United States District Court, N.D. Florida, Pensacola Division
HARRY A. LAIRD, IV, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, WALTON COUNTY FLORIDA, et al., Defendants.
ORDER
M.
CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff
Harry A. Laird, IV, brought this suit against his former
employer, the Board of County Commissioners of Walton County,
Florida, and two individuals, Larry Jones and Cindy Meadows,
claiming that he was terminated in retaliation for exercising
his First Amendment rights, 42 U.S.C. § 1983, and in
violation of Florida's Public Employee Whistleblower
Statute, Fla. Stat. § 112.3187, et seq. Each
Defendant has filed a Motion for Summary Judgment. Having
fully reviewed the matter, the Court finds that the motions
are due to be granted, with the exception of the
whistle-blower retaliation claim against the County.
I.
Background [1]
Harry
A. Laird, IV, was employed for ten years by the Walton County
Board of County Commissioners (the “County”),
most recently as Flood Plain Manager in the Department of
Planning and Management. The County Administrator, Larry
Jones, terminated Laird's employment for insubordination
on July 21, 2015. The undisputed facts reflect the following.
Laird's
employment with the County began in 2005. He was a Planner in
the Planning Department with responsibility for building
permit review.[2] From 2010 through 2012, he worked as a
communications coordinator in the County Administration
Department. He became a certified floodplain administrator
and began working as Flood Plain Manager in 2012. As Flood
Plain Manager, Laird was responsible for reviewing building
permit applications to determine whether they complied with
the County's Land Development Code (“LDC”),
the County's Comprehensive Plan, and the flood plain
requirements of the FEMA (Federal Emergency Management Act).
His duties as Flood Plain Manager included reviewing proposed
building plans of projects impacting conditions related to
floodplains, wetlands, coastal dunes, and coastal dune lakes,
and determining whether the County's height, setback, and
parking requirements were met. He also reviewed files of
subdivisions that were developed before the County's LDC
was enacted for the purpose of determining whether they were
in compliance with flood plain and coastal dune lake
requirements.
Laird's
immediate supervisor was Wayne Dyess, Planning Director.
Dyess reported to the County Administrator, Larry Jones, who
was the head of all County departments.
A.
The Decimal Point Memo
In
January 2015, while reviewing files for purposes of
identifying whether subdivisions were in compliance with
coastal dune lake requirements, Laird came across a memo in a
file related to the Blue Mountain subdivision. The memo was
drafted in 2008 by another Planner in the Department, Melissa
Ward, and in the memo, Ward took responsibility for a
“decimal point error, ” which she acknowledged
had resulted in a billing error in 2005. The memo explained
that instead of billing the Blue Mountain subdivision the
required recreational impact fee of $614, 000, Ward had
billed only $614, and she did not notice the error before
recording the final plat. Laird knew Ward and said she had
been terminated in 2011 for improper
permitting.[3] Laird did not have personal knowledge of
this incident and did not suspect Ward of wrongdoing.
Nonetheless, because of the large amount of the error
reported in the 2008 memo, he wondered whether someone senior
to Ward might have benefitted, and so he gave the memo to his
supervisor, Dyess.[4]Dyess told Laird to put it in the file, and
he would take care of it. Dyess then asked the County
Attorney Mark Davis to look into the matter and also
forwarded the memo to the County's finance department.
The County contacted the State Attorney's Office, which
began an investigation into the matter that concluded in
September 2015.[5]
Laird
testified that during the investigation, Mr. Jones and Mr.
Davis held a department-wide meeting in which they encouraged
employees to cooperate with the investigation. ECF. No. 48-1,
at 47 (Laird Dep. at 187-88). Several County employees,
including Laird, were questioned by the State Attorney's
Office in voluntary interviews. Laird was questioned on two
occasions, once in March 2015 and again in late-April or May
2015. Laird never told anyone what he was asked in his
interview with the State Attorney or what he had said,
although it is clear from the record that he did not know
anything about this incident aside from finding the memo in
the file. The County department heads were generally aware
that he and others were being interviewed. The investigation
resulted in significant media coverage, which Laird said gave
the County “a black eye” and was a source of
embarrassment to the County, and “I'm the guy who
found it” (meaning the memo). ECF No. 48-1, at 4 (Laird
Dep. at 15).
