Free Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Civil Action No. 04-cv-01149-RPM MICHAEL ANDREW DARR, Plaintiff, v. ROBERT NEWMYER; OUTLAW PRODUCTIONS, INC., a California corporation; TOWN OF TELLURIDE, COLORADO, Defendants. PLAINTIFF'S RESPONSE TO TOWN OF TELLURIDE'S MOTION FOR SUMMARY JUDGMENT AND BRIEF

Plaintiff Michael Andrew Darr ("Darr") responds as follows to the Defendant Town of Telluride's Motion for Summary Judgment and Brief. Plaintiff Darr respectfully requests the Court to deny the Motion for Summary Judgment, as he is entitled to fundamental rights of due process. I. INTRODUCTION In this case, Darr's employment as a deputy marshal for the Town of Telluride (the "Town") was terminated without legitimate cause and without affording him an opportunity to be heard violating his fundamental rights of procedural and substantive due process. The Town describes this case as simply about an employee who is unhappy with the decision to fire him. Indeed, this case is about the Town firing Darr, a deputy marshal who was doing his job, stripping Darr of a right to a hearing that was promised to him when he was hired,

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defaming him in the Town's media and in front of the community, and at the time he was fired, not giving him any chance to defend himself or clear his name. The Town's conduct and treatment of Darr deprived him of his constitutional rights and violated 42 U.S.C. § 1983. The Town's Motion for Summary Judgment (the "Motion") is based upon its assertion that Darr did not have a property or liberty interest deserving of due process protection, because he was an at-will employee. To the contrary, Darr had a legitimate property interest deserving of due process protection. At the time of Darr's hiring, the Town's employment policy was to provide an employee a pre-termination hearing and an appeal process. During Darr's employment, the Town eliminated both hearing processes without a legitimate basis and without proper notice that the Town intended to deprive its employees of their rights to due process. Also, despite the Town's assertion that Darr's employment was at-will, the custom and policy of the Town was to not fire deputy marshals except for cause. This custom and policy established an expectancy of continued employment. Because Darr had a property interest, he deserved a right to a hearing before he was fired. Darr also had a liberty interest in his good name and reputation which was deprived by the actions of the Town's Citizen's Advisory Board (the "Board"). The Board was created and governed by the Town Council and its policies, and its members were appointed by the Town Council. Members of the Board, particularly its Chairman, made defamatory comments about Darr at Board meetings in front of numerous members of the community, and to a Town newspaper and the Town radio. These statements impugned Darr's reputation, honesty and

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integrity and led to his termination. Contrary to Constitutional protections, Darr was denied an opportunity to defend himself or a hearing to clear his name. Finally, Darr was deprived of his right of substantive due process, because the decision to terminate him was arbitrary and capricious and was not based upon legitimate performance problems to warrant dismissal. Because the Town's Motion is baseless as a matter of law and wrong as a matter of fact, the Motion should be denied. II. UNDISPUTED MATERIAL FACTS A. The Town's Employment Policies 1. On December 22, 2001, the Town offered Plaintiff a position as a deputy marshal

with the Telluride Marshal's Office, which he accepted. 2. In the offer letter, Chief Marshal A. James Kolar ("Kolar") stated that Darr was

employed in accordance with the Town of Telluride Policies and Procedures. (Town's Exhibit A-11). 3. At the time that Darr accepted and began his employment with the Town, the

Town of Telluride Personnel Policies and Procedures adopted July 17, 1990 were in effect. (the "Original Policies"). (Exhibit 1). The Original Policies contained the following applicable provisions: a. Article 4.2.1: "A full time employee is any employee occupying an

appointed position which the standard work week is 40 hours." b. Article 4.2.2: "Probationary period: six months, which may be extended by the supervisor for up to an additional six months. The purpose of the

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probationary period is to determine his/her ability to perform the job duties." c. Article 5.2.1: "Each new full-time, part-time, transfer or promotional employee shall have a probationary status for a minimum of six months. At the end of the six months, an evaluation will be completed. Based upon the evaluation and the recommendation of supervisor, and upon approval of the Town Manager, an employee may be appointed to the position, granted a merit increase, or placed on an extended probation of up to an additional six months, or placed on disciplinary probation, or dismissed." d. Articles 11.1, 11.2 and 11.4 set forth specific conduct which may subject the employee to "Adverse Actions" and types of discipline, in order of severity, such as written reprimand, probation, suspension and dismissal. e. Article 11.4.d: "Dismissal. Dismissal shall take place upon the formal written order of the supervisor with the approval of the Town Manager. The written order shall detail the nature and severity of the conduct or infraction, and any other factor related to the dismissal. A Notice of Intent to Dismiss or a brief statement of grounds, and notice of an opportunity for the employee to first be heard, shall be served on the employee at least two working days prior to the effective date of the dismissal. The hearing shall be conducted by the Town Manager and

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shall be closed to the public.

The employee shall be afforded

fundamental procedural due process rights, including the right to present evidence and to call and cross-examine witnesses. The Town Manager shall issue a written decision on the proposed dismissal prior to its effective date." (emphasis added) f. Article 12 Grievance and Appeal Procedures. Article 12.1 establishes a Grievance and Appeal Board. Article 12.2: Grievance Procedure: "An employee may follow the grievance procedure when questioning the interpretation and/or application of any of the policies, rules or regulations covered in the personnel policies." An employee is provided an

opportunity to file a written appeal and an opportunity for a hearing that may include evidence and testimony. The Grievance and Appeal Board is required to render a written decision based upon the majority vote. The Town Manager shall consider any Grievance and Appeal Board recommendation in making a final decision. (Exhibit 1, Original Policies). 4. There is no statement in Kolar's offer of employment or the Original Policies

provided to Darr at the time of his employment that his employment was "at-will". 5. After Darr accepted employment with the Town, and after he completed his

probationary period and became a full-time Town employee, the Town drafted an entirely new Personnel Policies and Procedures Manual, which was adopted by resolution on July 23, 2002. (the "New Policies") ( Town's Exhibit A-3).

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6.

