's borrowing and then there's borrowing permanently.

So the only thing is one of the yellow trash cans on a temporary basis and the lumber? Mr. HARGRAY: That is it, that is it. That's why I felt, you know, and I even forgot about the, like I said, you know, about the timber. (Pl.'s Ex. 9B at 65).

There was insufficient evidence that Hargray intended to resign when he went to the police station on August 24, 1990. Neither Lt. Owens nor Inv. Long stated that, prior to the taping, Hargray told them he intended to resign. On the other hand, twice during the interrogation Lt. Owens told Hargray that the City Manager wanted his resignation. Those exchanges were as follows:

LT. OWENS: I've got a couple of things. I'll put this on. Upon conclusion of this meeting, before you go home tonight, the City Manager wants your resignation — if you would like to — I believe you'll be seeing Mr. McDonald —

MR. HARGRAY: No — oh, yeah —

LT. OWENS: — resignation?

INV. LONG: Yeah, I do. John gave it to me, something — two years, that is at least a guide to your — probably be appropriate. I'm assuming by the time we're done here the secretarial staff will be gone.

MR. HARGRAY: Well, somebody should be there.

LT. OWENS: If they're not, we can have the secretarial staff here do that for you. You can either write it out yourself, or we'll give you a copy of that and you can, you know, take the appropriate verbiage from it that you feel is relevant to yours — (Pl.'s Ex. 9B at 49).

* * * * * *

INV. LONG: Good. I don't have any more questions. Do you?

LT. OWENS: I have no more either, but the City Manager is adamant about the resignation before you leave today. If you want to make a call, you can use the phone out here, then call us. (Pl.'s Ex. 9B at 79)

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