B.
Laird's Termination
Jones
terminated Laird's employment on July 21, 2015, citing
insubordination based on Laird's response to the County
Administrator's request for a written explanation
regarding an incident where Laird had approved a 15-foot
setback in a permit without taking the matter to the Board of
Adjusters for approval. ECF No. 48-2, at 5-6. The setback
issue came to light on June 30, 2015, when Commissioner Cindy
Meadows received an email from a constituent, Tony Cook, the
Secretary of the Sugarwood Homeowners' Association
(“Sugarwood HOA”), requesting a meeting “as
soon as possible” about “some unusual actions by
Code enforcement and the Planning Department regarding
construction in our development.” ECF No. 48-3, at 13;
ECF No. 55-23. On July 2, 2015, Meadows met with Cook and
Dave Erickson, President of the Sugarwood HOA, and they
expressed concern over a five-foot reduction to the setback
requirement that one property owner in their development had
received. This property owner was allowed a 15-foot setback
requirement, instead of the 20-foot setback requirement that
applied to the rest of the neighborhood, and the Sugarwood
HOA representatives questioned why one lot owner did not have
to comply with the same rules that applied to the rest of the
development. Concerned that a permit had been erroneously or
illegally issued in violation of the County's LDC,
Commissioner Meadows asked County Administrator Jones and
County Attorney Davis, who were in the area that day, to look
into the matter.[6] None of them had seen a variance issued
outside of a Board of Adjustment process and without notice
to adjoining property owners.
After
meeting with the Sugarwood HOA representatives, Jones and
Davis also met with Laird to ask for an explanation.
According to Laird, he explained to them that he made the
determination to approve the setback in the same manner he
has done throughout his time as Flood Plain Manager, stating
that his supervisor Dyess allowed him to make hardship
exceptions pursuant to Chapter 8 of the Land Development
Code, which provides an exception from the variance process.
Jones also asked Laird to provide a written explanation,
which Laird does not dispute, and Laird provided one two
weeks later by email. However, according to Laird, he also
spoke with County Attorney Davis a few days later on July 8,
and Davis indicated that nothing else was needed;
consequently, Laird thought the matter was settled. But when
Jones did not receive a written explanation and two weeks had
passed, Jones mentioned it to Dyess (Laird's supervisor),
and Dyess told Laird he should provide a written explanation
to Jones. Laird sent Jones the brief written explanation by
email on July 16, 2015.
Jones
was unhappy with the delay and with Laird's explanation,
which Jones felt was inadequate. He signed a termination
notice on July 21, 2015, stating that Laird had violated
County Policy 18.2 by engaging in conduct that was
“disruptive, insubordinate, antagonistic, offensive or
injurious to the County;” for failing to perform his
job in a satisfactory manner; and for “[i]ncompetence,
inefficiency, negligence, or failure to follow orders,
” as detailed in an attachment. ECF No. 46-2. Attached
to the form was a statement by Jones describing the incident
involving the Sugarwood HOA complaint and setback that Laird
had approved, along with Jones's statement that Laird had
failed to provide a timely and adequate written explanation
when directed to do so. According to Jones, this amounted to
“failure to perform job duties and
insubordination.” ECF No. 46-2, at 2. By deposition,
Jones explained that he made the decision to terminate Laird
because his act of bypassing the Board of Adjustment
proceeding was unusual, because Laird failed to provide an
adequate reason for granting the setback and none appeared in
the file, and also, because Laird failed to timely provide a
written explanation when directed to do so, and Jones thought
Laird's email response was insufficient. Jones also said
that Dyess reported that Laird “didn't think it was
a big deal.” Also in his deposition, Jones referenced
incidents of other complaints the County had received about
Laird, but these were not included in the termination
notice.[7]
Laird's
employee evaluations from 2013 and 2014 show that his job
performance met or exceeded expectations, and the only
official discipline in his personnel file was a 2009 written
warning he received for participating in an office sports
pool during work hours, for which he received a “formal
counseling.” ECF No. 55-9. Laird testified that he was
surprised at being terminated over the Sugarwood setback
incident because he felt that he had authority under Chapter
8 of the LDC and from Dyess to grant a hardship exception in
certain instances.[8] Dyess testified that he had encouraged the
Planning Department employees to use their professional
judgment to interpret the Code themselves when dealing with
permits.[9]Although Dyess suggested he might have been
more lenient than Jones, he signed the termination notice as
Laird's direct supervisor and acknowledged it was
Jones's decision and that Jones had the authority to
terminate Laird.
