Metcalf Wins Major Lawsuit Issues

U.S. District Judge Terence Kern for the Northern District of Oklahoma issued a ruling this week in the long awaited lawsuit of Gary Metcalf vs the City of Grove, Bill Galletly, Debbie Mavity, Randy Jobe, David Adzigian, David Helms and Carolyn Nuckolls.

The defendants' Motion for Summary Judgment was granted in part, and denied in part, in the stunning 37 page ruling issued Tuesday.

Denied in Docket 29 were the defendants' motion for Summary Judgment with respect to Metcalf's constitutional claim (violation of the 14th Amendment); denied with respect to the qualified immunity of Galletly; denied with respect to the qualified immunity of the City Council defendants, denied with respect to Metcalf's claim for slander, and granted with respect to the qualified immunity of Mavity, and granted with respect to Metcalf's claims for intentional infliction of emotional distress (IIED) and tortuous interference with business relations (TIBR).

The Judge also denied the plaintiff's motion for a partial summary judgment in docket 31.
He also ordered Metcalf to file an amended complaint by Thursday, March 9 asserting only the three state law claims described in his original complaint. Both parties were ordered to submit additional arguments and authority in their jury instructions or trial briefs, on the issues of the third element of the constitutional claim (foreclosure of future employment opportunities) and the common-law slander claim (publicity).

Basically, the city and council members lost because they failed to grant a name clearing hearing for Metcalf after his firing. Only Mavity came out unscathed.
"The Court has found that Metcalf has created a question of fact as to whether the conduct of Galletly and the City violated Metcalf's constitutional rights. Metcalf has therefore sufficiently asserted violation of a constitutional right," according to the ruling.
"The general right to a name clearing hearing where a public employee's reputation or good name is at stake has been entrenched in US Supreme Court and Tenth Circuit case law for over 20 years and is therefore clearly established," said the Judge in his ruling.

Metcalf was the city's Director of Emergency Management and was fired by Galletly on June 18, 2004. Later that day Metcalf requested a "Board of Inquiry" hearing in response to his termination, according to court documents. The city did not respond to this letter and did not provide Metcalf with a name-clearing hearing; nor did the city council defendants, according to the court documents.

On March 2, 2005 Metcalf filed a lawsuit against the defendants for depriving him of his "right to Liberty without Due Process of law by terminating him based upon public statements of unfounded charges of dishonesty and immorality that have seriously damaged his standing and associations in the community and foreclosed his freedom to take advantage of future employment opportunities."

Metcalf requested "actual and punitive damages and any other legal or equitable relief deemed appropriate by the Court, including reinstatement to his former employment and a Court-ordered notice from the defendants advising the public that the charges made against him were false."
He now works as the Delaware County Director of Emergency Management.

In the court document, "Metcalf does not deny that pornography was found on his computer but denies only that he intentionally viewed or accessed the pornography on his computer…Defendants argument ignores the principle that the Court must be concerned with whether a 'defamatory impression' was created," said the Court.

Metcalf claimed in his deposition that another employee in the past had access to his computer and that if he did view any improper sites it was unintentional and as a result of unwanted "pop-ups."
The Court made a distinction in the newspaper articles in the use of the words "found on his computer" rather than the words "accessed by Metcalf" or "viewed by Metcalf."
The Court rejected Metcalf's argument that he is entitled to summary judgment on the element of "falsity" merely by raising a challenge to the truthfulness.

"A substantial question of fact exists as to whether Defendants created and disseminated the defamatory impression," said the Court. However, the Court concluded that Metcalf's evidence is "sufficient to reach a jury on the issue of whether Defendants in effect 'created and disseminated' the defamatory impression at issue."

With respect to the City Council at that time, it was argued that the Plaintiff "has not shown that they had authority to provide the name-clearing hearing that would have rectified the alleged violation."

