Laird v. Board of County Commissioners

          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 ...