Dismissed! Federal judge tosses suit against village over mounted unit; lawyer vows appeal

A federal judge tossed out a lawsuit alleging Oxford Village violated the constitutional rights of three individuals who claim they were improperly removed from their unpaid positions as reserve officers in a police mounted unit and had their reputations harmed by officials’ comments during a public meeting in January.

In an 11-page order dated Aug. 31, Chief Judge Denise Page Hood, of the United States District Court, dismissed with prejudice the case brought by Oxford Twp. residents Dr. Bruce Meyers and Kallie Roesner-Meyers, a married couple, and Eugenia Calocassides, of Metamora.

When a case is dismissed with prejudice, it’s dismissed permanently. The plaintiff can appeal to a higher court, but he or she is barred from filing another lawsuit based on the same grounds.

Hood found that “no constitutional right has been violated” because these three individuals were volunteers, not employees of the village, and therefore, they’re not entitled to a hearing to clear their names, as they had requested, under the law.

“Only an employee who has been the victim of defamation by their employer and lost their job because of the false accusation is entitled to a name clearing hearing,” the judge wrote. “A name clearing hearing is not a protected interest under the 14th Amendment for volunteers.”

In addition to the municipality, the trio sued former village Manager Joe Young, council President Sue Bossardet and village attorney Bob Davis in their “personal and professional capacity.” They also sued Acting Village Police Chief Mike Solwold, but only in his “official capacity.”

“I am glad that the village council had the resolve to allow me to work with our expert insurance lawyers to pursue the most aggressive defense possible by filing an immediate motion to dismiss,” Davis said.

“These people were not and never were employees of the village by any stretch of the imagination and the lawsuit, in my opinion, was flawed in its drafting and in its inception. This is a good result. It follows the law.”

By filing a motion to dismiss, Davis said the village avoided having to engage in “protracted litigation and discovery” that could have lasted “six months to one year under a court scheduling order.”

“We never answered the complaint. We never took a deposition, never did discovery. We filed this motion right out of the box and the case is over,” he said. “So, not only is it the most aggressive approach you can take as a lawyer, it’s also the most economically- sound approach to take. It’s a very cost-effective ending to (an) otherwise bogus lawsuit.”

But village officials shouldn’t be popping open the champagne just yet because, according to Philip L. Ellison, the Hemlock-based attorney representing the trio of plaintiffs, this case isn’t over.

He told this reporter he plans to file an appeal, which must be done in the next 30 days, with the Sixth Circuit U.S. Court of Appeals in Cincinnati, Ohio.

“The judge concluded that what happened to these individuals is arguably a violation of their rights if they were employees,” Ellison said. But Hood ruled “those rights don’t exist” in this situation because as reserve police officers, they were “volunteers,” he continued.

“No court has ever ruled that way before,” he said. “It’s never been dealt with and she came down on the side of ‘you have to have received a paycheck to have federal rights.’

“I don’t believe with the way our society is set up, with the way that individuals serve our government (as volunteer firefighters and volunteer police officers), they have no rights if they’re wrongfully removed from their position. That can’t possibly be the correct interpretation of the law.”

That’s where the potential appeal comes in.

“One way or the other,” Ellison said, “the Sixth Circuit’s going to make some new law in this area.”

“I think we’re going to establish some new law that federal rights are not conditioned on whether you get a paycheck or not,” he noted.

In response to the potential appeal, Davis remarked, “No level of appeal will change the fact that these individuals were not employed.”

“The law is clear on this,” Davis continued. “These individuals presented no evidence of an employee relationship.”

Meyers, Roesner-Meyers and Calocassides claim they served the village on a voluntary basis as reserve officers with a new mounted police unit. They claim they were issued both badges and uniforms.

The village claims it has absolutely no record whatsoever of these three individuals having ever served as either municipal employees or volunteer reserve officers.

Their request to become reserve officers was denied by a three-member reserve officer board in July 2016 “because the group was not willing to comply with the police department rules for the reserve program” and “they wanted to become a mounted division all on their own,” according to a Feb. 20, 2017 memo from Acting Police Chief Mike Solwold.

Solwold served on that three-member board that rejected them.

Despite this denial, the three were allegedly issued “mounted reserve badges,” which an Oct. 12, 2016 invoice from the Waterford-based Harwood Tuxedos & Uniforms shows were ordered by former Police Chief Mike Neymanowski, who resigned in February of this year.

