The Reporter covers Miller, Morgan and Camden County in Central Missouri's Lake of the Ozarks and is published once per week on Wednesdays.
Published July 11, 2018
Attorney claims lawsuit was filed in good faith
CAMDEN COUNTY – Jerry Kirksey, personal attorney for Camden County Clerk Rowland Todd, has responded to the recent filing by the attorney for the County Commissioners asking the court to make Todd pay their legal fees.
Kirksey says that the “Defendants must show evidence to support their Motion” and that “Defendants fail to do so”.
Todd was claiming the commissioners violated his First Amendment rights of Freedom of Speech because he spoke out against what he felt was the county wasting money in the hiring of a new Human Resources Administrator and also claims that Presiding Commissioner Greg Hasty publicly called him a thief in that he “stole records” from the Human Resource Department.
Todd was suing as an individual against the individual commissioners and not Camden County Clerk vs Camden County Commission.
Federal Judge Brian C. Wimes issued a 16 page ruling earlier in June in favor of the commissioners due to the decision that elected officials’ speech is not protected by the First Amendment and Todd’s letter sent to the press was not from him as an individual but from him as County Clerk.
In his recent filing the attorney for Presiding Commissioner Greg Hasty, Commissioner Beverly Thomas and Commissioner Don Williams (C. John Pleban) claimed that Todd knew his lawsuit was “Frivolous, Unreasonable and Groundless” and that one of the reasons he filed his suit is to help get re-elected to the office of County Clerk.
Kirksey denies the claims made by Pleban and that the commissioners knew it was an issue of free speech.
(Editor’s note: the use of the word “Facts” in the quotes in this article were stated by Kirksey in his filing).
“I. Facts: Defendants recognized the merit and good faith of Plaintiff’s lawsuit as evidenced by the fact that Defendants did not file a Motion to Dismiss or Motion for Judgment on the Pleadings as issues existed to be determined as to whether Todd’s letter of February 21st was ‘speech’ within the complex analysis of a 1st Amendment claim.
“Defendants clearly were aware of Todd’s letter was at issue as ‘speech’ for 1st Amendment analysis yet did not file a dispositive Motion to Dismiss or Motion for Judgment on the Pleadings. Why? Defendants acknowledged that a colorable issue existed contrary to the current motions assertion that Plaintiff’s claim was frivolous, unreasonable or groundless.”
Kirksey went on to argue that Todd’s letter was done in good faith as someone concerned about taxpayer dollars being wasted.
Todd sent a letter to the county commissioners on February 21, 2017 expressing his opinion that tax dollars were being wasted. A portion of his letter said:
“Taxpayer monies have been wasted. The first person hired for HR was paid $53,000.00. She now works fill time elsewhere, but is still being paid the same hourly salary as a consultant/part-time employee. A new HR person has been hired with pay of $36,000.00. A benefit coordinator has been hired (not needed for a county of our size) at a cost of $27,000.00. And now, given the recent failures of HR, it appears that payroll will be outsourced for an estimated annual cost of $80,000.00 or greater. All of these duties have previously been under the Clerk’s Office without having to waste the taxpayers monies as it is now occurring — a waste of $200,000.00 plus of taxpayer monies when considering salary and benefits.”
That letter, Kirksey claims, was a legitimate concern that Todd expressed.
“II. Facts: Under the facts known at the time, and potential analysis of existing law, Todd’s claims were in good faith and with merit as a citizen, and elected official of Camden County, who had expressed concerns of waste of taxpayer monies, inefficiencies and harm to county employees affecting the citizens of Camden County.”
He further states that Brianna Christensen was not in Todd’s department and he had no say in her pay or her employment so his letter was legitimate.
“Further support that Todd believed he was speaking out as a citizen is found in the admissions of Defendant Hasty that the Commissioners had sole oversight of HR, and that Brianne Christensen was an employee of the Commissioners and under their oversight.”
He then stated several facts to back up his claim.
• Brianne Christensen was not an employee of the Clerk’s office.
• Wages, benefits and salary of HR Christensen were under oversight of the Commissioners, not Rowland Todd in his capacity as Clerk.
• Any inefficiencies or harm that Brianne Christensen may or may not be causing was not any business of Rowland Todd in his capacity as Clerk.
• It was in the sole discretion of the Commissioners as to how much monies, wages or benefits were spent on HR Brianne Christensen, and not within the discretion of Todd.
• Defendants’ Answers to the Amended Petition and Second Amended Complaint admit that Todd was the Clerk of Camden County and Defendants were not the employer of Todd.
Kirksey also stated that Todd’s letter did find support in case law.
“The Eight Circuit has ‘generally have held that speech about the use of public funds touches upon a matter of public concern.’ Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th Cir. 1995) (a case cited by the Court in its Judgment). Speech that criticizes a public employer in his capacity as a public official also addresses matters of public concern. Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000) (a case cited by the Court in its Judgment).”
The filing also says that an elected official does have 1st amendment rights.
“The law also supported that Todd as an elected official as the clerk of Camden County was entitled to 1st Amendment rights free from retaliation. See Bond v. Floyd, 385 U.S. 116, 136–37, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), in which the Supreme Court established that elected officials are entitled to exercise their First Amendment rights free from retaliation.”
Other case law is stated in the filing by Kirksey claiming instances where courts have ruled that Defendants are limited as to when they can collect their fees from the plaintiff’s and that in this case they have no legal grounds for collecting the fees from Todd.
Another issue is the claim that the county has insurance which pays attorney fees in lawsuits.
“As set forth above, the motion should be denied. Notwithstanding, there exist issues as to the attorney fees claim of which plaintiff requests the opportunity to conduct discovery. On information and belief, there exists insurance which has paid attorney fees in this action. On information and belief, all attorney fees sought in the motion were and should have been through the insurance carrier. Plaintiff has sent a Sunshine Request asking for a complete copy of the invoices and payment for services by the County but as of this filing has not received a response.”
The filing ends with a request that if the judge agrees with the commissioners concerning the legal fees, then discovery is needed.
“Were the court to entertain Defendants argument, despite no showing or support, Plaintiff requests the opportunity to conduct discovery and that a hearing be held as to the claim for attorney fees. In addition to the above issues, discovery and inquiry would include a separation of those fees claims related to the 1st Amended claim against each defendant and those fees incurred to defend Hasty as an individual for the state law claim Defendant Hasty for defamation, a claim separate from the 1st Amendment claim...Defendants must show evidence to support their Motion. Defendants fail to do so.”
Kirksey ends his filing by claiming that Todd’s actions were: “filed in good faith – based on the facts known by Plaintiff and existing law.
Despite the ruling against Todd by the federal judge, the case is continuing.
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