Myers v. City of Higland Village Texas
| Decision Date | 23 June 2003 |
| Docket Number | No. 4:02-CV-31.,No. 4:02-CV-36.,4:02-CV-31.,4:02-CV-36. |
| Citation | 269 F.Supp.2d 850 |
| Parties | Roger Howell MYERS, Plaintiff, v. CITY OF HIGHLAND VILLAGE, TEAS; Edward O'Bara, individually and as Chief of Police; and Conrad Bahr, IV, individually and as Captain of Police, Defendants. Kevin Ray Hall, Plaintiff, v. City of Highland Village, Texas; Edward O'Bara, individually and as Chief of Police; and Conrad Bahr, IV, individually and as Captain of Police, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
Jane Elizabeth Bishkin, Dallas, TX, for Plaintiffs.
Dennis J. Eichelbaum, Schwartz & Eichelbaum, Frisco, TX, for City of Highland Village, Texas.
Parker Douglas Young, Figari, Davenport, & Graves, LLP, Dallas, TX, Dennis J. Eichelbaum, Schwartz & Eichelbaum, Frisco, TX, for Edward O'Bara & Conrad Bahr, IV.
Defendants City of Highland Village (the "City") and Edward O'Bara ("O'Bara") have filed Motions for Summary Judgment (Docket Nos. 41 & 52).1 >Plaintiff Roger H. Myers ("Myers") has filed a Response (Docket Nos. 43, 60, & 68). For the foregoing reasons, the Court finds that Defendant's Motions for Summary Judgment should be DENIED.
Plaintiffs Kevin Hall ("Hall")2 and Myers were police officers with the City. Myers joined the Highland Village Police Department ("Police Department") as a police officer on December 19, 1995. On May 29, 2000, Myers was promoted to the rank of Sergeant with the Police Department. Prior to his promotion to Sergeant, Myers was disciplined for violations of the rules and regulations of the City and the Police Department on three separate occasions. After his promotion, he was disciplined for misconduct on six separate occasions.
In September 2001, Anthony Satriano ("Satriano"), a police officer, hired a local realtor named Fred Placke ("Placke") to assist him in purchasing a home because he did not have sufficient funds to contribute to the down payment. Placke offered to assist Satriano by giving him the necessary funds for his down payment. However, Placke, as real estate agent, was prohibited from giving the gift directly to Satriano. Accordingly, Placke looked for an organization by which he could donate the money and then the organization would then remit the money to Satriano's title company as the down payment.
Apparently, in October 2001, Placke approached Highland Village Police Department Chief of Police Edward O'Bara ("O'Bara") and asked his assistance in using the Highland Village Police Auxiliary ("Auxiliary") or some other organization as a vehicle for the down payment gift. O'Bara directed Placke to the Auxiliary. In late October 2001, O'Bara informed Susan Vaughn ("Vaughn"), the Auxiliary member in charge of the Auxiliary's bank account, that Placke was looking for an organization to donate a portion of his commission to Satriano and suggested the Auxiliary should be used for this purpose. Vaughn agreed and on November 9, 2001, Placke issued a check made payable to the Auxiliary to Vaughn. Subsequently, Vaughn deposited the check in the Auxiliary's bank account and obtained a certified check payable to Satriano's title company and gave the certified check to Placke. O'Bara vehemently denies that he was involved in the Satriano transaction.
The real estate transaction was completed on November 16, 2001. On November 19, 2001, O'Bara claimed to first learn of the Auxiliary's involvement in the Satriano transaction and notified the City's Human Resource Director. After much discussion between O'Bara, the Human Resource Director and the City Manager, Betty Webb ("Webb"), it was decided an investigation should be undertaken to determine whether city police violations occurred. It was further decided that Satriano should repay the gift to Placke because such a gift violated the gratuity provision of the City's ethics ordinance.
