Ohlms et al v. City of Foley

Filing 29

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendant City of Foley, Missouri's Motion for Summary Judgment (ECF No. 18 ) is DENIED. Signed by District Judge Ronnie L. White on 06/05/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIC OHLMS, WILLIAM KARRAS,
and JOSHUA FOX,
Plaintiffs,
v.
CITY OF FOLEY, MISSOURI,
Defendant.

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No. 4:16-CV-213 RLW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant City of Foley, Missouri' s Motion for
Summary Judgment (ECF No. 18). This matter is fully briefed and ready for disposition.

BACKGROUND
Defendant City of Foley, Missouri (hereinafter the " City") has a population between 110
and 150 residents. (Defendant City of Foley, Missouri' s Statement of Uncontroverted Material
Facts in Support of its Motion for Summary Judgment ("DSUMF"), ECF No. 19, if2). The City's
government is comprised of a Mayor and a Board of Aldermen (the "Board").
Plaintiff Eric Ohlms became the City Clerk for the City on January 3, 2014. (DSUMF,
if8). Plaintiff Joshua Fox became a full time police officer for the City on April 24, 2014.
(DSUMF, if 10). Plaintiff Williams Karras became the Chief of Police for the City in September,
2014. (DSUMF, if9).
At the end of 2014, the auditor for the State of Missouri completed an audit of the City.
(Plaintiffs' Additional Statements of Uncontroverted Material Facts ("PASUMF"), ECF No. 22,
if28). The audit found that the City had not reimbursed to the State $290,000 from the revenue it

generated from the municipal court under a law known as "Mack' s Creek" . (Id.). The City had
no financial means to reimburse the State of Missouri for the $290,000. (PASUMF, ~29). The
Board blamed the city legal counsel for the advice to withhold the funds. (PASUMF, ~30).
In April 2015 , Keith Vertrees became the elected mayor of the City. (DSUMF,
PASUMF,

~31 ).

~4 ;

Mr. Vertrees asked for a police vehicle to drive, a police radio, and a duty

service number ("DSN") from the Lincoln County Sheriffs Department. (P ASUMF, ~31 ). As
Mayor, Vertrees had no authority to control the daily operations of the city administration or the
police department. (PASUMF, ~33). The city attorney, Jeff Robertson, told Mayor Vertrees that
as a mayor of a fourth class city he had no authority to control the city administration.
(PASUMF,

~33).

At the time of Mayor Vertrees' election, the Board consisted of 4 members:

Tory Cameron, Michael Baird, Keith Aubuchon, and Christine Higgenbotham. (DSUMF,

~5) .

Alderwoman Higgenbotham resigned in August of2015 . (DSUMF, ~6).
In June 2015 , Plaintiff Ohlms, Plaintiff Karras, and Plaintiff Fox warned the Board
president Tory Cameron and Alderman Michael Baird to stop violating the Sunshine Laws by
conducting city business in front of them and outside properly organized meetings. (P ASUMF,
~34).

Otherwise, Plaintiffs said they would contact the Attorney General' s Office to report them.

(Id.)

At the June 2015 meeting, the Board passed an ordinance prohibiting the public from
recording the open session meetings. (PASUMF,

~35) .

After that meeting, Plaintiffs told the

Board that this ordinance was unconstitutional for public meetings and could only apply to
executive sessions.

(PASUMF,

~35) .

The Board stopped inviting the city attorney Jeff

Robertson to the regularly scheduled board meetings, as well as special Board meetings.
(PASUMF, ~35).

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In late July 2015, Ohlms contacted the Missouri Attorney General' s Office and the
Missouri Municipal League regarding repeated Sunshine Law violations being committed by the
Mayor and the Board members. (PASUMF,

~36).

Karras and Fox also contacted the Attorney

General' s Office regarding the same Sunshine Law violations. (Id.) Each plaintiff made the
Mayor and the Board aware that they were contacted the Attorney General ' s Office.

(Id.)

Plaintiffs contacted the Attorney General's Office because the Board and the Mayor would
routinely conduct city business while visiting each other at their residences or in other social
settings. (PASUMF,

~37).

At the July 2015 board meeting, the Mayor and the Board discussed ways to increase
revenue for the City. (PASUMF,

~38).

The Mayor wanted the police department to issue more

tickets to generate more revenue, which the Plaintiffs believed violated Mack's Creek law.
Ohlms spoke and said that the problem was not the police department, but the Board and the
Mayor spending more money than the City generated. Karras told the Board, "We will not
police for profit, we will police for public safety." (Id.).
In 2005 Alderman Baird pled guilty to a class C felony. (DSUMF,
Alderman Baird ran for re-election to the Board. (DSUMF,

~12) .

