Monico v. City of Cornelius

• Decision Date: 06 April 2015
• Docket Number: No. 03:13-cv-02129-HZ,03:13-cv-02129-HZ
• Court: U.S. District Court — District of Oregon
• Parties: MIGUEL MONICO, an individual, and SHAWN WATTS, an individual, Plaintiffs, v. CITY OF CORNELIUS, a municipality of the State of Oregon; ROB DRAKE, in his individual and official capacity; KEN SUMMERS, in his individual and official capacity; and JOE NOFFSINGER, in his individual and official capacity, Defendants.

MIGUEL MONICO, an individual, and SHAWN WATTS, an individual, Plaintiffs, v. CITY OF CORNELIUS, a municipality of the State of Oregon; ROB DRAKE,in his individual and official capacity; KEN SUMMERS, in his individual andofficial capacity; and JOE NOFFSINGER, in his individual and official capacity, Defendants.

No. 03:13-cv-02129-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 6, 2015

OPINION & ORDER

Daniel E. Thenell

Robert Bletko

THENELL LAW GROUP, P.C.

12909 S.W. 68th Parkway, Suite 320

Portland, Oregon 97223

Attorneys for Plaintiffs

Robert E. Franz

LAW OFFICE OF ROBERT E. FRANZ, JR.

P.O. Box 62

Springfield, Oregon 97477

Attorney for Defendants

HERNANDEZ, District Judge:

Plaintiffs Miguel Monico and Shawn Watts bring this action against the City of Cornelius, City Manager Rob Drake, and Police Chief Ken Summers¹, raising claims of First Amendment retaliation, intentional infliction of emotional distress (IIED), and violation of an Oregon whistleblower statute. Defendants move for summary judgment on all claims. I grant the motion as to the Oregon whistleblower claims and the IIED claims, and I grant the motion in part and deny it in part as to the First Amendment claims.

BACKGROUND

Plaintiffs were both police officers with the City of Cornelius during the relevant time period. In October 2012, they signed a letter raising allegations of misconduct and corruption in the City of Cornelius Police Department, particularly in regard to then-Chief of Police Paul Rubenstein and then-Assistant Chief of Police Joe Noffsinger. Ex. 101A to Jan. 23, 2015 Franz Decl. Officers Mark Jansen and Doug Schuetz also signed the letter (referred to hereinafter as the "Corruption Complaint"). Id. Watts hand-delivered the Corruption Complaint to Drake on the morning of October 17, 2012. S. Watts Depo. (Ex. 106 to Jan. 23, 2015 Franz Decl.) at 67²;Ex. 101A to Franz Decl. Watts gave Drake no instructions about what to do with the Corruption Complaint. Drake Depo. (Ex. 4 to Thenell Decl.) at 17. Members of the City of Cornelius City Council also received copies of the Corruption Complaint. S. Watts Depo. (Ex. 106 to Jan. 23, 2015 Franz Decl.) at 68; Drake Depo. (Ex. 114 to Jan. 23, 2015 Franz Decl.) at 35. Although the Corruption Complaint is also addressed to Mayor Jeffrey Dalin, the record is unclear if a copy was hand-delivered to him as well.

Before the Corruption Complaint was delivered to Drake and the City Council members, some of the signatories to the Corruption Complaint had discussed the allegations contained in the Corruption Complaint with other individuals. Jansen and Schuetz, on separate occasions, discussed the allegations with Catherine Small, a citizen of Cornelius and a member of the Community-Oriented Policing Committee Advisory Board (COPCAB). Small Depo. (Ex. 109 to Jan. 23, 2015 Franz Decl.) at 8-12, 14 (describing ride-along with Schuetz in April or May of 2012 during which he told her about corruption, deceit, and dishonesty in the police department); Id. at 18-19, 30-31 (describing ride-along with Jansen in June or July 2012); Jansen Depo. (Ex. 107 to Jan. 23, 2015 Franz Decl. ) at 28, 60 (recalling telling Small during a ride-along about unethical conduct and corruption in the department); see also Small Depo. at 31-32 (Ex. 109 to Jan. 23, 2015 Franz Depo.) (describing ride-along with Monico in which he called Rubenstein a dirty cop and told Small not to trust him).

Additionally, Schuetz, Jansen, and Watts shared allegations contained in the Corruption Complaint with Washington County District Attorney Robert Hermann and Chief Deputy District Attorney Roger Hanlon before delivering the Corruption Complaint to Drake and the City Council members on October 17, 2012. Hanlon Depo. (Ex. 110 to Jan. 23, 2015 FranzDecl.) at 40-41; Schuetz Depo. (Ex. 111 to Jan. 23, 2015 Franz Decl.) at 10-11. Schuetz and Watts met with Hermann in May, June, or July 2012 about their concerns in the police department. Schuetz Depo. (Ex. 111 to Jan. 23, 2015 Franz Decl.) at 10-11. Watts also met with Hanlon and left Hanlon with a packet of materials that contained a draft of an ethics complaint to the Department of Public Safety Standards and Training (DPSST). Hanlon Depo. (Ex. 110 to Jan. 23, 2015 Franz Decl.) at 40-41; Ex. 102 at 2-9. Jansen drafted a memorandum containing allegations of corruption which he sent to Hanlon in August 2012. Hanlon Depo. (Ex. 110 to Jan. 23, 2015 Franz Decl.) at 41; Ex. 102 at 10-14.

