Washington v. Burley

• Decision Date: 11 March 2013
• Docket Number: 3–12–41.,Civil Action Nos. 3–12–154
• Citation: 930 F.Supp.2d 790
• Parties: Russel WASHINGTON, Plaintiff, v. Ecomet BURLEY, et al., Defendants. Russel Washington, Plaintiff, v. La Marque ISD, Defendant.
• Court: U.S. District Court — Southern District of Texas

930 F.Supp.2d 790

Russel WASHINGTON, Plaintiff,

v.Ecomet BURLEY, et al., Defendants.

Russel Washington, Plaintiff,

v.La Marque ISD, Defendant.

Civil Action Nos. 3–12–154, 3–12–41.

United States District Court,

S.D. Texas,

Galveston Division.

March 11, 2013.

Chad C. Pinkerton, Christopher Chad Pinkerton, The Pinkerton Law Firm, PLLC, Houston, TX, Jose Luis Orihuela, Orihuela & Associates, PLLC, League City, TX, for Plaintiff.

Richard A. Morris, Paul A. Lamp, Rogers, Morris & Grover, L.L.P., Houston, TX, for Defendants.

MEMORANDUM AND ORDER

GREGG COSTA, District Judge.

Terminations of public employees often result in litigation. So do unsuccessful prosecutions. This case involves both situations: Plaintiff Russel Washington, the former Chief of Police of La Marque Independent School District (“LMISD”), was fired after he was indicted on charges that were later dismissed. The result is this consolidated lawsuit alleging an assortment of claims under the federal constitution, Texas common law, and Texas statutory law. Washington brings the claims against the school district, school district officials, and the former Galveston County District Attorney involved in his prosecution.

A number of dispositive motions are pending. Former District Attorney Kurt Sistrunk seeks dismissal from the case on immunity grounds. Washington and LMISD have both filed summary judgment motions seeking judgment as a matter of law on the procedural due process claim relating to the adequacy of the hearings that led to Washington's termination. LMISD also seeks summary judgment on Washington's Texas Open Meetings Act claim.

After reviewing the briefing, the pleadings and summary judgment evidence, and the controlling law, the Court makes the following determinations. Former District Attorney Kurt Sistrunk is entitled to absolute immunity. With respect to the proceduraldue process claim focused on the constitutionally required pretermination hearing, fact issues exist concerning whether the district afforded Washington an opportunity to be heard prior to his termination and whether the school board member who voted on his termination was biased. LMISD is entitled to summary judgment, however, on the due process claim related to Washington's post-termination hearing and on the Texas Open Meetings Act claim.

I. Background

A. Conflict Between Washington and LMISD Officials

Washington joined LMISD's police force in 1992 and became Chief in 1995, a position he held until his termination in March 2010.¹ According to Washington, all went well until Defendant Ecomet Burley became Superintendent of LMISD in December 2006. Washington alleges that Burley soon developed a “personal vendetta” against him and began looking for an excuse to have the Board terminate him. Docket Entry No. 3 at 8 n. 4. Washington's evidence shows that he and Burley clashed over a number of incidents between December 2006 and March 2010. These incidents ranged from minor quarrels, such as a disagreement over whether Washington had to wear his uniform on duty, to serious disputes, such as an incident regarding an audio recording of Washington accusing several Board members of accepting kickbacks from a contractor.

Three of the incidents are particularly relevant to the motions addressed in this Order. The first occurred in late 2007. That September, Washington forcibly restrained a student during an altercation at La Marque High School. Docket Entry Nos. 3 at 13 n. 16; 3–26 at 2–3. LMISD put Washington on paid administrative leave, and Washington was referred for criminal prosecution to Defendant Sistrunk, at that time the Galveston County District Attorney. Docket Entry No. 3–26 at 2, 4. Washington alleges that Burley personally referred him for prosecution. See Docket Entry No. 3 at 13 n. 16. The District Attorney's Office subsequently conducted an investigation and, in October 2007, presented criminal charges to a grand jury, which declined to indict Washington. Docket Entry No. 3–26 at 2. Washington then returned to his duties.

The second incident occurred in mid–2008. That April, Byron Williams, a former LMISD janitor who had been terminated and convicted of disorderly conduct after threatening the previous LMISD Superintendent, gave the Galveston Daily News an audio tape of a conversation with Washington that Williams had recorded in 2007. See Docket Entry No. 3–18 at 12, 16. On the tape, Washington apparently stated his belief that certain members of the Board, including Defendant Cynthia Bell–Malveaux, had received kickbacks from a private contractor affiliated with a 2002 construction bond referendum. See id. at 12–16.

