Police officers serve notice of impending lawsuit
Fuel is being added to the fire involving the Baldwin City Police Department with notice of complaint paperwork delivered to the city Friday by three police officers, with a fourth officer's complaint expected.
The notice of complaint is a precursor to a lawsuit. Cpl. Bill Dempsey and officers Charles Woolsencroft and Eric Garcia are claiming their first and 14th amendment rights were violated as a result of disciplinary and other actions taken by Mayor Ken Hayes, City Administrator Larry Paine and the City Council.
They are seeking compensation of $300,000 each. Adding the fourth officer, Chuck Hensley, whose claims are expected to be the same, brings the total sought to $1.2 million. Dempsey and Woolsencroft were suspended for a day, while Garcia received written a reprimand. Hensley was not disciplined.
The police situation had been quiet for almost two months. That changed with the complaints.
"We have received a notice of complaint from Dempsey, Woolsencroft and Garcia and they are stating because of the disciplinary process we went through that was concluded in mid January that they felt compelled to file the first steps in litigation that will cause further turmoil in the Baldwin City Police Department," said Paine. "It throws a little gas on the flame."
Dempsey, contacted in Texas where he is on vacation, said he didn't want the situation to go to litigation, but when the discipline was left after the appeals process, he felt he had no choice but to defend his reputation.
"It was dead, but it was simmering," said Dempsey. "Obviously, yes, we filed the complaint. This is a fire he could have put out a long time ago."
Dempsey says he met with Paine prior to the January council meeting when the final appeals were conducted. He told Paine that he had a taped conversation of the mayor that said the discipline was a matter of politics. Dempsey says he told Paine that if he would make the discipline go away for the entire force, the tape would not be released and there would be no lawsuit.
"I said 'Larry, this is what I've got. All I want you to do is drop this crap (discipline) and we'll move on.' I wouldn't say it was blackmail, because all I said was we would get an attorney," Dempsey said. "I thought it was noble of me because I didn't want it to go any further. I don't want to litigate."
Paine was not a part of the appeals process because he was the one that handed down the discipline. He made the mayor and council aware of Dempsey's offer, he said. He was also disturbed by the tape recording.
"The notice of complaint includes a transcript that one of the police officers made of Mayor Hayes without his knowledge," said Paine. "We're going to admit that Mayor Hayes made some embarrassing comments regarding the disciplinary process without his knowledge that it was being recorded.
"We are very disappointed that members of our police department are making recordings of conversations with various individuals, including elected officials," he said. "Who else are they recording? It's the Peggy Lee question 'is that all there is?'"
Dempsey said the only reason he made the tape was to protect himself. It was made Jan. 5 during an ice storm when Hayes called Dempsey, who was officer of the day, about concerns on Baldwin Hill north of town where three cars had slid off the road. After that discussion was finished, the conversation moved to the disciplinary action.
Among other items, the tape alleges that Hayes said the discipline was a "political decision." The tape also contains other references, including Hayes stating that his goal has been to remove Police Chief Steve Butell from office. The officers are referred to as "collateral damage." The authenticity of the tape is being checked.
"I was real torn about the tape," said Dempsey. "But I felt like he (Hayes) had betrayed me. The only reason I taped this was the last time I talked to him was last summer."
Dempsey and Woolsencroft first alerted Hayes, Paine and council members about a problem officer in June. That officer resigned shortly after. That's where the long process involving investigations into the department by the Kansas Highway Patrol, Kansas Bureau of Investigation and special counsel Mark Bennett began. It culminated in September when the council received the Bennett Report. Several months later the disciplinary action took place. The results of the report have never been released to the public.
The final appeal in that process was Jan. 9. Hayes' taped comments were made to Dempsey prior to the final appeal.
"A phone conversation between an officer and me was taped without my knowledge," said Hayes. "I said some things that were both embarrassing and humiliating for me and I'm sorry for that."
The next step in the possible lawsuit will be a 120-day period for the city to respond. A settlement could be made, but that's doubtful, officials say.
"This is in fact a notice that a lawsuit is eminent," said Paine. "I think we have by statute a number of days to respond to the notice of claim. At our next council meeting the first of April, the city attorney will advise the council what the next steps are and give his analysis of the case.
"In this notice, the officers are asking compensation of $300,000 each," he said. "We're basically talking about the equivalent of one day's pay, about $150, for $300,000."
City Attorney Bob Bezek said Monday night that the city would fight a lawsuit. After reviewing the notice closer, Bezek said Tuesday that the officers are claiming first amendment freedom of speech violation because of a memo from Paine directing them not to talk to city council members concerning the investigation and the 14th amendment claim involves due process with the appeals process. He said he sees no merit to a possible lawsuit.
"No, I really don't," said Bezek. "Frankly, I think the process was fair and they received due process. To my knowledge, the city's actions were lawful. We will look into it, but it's nothing I haven't seen before."
His biggest concern was the taping of the conversation with Hayes.
"That raises concerns with me," said Bezek. "I am concerned about a police officer taping the mayor without his knowledge. Even if it's legal, it troubles me that the public gets the idea that conversations are being taped.
"I find from a civil liberties standpoint, it's abhorrent," said Bezek.
Hayes also said the city would fight if it comes to a lawsuit.
"We're going to defend ourselves," said Hayes. "It's ridiculous for one day's pay."
Dempsey has the opposite stance on the merits of the possible lawsuit.
"I'm not really thinking we'll have a problem proving what we've claimed," said Dempsey. "I would have taken my day's suspension, but I didn't want it on my record. I didn't do anything wrong. I'm not rolling over. I'm not going to do it.
"We made the investment and we'll see what happens," he said.