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Clark v. Township Falls and James Kettler

argued: October 2, 1989.

DAVID CLARK
v.
TOWNSHIP FALLS AND JAMES KETTLER, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE TOWNSHIP OF FALLS AND CHARLES CHIMERA, INDIVIDUALLY AND AS FORMER SUPERVISOR, CHAIRMAN OF THE BOARD OF THE TOWNSHIP OF FALLS, AND AUGUST BAUR, INDIVIDUALLY AND AS TOWNSHIP MANAGER OF THE TOWNSHIP OF FALLS, CHARLES CHIMERA, APPELLANT/CROSS-APPELLEE; DAVID CLARK V. TOWNSHIP OF FALLS AND JAMES KETTLER, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE TOWNSHIP OF FALLS AND CHARLES CHIMERA, INDIVIDUALLY AND AS FORMER SUPERVISOR, CHAIRMAN OF THE BOARD OF THE TOWNSHIP OF FALLS, AND AUGUST BAUR, INDIVIDUALLY AND AS TOWNSHIP MANAGER OF THE TOWNSHIP OF FALLS, TOWNSHIP OF FALLS AND JAMES KETTLER, APPELLANTS/CROSS-APPELLEES; DAVID CLARK, APPELLEE/CROSS-APPELLANT V. TOWNSHIP OF FALLS AND JAMES KETTLER, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE TOWNSHIP OF FALLS AND CHARLES CHIMERA, INDIVIDUALLY AND AS FORMER SUPERVISOR, CHAIRMAN OF THE BOARD OF THE TOWNSHIP OF FALLS, AND AUGUST BAUR, INDIVIDUALLY AND AS TOWNSHIP MANAGER OF THE TOWNSHIP OF FALLS



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 88-3625.

Gibbons, Chief Judge, Sloviter, and Greenberg, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

I.

This appeal marks the latest skirmish in a regrettable and unseemly decade-long battle between appellee David Clark, on one hand, and one faction of supervisors and other officials in the Township of Falls, Pennsylvania, on the other hand. Over the years Clark, a lieutenant in the township police department, and appellants, the Township, Chief of Police James Kettler, and Charles Chimera, a former member of the Township's Board of Supervisors, have disagreed, often vehemently and vociferously, on the governance of the Township and of the police department and on Clark's role in the police department.

Clark brought this suit on May 3, 1988 under 42 U.S.C. ยง 1983 contending that defendants had taken actions against him that violated his rights under the United States Constitution and state law. At the close of trial, the jury found that the Township and Chimera had violated Clark's First Amendment rights, that the Township had deprived Clark of a property interest in his employment, that the Township, Chimera, and Chief Kettler had deprived him of a liberty interest in his reputation, that all three had also deprived him of procedural due process, and that Chimera and Kettler had intentionally inflicted emotional distress upon him. The jury awarded Clark compensatory damages against the Township in the amount of $50,000 and against Kettler and Chimera in the amount of $10,000 each, and punitive damages against Kettler and Chimera in the amounts of $10,000 and $30,000 respectively.*fn1 At the close of Clark's case defendants moved for a directed verdict and, after the verdict was rendered, moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The motions were denied. Defendants then filed a timely notice of appeal.

Defendants have raised myriad contentions on appeal. The most compelling is that the relevant evidence before the jury did not support the jury's findings of liability. In addition, Clark has brought a cross-appeal from the district court's orders denying his motions to amend his complaint.

In reviewing the jury's verdict we must consider the evidence adduced at trial in the light most favorable to Clark, as the verdict winner. See Hahn v. Atlantic Richfield Co., 625 F.2d 1095, 1099 (3d Cir. 1980), cert. denied, 450 U.S. 981, 101 S. Ct. 1516, 67 L. Ed. 2d 816 (1981). However, for the purpose of determining whether there was evidence before the jury to support its findings, we can rely only on relevant evidence. In this connection, we note that Clark has not appealed the district court's ruling, made on defendants' pretrial motion for summary judgment, that the Pennsylvania two-year statute of limitations applicable to section 1983 claims barred Clark from basing his claims on acts that occurred prior to May 3, 1986.

