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Judge: Parker lawsuit can proceed
But suit narrowed to questions about whistleblower status, contract terms violation
W Parker
Frank Parker

Former City Manager Frank Parker’s wrongful-firing lawsuit against the city of Statesboro remains alive, but was narrowed by the judge to the questions of whether the city retaliated against Parker for acting as a whistleblower and violated terms of his contract.

Originally, Parker’s suit over his June 24, 2014, firing by a 3-2 vote of the City Council also alleged that the mayor and council members slandered him and intentionally inflicted emotional distress. But Bulloch County Superior Court Judge John R. “Robbie” Turner issued a summary judgment dismissing those claims Oct. 30. He also ruled that Parker’s claims of Georgia Open Meetings Act violations, as part of his lawsuit complaint, were filed too late to be considered.

Turner’s ruling limits the remaining claims to the city government as such, leaving no individual liability on the part of the mayor and council members. But he wrote that the whistleblower claim and whether Parker is owed severance pay and damages for violation of his contract involve questions of fact for a jury to decide.

Parker’s attorney, Daniel Snipes of Statesboro, says the case is going forward.

“At this stage, Mr. Parker still has his claims against the City for retaliation under the Whistleblower Act and for breach of contract,” Snipes replied in an email Friday. “Factually, Mr. Parker will be able to present all facts related to his termination and why the City of Statesboro was not justified in its decision to end his employment after he identified past violations of the Open Meetings Act by the City Council.”

At a June 19, 2014, meeting with Parker and city department heads, Mayor Jan Moore reportedly commented that recent council discussion resulting in a raise for city employees had been contentious but necessarily public. Parker then said that he had sometimes met privately with a majority of council members.

In the specially called meeting on June 24, 2014, some council members asserted that if Parker’s statements were true he had violated the Georgia Open Meetings Act and that if they were false he had slandered the council.

He asserted whistleblower status in an August 2014 pre-litigation notice and the complaint that initiated his lawsuit on Sept. 3, 2014.

Turner’s ruling leaves Parker’s assertions about the Open Meetings Act for a jury to consider in determining whether he was acting as a whistleblower. But Turner found that the statute of limitations had expired before Parker reported alleged open meetings violations as part of his lawsuit.

The last meeting Parker referred to in his court filings was an April 4, 2014, luncheon hosted by a local engineer and attended by Parker and several council members. More than 90 days had passed by the date when Parker’s suit was filed. The law allows longer, up to six months, for reporting violations that someone learns of after they occur. But Turner judged that, since Parker attended a June 2012 Georgia Municipal Association course on the Open Meetings Act, he should have known if the April 4, 2014 gathering was in violation when he attended it.

In deciding the claims of slander and infliction of emotional distress, the judge referred to the principle of “privilege,” which allows people to say things in certain settings, such as official proceedings, that might be considered slanderous elsewhere.

“Without addressing issues of sovereign and official immunity, the Court finds that the statements are privileged and therefore not actionable,” Turner wrote.

Even a test of “actual malice,” involving statements that were knowingly false or made with reckless disregard for their truth or falsity, would not apply to statements “made by city officials about official matters,” he added.

But Turner wrote that it was not appropriate for him to decide, by summary judgment, whether or not the city was retaliating against Parker for reporting what he thought was illegal activity. The state’s Whistleblower Act prohibits such retaliation.

“Georgia law holds that a reasonable belief that an activity is illegal is sufficient to sustain a claim. … Thus, it becomes an issue of fact for a jury to determine if the Plaintiff was terminated in reprisal for his statement pertaining to alleged violations of the (Open Meetings Act),” Turner wrote.

He also found that a question of fact exists “as to whether or not the actions of the City of Statesboro constitute a breach of Section 3 of the Plaintiff’s employment contract, specifically, whether or not the Plaintiff was terminated for cause such that he would not be entitled to severance.”

Attorneys for the city and its elected officials had filed motions for summary judgment on all the charges in Parker’s claim.

In the Oct. 26 hearing, the city officials were represented by two sets of Atlanta lawyers. R. Read Gignilliat was lead attorney for the city, Mayor Moore and City Council members Phil Boyum, Travis Chance and John Riggs, the three who voted to fire Parker. The two council members who voted against his dismissal, Will Britt and Gary Lewis, were represented by Phillip E. Friduss, who argued that his clients could not be held responsible for the city’s actions.

In his reply to the newspaper, Snipes noted that he and Parker had agreed that the individual council members did not have liability for the whistleblower and breach of contract claims and agreed to their dismissal as defendants on these issues.

Snipes also referred to the principle of official immunity, although Turner appears to have separated this from the idea of privileged statements.

“Official immunity is a long established judicial concept designed to protect elected officials from making unpopular decisions and to encourage lively and unfettered debate,” Snipes said. “In this case, official immunity protected the individual members of the city council even though many of the statements made during the June 24, 2014 council meeting were not correct.”

He asserts that Parker did identify Open Meetings Act violations, which “occurred after the 2010 case where the Bulloch County Superior Court found that the City Council had violated the Open Meetings Act in a series of meetings at the Gateway pond house.”

On Nov. 6, Turner issued a certificate of immediate review, allowing the city’s attorneys to ask the Georgia Court of Appeals to review his denial of summary judgment on the whistleblower and breach of contract claims. Otherwise, this decision would not be subject to direct appeal.

 

Al Hackle may be reached at (912) 489-9458.

 

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