Oklahoma Law, the Court said, expressly prohibits a city council from participating in any manner in the appointment or removal of officers and employees of the city, except as provided by law, or appointing or removing city employees except through the city manager.
However, Metcalf asked each council member for a name-clearing hearing, by letters sent to council members' homes, according to the Court. The Court ruled that the "City Council Defendants had fair notice that their conduct in failing to provide the requested hearing was in violation of the law." It ruled that their failure was "administrative rather than legislative in nature."

With respect to Mavity, the Court said "there is no evidence in the record that she, as the Assistant City Manager, had any authority whatsoever to cure the alleged constitutional violation by providing a hearing." The only evidence is "that she was present in the room when the termination decision was made."

The case will obviously continue with further judicial rulings or even jury trials of the defendants. Calls to Gary Metcalf and Galletly were not returned by press time Thursday.

It sends a clear message to city officials--always have legal counsel present; always consider the constitutional rights of individuals; and afford people the right to a fair hearing.

Local Internet Provider Files Lawsuit

Green Country Internet, LLC has filed suit to recover $214,000 in two promissory notes plus an account payable to SBC in the amount of $37,000, according to Delaware County court records. Defendant named in the suit is Jetstream Wireless, LLC, which purchased Green Country Internet in March 2005 from its owner, Merl Tinney, who now lives in Fairland.
The suit alleges that Green Country entered into an asset purchase agreement with Jetstream, based in Phoenix, Az., for all of the assets of the internet business and executed two promissory notes in the amounts of $60,000 and $190,000. As part of the agreement, Jetstream also agreed to purchase certain debt Green Country had with SBC with a present balance of $37,737.17.
According to the court filing, Jetstream Wireless has defaulted under the terms of both notes and the promise to pay SBC. Green Country is asking for judgment against Jetstream in the amount of $214,572.44 on the promissory notes and $37,737.17 on the SBC account payable, with interest, attorney fees and costs.
This suit was filed Jan. 30, 2006 and according to court records no answer has been received from the defendant.
Tinney said he filed suit when "the checks started bouncing."
In 2000, Tinney attempted to put up a new tower on the southeast corner of church property east of Grove and obtained a 50-year lease which he still has, on the land.
The tower was to be 150 feet tall and provide better internet service for Grove.
However, he never obtained FAA permission for the tower which Tinney says was .39 miles west of the Grove Municipal Airport's runway centerline.
He said he filled out the paperwork and the airport manager, Terry Radcliff (now Abercrombie) offered to mail it for him to the FAA in Ft. Worth, Tx.
However, a letter from the airport manager was attached to the application, dated July 24, 2000, and stated "this seems to be in close proximity to the Airport and I have concerns about the height and location." The entire application and Radcliff's letter was returned to Tinney, he said, who then learned of the airport manager's opposition to his tower.
He later built another tower across from the Co-op on highway 10, but much shorter in height, an issue which causes complaints about bad cell service and lack of broadband service in Grove, to this day.

List of Prosecution Witnesses Filed for Trial

A list of witnesses and summaries of expected testimony has been filed in District Court in the case of the State of Oklahoma vs Bill Galletly, Grove City Manager. His jury trial begins Monday at 9:30 a.m. in the Delaware County Courthouse on two counts of bid splitting to avoid the required letting of bids, a misdemeanor.
According to the Burks Notice filed March 3 by Assistant District Attorney Ben Loring, the State intends to introduce testimony and evidence that while the defendant was city manager in Clinton, Ok. a significantly similar controversy arose relating to the Oklahoma Public Competitive Bidding Act of 1974, which the notice says "resulted, in part, with his termination as the City Manager on April 23, 2002."
Burks Notice provides for the introduction of evidence of "other crimes or bad acts" that may be introduced at trial. (Burks v State, 594 P.2d 771 (1979).
Among the prosecution witnesses to be called is Vicki Ratke, deputy city clerk and personnel director of the City of Clinton, who is expected to testify regarding city council minutes and explain Galletly's "termination as Clinton City Manager."
Other witnesses on the Discovery Response filed by Loring are Lisa Allred, Grove City Treasurer; Kenneth Birkes, Grove; Gary Bishop and Larry Parham, Grove city councilors; Jack Bower, Grove Utility Superintendent; Bonnie Buzzard, Grove City Clerk; Bob Carmical, Grove Building and Grounds Supervisor; Tish Carroll from the D.A.'s office; Pete Churchwell, GMSA Board Chairman; Craig Criger, GMSA board member; Bill Holt, city employee; Calvin Igney, Grove, Robert L. Jackson, Grove; Virgil Luff, Mill Creek Carpet & Tile; Randy Mathis, D.A.'s office; Debbie Mavity, Grove assistant city manager; Jim Reiling, Grove Natural Gas Supervisor; Ken Schwab, Tulsa, and Mark Wall, Grove Chief of Police, according to the Discovery Response filed.

