Archive for Thursday, September 1, 2005

Police lawsuits lose at appeal, too

September 1, 2005

For the second time in a year, the judicial system has ruled in favor of the City of Baldwin City and against four former members of the Baldwin City Police Department who sued the city seeking $1 million for what they claimed were violations of their 1st and 14th amendment rights.

Last August, U.S. District Court Judge Carlos Murguia granted summary judgment as requested by the city in the lawsuit and dismissed it. Dennis Hawver, the Ozwakie attorney representing the former officers, filed an appeal with the 10th Circuit Court of Appeals in Denver.

Last week, the appeals court affirmed Murguia's decision and the lawsuits were again dismissed.

"We are pleased the 10th Circuit has upheld Judge Murguia's summary judgment ruling dismissing the plaintiffs' cases against the city," said City Administrator Jeff Dingman.

Hawver wasn't pleased. However, he doesn't plan another appeal.

"I'm kind of at the end of the line," said Hawver. "I don't agree with the court. All that is left is the Supreme Court and that costs a lot. We'll take what we've got. I don't agree with it. It says sit down and shut up.

"We're talking about a cop that was a danger to the community," he said. "I think my clients did the right thing and I'm proud of them. I'm proud to have represented them."

The lawsuits were filed in January 2003 by former officers Bill Dempsey, Eric Garcia, Chuck Hensley and Chuck Woolsencroft. They sought relief in excess of $75,000 apiece for what they claimed were violations of their 1st (freedom of speech) and 14th (due process) amendment rights.

Where the case began was in 2001 when the officers allege they made complaints to former Police Chief Steve Butell regarding the behavior of another officer, G.H. Rhea. Those complaints were ignored, they say, so two of the officers took the complaints to former Mayor Ken Hayes and former Councilman Ken Wagner. Hayes and Wagner then went to former City Administrator Larry Paine and former City Attorney Bob Bezek. The officer in question resigned within days over additional problems.

The 1st Amendment claim revolves around a memo given to all members of the police department to follow chain of command with their complaints and comments and not go to city council members directly. The memo reaffirmed city policy on the matter. The due process complaint alleged that the officers were not treated fairly through the grievance procedure which ultimately resulted in three days suspension for Butell and a day apiece for three of the officers and written reprimands for the others.

The disciplinary action actually resulted from an investigation into the department launched after the complaints were taken to Paine and Bezek. Mark Bennett was hired as an outside counsel to probe the department's structure, policies, etc., while possible criminal violations were investigated by the Kansas Bureau of Investigation and the Kansas Highway Patrol. The only violation found was misuse of the Triple I computer where background checks are made. The department was suspended from using Triple I checks for a month and attended training.

The suspensions and reprimands came from other areas of what became known as the "Bennett Report." Both the U.S. District Court and Court of Appeals found no evidence of 1st and 14th Amendment violations.

"I knew I was doing the right thing at the time," said Paine, the former city administrator who now is in Concordia. "We were right and that was it. In the end, it just goes to show if you do the job right, it works out in the long run. When you get into a process like that, it's sticky to make sure all the steps are done correctly.

"The system has shown that the steps we went through were correct," he said.

Bezek, who worked with Paine closely during the entire stretch of events and was still representing the city in the case when it was dismissed the second time, thinks the whole process worked as it should. He suggests reading the Circuit Court's findings at http://www.kscourts.org/ca10/cases/2005/08/04-3347.htm

"It actually has the information that you and others have been trying to find out," said Bezek. "That includes parts of the Bennett Report. There was a lot of conjecture about how unfair the punishment was, when, in fact, I think the decision shows that it was understated.

"The 10th Circuit Court went out of its way to show that with one of the disciplinary examples in a foot note," he said. "It's foot note 13."

The case also included, at one point, allegations that the disciplinary action was taken as a result of politics, specifically references made by former Mayor Hayes in a tape recording made by Dempsey without his knowledge. However, in both the District Court and Circuit Court rulings, it was made clear that the entire city council made the disciplinary decisions and Hayes didn't even get to vote. The mayor only votes in the case of a tie.

"To be fair, there are the plaintiffs' version of the facts, the defendants' version of the facts, the District Court's version of the facts and I think the 10th Court's version of the facts was most fair," said Bezek.

Hayes was pleased that the appeal was denied and confirmed the District Court's opinion that the city didn't do anything wrong.

"There's a certain feeling of vindication in that," said Hayes. "It's finally dead. I lived with it for 47 of my 48 months in office. I had no choice. I had to do what I did."

Bezek gives the lion's share of the credit in successfully defending the city to the actions taken by Paine from day one, despite political pressure at the time.

"Oh, absolutely," said Bezek. "If you were to look for unsung heroes, one would be Larry Paine. There was a lot of pressure put on him to fire people purely on political reasons and he didn't do that. He was fair.

"He couldn't do that without some help on the council and that would be (former council member) Marilyn Pearse," he said. "She made sure it was handled fairly."

Bezek had another "unsung" hero.

"Steve Butell," he said, "a real good man in a difficult position. Steve was one of the few people that acted as he was. He acted honorably and trusted a lot of people and it didn't work out."

He also doesn't put himself on the list and is concerned by the ramifications to the officers involved.

"I wouldn't put me in there," Bezek said of the list. "I can see how some would. Larry and I talked a lot.

"What bothers me was the plaintiffs didn't understand what filing a lawsuit against their employers would do to their careers," he said. "Once they filed the lawsuit, they would never wear a uniform elsewhere again. I don't know that they were told that. It's my impression they didn't understand it."

He also thinks it's important to move on. There has been a 100 percent turnover in the police department since the events started to unfold in 2001. There's a new city administrator, city attorney, police chief, police department, mayor and council members. Others agree with putting the past behind -- finally.

"I'm glad that it's over and a final decision has been reached and we can move on without the shadow of this hanging over our head," said Police Chief Mike McKenna.

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