McWaters v. Rick

Decision Date04 April 2002
Docket NumberNo. 3:01-CV726.,3:01-CV726.
Citation195 F.Supp.2d 781
PartiesPaulette N. McWATERS, Plaintiff, v. John F. RICK, Stephen F. Owen, Roy J. Harrison, Robert R. Cosby, Edmund C. Burruss, Margaret H. Manning, and T.J. Bise, Defendants.
CourtU.S. District Court — Eastern District of Virginia

Betty S. Graumlich, Patrick M. Sweeney, Augustus S. Hydrick, Jr., McSweeney & Crump, Richmond, VA, for Plaintiff.

Jeff W. Rosen, Lisa Ehrich, Pender & Coward, Virginia Beach, VA, for Defendants.


PAYNE, District Judge.

Pursuant to Fed.R.Civ.P. 12(b)(6), the defendants have filed a Motion to Dismiss the Complaint that initiated this action on the ground that it fails to state a claim upon which relief can be granted. The defendants also raise the affirmative defense of qualified immunity in their Motion to Dismiss. For the reasons set forth below, the Motion to Dismiss is denied.


The facts, as alleged in the Complaint, are set forth below. As required when considering motions pursuant to Rule 12(b)(6), the alleged facts are presumed to be true.

Paulette McWaters is a resident of Powhatan County, Virginia (the "County") and, from January 1995 until January 2000, she served as a member of its Board of Supervisors (the "Board"). Defendant, John F. Rick, is the County Attorney and has been so employed since 1997. Defendant, Stephen F. Owen, is the County Administrator and has been so employed since 1993. The other five defendants are members of the Board. Defendants, Roy J. Harrison Robert R. Cosby, Edmund C. Burruss, and Margaret H. Manning have been members of the Board since 1995; and defendant, T.J. Bise, has been a member of the Board since January 2000, after having defeated McWaters in a general election that was held in November 1999.

McWaters asserts two claims. Count I alleges a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Count II alleges a violation of the First Amendment. Both counts are predicated on the same conduct, which is recited in detail below as it is alleged in the Complaint.

During McWaters' tenure as a member of the Board, its members were divided over issues respecting the financial management of the County's schools. McWaters avers that, throughout her term of service on the Board, she "was a consistent and outspoken critic of the School Board and the District Superintendent of Schools on that issue." During the final year of her term, McWaters cast the only vote against the County budget and levy, considering it to be fiscally irresponsible because of the level of spending that it allotted for public schools. McWaters also alleges that, on account of the same fiscal concerns, she was a vocal critic of other members of the Board and of Owen. (Complaint, ¶¶ 7, 41).

At a Board meeting in the fall of 1999, McWaters herself came under fire for fiscal imprudence when a citizen (who was an employee of the County's school district) complained about expenses that McWaters had incurred while attending conferences of the National Association of Counties ("NACO") and other organizations. In that regard, the Complaint explains that, in July 1998, McWaters and defendant, Manning, traveled to Portland, Oregon for a NACO conference related to their positions on the Board. McWaters and Manning "jointly planned their Portland trip and agreed to share a rental car." The conference was to begin on July 19, 1998, however, McWaters was scheduled to attend a meeting of the Indoor Air Quality Advisory Committee of NACO on July 16. Therefore, she planned to arrive in Portland on July 15. As it turned out, that committee meeting was cancelled while McWaters was en route and she "was unaware of the cancellation until she arrived in Portland." (Complaint, ¶ 16). Although McWaters and Manning traveled to Portland on July 15, 1998, unlike McWaters, "Manning ... never had any scheduled official business in Portland until July 19 ... [and] had no apparent justification for arriving on July 15 ...." (Complaint, ¶ 17).

Shortly after McWaters returned from that trip, the Board "approved, and authorized payment of, [her] travel expenses related to the Portland, Oregon conference." Both Owen and Rick reviewed McWaters' expenses associated with the Portland conference "for appropriate form and for legality" before they were submitted to the Board for approval. (Complaint, ¶ 14).

