Spencer v. City of Hendersonville

• Decision Date: 17 September 2020
• Docket Number: Case No. 3:19-cv-00983
• Citation: 487 F.Supp.3d 661
• Parties: Chris SPENCER, Plaintiff, v. CITY OF HENDERSONVILLE, Scotty Bush, in his official capacity as Fire Chief, and Paul Varble in his official capacity as Fire Marshall and in his individual capacity, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

487 F.Supp.3d 661

Chris SPENCER, Plaintiff,

v.CITY OF HENDERSONVILLE, Scotty Bush, in his official capacity as Fire Chief, and Paul Varble in his official capacity as Fire Marshall¹ and in his individual capacity, Defendants.

Case No. 3:19-cv-00983

United States District Court, M.D. Tennessee, Nashville Division.

Filed September 17, 2020

Kirk Lee Clements, Clements Law Firm, PLLC, Nashville, TN, for Plaintiff.

Cassandra M. Crane, Farrar & Bates, LLP, Nashville, TN, Hillary D. LeBeau, McGillivary Steele Elkin LLP, Washington, DC, for Defendants City of Hendersonville, Scotty Bush.

David Ricksecker, Hillary D. LeBeau, Pro Hac Vice, McGillivary Steele Elkin LLP, Washington, DC, Robert M. Burns, Samantha A. Foster, Howell & Fisher, PLLC, Nashville, TN, for Defendant Paul Varble.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Before the court are two Motions to Dismiss. (Doc. Nos. 39, 41.) For the reasons set forth herein, the court will grant both motions and dismiss this case in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND²

Plaintiff Chris Spencer is a political activist who lives in Hendersonville, Tennessee. The defendants are the City of Hendersonville ("City"); Scotty Bush, Chief of the Hendersonville Fire Department ("HFD"), sued in his official capacity only; and Fire Marshal Paul Varble, sued in both his individual and official capacities.

The City is an "aldermanic municipality," meaning that it is governed by a Board of Mayor and Aldermen ("BOMA"), consisting of an elected mayor and twelve elected aldermen, two from each of the City's six wards. Spencer decided to run for election as an alderman in Ward 5, running on a "small government, anti-corruption" platform, and his views in that regard were well known. (Doc. No. 36 ¶ 4.) He registered as a candidate on December 6, 2017 for the election to be held in November 2018 and began campaigning shortly thereafter.

He alleges that, upon learning of his candidacy, some of the City's "entrenched" "career politicians" immediately began strategizing about how to defeat him. Their tactics varied from "making derogatory comments about Spencer during BOMA meetings" to "making such comments on social media." (Id. ¶ 9.) In addition, the same contingent went looking for an opponent who could defeat him. "They" eventually settled on Jonathan Hayes, who, Spencer alleges, was "a known ally of the aforementioned government contingent" and advocates for tax increases. (Id. ¶ 10.) Hayes did not officially announce his candidacy until August 13, 2018, almost eight months after Spencer and just three months before the election.

According to Spencer, although there are others whose identity he does not know, two City officials and employees who opposed his candidacy were defendants Varble and Bush. While attending a BOMA meeting conducted at City Hall, which he attended in his official capacity while wearing his Fire Marshal uniform, "Varble told a citizen he would do anything to defeat Spencer as Spencer would be against pay raises for the HFD." (Id. ¶ 11.) The plaintiff alleges "[u]pon information and belief" that Bush agreed with this sentiment. (Id. ) At some point, Hayes sent a text to Bush and Varble to thank them "for the campaign efforts by firemen," to which Bush responded: "Glad its working for you" and "You got this." (Id. )

Bush and Varble were also advocates for new administrative offices and a new fire station for the HFD. The project was approved in 2017, but, due to the expense of the project and the City's difficulty in finding money to allocate to it, the project had not been built by the fall of 2018. Bush and Varble continued to advocate for the project, including by petitioning aldermen and by supporting candidates running for the office of alderman who, they believed, would support that project and pay raises for firemen as well. Hayes was one such candidate. Spencer, on the other hand, publicly took the position that he did not believe the City should allocate funds away from other projects, like paving, to pay for new HFD offices.

Spencer identifies Varble as the "primary actor" behind the plan to defeat Spencer "with the use of City resources and employees." (Id. ¶ 13.) Varble allegedly met with various individuals who were running for the first time or running for re-election as alderman, including Alderman Arlene Cunningham. Cunningham had been an alderman for many years and was seeking re-election. She "did not support Spencer and his small government agenda." (Id. ) On August 22, 2018, Varble contacted Cunningham to ask if he could "buy her lunch." (Id. ) He purportedly used a City telephone during business hours to make this call.

