Ga. Judge Tosses Ex-Police Chief's Retaliation Suit
Law360 (April 2, 2024, 8:38 PM EDT) -- A Georgia federal judge has freed the city of Austell from a lawsuit brought against it by its former police chief, who alleged that he was forced out of his job after three years of raising concerns about the safety of department facilities.
In an order filed Monday, U.S. District Judge Charles A. Pannell Jr. freed the city, Mayor Ollie Clemons and the city police department from claims brought against them by Robert Starrett, who worked as the city's police chief for nearly 27 years.
Starrett, who sued the city in September 2022, alleged that he was forced into retirement after complaining directly to Clemons "no less than 40 times" in three years about leaks, mold and air quality issues at the police department. That count does not include, Starrett said, the number of reports he made to Clemons' staff.
His employers contacted the Georgia Bureau of Investigation to have the K-9 unit he ran investigated after he spoke out about the conditions of city buildings, Starrett alleged, and later used that investigation to threaten him with administrative leave, forcing him into early retirement.
Starrett also alleged that Clemons forbade him from speaking to the media about the GBI investigation in violation of his First Amendment rights, even though news articles were being published that included "untrue and harmful information" about him.
But in his order, Judge Pannell said evidence showed Starrett's resignation was not, in fact, retaliation.
Although Starrett said his resignation was forced because he was threatened with administrative leave pending the closure of the GBI investigation, Judge Pannell said the decision was voluntary.
"[R]esignations can be voluntary even when the only alternative to resignation is facing possible termination for cause or criminal charges," the judge said. "Resignations obtained in cases where an employee is faced with such unpleasant alternatives are nevertheless voluntary because 'the fact remains that plaintiff had a choice. [The plaintiff] could stand pat and fight.'"
Even if Starrett had been able to establish that he was coerced into resigning, the judge said, evidence shows Clemons decided to place Starrett on administrative leave with pay after learning Starrett was removed from the Georgia Access to Medical Cannabis Commission due to a conflict concerning the GBI investigation.
Starrett did not, Judge Pannell said, show that decision would not have been made if he hadn't complained about city buildings, so his retaliation claim fails.
Starrett's First Amendment claim also fails, the judge said, because he admitted in his complaint that he sought to "serve his own personal interest" by speaking to the media about the GBI investigation and was barred from doing so.
Public employees are protected from restraints on their speech if they are speaking about matters of public concern, the judge said, but are not entitled to those same protections when the purpose of their speech is to "further the speaker's own private interest."
According to the judge's order, the GBI investigation at issue in the case began after a news reporter sent the police department an Open Records Act request for all veterinary bills paid for by the department in November 2021. The animal hospital that provided police K-9s with veterinary care refused to provide the records, the judge said, and the GBI attempted to contact Starrett about the issue as he had "exclusively controlled and managed" the department's K-9 unit for many years.
Starrett subsequently called another member of the police department who had requested the vet bills from the animal hospital and "angrily told her those bills were none of her business," the judge said.
In December 2021, then-Speaker of the House David Ralston sent Starrett a letter saying he would be removed from the state's medical cannabis commission and, shortly after, Clemons placed Starrett on administrative leave with pay, according to the order. Starrett submitted his letter of resignation the following day, on Dec. 14, 2021.
Representatives for the parties did not immediately respond to requests for comment Tuesday.
The city of Austell, Clemons and the police department are represented by Laura A. Denton, R. Read Gignilliat and Andrew C. Suarez of Elarbee Thompson Sapp & Wilson LLP.
Starrett is represented by R. Ethan Hargraves of Massey & Associates PC.
The case is Starrett v. The City of Austell, Georgia, et al., case number 1:22-cv-03717, in the U.S. District Court for the Northern District of Georgia.