In the New Policies, the Town proclaimed that employment was "at-will". (The

Town's Brief highlights those portions in the New Policies). 7. The New Policies eliminated the procedure and hearing process afforded to the

employees in the Original Policies provided to Darr at the time he became employed. This "dismissal" provision in the New Policies stated as follows: "Employment with the Town is terminable at-will. Any employee may be discharged with or without cause at the sole discretion of and upon notice from the Town Manager. In most cases, however, dismissal will occur upon a written notice of dismissal served by the supervisor, effective on the date of issuance, detailing the circumstances prompting the disciplinary action and signed by the department head and the Town Manager." 8. The New Policies eliminated in its entirety the grievance and appeal procedure

provided in Article 12 of the Original Policies provided to Darr at the time he became employed. 9. The New Policies provided for an "exit interview".

"The purpose of an exit interview is two-fold: (a) to provide information to the employee regarding benefit options on separation; (b) to offer an opportunity for the employee to provide comments or suggestions regarding employment with the Town." 10. While he was employed, Darr understood that he had a right to a hearing or a

substantiation of disciplinary action even though the New Policies indicated that the employee could be terminated with or without cause, a statement of reasons or a hearing. (Exhibit 2, Darr Deposition, p. 44, l. 23-25; p. 45, l. 1-9). When the polices were changed, Darr was not given notice that the New Policies eliminated his right to a hearing upon termination and eliminated any appeal process. He relied on the promises in the Original Policies affording him a right of due process. (Exhibit 3, Darr's Affidavit).

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11.

The New Policies retained the provisions that identified specific conduct that may

subject the employee to discipline. The types of discipline were again set forth in the order of severity. Darr understood that he would be provided discipline in the order in which it was provided in both the Original and New Policies of an oral warning, written reprimand, demotion, suspensions without pay and dismissal. He did not understand the new statement in the New Policies that the Town does not have a policy of progressive discipline. (See Exhibit 2, Darr Deposition, p. 91, l. 3-25). 12. Steve Ferris, the Town Manager at the time the New Policies were drafted and

adopted, admitted that the dismissal and appeal procedure provided in the Original Polices had been intentionally removed. As a basis for removing the procedural due process, Mr. Ferris indicated that the termination hearing cost the Town "a lot of money". The Town had to hire an attorney for a day, and he, as the Town Manager, had to sit through a hearing listening to all the evidence from the employee as to why the termination occurred. Mr. Ferris deemed it "a little procedural overkill". (Exhibit 4, Ferris Deposition, p. 129, l. 3-25 and page 130, l. 1-21). At the time the New Policies were being discussed, the only procedure provided to an employee who was terminated was "possible resource in the courts". ( Exhibit 4, p. 133, l. 3-8). Mr. Ferris specifically indicated that he was not aware of any process or policy or procedure provided by the Town that would allow Darr to appeal a termination decision. (Exhibit 4, p. 96, l. 1-7). 13. Jay Harrington, the Town Manager at the time of Darr's termination, also

confirmed that there was no appeals process or a post-termination hearing for a terminated employee. (Exhibit 5, Harrington Deposition, p. 32, l. 21-25; p. 33, l. 1-4, p. 58, l. 17-19.).

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14.

The Town's Motion indicated that the "exit interview" would constitute due

process. The "exit interview" is not an opportunity for an employee to provide facts and evidence which would contradict the basis for termination. There is no written policy of the Town that provides for a post-termination hearing in which an employee is given an opportunity to present his side prior to termination. There is also no rule of the Town to allow an opportunity for an employee to confront or cross-examine individuals who have complaints that may have led to the termination. (See Exhibit 5, p. 59, l. 5-18). 15. The Town's own expert said she would recommend to the Town to implement

into their Policies and Procedures an opportunity to allow the employee to "go in and present their side". (Exhibit 6, Wamsley Deposition, p. 29, l. 3-22). 16. Darr was not provided any opportunity to be heard and defend himself against the

allegations which were the alleged basis for his termination and was not provided an opportunity to defend his character. (Exhibit 2, Darr Deposition, p. 156, l. 17-19 and p. 158, l. 9-10). (Exhibit 5, Harrington Deposition, p. 32, l. 17-20). 17. The Town Manager is the final decision maker in terms of supervising Town

employees. With respect to the supervision of the Marshal's Department, it has been delegated by the Town Manager to the Chief Marshal. (Exhibit 5, Harrington Deposition, p. 8, l. 1722and p. 7, l. 7-13). 18. In managing the Town's Marshal's Department, Kolar stated, "Every person that

I've fired [5 individuals] I thought there was some type of cause or reason. If I didn't believe there was, I wouldn't have terminated them." (Exhibit 7, Kolar Deposition, p. 125, l. 10-17).

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"In the actions I've taken to dismiss people or terminate them, I think I've had cause based upon whatever variety of performance issues have been raised over their tenure." (Id., p. 127, l. 1316). 19. Town Manager Harrington also agreed that it was consistent with Kolar's

management of the Marshal's Department to not terminate any marshal without any reason. (Exhibit 5, p. 57, l. 15-17). Harrington had delegated his authority to Kolar to make these decisions. (Id., l. 18-23). B. Darr Was Satisfactorily Performing His Job as a Deputy Marshal. 1. During Darr's probationary period, he was required to complete field training, in

which he was supervised by field training officers. Darr's field training occurred from December 29, 2001 through February 17, 2002. During that time frame, Darr's supervising officers

commended him on his performance in numerous respects. a. December 29, 2001: "Andy dealt with a RP that was unbelievably rude and arrogant ­ even by Telluride standards. Andy did well with this obnoxious, rude individual." The same officer made similar observations on December 30, 2001. b. January 6, 2002: "Andy did an exceptional job interviewing a suicidal juvenile female. He established trust and good rapport within minutes of meeting her." c. January 8, 2002: "Andy's position and attitude showed good basic officer safety principles."

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d.

January 12, 2002: "Andy had occasion to contact an irrational, delusional 10-96 female and did well in his interview with her."

e.

January 21, 2002: "In patrolling with Andy today, it was obvious that he knows quite a number of citizens already, many of them from outlying communities. Andy is courteous and friendly and I think these contacts will prove to be an asset as he goes about his work."

f.

January 22, 2002: "Andy is good at matching appropriate action with a given incident." Similar comments were made about Darr on January 28, 2002.

g.

February 10, 2002: "Andy handled a traffic stop with a difficult subject very well. He kept calm."

h.