Nothing further was heard about those expenses until the Board's meeting on October 11, 1999 (more than a year later) when, during the public comment period, a citizen named Denise Eyles addressed the Board and, as McWaters alleges, "rebuked [her] for spending County money on travel to conferences of [NACO] and other organizations." McWaters claims that Eyles "confined her criticism to [her], although each of the other four members had incurred expenses for attending such conferences[]" and that "Eyles said she focused on [McWaters] because her travel expenses in the aggregate were greater than the expenses of any other Board member and because [McWaters] had been a persistent critic of the [County's] spending practices." Eyles' criticism was reported in a local weekly newspaper (on October 14) and in the Richmond Times-Dispatch (on October 25). (Complaint, ¶¶ 8, 9).

In response to this criticism, McWaters requested that Owen send a letter expressing his views as to the propriety of her travel expenditures. By letter dated October 25, 1999, Owen responded that he was "not aware of any improper reimbursements." He noted that each of the Board members "does things a little differently" and that, when needed, his staff requests appropriate documentation to reconcile travel expenses. Owen also indicated that McWaters properly had kept him advised of the conferences and seminars that she planned to attend and that the Board's meeting minutes reflected reports that she tendered about her attendance at such conferences and seminars. (Complaint, ¶ 10).

At some point in the days that followed, however, "Owen reported to his staff that he had developed doubts about whether [McWaters] had requested and received payment from the County for travel expenses associated with [the Portland conference] ... for one or more days before that conference officially opened. Without first contacting [McWaters] or consulting with the Board ... he asked Rick, as County Attorney, on October 28, 1999, to investigate the matter." McWaters claims that "Rick immediately initiated an investigation and notified the Chairman of the Board[,] ... [Cosby], of his investigation." (Complaint, ¶¶ 11, 12).

Thereafter, but still on October 28, Rick attempted to reach McWaters by telephone, but he was unable to do so. However, Rick was able to speak with McWaters' husband, who objected to the allegations of improper expenditures, as well as to the fact that an investigation had been commenced. McWaters' husband also pointed out to Rick that other Board members had submitted, and had been reimbursed for, expenses similar to those that were at issue in the investigation of his wife. Rick advised that McWaters needed to contact him immediately on account of "the serious criminal and civil implications of her conduct." (Complaint, ¶¶ 18, 19).

McWaters spoke with Rick by telephone on the evening of October 28. Rick advised her that "Owen had remembered months after the Board ... had approved [McWaters' travel expenses from the Portland conference] that the 1998 Portland NACO conference began on July 19 and ended on July 21 but that [McWaters'] travel vouchers were for a period beginning July 15 and ending July 22." McWaters explained that, while she was en route to Portland, the Air Quality committee meeting had been cancelled. (Complaint, ¶ 20).

The fact that an investigation into McWaters' travel expenditures had been instituted was reported in the Richmond Times-Dispatch on October 31, 1999, two days before Election Day. In addition, McWaters alleges that, having been alerted to the investigation into McWaters' expenditures, "Bise, [McWaters'] opponent for election to the Board ... prepared and distributed a flyer attacking [her] for her travel expenses, particularly those associated with [the Portland conference]." (Complaint, ¶¶ 12, 13).

On November 22, 1999, and "without requesting or accepting input from [McWaters] or her attorney," Rick formally submitted a report of his investigation to the Board. McWaters requested an opportunity to respond to Rick's report, and Rick explained that she would be given such an opportunity at the Board's meeting on December 13, 1999. In reliance on Rick's representation, McWaters prepared a response for presentation both orally and in writing. (Complaint, ¶¶ 22, 23).

However, "despite his personal request to address the Board and [McWaters'] request to the same effect, [McWaters'] counsel was not permitted to appear before the Board either in public session or in the Board's closed session on December 13, 1999, to respond to Rick's report ...." According to McWaters, Rick and Owen had "prearranged the manner in which Rick's report would be addressed by the Board." At the December 13 meeting, defendant Harrison made a motion "that the Board take no further action until the County Attorney forwards his findings to the Attorney General and State Auditor of Public Accounts and receives the results of their reviews pursuant to Section 15.2-1245 of the Virginia Code."1 McWaters abstained from voting on this motion and the motion was approved by a vote of four to one.2 (Complaint, ¶¶ 24, 25).

Rick forwarded his findings to the Attorney General's office, which responded on January 24, 2000 by referring Rick to the County's Commonwealth's Attorney "for his advice on the single issue of whether [McWaters] violated any law with respect to her request for, or receipt of, certain payments involving NACO meetings." Apparently, the ...

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