~13).

In April 2015,

In August 2015, the Mayor

and the Board became aware of a new Missouri law that was to become effective on August 28,
2015 that disqualified anyone who had been found guilty or pleaded guilty to a felony from
qualifying as a candidate for elective public office. (DSUMF, ~14; PASUMF,

~39) .

At the time

the new law went into effect, Alderman Baird was not a candidate for the Board, since he had
won re-election in April 2015. (DSUMF,

~15).

Plaintiffs became aware that Alderman Baird

had a felony conviction, which Plaintiffs believed disqualified Baird from his position as an
alderman. (PASUMF,

~40).

Plaintiffs Karras and Fox conducted an investigation into whether

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Alderman Baird falsified his Declaration of Candidacy form and contacted the Lincoln County
Prosecuting Attorney's office to request that criminal charges be filed against Alderman Baird.
(DSUMF, ifl8). Plaintiff Fox alleged that the City attorney instructed him to file criminal
charges against Mayor Vertrees, Alderman Baird, and Alderman Aubuchon for interfering with
and disrupting a criminal investigation and prosecution. (DSUMF, if l 9).
In late August/early September 2015, the City received numerous citizen complaints
regarding Alderman Baird's prior felony conviction and its effect on his qualifications to serve
on the Board. (DSUMF, ifl7; PASUMF, if42). Between August 28 and September 2, 2015,
Plaintiffs collected six (6) citizen complaints, requesting that Alderman Baird be removed from
office. (PASUMF, if44). Plaintiffs claim that the Board and Mayor Vertrees were upset that
Plaintiffs gathered the citizen complaints. (PASUMF, if44).
On September 8, 2015, Plaintiffs were ordered by Mayor Vertrees to appear for a special
Board meeting on September 9, 2015. (PASUMF, if45). On September 9, 2015, the Board voted
to terminate the employment of Plaintiff Ohlms due to insubordination and failure to comply
with the directions from the Mayor and the Board. (DSUMF, if21). Plaintiff Ohlms' stated acts
of insubordination included refusing the direction of the Board to provide the Mayor with a debit
card for use in emergencies, refusing the Mayor' s directions to provide funds for hot dogs and
supplies for a youth league baseball game that had been authorized by the Board, refusing to
report to work when directed to by the Mayor, and making statements refusing to recognize the
Mayor's authority. (DSUMF, if22). On September 9, 2015, the Board voted to terminate the
employment of Plaintiff Fox due to his insubordination and failure to comply with the directions
given to him by the Mayor and Board.

(DSUMF, if23).

Plaintiff Fox' s stated acts of

insubordination included refusal to follow the directions of the Mayor and the Board with respect

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to patrol shifts, and office hours, and his refusal to follow instructions to supervise the morning
school bus stop and loading of children. (DSUMF, ~24). On October 8, 2015, the Board voted
to terminate the employment of Plaintiff Karras for insubordination and refusal to comply with
the directions given to him by the Mayor and Board. (DSUMF, ~25). Plaintiff Karras ' stated acts
of insubordination included refusing to follow the direction of the Mayor and the Board with
respect to patrol shifts and office hours, refusing to follow instructions to supervise the morning
bus stop and loading of children, and failing to produce a written policy and procedure manual as
directed by the Board. (DSUMF, ~26). The Board members and Mayor claim that they were not
aware that Plaintiff Ohlms made reports regarding potential Sunshine Law violations to the
Missouri Municipal League or the Missouri Attorney General ' s office at the time the Board
elected to terminate Plaintiff Ohlms' employment. The Board members and Mayor also claim
they were not aware of Plaintiff William Karras ' and Plaintiff Joshua Fox' s report to the Lincoln
County Prosecuting Attorney' s Office concerning Alderman Baird' s prior felony conviction at
the time the Board elected to terminate Plaintiff Karras ' and Plaintiff Fox' s employment.
(DSUMF, ~27). However, following Plaintiffs' discharges, board president Tory Cameron typed
a two (2) page letter regarding the discharge of Ohlms. (PASUMF,

~48).

Cameron stated that

Ohlms was discharged as an act of retaliation by Mayor Vertrees for Ohlms reporting the
Sunshine Law violations. Her letter concluded, "This is nothing more than a personal vendetta
and retaliation against Mr. Ohlms by Mayor Vertrees for bringing to the Board' s, the Missouri
Municipal League' s and Attorney General' s attention of various Sunshine Law Violations by
Mayor Vertrees." (PASUMF, ~48) .

