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HomeMy WebLinkAbout2013 19_ providing legal defense 13 CV 709 TCK TLW_2013.11.13OWASSO CITY COUNCIL RESOLUTION NO. 2013 -19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, AUTHORIZING THE CITY TO PROVIDE A LEGAL DEFENSE FOR FORMER POLICE CHIEF DAN YANCEY AND FORMER CITY MANAGER RODNEY RAY IN THE LITIGATION TITLED MIKE DENTON v. DAN YANCEY RODNEY RAY AND THE CITY OF OWASSO AND ADDITIONALLY TO HIRE ATTORNEY KEITH WILKES TO REPRESENT THE CITY OF OWASSO, DAN YANCEY AND RODNEY RAY IN THIS LITIGATION MATTER. WHEREAS: The City of Owasso, former Police Chief Dan Yancey and former City Manager Rodney Ray are defendants in the litigation styled as Mike Denton v. Dan Yancey, Rodney Ray and the City of Owasso, 13 -CV- 709 - TCK -TLW, filed in the United States District Court for the Northern District of Oklahoma, on October 28, 2013, WHEREAS: Dan Yancey and Rodney Ray were at all times acting properly and within the scope of their employment during the events giving rise to this litigation and the City of Owasso is required to provide a defense for them in the above - styled litigation, and, WHEREAS: The City of Owasso wishes to retain Keith Wilkes with the firm of Newton, O'Connor, Turner & Ketchum, PC, to represent the City of Owasso, Dan Yancey and Rodney Ray in this litigation matter. THE CITY COUNCIL HEREBY ADOPTS THE FOLLOWING RESOLUTION: NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT: The City of Owasso is authorized to provide a legal defense for Dan Yancey and Rodney Ray in the litigation styled as Mike Denton v. Dan Yancey, Rodney Ray and the City of Owasso, 13 -CV- 709 - TCK -TLW, AND, BE IT FURTHER RESOLVED THAT: The City of Owasso is authorized to retain Keith Wilkes with the firm of Newton, O'Connor, Turner & Ketchum, PC, to represent the City of Owasso, Dan Yancey and Rodney Ray in this matter. APPROVED AND ADOPTED this 5th day of the City of Owasso, Oklahoma. Aftest: Sherry P, City Cl -j OF U 9 OPRMnL O SEAL kIt Approved As To Form: �I'-L /60 Lombardi, City Attorney November, 2013, by the City Council of o ` Bonebroke, Mayor sd 4pp4ok � T Wit out Limits. Nod/ Cow C TO: The Honorable Mayor and City Council City of Owasso FROM: Julie Trout Lombardi City Attorney SUBJECT: Authorization to provide a defense and retain an attorney in the litigation styled as Mike Denton v. Dan Yancey, Rodney Ray and the City of Owasso, 13 -CV- 709- TCK -TLW, and proposed Resolution 2013 -19 DATE: November 1, 2013 BACKGROUND: On October 28, 2013, a lawsuit was filed in the United States District Court for the Northern District of Oklahoma by former Police Lieutenant Mike Denton against the City of Owasso, former Police Chief Dan Yancey and former City Manager Rodney Ray alleging a violation of civil rights arising out of Mr. Denton's November 4, 2011, termination from the Owasso Police Department. Staff has determined that Mr. Yancey and Mr. Ray were at all times acting appropriately and within the scope of their employment with the City of Owasso. Accordingly, the City is required to provide a legal defense for Mr. Yancey and Mr. Ray in this litigation. Staff desires to retain Attorney Keith Wilkes with the firm of Newton, O'Connor, Turner & Ketchum, PC, to represent the City of Owasso, Mr. Yancey and Mr. Ray in this litigation matter. PROPOSED ACTION: Approval of proposed Resolution 2013 -19 authorizing the City to provide a legal defense for Dan Yancey and Rodney Ray in this matter, and to retain Keith Wilkes to represent the City of Owasso, Mr. Yancey and Mr. Ray in the above - styled litigation. RECOMMENDATION: Staff recommends the City Council authorize providing a defense for Dan Yancey and Rodney Ray in this matter, and additionally authorize staff to retain Keith Wilkes with the firm of Newton, O'Connor, Turner & Ketchum, PC, to provide a defense for the City of Owasso, Mr. Yancey and Mr. Ray in this ligation matter, through adoption of Resolution 2013 -19 memorializing the same. ATTACHMENTS: 1. Resolution No. 2013 -19 2. Plaintiff's Complaint filed on October 28, 2013 Case 4:13 -cv- 00709- TCK -TLW Document 2 Filed in USDC ND /OK on 10/28/13 Page 1 of 6 MIKE DENTON, VS. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA Plaintiff, 1) DAN YANCEY, Individually and in his Official capacity, 2) RODNEY RAY, Individually, and in his official capacity and, 3) the CITY OF OWASSO, Oklahoma, a municipal corporation, Defendants. COMPLAINT COMES NOW the Plaintiff herein by and through his attorney of record James Patrick Hunt and files this original complaint, stating claims for relief as follows. L JURISDICTION AND VENUE I. This in an action arising under the laws of the United States of America, in particular 42 U.S.C. 1983 and 42 U.S.C. 1981. 2, The Plaintiff is a citizen of the United States and a resident of the City of Owasso, Rogers County, Oklahoma. 