Garvey vs Belpre

Presented By

Bonnie M. Wells

FILED

CLERK OF COURTS

2015, FEB. 19 PM 1:11

CASE NO. 13 OT 60

WASHINGTON CO. OHIO

IN THE COURT OF COMMON PLEAS

WASHINGTON COUNTY OHIO

DAVID GARVEY, ET AL.,

Plaintiff,

vs.

CITY OF BELPRE, ET AL,

Defendant. .

JUDGE RANDALL G. BURNWORTH

RULING ON MOTION FOR SUMMARY JUDGMENT

This case comes before the Court upon a Motion for Summary Judgment filed by Defendants City of Belpre (Belpre), Officer Sgt. Joseph Fields (Fields), and Officer Sgt. Terry Williams (Williams).

Plaintiffs filed a Memorandum in Opposition December 23,2014.

A Response was filed, with Leave of Court, January 20, 2015.

Plaintiff David Garvey (Garvey) worked for the Belpre Police Department from June 1991 until May 1, 2008.

In late 2007 two other Belpre Police Department officers, Fields and Williams, reported incidents involving Garvey, to Police Chief Ira Walker (Walker).

Walker contacted the Washington County Sheriff's Office to conduct an independent investigation.

Ultimately, that investigation was conducted by BCI&1.

A Special Prosecutor was appointed, Richard L. Ross, who presented the case to a Washington County Grand Jury which indicted Garvey.

Several weeks into the investigation Garvey was placed on administrative leave with pay. That time period was January 2008 through April 2008. Once Garvey was actually indicted he was suspended. Garvey then retired effective May 1, 2008.

Ultimately, Garvey had a trial to the Court which found him Not Guilty.

Garvey did not receive his initial retirement check until October 2008.

Garvey and his wife, Yvonne Garvey, on February 21, 2013, sued the City of Belpre, Officer Sgt. Joseph Fields, Officer Sgt. Terry Williams, as well as John Doe #1, John Doe #2, John Doe #3, and certain unknown and unnamed city officials.

The Complaint presents five (5) claims.

The first claim asserts that Defendants, presumably Fields and Williams, improperly and without just cause, instituted, maintained and forwarded an investigation that they knew or should have known to have been untrue of the Plaintiff; that their motivation was with actual or apparent malice, was undertaken to deprive Garvey of his civil rights and to injure his person or property, and resulted in damage to Garvey.

The second claim asserts that Belpre failed to properly process his retirement and breeched his employment contract.

The third claim asserts that Belpre, Fields, Williams and others delayed his retirement and states that he was forced to retire.

The fourth claim alleges a conspiracy in the processing of his retirement process resulting in delay of his initial retirement check.

The fifth claim asserts that Fields and Williams presented false testimony to the Washington County Grand Jury that resulted in Garvey being a victim of perjury.

Defendants Belpre, Fields and Williams filed an Answer March 19, 2013. Discovery ensued including additional depositions, the case having been originally filed in 2010 and dismissed February 21,2013.

The Court will consider the claims in reverse order.

The fifth claim asserts perjury by Fields and/or Williams to the Grand Jury to obtain the indictment. The claim is raised based upon a comment of the Special Prosecutor that witnesses had testified differently at trial than at Grand Jury.

Defendants assert that the difference is without a distinction based upon fading memories and question phraseology. Defendant's presented an Affidavit of the Special Prosecutor refuting any perjury or false swearing at the Grand Jury.

Plaintiff, aside from a single question that Williams in his deposition of September 26, 2011 acknowledged that he misunderstood and answered wrongly, provide no evidence in support ofthe claim.

The Court finds no genuine issue as to any material fact remains to be litigated, that Defendants are entitled to judgment as a matter of law and that reasonable minds could come to but one conclusion after viewing the evidence most strongly in favor of Plaintiffs and that conclusion is adverse to Plaintiffs.

Summary Judgment Is GRANTED as to the fifth claim.

Plaintiffs' claims two, three and four are Intertwined and will be considered together.

They all relate to the delay between Garvey's resignation and the receipt of his first pension check. Garvey asserts variously that city officials, or some vague conspiracy, delayed the establishment of his pension but, despite a lapse of almost seven (7) years since his resignation and the discovery associated with this and the prior case, Garvey produces no factual allegation against any individual, any act, or any omission by anyone responsible for the delay in his receipt of the pension benefit.

The third claim states that Garvey was forced to retire but Plaintiffs' Memorandum accurately acknowledges that, "he none the less had a stark choice," that he "made the only logical choice. He resigned and retired."

Garvey was placed on administrative leave with pay January 2008 through April 2008 and only suspended when the indictment was issued. He was not terminated. He chose to resign and retire distinguishing this case from the long v. Village of Hanging Rock 2011. Ohio 5137. Fourth Appellate District case cited by Plaintiffs.

The Court finds no genuine issue as to any material fact remains to be litigated, that Defendant is entitled to judgment as a matter of law and that reasonable minds could come to but one conclusion after viewing the evidence most strongly in favor of Plaintiffs and that the conclusion is adverse to the Plaintiffs.

