FORT SMITH -- The Arkansas Court of Appeals reinstated Wednesday a lawsuit brought by two police officers who claimed the department retaliated against them for making whistle-blowing statements to the chief.
In an opinion written by Appeals Judge Larry D. Vaught, the court sent the cases of Don Paul Bales and Rick Entmeier back to Sebastian County Circuit Court for a trial ruling that a jury could decide whether there was enough evidence connecting whistle-blowing communications they made to then-Chief Kevin Lindsey with retaliatory actions brought against them.
Vaught did not reverse the Circuit Court ruling that threw out the complaint brought by officer Wendall Sampson Jr. because the department's discipline against him was for employee misconduct or poor work performance, not retaliation.
The attorney for the police officers, Matt Campbell of Little Rock, said Wednesday he was pleased with the ruling but was disappointed that so much time was lost waiting for the appeal to run its course. The case was to have gone to trial shortly after the June 30, 2015, ruling by Circuit Judge James O. Cox.
"I'm looking forward to my clients getting their day in court," he said.
Fort Smith Interim Police Chief Dean Pitts declined to comment on the ruling Wednesday, saying the department didn't comment on pending litigation.
The lawsuit, filed in January 2014, was filed against Fort Smith and Lindsey. It charged that the officers were disciplined in retaliation for reporting what they believed to be city and department policy violations to Lindsey.
In the case of Bales and Entmeier, they told Lindsey they believed he had been misled in terminating a probationary officer, Addisen Entmeier.
The two officers believed Addisen Entmeier was terminated in retaliation for reporting that the wife of his supervisor was one of a number of department employees wrongly being paid overtime during their paid lunch hours.
Bales and Rick Entmeier immediately became the subjects of internal investigations and grievances in the department, Vaught wrote. They were given time off without pay, which they claim was given to them in retaliation for supporting Addison Entmeier.
Sampson's discipline involved he and Bales giving counseling to a dispatcher as a personnel issue. The dispatcher was assigned to a different shift, then filed a grievance against Bales and Sampson alleging age discrimination and sexual harassment.
Sampson was formally reprimanded, and Bales was given a one-day suspension without pay.
The city filed a motion for summary judgment in March 2015 arguing the case should be thrown out because the discipline against the three officers was not retaliatory and there was no evidence connecting the reporting of their whistle-blowing actions and their discipline.
A summary judgment is granted when there are no questions of fact for a jury to decide and the judge rules on the case based on the law.
Vaught wrote in his ruling that Bales, Rick Entmeier and Sampson qualified as whistle-blowers under the Arkansas Whistle-Blower Act and that there was evidence of a connection between their whistle-blowing actions and the disciplinary actions against them.
Vaught referred to evidence presented by Bales that Lindsey had amended an investigation against Bales to include statements by Bales, and that the amendment was made before Bales made the statements.
"This could lead a fact-finder to infer a malicious intent by Chief Lindsey," Vaught wrote.
Lindsey held himself out to be a neutral arbiter in the Bales investigation but reviewed and changed investigatory questions to be asked, the ruling said, leading to the inference that Lindsey was not neutral.
Vaught made the same finding about Lindsey in discussing Rick Entmeier's case and ruled that summary judgment on both officers' whistle-blower claims was improper.
State Desk on 08/25/2016