3. The Defendant, City of Owasso, is an Oklahoma municipal corporation. The Defendants Dan Yancey and Rodney Ray are residents of Owasso, Tulsa County, Oklahoma. Case 4:13 -cv- 00709- TCK -TLW Document 2 Filed in USDC ND /OK on 10/28/13 Page 2 of 6 4. Plaintiff seeks a declaration that the Defendants intentionally and unlawfully retaliated against him for engaging in First Amendment protected activity and seek appropriate injunctive relief, lost pay, compensatory and punitive damages. H. STATEMENT OF FACTS 6. Plaintiff was employed by the City of Owasso Police Department as a police officer. 7. Defendant Dan Yancey at all relevant times was the City of Owasso police chief. 8. Defendant Rodney Ray at all relevant times was the city manager of the City of Owasso. 9. On or about July 29, 2011, Chief Yancey and Owasso Patrolman Jonathon Foyil filed a complaint against Owasso police officer Mike Denton alleging excessive force and conduct unbecoming an officer. 10. On or about August 4, 2011, Chief Yancey assigned Captain Greg Sipes of the Broken Arrow Police Department to conduct the internal administrative investigation on Lieutenant Denton. 11. After Captain Sipes concluded his investigation, Chief Yancey recommended that Lieutenant Denton be terminated on or about September 21, 2011. The recommendation for termination was accepted by then City of Owasso city manager Rodney Ray and Lieutenant Denton was terminated on or about November 4, 2011. 14. Pursuant to the collective bargaining agreement ( "CBA ") the FOP Lodge had with the City of Owasso, FOP Lodge No. 149 filed a grievance asserting that Lieutenant's discharge was not for just cause as required by the CBA. 15. The City denied the Lodge's grievance. Pursuant to the CBA and applicable Oklahoma law, the FOP Lodge and the City selected Federal Mediation and Conciliation Service ( "FMCS ") 2 Case 4:13 -cv- 00709- TCK -TLW Document 2 Filed in USDC ND /OK on 10128/13 Page 3 of 6 arbitrator Edward B. Valverde to hear the grievance. After that, the parties agreed to arbitrate the grievance before Mr. Valverde on March 29 and March 30, 2012. 16. The arbitration of the Denton termination grievance began on March 29, 2012 and ended on March 30, 2012. After the hearing, both the City and the FOP submitted post- hearing briefs to the arbitrator for review. 17. On or about June 30, 2012, the arbitrator issued an award. The arbitrator ruled that the City's termination of Denton had been excessive and reduced the discipline to a written reprimand. The arbitrator ordered the City to reinstate Denton with back pay and benefits. Though the award is final and binding, at this writing, the City has refused to comply with it. 18. In the collective bargaining agreement between the City of Owasso and the FOP, there is a provision which prohibits both parties from appealing or otherwise seeking review of the arbitrator's decision. Specifically, the article states: Article 13, Section 5: It is specifically and expressly understood that filing a grievance under this Article which has as its last step, final and binding arbitration, constitutes an election of remedies and a waiver of any and all rights by both parties, the Lodge or other representatives of the party, to litigate or otherwise contest the last answer rendered through the Grievance Procedure in any court or their appeal forum. (emphasis added) 19. In spite of this provision, then city manager Rodney Ray refused to abide by the arbitrator's decision. Mr. Ray released select video evidence to the local media placing the Plaintiff in a bad light. After that, Mr. Ray called a press conference and announced that he would "appeal" the arbitrator's decision. 20. Thereafter, the City filed a petition to vacate the arbitrator's award in Tulsa County district court. The District Court vacated the arbitrator's award. The FOP appealed the District 3 Case 4:13 -cv- 00709- TCK -TLW Document 2 Filed in USDC ND /OK on 10/28/13 Page 4 of 6 Court's vacation of the award. That matter has been briefed by the FOP and the City and is presently assigned to Oklahoma Court of Civil Appeals, Divisions 1 and 3. 21. Prior to the Plaintiff's termination, no police officer at the Owasso Police Department had been terminated for using excessive force. 22. Prior to the Plaintiff's termination, other police officers at the Owasso Police Department had used excessive force more severe than that allegedly used by the Plaintiff. Those other police officers were not terminated, but rather received oral or written reprimands. 23. One of the factors the arbitrator based his decision to reduce the Plaintiff's termination was the inconsistency of discipline given by the Owasso Police Department. 