The fate of lawsuits alleging federal civil rights violations and state whistleblower laws filed by a former Moab city manager last year rests in the hands of 7th District Judge Don Torgerson, following a late afternoon hearing Tuesday, Oct. 23. One lawsuit targets the city and the other names then-Mayor Dave Sakrison as the defendant.
Rebecca Davidson was fired, according to the city, after an independent investigator questioned city employees, a majority who said Davidson’s allegedly threatening leadership style created a toxic work environment. The investigator reportedly told certain city council members that the relationship between Davidson and the city’s workforce was not salvageable.
Davidson in her lawsuit argues she was fired for telling Sakrison and city council members she wanted to speak to the FBI regarding alleged corruption at the Moab Police Department.
Davidson alleges federal civil rights violations for First Amendment retaliation and state claims the city violated whistleblower laws and public policy. She seeks roughly $2 million in damages, saying the city’s actions have left her virtually unemployable as a public administrator.
Attorney Mary Ann May, representing the city, argued at Tuesday’s hearing that Torgerson should issue a summary judgment in both lawsuits, saying Davidson has offered no evidence her firing was in retaliation for her going to the FBI. Doing so would essentially lead to the cases’ dismissal.
Indeed, May said as a key city executive, Davidson had a duty to investigate and report potential wrongdoing in any city department, including the police department. The chief of police has domain over officers, but he or she is subordinate to the city manager, said May, adding Davidson in depositions agreed it was her job to investigate departments and report her findings to the mayor and city council.
Whistleblower laws, said May, are designed to protect hourly public employees and private citizens from losing their jobs. She made a point of noting Davidson was an “at-will” employee who worked at the pleasure of the governing board, and that her job description required her to oversee all departments.
“Was the speech (saying she wanted to speak to the FBI) made in fulfilling an obligation or duty?” asked May rhetorically, citing employment case law. (If so) it was not protected speech as a matter of law.”
Regarding Sakrison, May argued the former mayor as an elected official is entitled to qualified immunity, meaning he could not be named as a defendant in a lawsuit as an individual and therefore his personal assets would be at risk – barring a criminal act outside the scope of his official duties.
“That would mean there would be no need for a police chief,” said Zakia Richardson, one of Davidson’s attorneys, in response to May’s contention Davidson had control over all city departments.
Rather than look at a city manager’s official duties broadly, as May suggested the courts do, Richardson said they needed to be looked at “on a case-by-case basis. Circumstances and facts have to be taken in context. We can’t assume. Just because statements were made in her office doesn’t mean she wasn’t speaking as a private citizen.”
Richardson also argued Davidson’s speech “may be entitled to constitutional protections even if they were made at work, about work. It was not her job to hold officers accountable. That is the police chief’s job.”
“There’s no causation,” countered May. “There’s no evidence her speech is related to her termination. She was terminated because the employment situation was unsalvageable.”
May said Davidson had a “rough leadership style” that included public berating of employees and sometimes shaking her fist at them. One employee alleged Davidson, while holding a baseball bat, threatened to hit her and her child.
Richardson said, “There were no reports of intimidation prior to (Davidson) saying she wanted to talk to the FBI. There’s no documented history of disciplinary action.”
Richardson also said the independent investigator never interviewed Davidson and that Davidson was never notified why she was being placed on paid administrative leave prior to her termination. The attorney said the case should go to trial for a jury to decide.
May responded by saying Davidson was well aware the alleged incident with the baseball bat and other reported instances of physical intimidation were documented prior to her being placed on administrative leave and ultimately terminated. She said Davidson was required to provide evidence the city council and former mayor conspired to terminate her under trumped up allegations, and in the process violated her civil rights and state laws.
“It has to be more than speculation,” said May.
Torgerson took the matter under advisement and said he would try to file his order in a timely fashion.
In a separate matter, the names of police officers and other people whom Davidson made allegations against in her deposition will be redacted in the public record. The FBI declined to investigate the Moab Police Department. The officers who were accused of wrongdoing were never charged. They and former Police Chief Mike Navarre are no longer with the department.