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DISCUSSION
A. Motion for Summary Judgment Standard
The Court may grant a motion for summary judgment if "the pleadings, depositions,
answers to interrogatories, and admissions on file , together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031 , 1042 (8th Cir. 2011).

The substantive law

determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc. ,
477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex Corp. , 477 U.S. at 323 . Once the moving party discharges this burden, the nonmoving
party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of
material fact, not the "mere existence of some alleged factual dispute." Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Id.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court' s function is not to weigh the evidence but to
determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "'Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

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facts are jury functions, not those of a judge."' Torgerson, 643 F.3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods. , Inc., 530 U.S. 133, 150 (2000)).
B. Discussion
1. Speech Protected by First Amendment

"To establish a prima facie case of retaliatory termination, a plaintiff must both allege
and prove: (1) his speech was protected by the First Amendment; (2) the governmental employer
discharged him from employment; and (3) the protected speech was a ' substantial or motivating
factor in the defendant's decision to take the adverse employment action. "' Rynders v. Williams,
650 F.3d 1188, 1194 (8th Cir. 2011) (citing Davison v. City of Minneapolis, Minn. , 490 F.3d
648, 654- 55 (8th Cir. 2007)); see also Altonen v. City of Minneapolis , 487 F.3d 554, 559 (8th
Cir. 2007)." If this showing is made, the burden shifts to the employer to demonstrate that it
would have taken the same action regardless of her First Amendment activities." Rynders, 650
F.3d at 1194; Altonen, 487 F.3d at 559. "Speech is protected if it relates to a matter of public
concern; if this is shown, the court must then determine whether [the plaintiffs] First
Amendment interest outweighs any injury to the department's efficient operations." Altonen, 487
F.3d at 559 (citing Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir.1995); Pickering v.
Bd. of Educ., 391 U.S. 563 , 574, 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968)).
The City argues that Plaintiff Ohlms' statements are not entitled to First Amendment
protection. (ECF No. 20 at 4-5). Plaintiff Ohlms alleges that the City terminated his employment
in retaliation for Ohlms' reports to the Missouri Municipal League, the Missouri Attorney
General ' s Office, and to Plaintiffs Karras and Fox concerning potential Sunshine Law violations
by the City and/or Alderman Baird's prior felony conviction. The City argues that Ohlms' job
duties as the City Clerk included "maintaining a general understanding of and ensuring

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compliance with the Sunshine Law." (ECF No. 20 at 5). Thus, the City argues "any speech by
Plaintiff Ohlms concerning possible Sunshine Law violations, or Alderman Baird' s felony
conviction and its effect on his qualifications to sit on the Board, would fall within the scope of
Plaintiff Ohlms' official duties and responsibilities and would not comprise ' citizen speech'
entitled to First Amendment protection." (ECF No. 20 at 5).
The City further argues that Plaintiff Karras and Plaintiff Fox did not comment as citizens
on a matter of public concern. (ECF No. 20 at 5-7). Plaintiffs Karras and Fox alleged that the
City terminated their employment in retaliation for their reports to the Lincoln County
Prosecuting Attorney' s Office, asking for criminal charges against Alderman Baird. Karras and
Fox also alleged that Alderman Baird falsified his Declaration of Candidacy for the Board,
which is a Class D felony under Mo. Rev. Stat. §115.631. The City argues that Karras and Fox
went to the Lincoln County Prosecuting Attorney' s Office to ask that criminal charges be filed
against Alderman Baird. (ECF No. 20 at 7). Based upon this report, the City contends that its
attorney instructed Plaintiff Fox to "file for criminal charges" against Mayor Vertrees, Alderman
Baird, and Alderman Keith Aubuchon for interfering with a criminal investigation. (ECF No. 20
at 7). The City argues that Plaintiffs Karras and Fox' s report to the Lincoln County Prosecuting
Attorney's Office constitutes speech made pursuant to their official duties as police officers for
the City. Thus, the City argues that Plaintiffs Karras and Fox "were engaged in employee speech
and were not commenting as citizens on matters of public concern such that their speech would
be entitled to First Amendment protection." (ECF No. 20 at 7).
In response, Plaintiffs argue that they criticized the Board and Mayor Vertrees based
upon information they gained from their employment but not as part of their official duties.
(ECF No. 24 at 9). Plaintiffs note that city administrators and police officers do not routinely

