Appeals court favors officers

Published 10:06 am Thursday, August 2, 2018

A three-judge panel from the U.S. Court of Appeals has overturned portions of a judge’s ruling stemming from a lawsuit filed by officers at the Mocksville Police Department against the town, former Police Chief Robert Cook and former Town Manager Christine Bralley.

The appeals panel ruled that the defendants had violated the officers’ First Amendment rights. Also, the court disagreed with a ruling that the town’s insurance policy would pay $1 million to the three officers, but rather should pay $1 million to each officer.

The officers – Ken Hunter, Rick Donathan and Jerry Medlin – had complained to Bralley about what they considered inappropriate behavior for a police chief (Cook, now deceased) in 2011, but nothing was done. They then purchased a disposable phone and made the same complaint to the governor’s office.

The governor’s office sent an SBI agent to investigate, and the officers believed him to be a friend of Cook and did not answer calls from from that agent on the disposable phone.

The appeals court ruling, written by Judge James A. Wynn Jr., said that Bralley and Cook conducted their own investigation as to who made the claims, discovered it was Hunter, Medlin and Donathan, and consulted with then town attorney, Hank Van Hoy, whether they could be fired, and were told they could be fired. They were fired on Dec. 29, 2011, for “insubordination … attitude … conduct unbecoming an officer” and other reasons.

A little over a year later, the officers filed a lawsuit claiming their First Amendment rights had been violated. Following a nine-day trial, a jury sided with the officers on First Amendment and wrongful discharge claims. It awarded the officers $1.4 million in compensatory damages, and $60,000 punitive damages to be paid by Cook and Bralley. The officers were also awarded $2.6 million in front pay.

A judge changed that ruling in 2016 so the officers would receive $600,000 – about a fourth of what had been awarded by the jury.

About a year later, the U.S. District Court agreed that the officers should be paid $1 million, what it said was the limit of the town’s insurance through the Interlocal Risk Financing Fund of N.C.

In 2017, the district court’s final judgment held defendants liable for $1.9 million in compensatory damages and front pay, and that Cook and Bralley pay $10,000 each in punitive damages. It also limited the insurance coverage to $1 million total.

It was appealed.

The appeals court ruling includes several pages describing the extent to which the town waived its governmental immunity by purchasing the insurance, and the definition of the terms “related” and “interrelated” in the insurance policy.

The judges noted that the town fired each officer by separate letter, and for different reasons. That made it three wrongful acts, not one, they said, adding that the term “interrelated” had not be defined by the insurance carrier, therefore any ambiguity should go in favor of the plaintiffs.

The appeals court ruled that Bralley had final policymaking authority, and her actions may be fairly imputed to the town. It noted that the town had no written personnel policy or formal grievance procedure. The town, it said, had given Bralley “unconstrained authority” to determine all terms of employment.

The court ruled that “Bralley’s actions can be fairly attributed to the town.”

Appeals Court Judge Paul V. Niemeyer disagreed with the opinion that the officers should receive $1 million each per the insurance policy.

“A fair reading of the policy can only lead to the conclusion that the claims of the plaintiffs in this case amount to a single claim as defined in the policy, with a single $1 million limit,” Niemeyer wrote. “The three plaintiffs jointly made a telephone call to the governor’s office, and for that conduct, the three were fired in violation of the First Amendment.”

Hunter was near retirement at the time of his firing. Donathan is again a police officer with the town. The court ruled that the town did not have to hire Medlin back because of derogatory remarks he had posted online about the town.