According
to Laird, Commissioner Meadows was behind the termination
decision.[10] He testified that Stephanie Manning, who
worked in Code Enforcement at the time, told him that Meadows
had sent another Code Enforcement officer, Anna Reichart, to
“spy” on Laird in late 2014, searching for a
reason to have him fired. Manning offered hearsay testimony
that Reichart told her Laird and Dyess “were on their
way out the door. They were going to be fired.” ECF No.
55-4, at 55. Manning believed that Meadows sent Reichart to
“spy” on them. According to Laird, another County
Commissioner, Celia Jones, told him that she was sorry about
his termination and said Mr. Jones wished he wouldn't
have done it, except that he knew Meadows wanted Laird
terminated, so he took the opportunity to do so with the
setback issue. Commissioner Jones (no relation to the County
Administrator, Mr. Jones) confirmed this in her own
testimony, saying she had spoken with Mr. Jones about the
termination because she felt that his evaluation of Laird was
harsh.[11] She testified that Mr. Jones told her
Meadows “had been wanting to get rid of Hal [Laird] for
a long time. I remember that exactly.” ECF No. 55-7, at
6 (Celia Jones Dep. at 5). She testified, however, that the
termination decision was made by Mr. Jones, not Meadows.
Commissioner
Meadows stated that she did not have the authority to hire or
fire employees other than her own assistant, and she denied
having any part in the decision terminate Laird. Meadows said
she also did not urge Jones to fire Laird. She said that she
knew of Laird only because the County had received several
complaints about him. In addition to the Sugarwood HOA
setback incident, the record includes two emails sent to
Meadows by constituents in July 2014, reporting delays they
experienced in waiting for permits and that Laird displayed a
negative attitude and used disrespectful language (telling
one constituent she was “screwed” due to a Code
change). Additionally, there was a telephone complaint about
Laird from another constituent, Patricia Helms, in June 2015,
which was discussed in interoffice emails.
C.
Additional Incidents
In his
Complaint, Laird states that after he discovered the
“decimal point memo” and participated in the
State Attorney's investigation, Jones and Meadows
“openly questioned his professional judgment.” To
support this allegation, he testified that he applied for a
transfer from Flood Plain Manager to Beach Maintenance
Manager and did not receive an interview, although he did not
know when the position was filled or how many people applied,
and he only assumed that the person awarded the position was
less qualified than he. He testified to an instance in May
2015 when an RV was improperly parked on a lot by a temporary
power pole, and, instead of asking the Planning Department
whether they had issued a permit, Meadows posted it on
Facebook and asked generally if anyone knew anything about
it. Laird took this as a personal insult and said he was then
questioned about it by his supervisor. None of the statements
by Meadows or the comments by citizens reference Laird. When
asked what connection this had to his termination, Laird
candidly answered, “I don't see any.”
One
other example Laird offered to show that his judgment was
questioned related to an email entitled, “Counseling,
” that he received from his supervisor, Dyess, on June
30, 2015. The brief email from Dyess memorialized an incident
that had occurred the previous day; the email provided no
details except to say that “it is highly inappropriate
to contact a customer to inquiry why they called a
Commissioner.” He urged Laird not to let it happen
again. According to Meadows and emails by her assistant, on
June 29, 2015, a constituent, Mrs. Helms, had called to
complain about Laird, saying he was rude and
“irate” with her for lodging a complaint about
him with the Commissioner. Laird does not dispute that the
incident occurred but disputes Meadows's characterization
of it. He responded to the “Counseling” email by
offering a written explanation, stating, while he had called
Mrs. Helms back to explain the reason for the delay of her
inspection, he was not rude or irate but had ...