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make Sunshine Law violation complaints regarding their employer as part of their official duties.
(ECF No. 24 at 9). Likewise, Plaintiffs argue that encouraging the removal of a public official is
uncommon, as is complaining about unconstitutional ordinances and unlawful employer
practices. (ECF No. 24 at 9). Unlike the cases cited by the City, 1 Plaintiffs argue that they did
not speak pursuant to their official duties. (ECF No. 24 at 9). Plaintiffs argue that there is
substantial evidence of Plaintiffs' protected speech in the affidavits of Plaintiffs and exhibits to
support their First Amendment claims. (ECF No. 24 at 9).
The Court cannot hold as a matter of law that Plaintiffs' actions and speech were
pursuant solely to Plaintiffs official duties. As the Supreme Court noted, in Lane v. Franks :
It would be antithetical to our jurisprudence to conclude that the very kind of
speech necessary to prosecute corruption by public officials- speech by public
employees regarding information learned through their employment- may never
form the basis for a First Amendment retaliation claim. Such a rule would place
public employees who witness corruption in an impossible position, tom between
the obligation to testify truthfully and the desire to avoid retaliation and keep their
jobs.

Lane v. Franks, 134 S. Ct. 2369, 2380, 189 L. Ed. 2d 312 (2014). Construing the record in a

light most favorable to Plaintiffs, the Court holds that a genuine issue of material fact exists as to
whether Plaintiffs were acting pursuant to their official duties when they reported the Board and
Mayor Vertrees' illegal acts. As noted, Plaintiffs reported various Sunshine Law violations and
Alderman Baird' s apparent disqualification from his position as a Board Member. Evidence
exists that Plaintiffs performed these acts outside of their public duties. For example, Plaintiffs
contacted the city attorney and created a form for citizens to make complaints against the
alderman. (ECF No. 22-2, ill 7; ECF No. 22-4, ill6). These acts were separate and apart from
the criminal prosecution by the police department. (ECF No. 22-2, ill 6; ECF No. 22-4, ill 5).
1

Garcetti v. Ceballos, 547 U.S. 410, 413 , 126 S. Ct. 1951 , 1955, 164 L. Ed. 2d 689 (2006) and
Buehrle v. City of O'Fallon, Mo., 695 F.3d 807, 809 (8th Cir. 2012).

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Further, the Court finds that the City has not presented evidence that Plaintiffs' reports to the
Missouri Attorney General ' s Office and the Missouri Municipal League regarding repeated
Sunshine Law violations committed by the Mayor and the Board members were made pursuant
to their official duties. Although Ohlms may have been required to have some knowledge of the
Sunshine laws, there is no allegation that reporting such violations, particularly to the Missouri
Attorney General ' s Office and the Missouri Municipal League, were part of his duties. The City
has not shown that Plaintiffs made these reports as part of their official chain of command.
Therefore, the Court holds that an issue of fact exists regarding whether Plaintiffs performed
their acts as part of their public duties.
2. City's Interests Outweighs Plaintiffs' Interests

Having found that Plaintiffs' comments touched upon matters of public concern, the
Court must balance Plaintiffs' free speech rights against the interests of the City. Kincade v. City
of Blue Springs, Mo., 64 F.3d 389, 397 (8th Cir. 1995); Pickering, 391 U.S. at 568. "[I]f the

possibility of a First Amendment claim has arisen, ' [the court] must ask whether [the employer]
has produced evidence to indicate the speech had an adverse impact on the efficiency of the
[employer's] operations. "' Hemminghaus v. Missouri, 756 F.3d 1100, 1111 (8th Cir. 2014)
(quoting Lindsey v. City of Orrick, Mo ., 491 F.3d 892, 900 (8th Cir. 2007)). Under the Pickering
balancing test, the Court must balance the interest of the plaintiffs, as citizens, "in commenting
upon matters of public concern [against] the interests of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees." Shands v. Kennett, 993
F.2d 1337, 1342 (8th Cir.1993) (quoting Pickering, 391 U.S. at 568); Sexton v. Martin , 210 F.3d
905 , 911 (8th Cir. 2000). "Factors relevant in conducting this test are whether the speech creates
disharmony in the workplace, impedes the speaker's ability to perform his duties or impairs

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working relationships with other employees." Kincade, 64 F.3d at 397; Hemminghaus, 756 F.3d
at 1112 (quoting Barnard v. Jackson Cnty., Mo., 43 F.3d 1218, 1224 (8th Cir. 1995)).