Grove Left Out of New Radio System

More than $12 million in Federal Homeland Security grants has been awarded to cities and towns in northeast Oklahoma, including $1.2 million for Vinita and nearly $2 million for Miami.
But not Grove.
The city has been left out, due to an apparent mixup in communications last April. The cost to Grove could be well over $1 million.
The money is for new 800 MHz radio equipment for police, fire and EMS, including new base transmitters, hand-held radios, truck radios, and towers, and provides for all radios within a 70 mile distance either side of I-44 to be on the same trunking system, and be operational by year's end.
Monkey Island Fire Department received $111,000 and Bernice received $112,000.
Carl Tesreau, Chief of the Monkey Island Fire Department, said the new system means that all cities and towns on the system can talk to each other in the event of a mass disaster, much better than the old 150 MHz system. As many as 10 cities can have simultaneous communications with the new system.
MIFD will leave their old system in place as a backup, and will need it to talk to Grove unless Grove is able to restore the grant.
When informed by The Observer that Grove had been left out of the grant money, Debbie Mavity, assistant city manager, spoke to Homeland Security in Oklahoma City and was told to write a letter to them explaining the communications mixup and need for the money and "something may be workable."
Homeland Security was told by someone "that Grove already has radios and doesn't need more," according to a news source. So Grove was left off the list.
"Someone dropped the ball in Grove, or in Oklahoma City, we just don't where," she said, "but hopefully we can get this grant back on track and get it restored. We have an immediate need for new radios for GMSA employees and we need to be on the new 800 MHz system to communicate with other cities and towns," Mavity said.
Some other cities and their grants include:
Commerce: $207,000
Pitcher: $198,000
Quapaw: $184,000
Wyandotte: $178,000
Fairland: $187,000
Ottawa County: $766,000
Big Cabin: $144,000
Afton: $105,000
The complete system across the state will be finished by April 2007, said Kerry Pettingill, Director of the Oklahoma office of Homeland Security.

City Council to Meet With Airport Trustees

The Grove City Council voted 3-2 to reject a list of "stipulations" from the Grove Municipal Airport Authority but stopped short of taking further action to resolve the controversy over transfer of property to the city. They agreed to hold a joint special meeting with the airport board at 1 p.m. Thursday, March 16 to see if a compromise can be worked out.
Voting against the rejection of the stipulations were councilors Larry Parham and Gary Bishop.
The major issue still to be worked out is indemnification of authority and trustees against possible legal action due to the transfer of the property. City Attorney Ron Cates said "indemnification just cannot be. Council does not have the authority to do that." He said that "the stipulations are inconsistent with the 5-0 vote taken by the council at their last meeting and are a shifting of the risk from the trust authority to the citizens of Grove.
You don't have statutory authority to indemnify," Cates said.
Also rejected on the "stipulation" list is for the city to modify the Lease and remove the provision which allows the city to terminate the lease upon satisfaction of the airport authority debt, and some of the wordage associated with the city agreeing to pay all fees and expenses "involved in or associated with the transfer of property."
The City did agree to mutually agree on the location of the jointly-owned tract which will have a value of approximately $100,000, and pay for "ministerial" fees in conjunction with the transfer of land. Specific legal descriptions of the co-titled land will be written. Legal descriptions of the rest of the land have already been written and forwarded to the airport trustees, City Manager Bill Galletly said.
Councilman Terry Ryan was concerned about "new issues" which have arisen more than three months after the initial discussions began between the council and trustees. "I am concerned that another laundry list may come back," he said.
He was especially upset by the wording in a letter from Max Schuermann, vice chairman of the airport authority, to Mayor Nuckolls which said the City had no right to demand or require any participation or distribution of the Trust Estate."
Ryan said "we simply requested transfer of the land to protect it from risk in case of a lawsuit." Ryan mentioned the current threat of a lawsuit against the council from a petition from 10 residents, and the current events which may lead to a Grand Jury investigation of city officials, as evidence that we live in a "litigious society."
"Let's not throw the baby out with the bathwater," said David Adzigian, a trustee, while airport user Troy Kyman said "we are so close to getting this worked out, let's not stop now." Bryant Chestnutt, trustee, said "don't throw the whole thing away."
Cates and David Jones, attorney for the trust, agreed to have further conversation about the legal aspects of the property transfer.
GMSA and GIDA have both previously voted to transfer all real property, except for the Grove Civic Center, to the city, without any difficulties.