Prior to that, Neymanowski gave written authorization for the trio to represent the Oxford department at the 32nd Annual National Mounted Police Colloquium held in September 2016 in Lexington, KY. They were given uniforms and patches to wear while there.

The trio also participated in last October’s Scarecrow Festival in downtown Oxford with two of them wearing village police uniforms and patches.

Neymanowski introduced Meyers and Roesner-Meyers to council during the public comment portion of the Oct. 11, 2016 village meeting and informed council he was “in the process of” forming a mounted unit that would be an “extension of our reserves.”

No council action was taken at that meeting and no formal proposal regarding the formation of a mounted unit was ever presented as agenda item or voted on by council after that.

Upon learning that Oxford’s mounted unit had been invited to participate in the inaugural parade for President Donald Trump, council, at its Jan. 10, 2017 meeting, voted 4-1 to approve a lengthy and detailed motion making it clear that no mounted police division had ever been “reviewed, approved, authorized, sanctioned or otherwise allowed” in the village and that the three individuals “be notified to cease any and all activities wherein there is a representation of any kind that they are part of the Village of Oxford Police Department in any way.”

During that public meeting, Meyers, Roesner-Meyers and Calocassides claim council questioned and attacked them, harming their reputations and good names. The trio claims the village failed to provide them with a name-clearing hearing, something to which they believe they have a constitutional right.

The village insists it didn’t have to provide a name-clearing hearing because based on the 2002 U.S. Court of Appeals decision in Quinn v. Shirey – which identified five factors that a plaintiff must demonstrate to have a name-clearing hearing – only employees who are terminated are entitled to that under the law and these three individuals were never employed by the municipality.

In her order, Hood agreed with the village.

The judge cited Black’s Law Dictionary, which defines “employment” as “work for which one has been hired and is being paid by an employer” and “volunteer” as “someone who gratuitously and freely confers a benefit on another.”

“Since Plaintiffs were not paid for their service (as reserve officers), but freely and willing(ly) gave their service, they are volunteers,” Hood wrote. “Based on (case law), plaintiffs are not entitled to a name clearing (hearing) because they are not employees.”

But Ellison pointed out that Hood, in a footnote on page 7 of her order, concluded the claims of his clients did meet three of the five requirements for a name-clearing hearing.

“Plaintiffs met the third requirement because the (council’s) motion to denounce the unauthorized mounted unit was made during a town meeting where the public could hear,” Hood wrote. “Plaintiffs met the fourth requirement because they claimed the Defendants accused the Plaintiffs of impersonating police officers. Plaintiffs assert that the accusations are false and defamatory . . . Since the statements were made freely and willingly by the Defendants, the fifth requirement was met.”

Despite meeting these three requirements, Ellison said the judge “latched onto” the employment factor and she doesn’t believe volunteers are employees.

“The way I read the judge’s decision, had any of these three individuals gotten even $1 in a paycheck, they would have had a case for what the village did to them,” he said. “Yes, the case was dismissed, but if you look at the way the judge ruled, what we actually alleged happened is actionable, according to her in that footnote.”

Ellison believes volunteers are employees.

“Employment, in my estimation, in this day and age . . . is not limited to only those who get a paycheck,” he explained. “Compensation from a government doesn’t necessarily mean a paycheck. It can mean honor, it can mean the right to have a particular position, the esteem . . . For example, with the Village of Oxford, they provided (my clients) with uniforms and badges and all other sorts of compensation. Is it a paycheck? No, it’s not a paycheck, but it is something that provides a benefit, (a reason) why someone would volunteer and be part of their community.”

Ellison added, “The village could have ended this lawsuit by just giving them a chance to have a hearing. That’s all they wanted.”

“I think the reason the village is fighting so hard about not wanting to have a name-clearing hearing is that, I think, some information will get out that’s going to be unpopular to those who hold, or at least did hold, public positions.”

Davis sees things differently.

“This case is a prime example of manufactured litigation designed for publicity and not to promote justice,” he said. “These tactics are shameful.”

 

One Response to "Dismissed! Federal judge tosses suit against village over mounted unit; lawyer vows appeal"

  1. resident   September 6, 2017 at 3:30 pm

    fantastic, the wanna-be’s can go away now. hopefully they go find some other community to volunteer, ahem – I mean pester and FOIA to death. I can’t believe this woman represents “horse country” on the planning commission. what a joke!

    Reply

Leave a Reply

Your email address will not be published.