Experts doubt detective’s lawsuit against Lynchburg can succeed

Special Report

• Read the lawsuit
• Listen to a secret recording Detective John Romano made of his meeting with City Manager Kimball Payne and Police Chief Parks Snead
• Watch John Romano criticize Payne before Lynchburg City Council
• See Payne’s response

Two attorneys with expertise in First Amendment issues say they feel a detective who recently filed suit against the city for $500,000 has a weak case and is unlikely to succeed in court.

The attorney representing Detective John Romano rejected those analyses, saying they were based on an incomplete understanding of the evidence.

“They’re giving an opinion based on what they don’t know,” said Michael Kernbach of Burgess, Kernbach & Perigard PLLC in Fairfax. “This is for a judge to decide on the basis of the evidence that will be heard … That day of reckoning will come in front of the court.”

In separate interviews, two outside legal experts agreed Detective Romano was engaging in protected speech earlier this year when he spoke in his capacity as a private citizen to express concern about the city manager’s budget priorities.

But at the same time, they also said it’s doubtful the federal courts will consider the city manager’s subsequent decision to confront Romano to rise to the level of a violation of free speech.

“If he’d been fired, I think he’d have a good case,” said George Strickler, a law professor at Tulane University who argued before the U.S. Supreme Court in a landmark 1983 case on this issue. “But the deal is nothing happened to him.”

“He’s still operating in the same job and still has the same everything. It’s hard to get worked up about a case like that. I think the courts will feel the same way,” he said.

Robert O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression and author of the book, “The Rights of Public Employees,” said that judges typically draw a distinction in these cases between informal reprimands and formal sanctions, such as a firing or demotion.

City Manager Kimball Payne’s actions in this case may qualify as “less than fully responsible personnel management” and may have been upsetting to Romano, he said. “But I don’t think it’s something the court will consider.”

It is only within the last 60 or so years that judges have begun recognizing the rights of public employees. During the early 20th century, the courts tended to maintain that while government employees did enjoy constitutional rights as citizens, they did not have a right to stay government employees, according to the 2007 book “Speechless: The Erosion of Free Expression in the American Workplace.”

This began to change slowly in the 1950s through a series of U.S. Supreme Court decisions that culminated in a 1968 case, Pickering v. Board of Education, in which the court found that an Illinois school board acted erroneously when it fired a teacher who wrote a letter to the editor criticizing how the board was spending funds appropriated for two new high schools.

In this seminal case, the court established a concept, known as the Pickering balancing test, that is still the standard invoked in cases dealing with the First Amendment rights of public employees.

The Pickering test has since been applied to extend greater protection to employees who speak as citizens on matters of public concern — as opposed to those who speak as employees on matters dealing with the internal workings of an office.

That latter form of speech has generally been ruled to be outside First Amendment protection. Strickler argued before the Supreme Court in a still-widely cited case on that point, Connick v. Myers.

In Connick, the court upheld the firing of an assistant district attorney who, unhappy with her employers, had distributed surveys to her co-workers asking for their thoughts on several issues related to the management of the office.

Strickler was on the losing side of that case, advocating for the preservation of employee rights. He later lamented the court’s decision in a 2001 interview with The Freedom Forum, a D.C.-based foundation that promotes the principles of free speech and free press.

“(P)lainly, the Supreme Court’s decision establishes that public employees are more at risk for expressing dissent,” he said then.

O’Neil, a professor emeritus at the University of Virginia and a former president of that school, said today the courts are showing more “deference” to the rights of the government, rather than its employees, which he deemed unfortunate.

“The concern here is not only for the employee himself or herself, but also for the interest of the taxpayers, citizens and voters,” he said. “The citizens have an interest in having some watchdogs out there who are able to inform the public of serious problems in an agency without risking their jobs.”

In the pending suit against the City of Lynchburg, Detective Romano is arguing he was harassed and intimidated for speaking against the city manager, in violation of his right to free speech and due process.

Strickler and O’Neil both said they feel Romano is protected by the First Amendment in this instance. But they also doubted that the courts would be sympathetic to a case where the employee has not suffered some material disciplinary action.

“He (the city manager) is going to say I got hot under the collar and said some stuff I shouldn’t have said, but I never meant to do anything and I didn’t do anything,” Strickler said. “And stuff like that happens all the time.”

The city manager has said he lost his temper when he and Romano met in April to discuss the officer’s earlier budget criticisms. During that meeting, which Romano secretly taped, Payne told him:

“You’re gonna get away with it this time, because I’m not a vindictive person. But don’t pretend you can (keep doing this), because it’s gonna make a difference in your career and you’ll never be able to prove it didn’t.”

Later in the conversation, Payne apologized and said he did not plan to do anything to Romano. The city says no disciplinary action was ever taken against the detective.

Under the circumstances, O’Neil said he felt it was “fairly clear” that any threat perceived during the beginning of the meeting had been retracted by the time it ended.

“If it was no more than that, I don’t think the court will want to get involved,” he said.

Strickler said being “read the riot act” does not qualify as a violation of one’s constitutional rights. “This sounds like a very lame case to me,” he said.

Kernbach, Romano’s attorney, said there was an active threat hanging over his client and the only reason it was never acted on was that Romano never crossed the city manager again.

Romano did not participate in any further public discussions about the budget following his meeting with Payne.

O’Neil and Strickler concluded it’s unlikely Romano will win his claim for monetary damages on the grounds his constitutional rights were violated. They noted he could seek compensation for mental or emotional distress, but cautioned that was a difficult standard to meet.

Romano is asserting he has “suffered, and continues to suffer, mental pain and anguish because of the wrongful acts of the defendants …”

His lawsuit seeks $250,000 in compensatory damages for “past and future mental anguish, loss of earning capacity, and other losses specified …” It also asks for $250,000 in punitive damages for the “willful and wanton” violation of his constitutional rights.

Asked if they planned to present evidence of mental duress in this case, Kernbach said that would be addressed in court.