In other action:
--Council approved for the city to advertise for bids in connection with the city's annual July 4 fireworks display;
--Approved purchase of office furniture through county budget funds for the Grove Fire Department at approximately $2,000;
--Approved a revised street and parking lot maintenance contract for sweeping, to K&C Construction of Grove;
--Approved a REAP contract in the amount of $44,690 in state funds for paving the parking lot at All State Tank, through Grand Gateway;
--Took action to close a portion of Elm Street in Honey Haven First Addition. Objecting was Planning & Zoning Board Member Judith Read, who felt that the action should first come before the P&Z Board.
--Authorized the Mayor to sign all documents relating to Pride Plating's application for a $100,000 grant and interest free loan of $100,000 for the Department of Commerce and set a public hearing date of March 14 at City Hall, Room 5. Pride Plating's expansion will add up to 20 jobs over the next two years, City Manager Bill Galletly said.

GMSA, GIDA to Hold Joint Meeting Re Cell Tower

A joint meeting of the GMSA and GIDA trustees is set for 1:30 p.m. March 17 to hear updates on a new cell phone tower and a presentation on expansion of broadband capabilities within the city, City Manager Bill Galletly announced at this week's Council meeting.
Persons interested in the improvement of cell phone and internet access service are encouraged to attend, he said.

Power Squadron Begins 7th Year on Grand

The Grand Lake Sail & Power Squadron has celebrated its Change of Watch ceremony and begins its seventh year on Grand Lake promoting safe boating through education.

The Squadron is in the fourth year of offering the BoatSmart course to the public absolutely free of charge. It is one of the few Squadrons in the entire nation to present this course free to the public. This course, along with making boaters better educated in boating and safety, entitles students to a permanent 10-20% discount on their boat insurance.

During the Change of Watch there was a silent auction to raise money for the educational department of the squadron. Proceeds from the auction will go to fund class materials for prospective students who take the BoatSmart class.

Another civic service the Squadron provides to boaters free of charge is Vessel Safety Checks (VSC). Some of the Squadron members are certified vessel examiners and will examine your boat for safety equipment. Boats passing this examination will be entitled to a GRDA sticker and/or a U.S. Coast Guard sticker.

You can schedule to have your boat examined by calling the Vessel Safety Check Chairman, Lt. Jay Spicer, S at 918-791-0223. This service gives the boater a peace of mind that their vessel has the required equipment to be operated on Grand Lake under GRDA guidelines.

After a wonderful Prime Rib buffet dinner provided by Cherokee Yacht Club, new members David and Mary Mandeville and Coleman and Trudy Darby were installed by Commander Larry Stout. There are now more than 140 members in the Grand Lake Sail & Power Squadron.