After receiving the Corruption Complaint on October 17, 2012, Drake showed it to Debbie Roth in the City Recorder's Office who read it and then made a copy and sent it to City Attorney Chad Jacobs. Drake Depo. (Ex. 114 to Jan. 23, 2015 Franz Decl.) at 18. Based on advice he received from Jacobs, Drake concluded that the Corruption Complaint was a public document. Id. at 30.

In responses to interrogatories, Defendants state that because the Corruption Complaint was addressed "to other people," had been distributed "to other people," and included statements that "we write to you now to inform you and the public," and that "[w]e . . . believe that the City Council will act based on the information we are reporting to the City and to the citizens of Cornelius," Drake concluded the Corruption Complaint was a public document intended to inform the public and Cornelius citizens of the allegations contained therein. Ex. 105 to Franz Decl. (Defs.' Resp. to Interr. No. 1). Additionally, the Corruption Complaint did not request that it be kept confidential. Ex. 101A to Franz Decl.

Drake showed the Corruption Complaint to Rubenstein after showing it to Roth. DrakeDepo. (Ex. 4 to Thenell Decl.) at 19. He also, at some point, gave copies to Noffsinger and Brian Schmid, id. at 25, 27, as well as to Dustin DeHaven. DeHaven Depo. (Ex. 6 to Thenell Decl.) at 32. The Corruption Complaint contained allegations of misconduct by DeHaven. Ex. 101A to Jan. 23, 2015 Franz Decl.

On October 18, 2012, the day after receiving the Corruption Complaint, Drake sent an email to the following individuals: Brian Schmid, Bruce Schmid, Craig Wellhouser, Doug Schuetz, Dustin DeHaven, Jason Moser, Joe Noffsinger, John Calvert, Jon Kirkpatrick, Laura Chrisy, Mark Jansen, Miguel Monico, Paul Rubenstein, Marlene Thomas, and Watts. Ex. 103 to Franz Jan. 23, 2015 Decl. These are apparently all of the individuals who were working for the City of Cornelius Police Department at the time. Drake Depo. (Ex. 114 to Jan. 23, 2015 Franz Decl.) at 34 (Drake recalled that he sent the email to "[t]he entire police department").

In his email, addressed to Watts, Drake thanked Watts for delivering the Corruption Complaint and assured Watts that the matter would be taken seriously and fully investigated. Id. He noted that the City's law firm would retain the "Local Government Personnel Institute" (LGPI) to investigate the allegations. Ex. 103 to Franz Jan. 23, 2015 Decl. He explained that because the District Attorney's Office had already completed the investigation previously requested by Watts and uncovered "nothing criminal," the City would not be placing Rubenstein or Noffsinger on paid administrative leave as the Corruption Complaint had requested. Id. Drake stated that the City could not comment further on the substance of the Corruption Complaint until the investigation was complete. Id.

After Drake and City Council members received the Corruption Complaint, Watts gave the Corruption Complaint to Forest Grove Chief of Police Janie Schutz and, during the meetingin which Watts delivered the document to her, Watts indicated that the Corruption Complaint was going to be released to the media. Schutz Depo. (Ex. 115 to Jan. 23, 2015 Franz Decl.) at 5, 6, 14; S. Watts Depo. (Ex. 106 to Jan. 23, 2015 Franz Decl.) at 54. One of the signatories to the Corruption Complaint, Jansen, indicated that after the Corruption Complaint was given to the City, Monico contacted the West Bureau desk of the Oregonian about the Corruption Complaint. Jansen Depo. (Ex. 107 to Jan. 23, 2015 Franz Decl.) at 49-50; see also Monico Depo. (Ex. 108 to Jan. 23, 2015 Franz. Decl.) at 5, 16 (admitting he contacted the Oregonian and believing that it was before the November 2012 story appeared in that newspaper).

Other members of the City of Cornelius community received copies of the Corruption Complaint from signatories to that Complaint. E.g., Jansen Depo. (Ex. 107 to Jan. 23, 2015 Franz Decl.) at 18 (Jansen gave a copy to Greg Harper, a member of the COPCAB); Small Depo. (Ex. 109 to Jan. 23, 2015 Franz Decl.) at 14, 15 (Harper gave a copy to Small, another COPCAB member); see also id. at 13-14 (stating that a week or a week and one-half before October 16, 2012, Harper told Small that the Corruption Complaint was forthcoming).

On October 19, 2012, the following persons met at Small's house to discuss the Corruption Complaint: Watts, Jansen, Gerry Thompson, Billie Crowder, Harper, Small, Watts's wife Lisa, and Schuetz. Id. at 18. Following the meeting, Small set up a meeting with Drake for Monday, October 22, 2012. Id. at 20. On that date, Small, Thompson, Crowder, and Lisa Watts met with Drake and Roth. Id. at 21, 22.

In early November 2012, the City gave the Oregonian a copy of the Corruption Complaint in response to the newspaper's public records request. Drake Depo. (Ex. 114 to Jan. 23, 2015 Franz Decl.) at 33; Ex. 105 at 6. Both Plaintiffs knew that the Corruption Complaint was givento the Oregonian in early November 2012. Monico Depo. (Ex. 108 to Jan. 23, 2015 Franz Decl.) at 5; S. Watts Depo. (Ex. 106 to Jan. 23, 2015 Franz Decl.) at 65. Jansen, one of the signatories of the Corruption Complaint, wanted the Oregonian to "put pressure on the public officials who appeared to be covering up the matter" although he did not necessarily want the Oregonian to have the Corruption Complaint. Jansen Depo. (Ex. 107 to Jan. 23, 2015 Franz Decl.) at 50-51. Drake also gave a copy of the Corruption Complaint...