The City argues that Plaintiffs were fired for insubordination. (ECF No. 20 at 8). The
City argues that the Plaintiffs refused to follow directions from the Mayor and the Board, which
created conflict among City officials, Plaintiffs, and other City employees. (ECF No. 20 at 8).
The City contends that Plaintiffs' speech regarding potential Sunshine Law violations and
Alderman Baird' s prior felony only exacerbated this conflict. (ECF No 20 at 8-9). The City
notes that its small size requires harmonious relationships among employees and City officials in
order to effectively provide services to residents . The City further argues that the topics of
Plaintiffs' speech were publicly known prior to Plaintiffs making their speech. Therefore, the
City contends that little public interest was served by Plaintiffs ' speech, which was already
known to the public. Rather, the City claims that Plaintiffs' insubordination made it difficult for
the City to provide services to residents and outweighed the Plaintiffs' interests in commenting
on the Sunshine Law violations and/or Alderman Baird. (ECF No. 20 at 9).

In response, Plaintiffs contend that evidence of pretext precludes the Court from finding
that the City had a superior interest that outweighed Plaintiffs' First Amendment Rights. (ECF
No. 24 at 10-11). Plaintiffs note that Board of Alderman President Tory Cameron wrote a two
(2) page typed statement, which confirmed that Mayor Vertrees had no authority to control or
discipline Ohlms and that his discharge was in retaliation for his exercise of his free speech.
(ECF No. 24 at 10).

Plaintiffs assert that Karras and Fox "were discharged for the same

pretextual reason of insubordination." (ECF No. 24 at 11). Further, Plaintiffs maintain that the
City' s argument that its small size necessitates close and harmonious relationships is a
nonstarter. Plaintiffs note that there is no "small town exception" to the First Amendment.
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The Court holds, based upon the evidence currently before the Court, that the City' s
interests do not outweigh the Plaintiffs' First Amendment interests as a matter of law. The City
has identified the desire for "harmonious" relations as its interest that outweighs Plaintiffs' right
to speak and report violations. The Court finds the City' s purported interest in harmony to be
generic to every municipal conflict. In addition, the Court holds that Plaintiffs have provided
evidence that the City' s interest in harmonious relationships is mere pretext for the Board' s
retaliation against Plaintiffs. Plaintiffs provided the statement of Board President Tory Cameron,
who indicated that Ohlms was retaliated against based upon his criticisms of the Board and the
Mayor. Therefore, the Court holds that there is an issue of fact regarding whether the City' s
interests outweigh Plaintiffs' First Amendment rights and precludes entry of summary judgment.

3.

Plaintiffs' Speech Was Not The Motivating Factor.

The City argues that it is entitled to judgment as a matter of law because the
uncontroverted material facts demonstrate that neither the Board nor Mayor had knowledge of
Plaintiffs' speech at the time the Board elected to terminate Plaintiffs' employment. (ECF No.
20 at 9-10). The City claims that the Mayor and all Board members testified that they had no
knowledge of Plaintiffs' speech at the time Plaintiffs were terminated. (ECF No. 20 at 10). The
City asserts that Plaintiffs have not produced any direct or circumstantial evidence that the Board
or Mayor had knowledge of Plaintiffs' speech at the time they were terminated. Further, the City
claims that the record demonstrates that Plaintiffs were terminated for their insubordination.
Therefore, the City claims it is entitled to summary judgment because Plaintiffs' speech was not
the motivating factor behind the Board' s decision to terminate Plaintiffs. (ECF No. 20 at 10).

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Again, Plaintiffs respond with Board President Tory Cameron' s statement, which states
that the Board terminated Ohlms out of retaliation, as evidence that Plaintiffs' speech was the
motivating factor in the decision to terminate Plaintiffs' employment.

(ECF No. 24 at 11).

Plaintiffs state that Karras and Fox were also discharged for the same pretextual reasons as
Ohlms. Noting that the City never took Plaintiffs' depositions, Plaintiffs assert that the current
factual record, including affidavits and evidence, precludes entry of summary judgment.
The Court holds that an issue of fact exists regarding whether the Mayor and the Board
knew of Plaintiffs' speech at the time that they were terminated.

Board President Tory

Cameron' s statement that Ohlms' termination was motivated by retaliation provides support for a
finding that the Board knew of Plaintiffs' speech prior to their termination. (ECF No. 22-7).
Similarly, Plaintiffs' affidavits state that they told the Board that they had contacted the Attorney
General ' s Office in July 2015 regarding the Sunshine Law violations. (ECF No. 22-2, ~10 ; ECF
No. 22-3,

~1 O;

ECF No. 22-4,

~10).

The Court finds this evidence presents an issue of fact

regarding whether the Mayor and Board knew about Plaintiffs' speech at the time of their
termination. Therefore, the Court denies the City' s motion for summary judgment on this basis.
Accordingly,
IT IS HEREBY ORDERED that Defendant City of Foley, Missouri ' s Motion for

Summary Judgment (ECF No. 18) is DENIED.

Dated thisdctay of June, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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