Maxey v. Smith

• Decision Date: 11 June 1993
• Docket Number: Civ. A. No. 1:93CV122-D-D.
• Citation: 823 F. Supp. 1321
• Parties: H.B. MAXEY, Jr. (a.k.a. "Bud" Maxey), Plaintiff, v. Robert A. SMITH, Individually and as Alderman/Vice Mayor, City of Starkville, Emmett Smitherman, Jr., Individually and as Alderman, City of Starkville, Ed Buckner, Individually and as Alderman, City of Starkville, Harold E. Williams, Individually and as Alderman, City of Starkville, Melvin Rhodes, Individually and as Alderman, City of Starkville and Ben Hilbun, Jr., Individually and as City Attorney for the City of Starkville, and the City of Starkville (already a party via suit against the above named defendants in their official capacity, but nevertheless separately named), Defendants.
• Court: U.S. District Court — Northern District of Mississippi

823 F. Supp. 1321

H.B. MAXEY, Jr. (a.k.a. "Bud" Maxey), Plaintiff, v. Robert A. SMITH, Individually and as Alderman/Vice Mayor, City of Starkville, Emmett Smitherman, Jr., Individually and as Alderman, City of Starkville, Ed Buckner, Individually and as Alderman, City of Starkville, Harold E. Williams, Individually and as Alderman, City of Starkville, Melvin Rhodes, Individually and as Alderman, City of Starkville and Ben Hilbun, Jr., Individually and as City Attorney for the City of Starkville, and the City of Starkville (already a party via suit against the above named defendants in their official capacity, but nevertheless separately named), Defendants.

Civ. A. No. 1:93CV122-D-D.

United States District Court, N.D. Mississippi, E.D.

June 11, 1993.

COPYRIGHT MATERIAL OMITTED

James M. Ward, Ward & Williamson, Starkville, MS, for plaintiff.

J. Gordon Flowers, Gholson, Hicks, Nichols & Ward, Columbus, MS, for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

I. Preliminary Injunction

Over the course of two days spaced two weeks apart, the undersigned District Judge conducted a hearing on Plaintiff's application for preliminary injunctive relief. Specifically, the applicant's request is spurred primarily by a desire to vindicate his right to freedom of speech and expression under the First Amendment of the United States Constitution. Precisely one day after comments attributable to him appeared in the local print media, Plaintiff was systematically relieved of his duties as police chief and placed on administrative leave. He implores this court to order his reinstatement. In considering whether an exercise of this court's equitable powers should issue, the Undersigned consults the well-established quantitative test for awarding injunctive relief found in Canal Authority of the State of Florida v. Callaway, 489 F.2d 567 (5th Cir.1974). Applying the four requisite Canal factors to the case at bar, the court concludes that the request for injunctive relief is well taken. Equity permits nothing less than an order fully reinstating Plaintiff to his position as Chief of Police of the City of Starkville.

II. Factual Summary

Plaintiff became the sixth chief of police hired by defendant municipality City of Starkville in a time span of just ten years. Having served on the police force of Tampa, Florida, Plaintiff assumed the Starkville appointment with an impressive law enforcement background covering thirty-two years. His credentials include a bachelor of arts degree in criminal justice from the University of South Florida and an associate degree from St. Petersburg Community College. He is also a 1981 graduate of the FBI National Academy. Appointed in 1989, Plaintiff has been credited with significantly modernizing the Starkville police department which, according to the testimony of its current Captain, David Lindley, lagged as many as "ten years behind everyone else" in law enforcement operations and practices. The favor Plaintiff enjoys among members of the police force he heads and the region's law enforcement community in general, however, contrasts sharply with the adversity which he has encountered with the Starkville city attorney and certain members of the board of alderman.

Formal board action against Plaintiff has ranged from issuance of a reprimand to a more severe level: placement on administrative leave.

a. The Newspaper Comments of April 13, 1993

The decision to put Plaintiff on administrative leave was prompted by critical comments he made to a reporter preparing a news article for the Commercial Dispatch, a daily newspaper published in Columbus, Mississippi. Plaintiff's statements appeared in the Commercial Dispatch April 13, 1993 issue in a front page story concerning the completion of an independent investigation of a Starkville murder/rape case occurring in 1990. In an unprecedented move, the board of alderman had hired a special investigator, George Beckett, to reinvestigate the case, known in media and other accounts as the "Jones-Criggler" murder and rape. (To this date, the crime remains unsolved.) At the completion of Beckett's investigation, which was reported as beginning on February 3, 1993, Defendant City on April 12, 1993, issued a press release announcing that a "logical suspect has been identified." The Dispatch, after contacting Plaintiff for his comments, quoted him in its article as saying, "I haven't seen the actual investigative report, but as far as I could determine, nothing was reported ... that we didn't already know; there was no new evidence." Continuing, the article reported that Plaintiff could not offer further "comment on the independent investigation, because," he explained, "I wasn't a part of it." Elaborating, Plaintiff remarked, "I have been denied being a part of the investigation and denied access to the investigative report." When the interviewing reporter apparently asked why Plaintiff had not been given access, he responded, "I think I was denied access to the report because it is totally inaccurate and they know I can point out inconsistencies."