There were a number of awards presented to various members at the Squadron Change of Watch. The National Distinction in Journalism Award was presented to Denise Winn for the squadron’s newsletter “The Pelican”. Bill Miller was presented with the National Information Technology Committee Web Site Award for 2005, and the squadron as a whole was presented with the National Bowsprit Award and the National Membership Growth Award. The Squadron Excellence In Teaching Award was presented to Terry Chastain for her willingness to teach whenever and whatever she’s asked. Paul Roberts was recognized with the Vessel Safety Check Award for the most vessel safety inspections, and the Commander’s Cup Award was presented to Bob and Sandy Stone for their enthusiastic support of many squadron activities.

District 31 Commander, Mary Lou Charlton, AP, from the Beaver Lake Squadron swore in Commander, Larry Stout, AP, for a second term and then swore in the rest of the 2005 Bridge Officers: Executive Officer, Lt/C Don Chalupnik, AP; Squadron Educational Officer, Lt/C Jane Montgomery, AP; Administrative Officer Lt/C Mary Jo Bopp, P; Secretary, Lt/C Mary Ann Stout, S; and Treasurer Lt/C Marcia Pett, S.

The results of the silent auction were announced and the evening ended with a champagne toast to celebrate the Squadron and a yew year of safe and happy boating.

In Photo:

The new Bridge Officers for the Grand Lake Sail and Power Squadron for 2006. From left to right: Asst. Admin. Ofcr. Bob Goodwin, Exec. Ofcr. Don Chalupnik, Admin. Ofcr. Mary Jo Bopp, D-31Commander Mary Lou Charlton, Squadron Commander Larry Stout, Secy. Mary Ann Stout, Asst. Secy. Pegy Miller, and Educational Ofcr. Jane Montgomery.

The Canine Corner...by Missy MacTavish

One of these days it is going to rain. The problem that has caused the lack of rain is that the TV weatherpeople are predicting 20%, or 30% or some percentage that is not big enough.
If they would predict a 150% chance of rain, it would still have a 75% chance of raining even if they are half wrong. Don't ever say I didn't learn Math at school.
On another subject, we got a new backyard. The grass is all dead. The man that put it in says it is dormant. I had a dormant once at the front door but it got dirty and was threwed away. Anyhoo, if this new grass turns green I will be greatly surprised. I am sure tired of going out and mixing it up with the mud.
Sign in front of the local McDonald's: Crispy Chicken Now Hiring. Now, who would want to work for a chicken, especially a crispy one?
Until next time, Bark On…Miss Missy.

Red Hatters Go to Claremore

Attending the Red Hot Flames of Monkey Island getaway this week, to the Pink House in Claremore, were Carol Chalupnik; Diann Endres; Carol Foy, Ruth Kirkpatrick; Kathy Klahr; Roberta Mann; Pegy Miller; Carla Mills; Carolyn Robinson; Mary Ann Spurgeon; Diane White, and Sassy.

Fund Raiser Held for Ed Kraft

Playing in the Ed Kraft Fund Raiser at Patricia Island Golf Club were the unusual team of Bill Galletly, city manager, and Larry Parham, councilman, above. Parham had offered to partner with Galletly in this event. At top are Assistant Chief Mark Morris, Grove Police, and Richard Lippett. The two-man scramble event raised money to benefit Grove Policeman Ed Kraft, who is undergoing cancer treatment.

YMCA Offers Summer Break Program

With Spring Break coming up next week, many working parents are wondering what to do with the kids.
Call the Grand Lake Family YMCA! It offers an extensive program for children in grades kindergarten-5 filled with fun, field trip and activities designed to amuse.
“Schools Day Out” will be offered next week, March 13 through 17 as well as other dates when the school is scheduled to close: March 24; April 7, 14, 21 and 28.
The program is held at Grove Lower Elementary School and runs from 7 am to 6 pm on the above dates.
Children will enjoy arts and crafts, games, music, sports, health and fitness, and academic enrichment.
“Schools Day Out” is an extension of “Kid’s Club,” the YMCA’s after school program for children in grades kindergarten-3.
Further information is available by calling the Grand Lake Family YMCA at 918-786-5774. Rates are $15 per day for YMCA members; $20 per day for non-members.