The trial court did permit testimony concerning events prior to May 3, 1986 to be admitted into evidence in order to show context, motive, and pattern. In determining whether there was sufficient evidence to support the jury's verdict, however, we must focus on conduct that took place from May 3, 1986, the beginning of the applicable statute of limitations period.

II.

Factual Background

The Township of Falls is a second class Pennsylvania township governed by a five member Board of Supervisors. Daily business is handled by a township manager who is appointed by the Board. Chimera was a supervisor from January 1976 until December 1987. He was Chairman of the Board of Supervisors several times, the last being from January 1986 until December 1987. Traditionally, the Chairman of the Board of Supervisors often makes decisions and issues directions individually. Kettler is Chief of Police of the Township of Falls. He has held that position since 1978, except that he was suspended in August 1985, discharged in November 1985, and then reinstated by a state court in March 1986.

There was evidence at trial that in 1981 Clark filed a prior civil rights action against the Township and Kettler, that the action against the Township was dismissed but that in 1983 Clark received a jury award of compensatory and punitive damages against Kettler which the parties thereafter settled, that Chimera was furious, and that, unknown to Clark, Chimera threatened to get even with him.

According to Clark's testimony, after his first lawsuit he was subjected to a series of harassing actions and unjustified public intimations of wrongdoing and even accusations. For example, shortly after the settlement with Kettler, a document critical of Clark was distributed throughout the Township and there was testimony that Chimera oversaw production of the document. That document, captioned the Blue Code of Silence, charged that Clark engaged in various instances of police misconduct. Clark rebutted each charge point by point at trial.

In 1983, it was discovered that $2,500 was missing from police funds. As part of an investigation by an independent investigator, Clark was required to submit to a polygraph test in 1984. Subsequently, a newspaper article reported that all employees presently working at the Township had been cleared.

In the spring of 1985, Clark, who was then acting police chief because Kettler was away, compiled a list of police equipment and supplies needed by the police department which was submitted to the Supervisors with the approval of Chief Kettler. Thereafter, Clark was investigated by the District Attorney. He was also required to appear before a grand jury in the summer or fall of 1985 because some of the equipment ordered consisted of a parabolic microphone and another secret listening device which may have been illegal. At the direction of his attorney who believed Clark was being set up, Clark pleaded the Fifth Amendment before the grand jury; thereafter numerous articles appeared in the newspapers reporting his use of the Fifth Amendment.

In December 1985, Clark was called to a meeting of the Board and as he entered Chimera "gave [him] the Nazi salute and yelled Seig Heil like the Nazi storm troopers." App. at 217. Clark immediately left the meeting.

In January 1986, after two candidates for supervisor allied with Chimera were elected to the Board, Chimera moved to demote Clark and several other police officers. When another supervisor accused Chimera of maintaining a "hit list", Chimera retorted that he had a hit list and that he would show how it could be used. At its February meeting, the Board voted to demote the officers Chimera had suggested, except that Clark was not demoted after another supervisor warned the Board they might be sued by Clark again.

In the summer of 1986, the Bucks County District Attorney, at the request of the two new supervisors aligned with Chimera, convened a grand jury to investigate whether anonymous campaign literature disparaging the two supervisors had been distributed in violation of state law during their election campaign in 1985. Clark, who was subpoenaed, told the grand jury that allegations that he had helped produce the literature with others at his home were patently false because he and his wife were separated at that time and he lived elsewhere.