Varble and Cunningham allegedly met for lunch the next day. The plaintiff does not claim that this meeting took place during Varble's business hours or at a City facility. The plaintiff states that Varble "indicated" to Cunningham that fire department employees "were to be employed to campaign" for or against certain candidates who, Varble believed, would support the building of the new fire hall and pay raises for firemen. Varble allegedly also communicated his "disdain for Spencer" and his support for Hayes, who was running against Spencer. (Id. ¶ 14.) Cunningham made it clear that she supported Varble's pet projects and asked Varble if "the guys" could support her candidacy as well. Varble agreed, and Cunningham assured him he could count on her support for the HFD. The plaintiff alleges "[u]pon information and belief" that Varble "unlawfully coordinated an unlawful [sic] campaign effort using City firemen in their purported official capacities to support" Cunningham, Hayes, and other candidates (id. ¶ 15), in exchange for these candidates’ commitment to support projects beneficial to the HFD.

On August 21, 2018, the International Association of Fire Fighters, Local Chapter 3460 (the "local union" or "local firefighters’ union"), endorsed Hayes, and Hayes posted a photograph on his Facebook page of him with two firemen, both wearing shirts that read "Hendersonville Fire." (Id. ¶ 17.)

Spencer claims that Varble "coordinated an unlawful campaign effort to benefit Hayes." (Id. ) In particular, Varble allegedly "directed" this campaign using "his City phone and during business hours" and using his "City desk to maintain his calendar to document who would be campaigning at his direction." (Id. ¶ 18.) The plaintiff alleges that Varble used his "official position" to "coerce firemen to participate in the program" by approaching them "during business hours, wearing his official uniform [to] solicit their participation in his campaign efforts." (Id. ¶ 18.)

The plaintiff acknowledges that Varble himself had a constitutional right to "express his opinions and advocate for a particular candidate," but, he alleges, Varble "used his official position, while on duty and while on City property" to coordinate a campaign for Hayes and other candidates and against Spencer. (Id. ¶ 18.) Varble purportedly carried out this "unlawful campaign effort on Saturdays beginning on or about the first weekend in September," and continuing through election day, November 6, 2018. (Id. ¶ 19.) While most firemen campaigned during their days off, time sheets provided by the HFD show that some firemen may have campaigned while on duty.³

The campaigning firemen wore shirts that said "Hendersonville Fire," purportedly at Varble's direction. These were not official HFD shirts, however. Varble allegedly knew that the public could not tell the difference between the unofficial "Hendersonville Fire" shirts and officially issued uniform shirts and that potential voters would believe that the firemen were acting in their official capacity, even if they were off duty or campaigning in their capacity as union members. Varble directed the firemen to target houses with a pro-Spencer campaign sign in the yard and either instructed them to identify themselves as Hendersonville firemen or did not instruct them that it was mandatory to identify themselves as members of the local firefighters’ union. Spencer alleges that "multiple firemen," working on at least eight Saturdays, knocked on the door of every registered voter in Ward 5 and "essentially relayed to such voters that the [HFD] was officially supporting Hayes." (Id. ¶ 35.) Varble thus "unduly influence[d] the 2018 election by coercing and/or tricking firemen employed by the City to act with purported authority and thereby deceive citizens that the [HFD] was officially supporting certain candidates and opposing others." (Id. ¶ 21.)

The plaintiff further alleges that Varble's efforts were "directed by and/or ratified by City officials with final or policymaking authority," including Bush, who was "fully aware of the political campaign being orchestrated by Varble" and provided support and direction, either directly or indirectly. (Id. ¶ 22.) Some aldermen were aware of the project but took no effort to intervene or stop it.

The election was held on November 6, 2018. Spencer lost to Jonathan Hayes by 359 votes. (Id. ¶ 35.)

The plaintiff does not allege that he was aware of Varble's efforts to influence the outcome of the election prior to the election. Instead, he states that he "began exploring Varble's campaign efforts" after the election. (Id. ¶ 36.) He was told about Varble's commitment to defeat him, and he began to submit public records requests. These requests turned up the text messages between Varble and Cunningham and phone records showing that Varble communicated with Hayes during working hours. (Id. ) Spencer apparently asked Hendersonville Mayor Jamie Clary to investigate whether Varble had behaved inappropriately. (See id. ¶ 37.) He alleges that the mayor instructed Bush to perform an investigation into whether Varble's campaign efforts were unlawful. Bush claimed that he performed such an investigation. He provided a report to Mayor Clary on April 9, 2019 stating that it was his understanding of...