Suits claim officers' First Amendment rights were violated

Suits filed recently in the Southwestern Division of the United States District Court's Western District of Missouri claims that the First Amendment rights of former police officers D.W. Osburn and Aaron Kent were violated in the events that transpired prior to their being fired from the Nevada Police Department.

The suit names city manager Craig Hubler and police chief Christine Keim as defendants, not the city of Nevada as originally reported via information gleaned from a press release from Hubler.

In a brief interview this morning, Hubler clarified his earlier statement that the city had been sued, when he and Keim are named specifically and the city is not, by stating, "There really is no difference." Hubler said that it relates to his and Keim's duties in their roles with the city, that they'll be represented by the city's attorneys. The difference, he said, is simply one of attorney's tactics.

Osburn's and Kent's attorney, Jay Kirksey of Bolivar, said that's because it's not the "city" that did so; but the suit is based on the actions of these two specifically named as defendants.

The suit on Osburn's behalf claims that after Osburn submitted a written memo to Keim in September, stating "concerns regarding issues of officer safety, the safety of citizens, morale, the leadership within the departments and other matters of public concern, which (Osburn) had a right and an obligation as a citizen to express his concerns under the First and Fourteenth Amendment … including concerns that unless things were changed within dispatch someone would get hurt or killed, that a severe lack of supervision and leadership hampered the effectiveness of the Police Department, the Nevada police department risked losing permission to use MULES … because of a certain citizen's access to the MULES system in violation of regulations and state laws as then understood by (Osburn)."

Osburn, the suit continues, continued to express these concerns and was advised that he and Cpl. Kent would be disciplined for the memo.

In November, the suit claims, Osburn wrote another memo asking to speak to city hall or city council. saying that during a meeting with Human Resources Director Whitney Davis, Police Captain Gary Herstein and Keim relating to the memo and other issues, Keim asked Davis and Herstien to leave the meeting and "threatened (Osburn) that if he expressed the concerns stated in the memo to the mayor, aldermen or representatives of the city, that (Osburn) would face termination, the suit says.

At this point, the suit notes that prior to Sept. 3, Osburn's personnel file contained no written reprimands or other "write-ups" concerning job performance, then claims that after Osburn communicated his concerns that the defendants and others retaliated by placing unjustified write-ups in his personnel file, demoting him from a night shift supervisor to the day shift, stripping him of his supervisory authorities, ordering his supervisor to monitor his actions and terminating his employment.

The city, however, has repeatedly maintained that the termination of his employment was related to the harassment of other employees.

In a Monday press release, Hubler said, "This litigation is completely without merit, and is a continuation of the harassment and intimidation that resulted in the termination of these individuals."

The release went on to say that the officers had "engaged in a course of conduct that was detrimental to Department operations, which included unfounded assertions against other personnel and concerning other internal personnel matters.

"In complaining about these internal issues, on occasion, these officers attempted to disguise them as public safety concerns. That they were not became evident to the Department upon investigation and further discussion with the officers.

"In the course of dealing with these internal issues, the Department became aware that these officers were both accusing other personnel of various performance issues and also conducting, or attempting to conduct, their own personal internal investigations about them. This was highly disruptive to operations, and detrimental to morale."

But the suit claims that this reason for firing the officers is a pretext, claiming that the notice of termination included specific wording from First Amendment precedent, which the suit claims shows that the city was "cognizant of their violations of the First Amendment and intentionally drafted the notice of termination in an attempt to avoid the consequences for these violations, defending the action by saying the officer's conduct "significantly interferes with the ability of the department personnel to properly perform their duties and with the operations of the police and communication record departments."

The suit also says the city claims that termination stemmed from a complaint made by a co-worker on Jan. 2, 2006, but the suit asserts that Hubler and Keim did not discuss Osburn's understanding of the facts or give him an opportunity to respond prior to his termination on March 2.

The suit further claims that even if Osburn's concerns would normally have been a basis for termination, they believe other employees had made reports determined as unfounded, misleading or exaggerated but were not terminated; and claims that Osburn had two days to respond to the complaint against him, whereas the city had had two months to investigate.

In a Monday press release, Hubler however, has stated that the officers "Prior to termination, both officers Osburn and Kent received notice of this possible action and were offered the opportunity to present a full response.

"Although the officers were specifically informed of their right under City Code to appeal this action to the Personnel Hearing Board, neither did so."

The officers, however, have maintained that they did offer a written appeal.

The suit puts forth the claim that the city's reason for termination as a violation of the harassment policy is not applicable.

The suit states that "The policy of harassment pertains to protected class categories such as race, gender, religion and other forms of harassment protected under state and federal law. The policy does not apply to legitimately stated concerns by (Osburn.)

Finally, the suit claims the defendants' actions were in retaliation of Osburn's protected speech, alleging violations of his Constitutional right to free speech and to due process, but does not ask the court for any Fourteenth Amendment.

Similar assertions are made throughout the suit filed on Kent's behalf, again asserting that Keim warned Kent to stop expressing concerns set forth in a September memo and later warned that if concerns in a November memo were expressed to city officials he would face termination.

Kent's suit also claims retaliation by "demoting (Kent) from a supervisory position to a non-supervisory position, changing his shift from night shift to day shift, termination, and "Other adverse actions which were a pervasive part and defacto conditions of (Kent's) employment."

Kent's suit also asserts that a specific reference to the September memo is "an admission that (Kent's) exercise of this 'first and Fourteenth Amendment Rights was a factor in the decision to terminate," and that a reference to a Feb. 2 memo "regarding his having been instructed to leave unsecured an unlocked business of a citizen of Nevada.

"Discharging (Kent) for taking a position that the building should not have been left unsecured is pretextual."

The suits seek monetary damages for back pay and benefits, including interest, and requests a trial by jury on the matter.