February 12, 2002: "Throughout this phase, Andy has been an involved as an active trainee. He solicits constructive criticism of me about his He has

performance, has never been rationalizing or argumentative.

always accepted criticism in a positive way and has used that criticism to constantly improve." (Exhibit 8, FTO Evaluations). 2. In a formal bi-weekly evaluation by his field training officer on January 30, 2002, it

was again noted that Darr did not have any significant weaknesses and that he has an ability to match appropriate resolutions with given problems and situations. "He is flexible in his thinking and uses a variety of methods to ensure compliance while maintaining good relations with suspects, offenders, contacts, etc." (See Exhibit 9).

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3.

In his formal bi-weekly evaluation on February 13, 2002, the field training officer

again noted, "Andy does a superior job while out in the field. He is very much at ease among the citizenry and has an impressive ability to match solutions to a given problem. . . . Andy has an excellent rapport with fellow citizens and with other members of the TMO staff. . . No significant weaknesses to report." There was also a recommendation that the field training time for Darr be shortened, as a result of his progress. (Exhibit 10). 4. In his formal, bi-weekly evaluation on February 28, 2002, Sergeant Terry Andy has

Merriman stated, "Andy is also able to be pro-active without making waves.

demonstrated an excellent ability to sell his actions with both the difficult and less than difficult night shift contact with citizens in this jurisdiction." Again, no significant weaknesses were noted. Sergeant Merriman also indicated that, "I feel that Andy is going to be an asset to both the citizens of Telluride and our department." (See Exhibit 11). 5. On August 13, 2002, Darr received his only official employee performance

evaluation by Chief Kolar. Chief Kolar noted that "Darr displayed good interpersonal skills, gets along well with his peers and exhibits an effective and appropriate demeanor in his dealings with people." Chief Kolar also noted that Darr himself initiated activity that resulted in a number of quality arrests and he led the department in the number of controlled substance cases that had been investigated in that time frame. Chief Kolar also indicated several examples of

commendatory performance and stated, "Overall, I have been pleased by Andy's performance and encourage him to keep up the good work." The evaluation was signed by Chief Kolar on October 16, 2002. (See Exhibit 12).

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6.

On October 7, 2002, Chief Kolar issued a specific memorandum concerning

commendatory performance regarding a controlled substance arrest. Chief Kolar congratulated Darr on his self-initiated activity and investigative skills. (Exhibit 13). 7. Chief Kolar admitted that Darr was the most knowledgeable officer about narcotic

operations, undercover activities and what to look for with regard to narcotic trafficking. (Exhibit 7, Kolar Deposition, p. 117, l. 14-18). C. The Town's Citizen's Advisory Board 1. The Colorado Association of Chiefs of Police conducted an operational

assessment of the Marshal's Department in the spring of 2001 and issued a report recommending that a Citizen's Advisory Board be established to promote a community policing model for the community. In the Town Council meeting of January 7, 2003, the Town Manager approved of the creation of the Citizen's Advisory Board "to improve the effectiveness of the police services in the community". The creation of the Board was discussed in a work session of the Town Council on June 18, 2002. The Citizen's Advisory Board was to consist of eight members including

Town Council representatives and various members of the community. (Exhibit 14). 2. On January 21, 2003, the Town Council reviewed the Council's resolution

creating the Citizen's Advisory Board and reviewed applications for appointment to the Board. The Town Council advertised in the local newspaper for applicants for appointment by the Council to the Board. (Exhibit 15). 3. The Town Council approved the resolution to establish the Citizen's Advisory

Board on January 21, 2003. The resolution determined how many board members would serve at

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the pleasure of the Council and that at least one board member was to be a Town Council member. The Town Council charged the appointees with creating a charter for the Board which would be approved by the Council. (Exhibit 16). 4. According to Steve Ferris, the Town Manager at the time the Board was

established, the Town Council had authority to instruct and supervise the Board and had the authority to adopt and pass the charter that was governing the objectives and conduct of the Board. (Exhibit 4, Ferris Deposition, p. 26, l. 5-12). 5. At the Town Council meeting, when the members of Board were appointed, the

Town Council, prior to the Board's first meeting, did not provide any guidance or instruction at the meeting. There was no guidance as to how to operate the meetings, no guidance as to the subject matter of the meetings, and no guidance as to whether the Board was to address personnel issues and deputy marshals by name at the meetings. At this Town Council meeting, Robert Beer ("Beer") was appointed as the Chairman of the Board. Deposition, p. 20, l. 4-25; p. 22, l. 9-25). 2003. 6. John Steel, the Mayor at the time of the creation of the Board, also admitted that (Exhibit 17, Beer

The first meeting of the Board was February 12,

the Town Council did not provide any instruction or guidance about the responsibilities of the Board. Steel stated that the Board had no procedures and no instruction. About the Board, he stated that, "It was a loose ship. It was just floating free." (Exhibit 18, Steel Deposition, p. 60, l. 24-25; p. 61, l. 1-17; p. 62, l. 1-5). Steel admitted that the Board did not know what they were doing, and the Town Council should have insisted on rules and regulations. (Exhibit 18, p. 61,

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l. 16-17; p. 62, l. 6-15). In addition, the Board was not warned that they were not to discuss personnel issues at the Board meetings. Deposition, p. 20, l. 22-25). 7. At the second meeting of the Board on February 25, 2003, with 30-40 people in (Exhibit 18, p. 64, l. 20-24; Exhibit 17, Beer

attendance, including Darr, Beer publicly read from a letter he had received from a bar owner. (Exhibit 17, Beer Deposition, p. 30). The allegations Beer read from the letter specifically named Darr and were negative and critical about him. (Exhibit 17, p. 45, l. 15-19). The letter attacked Darr's reputation, honor and integrity. Beer stated that Darr had left his previous employment under suspicious circumstances, that he had improperly displayed a handgun at a golf course, and that he had "poached" or stolen a game of golf. (Exhibit 3, Darr Affidavit) Beer read from the letter of a disgruntled bar owner, who had been the subject of liquor law violations, and Beer did not know the validity or reliability of the allegations. (Exhibit 17, p. 33, l. 3-4). Again, prior to stating the allegations against Darr, Beer had not been informed by the Town Council that it was not appropriate to specifically mention a deputy marshal in the meetings. (Id., p. 33, l. 22-25 and p. 34, l. 1-5). 8. Darr requested a copy of the letter from which Beer read, but Beer refused to

provide it to him. (Exhibit 19). Darr was never allowed to respond to the allegations . 9. Even though the Board was once advised by Kolar that they were not to discuss

deputy marshals by name, specific incidents involving Darr were discussed, and it was obvious that the discussion was about Darr. In a town newspaper, the "Telluride Watch", the newspaper specifically stated,