Although Clark received a letter from the District Attorney "some months later saying [Clark] didn't do it," App. at 224, the issue emerged again in late 1987, when Officer Wayne Cloud gave a statement to Lieutenant John Rendeiro accusing Clark, inter alia, of having been involved in the production of illegal campaign literature. Rendeiro gave the statement to Chief Kettler, and Cloud's statement was sent to the District Attorney's office. The portion of the statement relating to campaign literature was anonymously placed in the office mailbox of Supervisor Gowton, who was allied with Chimera and who displayed the pages to the press and the public during the recess of a January 1988 township meeting.

At the same meeting, District Justice Vislosky stated that she believed that Clark was being investigated by the Township. The Board went into executive session and announced through the Township Solicitor that the matter had been referred to the district attorney's office and that Clark was under an internal investigation. This was the first time Clark learned that he was under investigation. Both Vislosky's statements and Gowton's disclosures were reported in the local press.

In 1987, Clark informed Kettler that an officer reported that he was unable to get a timely preliminary hearing. Clark said he was going to call the District Attorney and Kettler gave him seven more cases with procedural deficiencies to refer. At Kettler's direction, Clark spoke with a reporter who, in Kettler's presence, stated that the Chief told him that there were "cases that[had] been mishandled or improperly handled by the District Justices." App. at 227. The subsequent news articles about this investigation angered District Justice Vislosky. Clark then decided on his own to review police department records to determine whether other cases had been improperly handled by police officers or district justices. He kept Kettler informed and ultimately concluded that about seven police officers were primarily responsible for the mishandled cases. In connection with his investigation, Clark had removed numerous files to his office.

In late 1987 or early 1988, the Board, in response to some allegations of destruction of records, placed control of all the police records in the office manager. Clark was required to surrender his key to the record room. At the January 1988 meeting, the Board voted that the material Clark had collected for his investigation be turned over to the Township Manager or another officer.

August Baur, who became Township Manager on January 11, 1988, suggested to Kettler that in view of the investigation which was to begin shortly into the mishandled court cases, Clark should be removed from the responsibility of being Lieutenant in charge of records. Baur turned over the files Clark had been investigating to Business Risks, Inc. (BRI), a private consulting firm, whom the Township retained in early 1988 to investigate the charges swirling through the police department. Ultimately, BRI produced a report on its investigation. The investigation and report were to be confidential and copies of the report were not given to the public or to Clark. However, the report was leaked to the newspaper which then printed excerpts critical of Clark, which he had no opportunity to rebut.

Chief Kettler told Baur that once responsibility for records was taken away from Clark, he had much less work to do than the other lieutenant. On February 5, 1988, Kettler issued a memorandum temporarily reapportioning the work between Clark and Lieutenant Shaffner and assigning some of Clark's duties to a sergeant. Clark had previously had responsibility for records, detectives, training, internal investigations, the youth aide panel, the court officer, special services, and crossing guards, and Schaffner had been in charge of the patrol division. As part of the reapportionment, Clark was relieved of all responsibilities except for communications, crossing guards, and training, and he and Schaffner were to share equal responsibility for the patrol division.

On February 23, 1988, the local paper published a letter written by Clark's wife in which she described her husband's changed duties. The following day the paper reported that the department was subject to an outside investigation and that Clark had been "stripped" of his duties. The article quoted the township manager saying that Clark was deprived of authority for records and for detectives "'to preserve the integrity of the investigation and really to protect Lt. Clark from any accusations that he manipulated the records or anything else like that.'" App. at 513. Clark was reinstated to his former duties on March 16, 1988, after he told Chief Kettler he had retained legal counsel.

In addition to his claims based on the events set forth above, Clark contends that actions by the defendants were designed to and did limit his right to participate at Board meetings. Following the meeting at which the demotions were voted, Clark and other officers frequently attended Board meetings, specifically raising questions about various Township expenditures and police department practices, including the demotions. At the meetings, which became unruly, Chimera and some of the police officers made insulting comments to each other. In April, Kettler told Clark that the supervisors were becoming upset about the officers' presence and comments at their meetings and that "if it didn't stop soon as to the problem, they would implement something and take action against" Clark. App. ...


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