Articles Archive By Bob Gorsky BOLTON WILL COLLECT Much ado has been made over the termination of Terrell Bolton. Lots of “he said, she said” talk by Mr. Bolton and City Manager Ted Benevides - Lots of rhetoric from city hall - Lots of subtle and not so subtle playing of the race card by Mr. Bolton and some of his supporters. What started as a humble press conference at police headquarters on the day of his termination, culminated with Mr. Bolton using the pulpit of his church to say that the firing reminded him of racism he experienced as a child in Mississippi. There’s no doubt that Bolton’s dismissal played out with more fanfare than most of the terminations he meted out during in his tenure as Chief of Police. He has his supporters as well as his detractors and his press conferences and speeches - including his cries of racism - probably added to the detractor list, particularly among those who may have been on the fence about him at the time of his termination. Now Mr. Bolton has filed a wrongful termination lawsuit after the city refused to negotiate a settlement of his claim. Politics and judgment calls aside, at the end of the day I think Mr. Bolton will win his lawsuit or be on the collecting side of a settlement. Here’s why. Chapter XII, Section 5 of the Dallas City Charter states as follows:
I’m familiar with this charter language because it played a part in the lawsuit we filed on behalf of several deputy chiefs who were demoted by then Chief Bolton in 1999. In essence, unless the chief (or his assistants) are removed for a reason that would justify firing from the police department, the chief must be returned to his previous rank, which in Bolton’s case was Assistant Chief of Police. This should have been done just as the demoted commanders were returned to their previous positions. Under a court ruling issued in the case of Willie Taylor and Robert Jackson, two of the former commanders who did not reach a settlement, Bolton could have been removed by the acting chief of police to his previous non-appointed position (there is apparently a question as to whether the sergeant’s position he held several years ago was a civil service position or not, but that issue is not germane to this analysis); however, by firing Bolton outright he can now claim lost pay as an assistant chief, or at least deputy chief until such time as he is demoted back to a civil service rank. Rather than demoting him in August, the City of Dallas is now exposed to the accumulation of executive rank back pay until the case is resolved. The mayor and others on the Dallas City Council have publicly stated that the City of Dallas has a court ruling in support of its position. According to a Dallas Morning News story shortly after the filing of Bolton’s lawsuit, the City of Dallas has filed an answer claming that it has a court ruling (the Jackson/Taylor case) which supports its position. The Jackson and Taylor case, however, addresses only whether the demoted executives had a property right to their executive positions and along with that property right the right to be demoted only for cause. That Fifth Circuit Court of Appeals ruling did not address the right of the city to outright fire the police chief or any of the commanders. You might ask if Mr. Benevides had the basis to remove Mr. Bolton from the police service. If, for example, Bolton had committed an egregious act of misconduct that would justify the firing of a police officer from his employment, the city charter would not give Bolton the right to return to a lower rank. However, the reasons Mr. Benevides gave publicly and as stated to his letter to Robert Hinton, Jr. (Mr. Bolton’s lawyer), go more to Bolton’s management style and judgment rather than misconduct. In fact, many of the criticisms outlined by Mr. Benevides involve actions which Benevides admittedly supported Bolton on at the time. If the city’s defense hinges on proving that the laundry list provided support for his removal from police service (as opposed to demotion) the city will lose. My opinion is that politics got in the way of good judgment and may have gotten in the way of good legal advice by placing a target on Bolton’s back prior to his firing and publicly espousing a position that “we’ll never pay a dime,” the city has backed itself into a corner - at least for the time being. As a result, Mr. Bolton was forced to file an expensive lawsuit. The lawyers will cost a bunch and the payoff to Bolton will cost, as well. All the city had to do was demote him to deputy chief and then demote him further to the rank of sergeant. In all likelihood he would have resigned, unwilling to work as a lower level supervisor, or he would have worked out a reasonable severance in exchange for his resignation. The ordeal makes us wonder whether city hall thought this thing through. I have no way of knowing what the City Attorney advised Mr. Benevides, or if he sought her advice. Some day the courts, as the ultimate authority, may have the final say on the matter. It’s been said that the success or failure of the city manager depends upon the success or failure of his new chief selection. But maybe that personnel decision won’t determine Mr. Benevides’ longevity. The payoff to Terrell Bolton might do that first. _______________________________________________________ PAY LAWSUIT PROGRESS..... The Texas Supreme Court has ruled against the City of Dallas in the Reata case by holding that because the city initiated a claim against a party in the litigation, it cannot claim sovereign immunity as a defense. As you know, the city has filed counterclaims against both the individuals and the class members in the pay lawsuits. The counterclaims could have a significant impact on the city’s ability to claim that it is immune from liability in the pay cases. Soon after the Reata decision, the city filed a motion to nonsuit its claims in the pay cases. It’s interesting that the city now takes these claims less seriously. ________________________________________________________ RUBY CASE DISCUSSION…. On April 16th Lyon, Gorsky, Baskett, Haring, Gilbert & Cates, L.L.P. attorney, Phil Burleson, Jr., participated in a panel discussion with Judge Barefoot Sanders, Judge Joe Brown, Jr. and Attorney George Bramblett, Jr. concerning recollections of the Jack Ruby trial. Judge Sanders was U.S. Attorney for the Northern District of Texas at the time, Judge Joe Brown, Jr. is the son of Judge Joe B. Brown who presided over the Ruby trial, and Phil’s father, Phil Burleson, Sr. (the first DPA attorney), was one of three defense attorneys for Jack Ruby. Film clips of the news coverage were shown including the famous Melvin Belli rant after the jury verdict and the panel discussed their recollections and their respective father’s recollections of the events surrounding the Ruby prosecution. Phil Burleson, Sr. was successful in arguing for a reversal of Ruby’s conviction based in part on evidentiary issues but most importantly based on the failure of the court to move the trial out of Dallas due to the pre-trial publicity. Ruby died in jail before he could be retried. ____________________________________________________ Bob Gorsky is a partner at the Dallas lawfirm of Lyon, Gorsky, Haring & Gilbert, L.L.P., 2501 Cedar Springs, Suite 750, Dallas, Texas 75201; (214) 965-0090 or e-mail Bob at: bgorsky@swbell.net. |