City manager was sued in 1998 Spotsylvania free-speech complaint

Before his time in Lynchburg, City Manager Kimball Payne was one of six Spotsylvania County officials sued on grounds that they violated an employee’s First Amendment rights — the same accusation he faces now in a lawsuit filed by a city detective.

Payne, a former Spotsylvania County administrator, was ultimately dismissed as a defendant from that earlier case when a judge concluded the “uncontradicted evidence” showed he had not participated in the decisions that gave rise to a county firefighter’s $1 million complaint.

Special Report

• Read John Romano's 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

Related

See Firefighter involved in Spotsylvania lawsuit feels actions were justified for more on this story

The suit Usher v. Payne, et al., filed in federal court in Richmond in 1998, was eventually settled under confidential terms. Payne, who left Spotsylvania for Lynchburg in 2001, said he remembers little about the case.

“I had pretty well forgotten about it,” he said.

Lynchburg is presently facing a $500,000 free-speech complaint from a city detective who says that Payne harassed and intimidated him after he spoke before City Council, in his capacity as a private citizen, to express concern about the city manager’s budget priorities.

The constitutional issues raised in that lawsuit are identical to those invoked in the Spotsylvania case, although the events that led to each differ. The Lynchburg suit revolves around a verbal confrontation, while in Spotsylvania an employee, Wayne Usher, was fired for written statements he made.

Lynchburg City Attorney Walter Erwin said he felt it was clear there was no “pattern of behavior” demonstrated in the past and current lawsuits.

“I don’t see any similarities, other than the fact they’re both First Amendment claims,” he said.

In 1998, Usher, a career firefighter and paramedic, created a Web site criticizing the response times of the volunteer forces responsible for covering Spotsylvania County on nights and weekends.

“Are YOU being PROTECTED right now?” asked the site, which included public information about each fire station’s staffing levels.

Usher was suspended without pay a week after the site went up and fired a month later. He responded by filing a lawsuit on the grounds his constitutional right to free speech was violated. The case attracted attention from such civil rights groups as the ACLU and the Charlottesville-based Rutherford Institute, both of which called it a textbook example of First Amendment infringement.

Court records, newspaper articles from that period and interviews with people involved all indicate that Payne was not the one who fired Usher, although he did defend the decision later.

In a 1998 interview with the Associated Press, Payne said that Usher’s site was disruptive and undermined public confidence in the county’s emergency services.

“Free speech I’m a complete proponent of, but I think there was a Supreme Court justice that said free speech doesn’t mean you can go into a crowded theater and yell, ‘Fire!’” he told the reporter.

Payne acknowledged making that statement in a recent interview and noted his argument was never proved wrong in court.

“I defended it at the time and I have no reason to change my mind about it,” he said. “We did not lose a lawsuit about this.”

The decision to fire Usher came from the deputy county administrator, Doug Walker, in consultation with the county attorney and the head of the fire, rescue and emergency services department. Each of those officials was named as a defendant in the lawsuit, along with Payne, the director of human resources and an EMS captain who was Usher’s supervisor.

Walker, who has since left Spotsylvania and now works for a private consulting firm, said back then he was responsible for making all final personnel decisions. Payne could then act as a sort of appeals judge if an employee contested a decision.

“It allowed us to take action without compromising the grievance system. To be fair.”

Walker said he could not recall if First Amendment concerns were raised during internal discussions about Usher’s fate. He did say the county attorney would have weighed in on any decisions made.

“I certainly feel very comfortable that we would not have taken any action, I would not have taken any action, if I thought it violated his constitutional rights,” he said.

Usher’s termination letter, signed by Walker and excerpted in court documents, claimed his actions had adversely affected the county, including disrupting internal working relationships.

“The dissemination of this information has upset many volunteers that the County depends upon to provide fire and emergency medical services for the County,” it said.

Erwin, who has been researching the Spotsylvania case, said the courts have upheld the right of public agencies to fire employees whose actions undermine confidence in government services or damage close working relationships.

The U.S. Supreme Court has ruled that decisions in such cases must be subjected to a balancing test that takes into consideration the employer’s interest in maintaining an efficient, harmonious workplace and the employee’s interest in speaking as a citizen on issues of public concern.

In the Spotsylvania case, a judge concluded the constitutional issues involved were so sophisticated county administrators could not reasonably be expected to decipher them on their own. He granted them qualified immunity and absolved them from any claim for monetary damages.

That opinion, dated one week before the case was to go to trial, did not address the core issue of whether Usher’s rights had in fact been violated.

The judge wrote he intended to decide that question at trial, but the case was settled the following day.

Walker said the decision to settle was made by the insurance company, not the county.

“I can absolutely assure you the county did not settle the case because of any concern the county had that it had done anything wrong,” he said.

The terms of the settlement were confidential and have never been publicly disclosed.

The Free Lance-Star in Fredericksburg reported that prior to filing suit Usher appealed his dismissal to the county administrator, but lost. Payne said he cannot recall now whether he heard an appeal.

“I just don’t remember,” he said, noting his limited involvement and the number of years that have elapsed.

Erwin, the city attorney for Lynchburg, emphasized Payne’s limited role in the decisions. He said Spotsylvania officials had followed a formal personnel process that culminated in direct disciplinary action.

“Kim got sued (in Spotsylvania) simply because a lot of the people making the decisions reported to him,” he said.

In Lynchburg, the city is currently formulating its response to the $500,000 lawsuit filed this month by Det. John Romano.

Romano alleges that Payne harassed him after he spoke critically of the city manager’s budget priorities. He secretly recorded Payne telling him that his actions are “gonna make a difference in your career, and you’ll never be able to prove it didn’t.”

On the tape, Payne later apologizes and says he does not plan to do anything to Romano. The city says no disciplinary action was ever taken against the detective.

Erwin said the city’s response is due to the U.S. District Court by Oct. 5. Lynchburg attorney Alex Bell, of Bell & Schneider, PLC, has been hired to assist in the case.