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"Although everyone in the room presumably knew the name of the deputy marshal in most incidents reported to the Advisory Board by irate citizens, that name was not spoken. But no nighttime officer has ever been so implicated, sometimes wrongly, and oftentimes by hearsay, and incidents involving second and third hand reports of misbehavior as has Narcotics Officer Michael Andy Darr." In the article, identified as the "Board Chair Bob Beer", he stated, "All the time in stories about possible police misbehavior, the name of one officer comes up and that one person has to be dealt with." (Exhibit 20). He was specifically referring to Andy Darr. (Exhibit 17, Beer Deposition, p. 74, l. 1-5). Mr. Beer also wrote a letter to the editor identifying himself as the chairman of the "Telluride Marshal's Advisory Committee", and the letter was entitled "A Few Bad Apples Can Spoil the Barrel". This letter discussed criticisms of Beer about the marshal's department (See Exhibit 21). 10. After the Board had been meeting twice a month from February through July

2003, the Town Council drafted and adopted the Citizen's Advisory Board Mission Statement and Charter. The Town Council provided specific input as to the language in the Charter. (Exhibit 22, p. 4, paragraph 4-e). (Draft of Charter, Exhibit 23). 11. As reflected in the final Charter adopted by the Town Council, the Town Council

determined the Mission Statement of the Board, and its objectives, which included making recommendations to the Town Manager, Town Council and Chief Marshal concerning police policies. The Town Council also determined the general structure of the Board, which included that the Town Council would select appointments to the Board by majority vote. The Town Council also stated that, "All members of the Citizen's Advisory Board serve at the pleasure of Town Council and agreed to serve for a one year commitment. Town Council may remove

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members with good cause." One member of the Town Council was to serve on the Board and act as a liaison to the Town Council. (Exhibit 24). 12. Chairman Beer understood that the Board was a committee of the Town.

(Exhibit 17, p. 26, l. 1-3). The Defendants admitted in their brief that, "As a matter of law, CAB members are policy members capable of implicating a liberty interest under Section 1983." (Brief, page 20, last sentence). 13. The members of the Board were governed by the Town of Telluride's Ethics Code.

(Exhibit 25). The Town Attorney also agreed that the conflicts of interest provisions of the Ethics Code applied to member of the Board as "Town officials". (Exhibit 26). D. Darr's Termination 1. On December 21, 2002, Plaintiff arrested Defendant Robert Newmyer

("Newmyer") for speeding, marijuana possession and driving while under the influence. Newmyer pled guilty to speeding and marijuana possession as part of the plea negotiation.1 2. On June 11, 2003, nearly eight months after his arrest, Newmyer sent a written

complaint to Chief Kolar regarding circumstances surrounding his arrest. He also sent the same letter to numerous Town officials and the local press. In his complaint, Newmyer complained that Darr intentionally omitted facts from his arrest report, that Darr had lied on his report, and that Darr's testimony at the pre-trial hearing was substantially different than his written report.

A complete summary of the facts concerning Newmyer's arrest has been provided in the Plaintiff's Response to Newmyer's Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment Concering Newmyer's Counterclaims.
1

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3.

During this same time frame, Newmyer had two to five telephone conversations

and one to two meetings with Citizen's Advisory Board Chairman Beer. He had indicated that Beer was supportive of his complaints. (See Exhibit 27, Newmyer Deposition, p. 96, l. 8-12; p. 98, l. 10-16). Newmyer's motivation for these contacts with Beer, Kolar and the press was to get Darr fired. (Id., p. 107, l. 14). 4. Chief Kolar completed an Internal Affairs Investigation concerning the (Town's Exhibit A-20). Kolar investigated the allegations of

complaints by Newmyer.

misconduct in violation of the Marshal's Department Rule and Regulations concerning Rule 303 ­ Truthfulness, Rule 305 ­ Public Trust and Rule 306 ­ Public Authority. At the conclusion of his investigation, Kolar did not find a violation of any of these Marshal's Department Rules in connection with the arrest of Newmyer. In his conclusions, Kolar agreed that the events and timing of the events were consistent with Darr's police report. 5. In response to all of the complaints by Newmyer, Kolar determined that Darr had

only violated Rule 304 ­ Respect for Others, which states that deputy marshals shall treat others courteously with fairness and respect. Kolar stated, "I believe there are grounds to believe that Deputy Darr was overbearing and rude in the execution of the first warning provided to Mr. Newmyer. The manner in which the verbal warning was provided would not appear to have been completed respectfully or courteously, and Deputy Darr did not contradict this assertion during his testimony at the motions hearing." Newmyer had claimed that Darr had told him on the first encounter on the night of his arrest that, "He was lucky" that if Darr was not already pre-occupied with the kids on the other side of the street, he would not have let Newmyer get away with speeding. (Town's Exhibit A-19, p. 3).

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6.

Kolar found Darr had violated Rule 304 ­ Respect for Others, based upon

Newmyer's allegation that Darr made the statement, and based upon Darr stating at Newmyer's pre-trial hearing that it was "certainly possible" that he had made the statement. (Exhibit 28, a Portion of the Pre-trial Hearing Transcript, p. 33). 7. During Kolar's investigation, he conducted a taped interview with Darr in which

he specifically asked about Newmyer's allegation that Darr was rude and abrupt. Darr stated, "No. I try to be polite with everybody. You know, we're a public figure out there. You have to be polite. I have no reason to be rude and then unless somebody turns it up and gets rude with me, I generally respond but, I can't imagine me being haste - or harsh. I've been in the public business forever. The ownership of businesses and such." (Exhibit 29, p. 12). Darr describes his first contact with Newmyer as a "very insignificant contact". (Id. at p. 2). 8. Kolar had concerns that Newmyer had perjured himself. (Exhibit 7, p. 210, l. 13-

17). Kolar was concerned that Newmyer had offered an inconsistent statement about the nature of events that occurred the evening of his arrest and specifically misrepresented that a friend was with him at the time of Darr's first contact. (Town's Exhibit A-20, p. 2033 and 2035). In an investigation by the District Attorney's Office requested by Kolar about the Newmyer complaints, the District Attorney was also concerned about implications of perjury against Newmyer. (Exhibit 30).