24. Prior to the Plaintiffs termination, Plaintiff had openly and actively engaged in public employee union activity protected by the First Amendment. These activities included but are not limited to Plaintiffs attempt to persuade other union members not to accept collective bargaining agreement proposals made by City management during negotiations of the contract between the City of Owasso and FOP Lodge 149. FIRST CAUSE OF ACTION FIRST AMENDMENT — RIGHT OF ASSEMBLY 25. Plaintiff readopts and re- alleges each and every allegation contained in paragraphs 1 through 24 as if set forth herein. 26. A substantial motivating factor in Defendants' retaliation against the Plaintiff was his public employee union activities, which were protected by the First Amendment of the United States Constitution. 9 Case 4:13 -cv- 00709 -TCK -TAW Document 2 Filed in USDC ND /OK on 10/28/13 Page 5 of 6 SECOND CAUSE OF ACTION FIRST AMENDMENT - SPEECH 27. Plaintiff readopts and re- alleges each and every allegation contained in paragraphs 1 through 26. 28. A substantial and motivating factor in Defendants' retaliation against Plaintiff were statements he made that were protected by the First Amendment Right of Free Speech. THIRD CAUSE OF ACTION FOURTEENTH AMENDMENT — DUE PROCESS 29. Plaintiff re- adopts and re- alleges each and every allegation contained in paragraphs 1 through 28. 30. By virtue of the collective bargaining agreement and the Oklahoma Fire and Police Arbitration Act (FPAA), Plaintiff had a property interest in his employment at the City of Owasso. By refusing to abide by the arbitrator's ruling and the language of the collective bargaining agreement, Defendants denied Plaintiff's interest in his continued employment without due process. PRAYER FOR RELIEF Plaintiff has suffered financial losses, humiliation, embarrassment, emotional pain, mental anguish, injury to his good name, and personal and professional reputation as a result of the Defendants' unlawful conduct. Plaintiff prays for relief requiring Defendants to compensate G Case 4:13 -cv- 00709- TCK -TLW Document 2 Filed in USDC ND /OK on 10/28/13 Page 6 of 6 him for the damages he has suffered as a result of Defendants' illegal and tortuous conduct. Plaintiff prays for actual, compensatory, and punitive damages against the Defendants. WHEREFORE, Plaintiff Mike Denton prays for judgment on the foregoing claims and for all sums due with pre and post judgment interest hereon, all costs and attorney fees associated with this matter, to and including actual, compensatory and punitive damages against Defendants Dan Yancey, Rodney Ray and the City of Owasso. JURY TRIAL DEMANDED ATTORNEY'S LIEN CLAIMED Respectfully submitted, /s! James P. Hunt James Patrick Hunt, OBA # 15559 406 S. Boulder, Ste. 400 Tulsa, OK 74103 Telephone: (918) 497 -9159 Fax: (918) 582-6106 jamesphunt@earthlink.net i?. OWASSO CITY COUNCIL RESOLUTION NO. 2013 -18 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, AUTHORIZING THE CITY TO PROVIDE A LEGAL DEFENSE FOR OFFICER JAROD MITCHELL AND OFFICER BOBBY SORDO IN THE LITIGATION TITLED SMOKEY DAVIDSON V. CITY OF OWASSO JAROD MITCHELL AND BOBBY SORDO, AND ADDITIONALLY TO HIRE ATTORNEY KEITH WILKES TO REPRESENT THE CITY OF OWASSO, OFFICER JAROD MITCHELL AND OFFICER BOBBY SORDO IN THIS LITIGATION MATTER. WHEREAS: The City of Owasso, Officer Jarod Mitchell and Officer Bobby Sordo are defendants in the litigation titled Smokey Davidson v. City of Owasso, Jarod Mitchell and Bobby Sordo, 13 -CV- 658 - GFK -TLW, filed in the United States District Court for the Northern District of Oklahoma, on October 4, 2013, WHEREAS: Officer Jarod Mitchell and Officer Bobby Sordo were at all times acting properly and within the scope of their employment during the events giving rise to this litigation and the City of Owasso is required to provide a defense for the named officers in the above- styled litigation, and, WHEREAS: The City of Owasso wishes to retain Keith Wilkes with the firm of Newton, O'Connor, Turner & Ketchum, PC, to represent the City of Owasso and the named officers in this litigation matter. THE CITY COUNCIL HEREBY ADOPTS THE FOLLOWING RESOLUTION: NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT: The City of Owasso is authorized to provide a defense for Officer Jarod Mitchell and Officer Bobby Sordo in the litigation styled as Smokey Davidson v. City of Owasso, Jarod Mitchell and Bobby Sordo, 13 -CV -658- GFK -TLW, AND, BE IT FURTHER RESOLVED THAT: The City of Owasso is authorized to retain Keith Wilkes with the firm of Newton, O'Connor, Turner & Ketchum, PC, to represent the named officers and the City of Owasso in this litigation matter. APPROVED AND ADOPTED this 5th day of November, 2013, by the City Council of the City of Owasso, Oklahoma. 0F G�29 g Bon 1 ebrake, Mayor r� °1 Attest: OTTICTAL O SEAL Sherry Bipf op, City Approved As To Form: 42��, * Z-4,WJae04 � ulie T. Lombardi, City Attorney 2