Summary Judgment is GRANTED as to the second, third, and fourth claims.

Plaintiffs' first claim asserts that Defendants improperly and without just cause instituted, maintained, and forwarded an investigation that they knew or should have known to have been untrue, that their motivation was with actual or apparent malice, was undertaken to deprive Garvey of his civil rights and to injure his person or property, and resulted in damage to Garvey.

The facts establish that two (2) fellow officers made reports to the Belpre Police Chief about Garvey. While the timing of the reports appears sinister to Garvey, it is clear that the officers had a responsibility to report inapproprIate or unlawful actions to their supervisor.

The Chief alone chose to have the matter reviewed independently.

That independent investigation by BCI&I and a Special Prosecutor resulted in a Grand Jury indictment. Once the officers repoited to the Chief, they were nothing more than witnesses throughout the process.

They didn't investigate, report the incidents to any outside agency, or do anything beyond the initial report required.of them. The Court has rejected Plaintiffs' assertion of perjury by the officers.

The indictment by the Grand Jury stands testament to the testimony of the officers. Garvey's eventual acquittal stands testament to the impartiality of the judicial system but does not, in and of itself, provide a factual basis for his claims.

The Court finds no genuine issue as to any material fact remains to be litigated, that Defendants are entitled to judgment as a matter of law, and that reasonable minds could come to but one conclusion after viewing the evidence most strongly in favor of Plaintiffs and that that conclusion is adverse to the Plaintiffs.

Summary Judgment is granted as to the first claim.

Having ruled as it has above, the Court will not dwell on the immunity defense presented by Defendants beyond noting that it appears to the Court that a thorough analysis of ORC 2744, the three tier test for political subdivisions and its employees, and the further scrutiny of Fields and Williams and their immunity from liability in both their official and individual capacities as presented in Defendants' Motion for Summary Judgment, is accurately articulated and would persuade the Court that Belpre, Fields and Williams are all entitled to immunity, the latter in both their official and individual capacities.

Plaintiffs' assertion in their Memorandum that Plaintiffs failed to address the individual liability of Fields and Williams is Inaccurate.

See pgs 9, 10 and 11 of Defendants' motion. Further, Plaintiffs' reliance on Long v. Village of Hanging Rock supra is misplaced as the cases are distinguishable both as to Garvey's resignation as noted above, but further by the fact that the Defendant in the Long case Initiated personal attacks beyond the scope of employment, while the officers in the instant case took only one action, they reported activity to their immediate supervisor, an action that they were required to take.

It is clear that Yvonne Garvey's role in the litigation rests solely upon her being the spouse of David Garvey.

The Court's disposition of the case applies equally to both Plaintiffs.

No evidence was produced establishing who John Doe 1, 2 and 3 or certain unknown and unnamed city officials might be or what act or omission was attributable to them that would form a basis for liability.

Without such evidence the Court cannot render any judgment against them and without being identified or represented the Court cannot grant relief to them.


Plaintiffs' Request for Oral Hearing is DENIED.

Summary Judgment is GRANTED to Defendants ....

Belpre, Fields and Williams as to all claims.

Counsel for Defendants to journalize.

Costs assessed to Plaintiffs.

Judge Randall G. Burnworth

Atty. J. Triplett, M. Carlisle

Atty. R. Lambert

 


Comments

I said most of what I had to say on the page that deals with Garvey and his trial under Judge Ed Lane. I was not impressed that day, nor have I been impressed since with many of the decisions made in some of those court rooms in Marietta. I'm a stickler for the law ... always have been, always will be. It matters not in the least to me who the officer is, I expect him/her to be a person of high caliber and character with honesty, integrity and pride in their job and the badge upon their chest.

As far as I am concerned Officers Fields and Williams demonstrated those honorable characteristics when they testified in that court room against Garvey. I know it was not an easy thing for them to do, for it is never easy to have to go against a friend or co-worker. I know because I've had to do it many times in the last 20 years. It takes a lot of courage and a lot of integrity and it always hurts. But sometimes it just has to be done. I commend Officers Fields and Williams, and thank them for their service to all of us. And it is for them, and to show as an example for others that may face trying situations, that I am posting this page.

I sat through the so called trial of Dave Garvey, just as I sat through the trial of Jackie McCrady. I'm only one of three people on earth that saw both trials, because there were different jurors, different judges, different witnesses, etc. The only things they had in common were Dave Garvey, Dennis Sipe and me.

Garvey sat at the prosecutions table throughout the entire McCrady trial, heard everyone's testimony 'before' he gave his own. Dennis Sipe was one of the two attorney's hired to defend McCrady. I'll never forget the defense's opening statements of how Garvey had framed McCrady. They hammered away at this throughout the trial, so can anyone imagine how surprised I was to hear Dennis Sipe get up in the Garvey trial and tell yet another jury what a fine, upstanding police officer his client had always been? No, you can't even imagine. Conflict of interest came to my mind ... but it didn't matter. Nothing matters here ..... not the truth, not justice, nothing matters. So be it. The entire nation can just live like Washington County residents have had to live, and we'll just see how much things matter eventually.

Garvey's Trial and The Ohio Revised Code


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