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9.

Even though Kolar had concerns about Newmyer's veracity2 and despite Darr's

denial of being rude and disrespectful, Kolar sustained the violation of Rule 304 ­ Respect for Others. 10. On July 10, 2003, Chairman Beer was interviewed on KOTO Radio and accused

Darr of civil rights violations and illegal searches and seizures.3 In this same broadcast, Newmyer also made numerous false and slanderous statements about Darr. Newmyer stated that Darr was a liar and a "crooked cop", and Newmyer compared Darr to the main character in the movie, "Training Day", in which this character was a murderer and involved in brutality and police corruption. (Exhibit 31, radio transcript). 12. Just nine days after Kolar completed his Internal Affairs Investigation into the

Newmyer complaint, on July 21, 2003, he issued a Notice of Dismissal terminating Darr's employment. (Town's Exhibit A-24). In the Notice of Dismissal, Kolar referenced two other complaints about Darr, but admitted that the inquiries regarding these complaints had not been concluded prior to the decision to terminate him. Kolar admitted that the hostility towards Darr in the community had "become particularly prevalent following some of the narcotics arrests that you have participated in, either directly or indirectly". Kolar also indicated that the public perception of Darr was rendering him unable to effectively perform as a deputy marshal. (Town's Exhibit A-24).

The record establishes that Newmyer was not truthful as to how much alcohol he had consumed the evening of his arrest, whether his friend was present at the time of Darr's first warning, the timing of the events that evening and he denied being in possession of any drugs or marijuana. (See Plaintiff's Response to Newmyer's Motion for Summary Judgment, Exhibits B, E and F). 3 The tape of radio interviews are available, if necessary.
2

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13.

Kolar also admitted that the complaints against Darr were in part as a result of a

drug enforcement investigation in which Darr was involved. (Exhibit 7, Kolar Deposition, p. 113, l. 7-18). 14. After Darr's termination on July 24, 2003, Chairman Beer stated on KOTO Radio

that Darr was under investigation for two complaints, and that bar owners had complained that Darr was harassing customers. (Exhibit 32, transcript of July 24 interview) 15. Darr was terminated without any opportunity to be heard and provide any

contrary evidence to the complaints against him and the public statements made about him by Beer and Newmyer. He was not provided any opportunity to cross-examine witnesses or produce evidence. He was not provided a pre-termination or post-termination hearing. III. STANDARD FOR SUMMARY JUDGMENT Summary judgment is a drastic remedy. The Tenth Circuit has cautioned that any relief pursuant to F.R.C.P. 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir. 1973). The burden is on the moving party to show the absence of a genuine issue of material fact. Pleadings and factual issues of material fact must be viewed in a light most favorable to the party opposing summary judgment. Rea v. Wichita Mortgage Corp., 747 F.2d 567, 573 (10th Cir. 1984). Unless the moving party can demonstrate his entitlement to summary judgment beyond a reasonable doubt, summary judgment must be denied. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir. 1980).

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IV. ARGUMENTS A. DARR WAS DENIED PROCEDURAL DUE PROCESS. "An essential principle of due process is that a deprivation of life, liberty or property `is proceeded by notice and opportunity for a hearing appropriate to the nature of the case'". Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985)(quoting Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656, 94 L. Ed. 865 (1950)). "The root requirement of the due process clause is that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 786, 28 L. Ed. 2d 1193 (1971). By its terms, 42 U.S.C. §1983, creates a species of tort liability that on its face has no immunitites. Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 998, 47 L. Ed. 2d 128 (1976). Its language is absolute and unqualified, and no mention is made of any privileges, immunities or defenses that may be asserted. Rather, the statute imposes liability upon every person, including municipal corporations. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The purpose of §1983 is to provide protection of those persons wronged by the abuse of governmental authority and to deter future constitutional violations inconsistent with considerations of public policy. Owen v. City of Independence, Missouri, 445 U.S. 622, 623, 100 S. Ct. 1398, 1401, 63 L. Ed. 2d 673 (1980). The law that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights.

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Furthermore, the threat that damages might be levied against the city may encourage those in a policy-making position to institute internal rules of programs designed to minimize the likelihood of unintentional infringements on constitutional rights. Such procedures are particularly

beneficial in preventing those injuries that result not so much from the conduct of any single individual, but for the interactive behavior of several government officials. Id. at 652. The

municipality may be held liable for a violation that occurred as a result of a government's policy or custom that had been made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38. In this case, Darr had a property interest in his continued employment with the Town, because he was a permanent employee and based upon the terms of the Town's Original Policies and the custom and practice of the Town in not terminating police officers unless there was cause for termination. Darr was deprived of his property interest in continued employment without an opportunity for due process. I. The Town's Original Policies established a property interest.

Colorado law controls to determine what rights are created by employment manuals. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Under Colorado law, an employment manual or policy may establish a sufficient expectation of continued employment to entitle the employee to some type of due process before termination. Adams County School District No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990). At the time of Darr's employment, the Original Policies had been adopted on July 17, 1990 and were in affect when he accepted employment with the Town. (Exhibit 1). In Article

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11.4.d, specific due process was afforded prior to dismissal. The employee was entitled to a written order detailing the nature and severity of the conduct or infraction and notice of an opportunity for the employee to first be heard at least two working days prior to the effective date of the dismissal. The manual also guaranteed fundamental procedural due process rights

including the right to present evidence and to call and cross-examine witnesses prior to termination. In addition, Article 12 provided a grievance and appeal procedure if an employee questioned the interpretation or application of any policies, rules or regulations covered in the personnel policies. In a similar case, Perrin v. Egger, Civil Action No. 93-M-2541, this Court ruled that the employee's right to a hearing as described by Article 11.4 of the Town manual, was "an entitlement deserving some protection, i.e., the opportunity to present his case at a non-public hearing". (Exhibit 33, This Court's Order, p. 4). This Court found that Perrin, a deputy

marshal in Telluride, was denied procedural due process, because of the denial of the termination hearing by the Town. Similarly, Darr, as an employee who was hired under these same Original Policies, also had the same property interest and entitlement to a hearing prior to dismissal. Darr accepted his employment with the Town based upon the Town's representation in its original Policies that he would be afforded due process prior to dismissal and an opportunity to appeal any grievance or disciplinary action. After seven months of employment, the Town changed its personnel policies and eliminated the procedural due process of Article 11.4(d) and Article 12. In effect, the Town's