In response to the ensuing public controversy, LMISD placed Washington on paid administrative leave in May 2008, and the Board discussed the issue at a closed meeting. Subsequently, in July 2008, Burley presented the Board with a formal recommendation to terminate Washington'semployment. However, “rather than fire Washington, the board of trustees voted to grant him a termination hearing on Aug. 6, during which he and school administrators [could] each present evidence. Board President [Defendant] Joe Cantu said the board wanted to afford Washington every opportunity for due process.” Docket Entry No. 3–18 at 12. After a two-day meeting, the Board voted to reject Burley's recommendation, and Washington returned to work. Docket Entry No. 3–26 at 4.

The final incident, which ultimately led to Washington's termination, occurred in late 2009. In early September of that year, the Galveston County District Attorney's Office began investigating Washington for allegedly providing false information on an application for a mechanic's lien on a vehicle. According to Washington, Burley himself reported the alleged crime to the District Attorney's Office. See Docket Entry No. 3–12 at 2.

B. Washington Is Placed on Paid Leave

On September 14, Defendant Rollie Ford, LMISD's Assistant Superintendent, sent Washington a letter placing him on paid administrative leave. The letter stated that Washington could “contact either Rollie Ford or Ecomet Burley if [he had] questions or concerns during this administrative leave.” Docket Entry No. 29–3 at 9. On September 29, Ford sent Washington another letter, this one stating, “Please respond to this letter with a written statement outlining your understanding of the allegations that have been made against you, along with your signature. I will need your written statement by October 4, 2009. Should you have any questions, please do not hesitate to contact me.” Docket Entry No. 29–3 at 12. On October 9, after Washington failed to respond, Ford wrote again, stating “I briefly spoke to you about this letter and the requirement ... last Friday, October 2, 2009.... Mr. Washington, again I am directing you to state in your words what you know and understand to be the facts concerning the allegations and ongoing investigation that led to your placement on administrative leave.” Docket Entry No. 29–3 at 14. On October 13, Washington responded through his attorney in a letter stating “[n]either Mr. Washington nor I have any specific knowledge of allegations being made against Mr. Washington at this time. Generally speaking, we have learned that the Galveston County Sheriff's Department is investigating an auto title incident in which Mr. Washington may or may not be implicated therein. Mr. Washington categorically denies any involvement in any criminal activity whatsoever.” Docket Entry No. 29–3 at 16.

C. Washington Is Indicted

The District Attorney's Office, allegedly through Sistrunk himself, presented evidence to a grand jury in December 2009, which returned an indictment against Washington for the felony of providing false information to obtain a vehicle title. This event was widely reported in the local media.

D. The Pretermination Hearing

On February 19, 2010, Ford wrote to Washington “as a professional courtesy to notify you that at the Board meeting on March 11, 2010, I will be recommending to the Board of Trustees that your employment contract be terminated due to your Indictment on criminal charges.” Docket Entry No. 29–3 at 26. The letter, which was signed by Ford alone, went on to state that “[i]f you want to know what your options are before this recommendation is officially made to the Board, please discuss those options with your legal representative. You may also schedule a meeting with Rollie Ford, if you would prefer. You may bring your representative to that meeting if you choose to do so.” Id. Ultimately, the recommendation to terminate was postponed for a Board meeting later in March.

On March 22, 2010, the Board publicly posted a notice and agenda for a meeting to be held on March 25, 2010. That agenda included a line item that read “Consider recommendation to propose the termination of the contract and employment of the LMISD Chief of Police.” Docket Entry No. 29–3 at 30. Washington admits that he received notice of the March 25 meeting on March 22, although the record is unclear whether he was personally informed by someone at LMISD or if he merely saw the public agenda.

The Board met as scheduled on March 25, 2010 to consider Burley's recommendation to terminate Washington's employment. Although the March 25 meeting was open to the public at Washington's request, no one except Burley, Ford, and the Board members was allowed to speak or give input. See Docket Entry No. 31–9 at 6. Burley and Ford presented the recommendation, and, after some discussion, the Board voted 4–3 in favor of accepting the recommendation and terminating Washington's employment.

E. The Post-termination Hearing

On March 30, 2010, Ford wrote Washington to inform him that he was “entitled to request a hearing before the Board of Trustees.” Docket Entry No. 29–3 at 32. Washington promptly requested a hearing, which was held on April 22, 2010. The relevant agenda line item for the meeting read “Termination hearing of La Marque ISD...