Incensed by Plaintiff's comments to the newspaper, Defendant, Robert A. Smith, proceeded to orchestrate a series of maneuvers that culminated in Plaintiff's involuntary administrative leave status. Smith, who, at the time of these proceedings, held the dual office of alderman and vice-mayor, testified at trial, "When the article hit the newsstands, I had had enough! I was through! I was done! I wanted to put him on administrative leave!"

b. The "Action Apparel" Midday Meeting on April 14, 1993

Defendant, Alderman Smith, related at the hearing that after reading the "newspaper article" in the April 13th Commercial Dispatch, "that was the final blow." He "was ready to put the guy Chief Maxey on administrative leave...." So, he assembled an informal noon time meeting with just two other aldermen—Defendants, Emmett Smitherman and Melvin Rhodes; also in attendance were the mayor's administrative assistant David Brisolara, and Defendant, City Attorney Ben Hilbun, Jr., who, at Smith's behest, later telephoned defendant, Harold Williams. Although the group numbered a total of five, only three aldermen were in actual attendance; the meeting was deliberately limited to three, a figure less than the number needed for a quorum, so as to avoid committing a violation of the open meetings¹ policy. As Defendant, Smith, testified at hearing, "Four aldermen is sic a quorum, so you can't meet informally with four aldermen; you can meet with three aldermen; you can meet with two aldermen, or you can have a phone conversation."

In the presence of those gathered, Smith expressed his desire to "put Plaintiff on administrative leave with pay, using accumulated sick leave and vacation time." Alderman Smitherman echoed those sentiments. A canvassing of those privy to the initial discussions indicated a general willingness among them to place Plaintiff on administrative leave. For all intents and purposes, a decision had been made: Police Chief Maxey would be placed on administrative leave. A second matter, naming Larry Sisk acting police chief, was also discussed. The formal motions implementing these decisions would be drafted and brought by Defendant, City Attorney, later that evening when the full board convened for a special meeting called by Defendant, Smith, after reading the newspaper article carrying Plaintiff's comments.

c. The April 14, 1993 Afternoon Consultation

After disbanding, the same group conferred again in the afternoon to discuss two other proposals resulting in two additional motions. Defendant, Harold Williams, wanted John Outlaw named as assistant chief. A fourth and final motion would call for the escorting of Plaintiff from police department premises by Larry Sisk.

d. The April 14, 1993 6:00 pm Special Board Meeting

The four pre-arranged and decided motions were systematically brought that evening. It was apparent to the two members who cast the only dissenting votes, Alderwoman Mary Lee Beal and Alderman Wendell W. Gibson, that the evening's proceedings were, literally and figuratively, just a matter of "going through the motions."

A member of the aldermanic board for sixteen years, Alderwoman Beal testified in court, "It was all set to go. A press release announcing Chief Maxey's removal was all typed out in advance." Testimony consistent with Ms. Beal's account was elicited from Alderman Gibson. He explained that the "usual time frame" of a board meeting runs "anywhere between one and five hours." He estimated that the evening meeting on April 14, 1993, lasted no more than ten minutes. In his words, the content of the meeting obviously "had been preplanned...." The trumped-up proceeding was over before it began. "After ... opening prayer and the Pledge of Allegiance," a sequence of four motions were adopted with little or no discussion. Every motion concerned steps to be taken in relation to Plaintiff's placement on administrative leave. Gibson testified, "I had never seen anything like that happen." Referring to city policy and custom of adhering to basic principles of procedural due process, Gibson continued, no notice had been given to Chief Maxey. "It made me so mad, I couldn't see straight, and there was nothing I could do."

e. The Resolve of Prior Problems and Disagreements Between Defendant Board Members and Police Chief Maxey

Aside from comments Plaintiff made to the press, there were a few prior actions he allegedly took that did not meet with the Board's approval, namely: 1) arranging training for Russell Gaines, a civilian, through the Tupelo Police Training Academy without obtaining prior board approval; for this, Plaintiff received an official reprimand; (2) purchasing four motor vehicles without soliciting bids; (3) voiding a ticket; and (4) allegedly claiming he "salvaged" the D.A.R.E. program from being slashed by the budget committee. All of these incidents, however,...