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modifications of its personnel policies while Darr was employed took away his vested property interest and entitlement to procedural due process. This same situation was addressed in the case of Peterson v. Atlanta Housing Authority, 998 F.2d 904 (11th Cir. 1993). The employee, Peterson, had started her job governed by one employee manual, which the Court in a similar case had found a property interest. The Court stated, "A state may not magically declare an interest to be non-property after the fact for Fourteenth Amendment purposes if a long-standard of practice has established an individual's entitlement to a particular governmental benefit". Id. at 915. The Court found that the employer may amend the employment status of an employee as long as the employee is given reasonable notice and an opportunity to respond, and "that such a change can be demonstrated as in the public interest, and not taken as subterfuge merely to single out and discharge particular employees". Id. The Court also stated that if an employer is going to change the manual to affect existing employees, the employees must have meaningful and unmistakable notice of the change such that the employee understands that there is a unilateral modification which constitutes a new mutual understanding concerning the employment relationship. In addition, the employee must be provided an opportunity to be heard and respond to the change. The notice must be sufficient for the employee to understand that he or she is being divested of a property interest. Id. In the New Policies, there is nothing in the "Introduction and Acknowledgment Form", as addressed by the Town in its Motion, that indicates that Darr and other town employees were being divested of their property interest and entitlement to procedural due process upon

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dismissal. There is no direct communication of any kind from the Town that provides any notice that the employees, including Darr, are being stripped of their rights of due process by the enactment of the New Policies. Moreover, consistent with the concerns in the Peterson case, the change of stripping the employees of their procedural due process rights was not demonstrated to be in the public interest. In fact, Ferris admitted that the purpose of eliminating procedural due process was because of the waste of time and expense required for a hearing. (Exhibit 4, Ferris Deposition, p. 129, l. 3-25 and p. 130, l. 1-21). It cannot be disputed that public interest should be for the protection of constitutional rights of the employees who are serving the community. Clearly, the view of the Town Manager and the Town Council that a hearing provided to an employee to respond to allegations leading to termination is a waste of time and money is not in the public interest. Therefore, the Town should not be allowed to rely upon its unilateral changes which were for the purpose of eliminating rights of due process, without sufficient notice to Darr of this significant change. The Town should be held to comply with the promises it made to Darr in the Original Policies. It is undisputed that the Original Policies at the time Darr was employed did not specifically state that his employment was at-will. Moreover, in the letter of December 22, 2001, in which Chief Kolar appointed Darr as a deputy marshal, there again was no mention that his employment was at-will. In a similar instance in Babi v. Colorado High School Activities Association, 77 P.3d 916, 920 (Colo. App. 2003), the Court found that there was a property interest established when the letter of employment to the employee stated the nature of the

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employment, a statement of the responsibilities and the salary. The court stated that because there was no limiting "at-will" language, that a property interest had been established. (Town's Exhibit A-11). Therefore, when Darr was hired, there was clearly no specific notification that he was an at-will employee. The failure to notify Darr that his employment was apparently "at-will", coupled with the specific provisions in the Original Policies providing for a hearing prior to dismissal and an appeal process, would reasonably create an expectation in Darr that he had a property interest in continued employment and that he would be afforded due process. The Town argues that Darr had notice of the changes in the Original Policies seven months after his employment began. However, the notice received by Darr on June 19, 2002 regarding the "Draft Personnel Policy" did not identify the intention of the Town to take away Darr's property interest in his employment, nor that the due process procedures for dismissal were being eliminated. (Exhibit 34). The notice simply states that the Personnel Policies Advisory Board would consider all comments about the new draft of the Personnel Policies. The

announcement about the Board meeting does not have any indication that the employees could discuss that they were being divested of their property interests and that their rights of due process were being eliminated as a result of the New Policies. Consistent with the ruling in the Peterson case, the Town did not give its employees meaningful notice of changes that were to result in divesting the employees of a property interest and eliminating the employee's opportunity to be heard prior to termination. This is clearly an important interest of the

employees and the employees should have been specifically notified about and specifically instructed that their due process rights were being eliminated and provided a meaningful

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opportunity to request information and object to the changes. At a minimum, it is a question of fact as to whether the Town properly notified Darr and its employees of the divestiture of the property interest. In fact, it appears that the Town Council or Personnel Policies Advisory Board never had a public meeting in which employees' comments concerning the New Policies were considered. In response to a discovery request to the Town for all meetings concerning the changes in the Personnel Policies, the Town disclosed meetings in May 2002 in which the Board discussed the changes in the Personnel Policies. However, there was clearly no meeting in response to the invitation to employees to attend a Board meeting on July 1, 2002 regarding the New Policies. Therefore, while the Board seemed to invite comments on the New Policies, a meeting was indeed not held to discuss or consider concerns of employees concerning the New Policies. (Exhibit 35). The only meeting that occurred with the Town Council was on July 23, 2002, in which the New Policies were formally adopted. II. Darr was a permanent employee.