On the morning of November 21, 2001, O'Bara visited with Myers and informed him of the events surrounding the Satriano transaction. O'Bara denied involvement in the transaction. Myers grew suspicious of O'Bara's repeated denials. Immediately after speaking with O'Bara, Myers approached Sergeant Sherri Morrison who informed Myers that O'Bara had approved the use of the Auxiliary. Approximately one hour later, Myers was ordered by Captain Conrad Bahr3 to turn over the Highland Village Police Association ("Association") treasury funds to the City.4 Myers objected several times, but was told he would be subject to discipline if he did not comply. Over the next couple hours, Myers spoke to at least two other coworkers regarding the legality of the order to turn over the Association funds, including Hall. Myers then turned over the funds.5
Later, on November 21, 2001, Myers met with Hall at his home and informed him of the events regarding O'Bara and the Association funds. Myers further explained the details of the ethics investigation as related to him by O'Bara and his belief that O'Bara was being untruthful about his involvement in the Satriano transaction.
On November 23, 2001, Hall, while offduty, posted the following message on a community web site entitled, www.highlandvillage. com, anonymously under the pseudonym "Deep Blue:"6
Ethics violations within the police department are quickly being uncovered. Reports are that Chief O'Bara, a police officer, and the police auxiliary violated the City's Ethics Code. With the Chiefs approval, a large sum of money was funneled through a police auxiliary fund to a police officer as a gift. This money gift was to help the officer with the purchase of a new home. Now the Chief is attempting to cover-up these violations by having the officer take out a loan to reimburse the original donor.
On November 27, 2001, O'Bara terminated Hall's employment with the City of Highland Village Police Department for posting the message on the web site. On November 28, 2001, Myers was interviewed by the department regarding his involvement in the Internet posting. Myers admitted to informing Hall of the details of his conversation with O'Bara regarding the Satriano transaction and also admitted to questioning fellow officers regarding the legality of O'Bara's order to turn over the Association's funds to the City. Myers also stated that he did not intend for Hall to disseminate this information to the public. On December 13, 2001, O'Bara demoted Myers to the rank of Police Officer, imposed a disciplinary suspension of three days without pay and placed Myers on a one-year probationary period for discussing the legality of the order with co-workers as well as discussing ethical violations with Hall.
On December 14, 2001, Myers timely appealed his demotion and suspension to the City Manager's office pursuant to City policy. On January 16, 2002, a disciplinary hearing was held. The City Manager designated the City's Finance Director to hear the appeal as the City Manager was unavailable. On January 29, 2002, the City's Finance Director upheld Myer's demotion, suspension, and probation.
On June 29, 2002, more than six months after his demotion, Myers and fellow patrol officer, Stephanie Olssen, responded to a domestic disturbance call. Myers was senior officer on duty for that call. According to the offense report filed by Myers in connection with the domestic disturbance call, the suspect of the domestic abuse initially fled. Myers chased and drew his baton. The suspect stopped fleeing, calmed down, and returned to the house. The victim had visible injuries, but Myers did not make an arrest.7 Instead, he issued a citation for a Class C misdemeanor.
On July 8, 2002, the victim of the domestic disturbance completed a Formal Complaint form at the Police Department. She stated that she wished that her father, who had abused her in the past, be sentenced to "rehab and AA meetings." Due to this citizen's complaint, the Police Department initiated an internal investigation. There is a dispute as to whether O'Bara was involved in this investigation. The investigation concluded that Myers had violated the General Orders of the Police Department as well as certain provisions of the Texas Penal Code and Texas Code of Criminal Procedure for failing to arrest the suspect at the scene and charge him with a Class A misdemeanor. Based on this incident, as well as Myers' overall disciplinary history, the City terminated Myers' employment on November 19, 2002 almost four months after the incident. Myers appealed this decision to the City Manager and on January 27, 2003, the City Manager upheld Myers' termination.
Myers claims that between the time he was demoted, suspended and placed on a one-year performance probation on December 13, 2001, and time he was terminated on November 19, 2002, he was assigned by his supervisors to act as the "Senior Officer on Duty" 45 different times.8 Myers claims that he did not have sufficient evidence to arrest the suspect for a Class A misdemeanor.
As a result of these events, Myers filed a Second Amended Complaint against the City and O'Bara alleging that the City and O'Bara violated his free speech rights under the First and Fourteenth Amendments.9 Myers alleges that his demotion and suspension were in retaliation for his exercising protected speech. Pending before the Court is the Defendant's Motions for Summary Judgment, which, for the foregoing reasons, the Court DENIES.
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). An issue of material fact is genuine if the...
To continue reading
Request your trial