Judge says Lynchburg detective not deprived of First Amendment rights

A federal judge threw out a $500,000 free speech complaint against the city Thursday after concluding it failed to meet the necessary legal standard for such cases.

Judge James P. Jones ruled that a local detective who publicly criticized the city manager was not deprived of his First Amendment rights by the manager’s subsequent decision to confront him.

“The fact that an employee is subjected to a private dressing down by his boss simply does not rise to the level of a constitutional violation, even if the boss was wrong to do it,” he said.

Detective John Romano has alleged he was illegally harassed and intimidated by City Manager Kimball Payne after criticizing Payne’s budget choices during a meeting of City Council.

Romano later secretly recorded Payne confronting him over his comments. The recording, submitted into court evidence, captures Payne telling the detective in part that such behavior could damage his career and he’d never be able to prove it.

Judge Jones said that it was clear the city manager made some “unfortunate statements,” but also noted that the tape shows him repeatedly affirming that he did not plan to take any retaliatory action against Romano.

Romano was never subjected to any disciplinary action and continues to work as a detective with the Lynchburg Police Department.

“Mr. Romano suffered no harm, he has no case,” Jones concluded, formally dismissing the suit.

Attorneys for the city had stressed the “no harm, no foul” argument in their own court pleadings, arguing that Romano had no grounds for seeking damages. They had asked the court to sanction the detective for filing a frivolous lawsuit and order him to pay the city’s legal costs.

Thursday’s ruling did not touch on the issue of costs, but the city says it does not plan to pursue that request further.

“This has been a very divisive issue,” City Attorney Walter Erwin noted of the case. “We hope we can put it behind us now and move on to more important matters.”

The city manager, who was not present for the hearing, said later he was pleased with the outcome, but declined further comment.

Romano said he respected the judge’s ruling, but did not regret his decision to file the suit.

“I certainly think it was necessary and appropriate,” he said. “… Now only time will tell if the city manager truly considers the matter over and done with as he said he did.”

Romano declined to discuss how his working conditions were while the suit was pending, but said he plans to stay with the Lynchburg Police Department.

“I’m a professional,” he said. “I will continue to give an excellent performance in the duties assigned to me.”

His attorney, Michael Kernbach of Burgess, Kernbach & Perigard PLLC, said the ruling was disappointing but not unexpected. He noted the judge did not rule the suit was frivolous or that his client deserved the treatment he received from the city manager.

He also said he felt the suit had served an important function by bringing Payne’s actions to light.

“I doubt seriously the city manager is ever going to have a meeting like this again,” he said.

Romano can appeal the court’s decision. He said Thursday he had not yet made any decisions on that point.