As stated in the Original Policies, a new employee has a probationary status for a minimum of six months. At the end of the six months, an evaluation is to be completed, and upon the recommendation of the supervisor and approval of the Town Manager, an employee may be appointed to the position, granted a merit increase or placed on an extended probation of up to an additional six months or dismissed. Darr completed his probationary period, and was a permanent employee at the time that the policies were changed in July 2003. In addition, both the Original and New Policies provided a list of certain offenses for which an employee could be

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disciplined, and that the employee could be subject to disciplinary actions in order of severity such as oral warning, suspension and dismissal. (Exhibit 1). A similar employment arrangement was discussed in the case of Ness v. Glasscock, 781 P.2d 137 (Colo. App. 1989). A terminated police officer brought an action alleging breach of contract in violation of civil rights. The Court indicated that the Fort Collins Manual stated that there was a six-month probationary period after which the employee became a permanent employee. The manual also indicated that the employee could be dismissed or suspended for certain major offenses, and that these major offenses were not exclusive, but given as examples to determine the types of activity which would threaten employment. The manual also indicated that the employee could be subject to disciplinary actions, in order of severity, including an oral warning, suspension and dismissal. The Court stated, "Since the City's Personnel Manual

describes as permanent all employees who remain beyond six months, lists the reasons for which an employee can be either suspended or fired, and provides procedures for appeals, the clear implication is that a permanent employee can only be suspended or fired for cause. Id. at 139. The Court recognized a public employee could be terminated only after strict compliance with applicable termination procedures. Shumate v. State Personnel Board, 34 Colo. App. 393, 528 P.2d 404 (1974). The Court in Shumate recognized that due process and public policy

considerations are involved when a public employee is terminated without a proper hearing. Finally, the Court found that the terminated police officer, Ness, did have property rights in his employment. Consistent with the ruling in the Ness case, because the policy manual in Ness

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appears to be virtually identical with respect to both the New and Original Polices, Darr also should have a property interest mandating due process. III. It is the custom and practice of the Town through its department head, Chief Kolar, to only terminate deputy marshals with cause.

It is well-established that property interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, property includes a broad range of interests that are secured by existing rules or understandings. Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33 L. Ed. 2d 570 (1970); quoting, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) (An employee's interest in a benefit is a property interest for due process purposes if there exist rules or mutually explicit understandings that support the employer's claim of entitlement to a benefit.) For example, in Thomas v. Ward, 529 F.2d 916, 919 (4th Cir. 1975), the Court held that a school board's employee handbook granted a property interest to non-probationary employees by fostering an understanding that they would be subject to dismissal only for cause. In McLaurin v. Fischer, 768 F.2d 98, 102 (6th Cir. 1985, there was testimony that there was no other division director that had ever been involuntarily removed. As a consequence, the plaintiff understood that his position was to be permanent. The Court recognized a property interest created by a mutually explicit understanding or by an unwritten common law practiced in the work place that a director would only be terminated for cause. Id. In denying summary judgment, the Court stated that a juror could conclude that a "common law" practice existed whereby division director positions were treated as permanent. Id. at 103.

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The Colorado Court of Appeals in the Ness case also acknowledged that the United States Supreme Court had recognized that policy or custom can arise from practices not authorized by written law or express municipal policy. Ness at 140; citing, The City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). The Ness Court confirmed that municipal liability may be imposed for a single decision by a municipal policy maker under appropriate circumstances. Id. at 140; citing, Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). (Municipal liability under §1983 attached where a deliberate choice to follow a course of action is made among various alternatives by the official responsible for establishing final policy with respect to the subject matter in question). In addition, a municipality may be held liable for an underlying, but somewhat removed policy that causes the constitutional tort. A city can have a written policy which is contradicted by other policies or customs it pursues. City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). The Ness Court concluded that the city's summary judgment motion failed, because the City did not establish (1) what the city's policy was regarding termination of police officers for egregious behavior; (2) who was responsible for establishing final policy in this area; and (3) what was the role of the city manager and other city officials in the police officer's termination. It is undisputed that the custom and policy of the Marshal's Department as determined by its department head and supervisor, Chief Kolar, was only to terminate deputy marshals when cause existed. Town Manager Harrington admitted that he had delegated authority to Kolar to mange the Marshal's Department and determine the policy regarding the termination of deputy

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marshals. He also stated that it was consistent with Chief Kolar's management of the Marshal's Department to not fire a deputy marshal without having cause. (Exhibit 6, Harrington

Deposition, p. 57, l. 11-23). Chief Kolar specifically stated that, "Every person that I've fired [5 employees], I though that there was some type of cause or reason. If I didn't believe there was, I wouldn't have terminated them." Chief Kolar also said, "If they're performing their job and they're not performing unsatisfactorily, then why would I want to terminate them?" (Exhibit 7, Kolar Deposition, p. 125, l. 15-22). Chief Kolar restated this policy, "In the actions I've taken to dismiss people or terminate them, I think I've had cause based upon whatever variety of performance issues have been raised over their tenure." Chief Kolar was specifically asked, "Have you ever fired anyone at the Telluride Marshal's Department that you didn't have any cause for?" Chief Kolar responded, "I don't believe so." (Id. at p. 127, l. 13-20). Clearly, consistent with United States Supreme Court rulings, there was an understanding and an "unwritten common law practice" in the Marshal's Department to only fire employees for cause. Perry at 408 U.S. 602-603; McLaurin at 102. During his tenure, Chief Kolar had terminated five employees in his department, all with cause. As adopted by the Court in Ness, municipal liability under § 1983 attaches when an official makes a deliberate choice among various alternatives. Clearly, Chief Kolar, as the department head and supervisor of the

Marshal's Department, had the delegated authority from the Town Manager to make polices with respect to the Marshal's Department. The policy that Chief Kolar adopted in his tenure was only to fire deputy marshals with cause, as established by the five individuals he terminated. Consistent with his policy, Chief Kolar also believed that he had grounds to fire Darr. Instead of

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relying upon the Town's alleged policy of at-will employment, Kolar decided to provide an explanation as to the alleged basis for Darr's termination. (Town's Exhibit A-24). Therefore, Kolar established a custom and practice of the Town to only terminate deputy marshals with cause, which established a property interest by Darr in continued employment. Darr had a property interest in continued employment based upon the fact that he was a permanent employee, the promise of a hearing prior to termination as stated in the Original Policies, and based upon the clearly defined custom and practice of the Town to only fire deputy marshal's with cause. This property interest entitled Darr to a hearing and an opportunity to confront and rebut any evidence being considered for his termination. He was not afforded any due process, and therefore, his constitutional rights to due process were violated. IV. Darr was deprived of his constitutional right to liberty by the conduct of the Town.

As stated by the Town in its Motion, the elements of a prima facie liberty interest claim were set forth in Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1984). 1. The statements must impugn the good name, reputation, honor or integrity of the employee. 2. 3. The statements must be false. The statements must occur in the course of terminating the employee or foreclose other employment opportunities; and 4. The statements must be published.

When a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. Babi, 77 P.3d at

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912; citing Roth, 408 U.S. 564. When an employee shows that he has been stigmatized by the voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name. Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002). Several cases provide examples of employees who have been deprived of their liberty interest. In Cox v. Northern Virginia Transportation Comm., 551 F.2d 555 (4th Cir. 1976), the plaintiff employee was implicated in a news report about financial wrongdoing in her office. There was no effort by her office or the municipality to dispel the effects of the published statements. The Court stated when a government employee is dismissed without a hearing, having been publicly charged with dishonesty or other wrongdoing that will injure his liberty to obtain other work, the federal tort is not defamation. The federal tort is the denial of the hearing to give the employee an opportunity to refute the public charge. Id. at 558. The Court ruled that procedural due process requires that "a person dismissed under such a cloud" be given notice and a fair opportunity to clear his name. Id. Similarly, in Melton v. City of Oklahoma City, 928 F.2d 920 (10th Cir. 1991), the city disclosed to newspapers that an internal affairs investigation was being conducted about a police officer regarding a perjury allegation. All of the newspaper articles appeared before the police officer was terminated. There, the Court stated, "When a public employee takes action to terminate an employee based upon a public statement of unfounded charges of dishonesty or immorality that might seriously damage the employee's standing or associations in the community and foreclose the employee's freedom to take advantage of future employment, a claim for relief is created."

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Id. at 927. The public, defamatory and false statements made by the Citizen's Advisory Board as an agency and representative of the Town, violated Darr's liberty interest. A city official is liable under § 1983, when he is in a position of responsibility, he knew or should have known of the misconduct, and he failed to prevent future harm. McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir. 1979). A person subjects another to a deprivation of a constitutional right when he does an affirmative act or participates in another's affirmative act. Miller v. City of Mission, Kan., 705 F.2d 368, 375 (10th Cir. 1983). The Board was specifically created by the Town

Council. It is undisputed that the Town Council governs the Town and has the authority to create Boards and Commissions (Town's Exhibit A-1, Town Charter). The Town Council advertised for and appointed members based upon a Town Council Resolution (Exhibit 15). The Town Council had the authority to instruct and supervise the Board and to adopt the Charter to govern the Board. (Exhibit 4, Ferris Deposition, p. 26, l. 5-12). Mayor Steel and Chairman Beer admitted that prior to the first meetings of the Board, the Town Council had provided no policies, procedures or instructions as to how the meetings were to be conducted. Mayor Steel admitted that the Town Council should have insisted on rules and regulations in conducting the Board meetings. In fact, the Town Council did not provide the Board with a mission statement or a charter until August 5, 2003. (Exhibit 24, Charter). As a consequence of the Town's admitted failure to properly govern, instruct and supervise its own Board, Darr was deprived of his liberty interest.

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In the second meeting of the Board, on February 25, 2003, in front of 30-40 town citizens, including Darr, Chairman Beer read from a letter in which there were numerous allegations attacking Darr's reputation, honor and integrity. Beer stated that Darr had left his previous employment under suspicious circumstances, that he had improperly displayed a handgun at a golf course, and that he had "poached" or stolen a game of golf. (Exhibit 17, Beer Deposition, p. 30). (Darr Affidavit, Exhibit 3). Chairman Beer also wrote a letter to the editor identifying

himself as the Chairman of the Board in which he discussed Darr. (Exhibit 20). He was also interviewed in the newspaper in which he referenced Darr. (Exhibit 21). Also, the same month that Darr was terminated, Chairman Beer stated on the KOTO radio station that Darr was "overzealous, controlling, had violated civil rights, and had participated in illegal searches and seizures." (Transcript of KOTO Radio Interview, July 10, 2003, Exhibit 31). In a phone interview on the same broadcast, Newmyer also accused Darr of being "a crooked cop"" and a liar". Id. In another interview on KOTO on July 24, 2003, after Darr's dismissal on July 21, 2003, Chairman Beer accused Darr of harassing customers in downtown bars. He also specifically identified Darr with respect to complaints he had received. (Transcript of Interview, KOTO Radio, July 24, 2003, Exhibit 32). Contrary to the arguments of the Town, the Board was not simply a group of citizens who happened to get together to discuss the Marshal's Department. The Board was an officially governed and sanctioned Town agency who had the authority to assist the Town Council in governing the Marshal's Department. Each time Chairman Beer made derogatory statements about Darr, he identified himself as the Chairman of the Board. This Board was designed and

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created to be an instrumentality and policy maker for the Town Council to assist in the management and supervision of the Marshal's Department. The Town's own attorney opined that the Board members were Town officials and subject to the Town's Ethics Code (Exhibits 25 and 26) Therefore, the Town is responsible for its policy established from February to July 2003 of failing to properly supervise and instruct the Board and for allowing Board members to make defamatory comments about Darr. V. a. Town. Chairman Beer and the Board attacked the reputation, honor and integrity of Darr in public hearings and in the media. Beer specifically accused Darr of violating the civil rights of Town citizens, accused him of leaving his prior employment under suspicious circumstances, and accused him of stealing a golf game. A jury could clearly deem these statements to be The Workman factors are satisfied by the actions of the Board. Darr's reputation, honor and integrity were impugned by the actions of the

stigmatizing and causing damage to Darr's standing in the community. The Tenth Circuit Court has specifically recognized that charges of dishonesty stigmatize an employee. Marshall, 741 F.2d 301, 304 (10th Cir. 1984). b. The statements made by Chairman Beer were false. Lentsch v.

There is no indication that Darr was dishonest in any acts as a police officer. In fact, Chief Kolar specifically conducted an internal affairs investigation and did not find that Darr had been dishonest as complained of by Newmyer. In fact, they are false and significantly hurt the reputation and honor of Darr. (Darr Affidavit, Exhibit3). The statements were also contrary to

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the numerous performance evaluations that Darr had received. At no time, did Beer produce any evidence that any of his statements were true. He admitted that prior to any of his public statements, he made no effort to investigate the validity of the allegations against Darr. c. The statements made by Chairman Beer were in the course of terminating

Darr and foreclosed other employment opportunities. When a public employer takes an action to terminate an employee