Petition for Writ of Certiorari — Foreman v. Griffith

SUPTET€ Court, U8,

FILE®

N° @8+42 79 MAR 102008

jn COhe

Supreme Court of the Untted States

+

ANDRE A. FOREMAN,

Petitioner,

CHARLES D. GRIFFITH, JR.; BERNARD A. PISHKO;

CALVIN R. DEPEW; CITY OF NORFOLK,

Respondents.

4

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

+

PETITION FOR WRIT OF CERTIORARI

+

Bruce E. Fein

Counsel of Record

FEIN & FEIN

910 17** Street NW

Suite 800

Washington, DC 20006

(202) 775-1776

Gilbert K. Davis

DAVIS & ASSOCIATES, LLC

9502-A Lee Highway

Fairfax, Virginia 22031

(703) 352-3850

Counsel for Petitioner

THE LEX GROUP®© @ One Massachusetts Ave., NW @ Suite 670 ¢ Washington, DC 20001

(202) 789-2400 @ Fax: (202) 789-1911 @ www.thelexgroupdc.com

QUESTION PRESENTED

For purposes of 42 U.S.C. § 1983, does a plaintiff's

allegations of malicious defamation by a government

official under color of law which occasioned a

precipitous job demotion and loss of annual

remuneration exceeding $25,000 without any type of

hearing state a claim of a deprivation of liberty

without due process in violation of the Fourteenth

Amendment?

il

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISION AND STATUTE INV RE WEED cnsccnccces 2

STATEMENT OF THE CASE ......csccescessessssessessssssssscessecceceeceseeseccccccec. 2

REASONS FOR GRANTING THE WRIT ....-secessessessesscesesceceecececcececc.. Yj

1. The Fourth Circuit's decision conflicts

with decisions of this Court, other

Circuits, and the Fourth Circuit itself... 7

2. The Fourth Circuit's application in

this case of its own liberty interest

precedent in Johnson’ v. ~ Morris

egregiously wrenched the facts and

law and caused a flagrant miscarriage

SN Gilt ishertiesnicterhaarondepssrtorsssecbisinunsinaislassiaunesines 10

CONCLUSION .........s:ss00 saison dhiaeavehancrtinensidutnienasatinatissnnssisasensey 12

APPENDIX

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TABLE OF AUTHORITIES

Page(s)

Cases:

Beitzell v. Jeffrey,

643 F.2d 870 (1st Cir. 1981) ..-.-sseccssecsssssernseensesssesscenreenes 9

Clark v. Township of Falls,

890 F.2d 611 (34 Cir. 1989)....ececcsecseeseesrernsensesssensnnenneess 9

Doe v. United States Department of Justice,

753 F.2d 1092 (D.C. 1985)....-e-sseereseeeeeeee Bisckpiaeteaceatonine 8

Ersek v. Town of Springfield,

102 F.3d. 79 (3'4 Cir. 1996)...-sccsecsecsserrernsenserstenernentee 8,9

Johnson v. Morris,

903 F.2d 996 (4th Cir. 1990) ....-eecsesessreerserersersesers 6, 10, 11

Mosrie v. Barry,

718 F.2d 1151 (D.C. 1983)....---sssersssssreessensersesensenenennes 8,9

Oladeinde v. City ef Birmingham,

963 F.2c 1481 (11th Cir.1992).....--csecsersessrscensessrserenerseess 9

Owen v. City of Independence,

4A5 U.S. 622 (1980) ....-s-cscssseessesseneeseessnsencensnssersnsnness 7, 10

Paul v. Davis,

A2Q4A U.S. 693 (1976) .-ssececeesesssseseseneerensnsnsnnensnsenes 7,8,9, 10

Rodriguez de Quinonez v. Perez,

596 F.2d 486 (1st Cir. 1979) ....ssssssrecsseseessernsrnsessnssenscnssess 9

Wisconsin v. Constantineau,

BOO U.S. 564 (1971) ...-ssccecsesesssessenseseneenensenennensnsensns 7,8, 10

iv

Constitutional Provision:

U.S. CONST. amend. XIV .....0:.ccccccccsscsocsceccsccessencssesssseosessesssorseace ys

Statutes:

28 U.S.C. § 1254(1).........esscssssccscssersncessceesesecsscesesesssssersnssssseseeees 1

DB UGC. 6 TDD wviccosinsnvssssenisrsscrssecssonsaserenrmniarnnceenienincioen 3

28 U.S.C. § 1441(C).....esscscccccssssssscsscsecscsesscorensonssnsseresonseessssonsserers 3

42 U.S.C. § 1983

The Petitioner Andre A. Foreman respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Fourth

Circuit, entered in the above-titled proceedings on

November 17, 2003.

OPINIONS BELOW

1. The October 3, 2002 Dismissal Order of the United

States District Court for the Eastern District of

Virginia is unreported and reproduced at Appendix

C-1.

y The November 17, 2003 Per Curiam Opinion of the

United States Court of Appeals for the Fourth Circuit

was unpublished, is unreported and reproduced at

Appendix A-1.

JURISDICTION

A two judge panel of the United States Court of

Appeals for the Fourth Circuit entered its ruling affirming

the dismissal of Petitioner's section 1983 liberty interest

claim against Respondents on November 17, 2003.1

Petitioner filed a Petition for Rehearing En Banc on

November 26, 2003. The Fourth Circuit denied that Petition

on December 12, 2003. The jurisdiction of this Court to

review the final judgment of the Court of Appeals

dismissing Petitioner's liberty interest claim under 42 U.S.C.

§ 1983 is invoked under 28 U.S.C. § 1254(1).

! The court also affirmed the District Court's dismissal of Petitioner's

property interest claim, and reversed and remanded the District Court's

dismissal of his defamation claim, neither of which is at issue in

Petitioner's certiorari filing.

N

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The Fourteenth Amendment of the Constitution

provides that no "state [shall] deprive any person of life,

liberty, or property, without due process of law".

42 U.S.C. § 1983 states:

"Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District

of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress, except that in any

action brought against a judicial officer for an

act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of

Columbia shall be considered to be a statute

of the District of Columbia."

STATEMENT OF THE CASE

Petitioner Andre Foreman originally filed suit

against Respondents Griffith, Pishko, Depew and the City of

Norfolk on March 28, 2001 in the Circuit Court of Fairfax

County, Fairfax, Virginia. The Motion for Judgment or

complaint alleged, inter alia, defamation and deprivations of

liberty and property interests without constitutional due

process under 42 U.S.C. § 1983.

The case was removed to the United States District

Court for the Eastern District of Virginia on April 11, 2002

under 28 U.S.C. § 1441(c) because federal claims were

presented under section 1983 accompanied by a state

‘defamation claim against Respondent Griffith.

The District Court dismissed Petitioner's liberty

interest claim, property interest claim, defamation claim and

residual claims against Respondents on October 3, 2002.

(Appendix C-1).

Petitioner filed an appeal to the Fourth Circuit on

October 31, 2002 pursuant to 28 U.S.C. § 1291 challenging

only the liberty interest, property interest, and defamation

dismissals. A two judge panel of the Fourth Circuit on

November 17, 2003 vacated the District Court's dismissal of

Petitioner's defamation claim against Respondent Griffith,

remanding it for further proceedings; affirmed the District

Court's dismissal of Petitioner's property interest claim; and,

affirmed the District Court's dismissal of Petitioner's liberty

intérest claim. (Appendix A-1). Petitioner's Petition for

Rehearing En Banc was denied on December 12, 20053.

(Appendix D-1) Petitioner is seeking review by this

Honorable Court only of the dismissal of his liberty interest

claim under section 1983.

Petitioner's complaint alleged the following as

demonstrating a constitutionally protected liberty interest:

a Prior to March 28, 2000, Petitioner was Deputy City

Attorney for Respondent City of Norfolk. He

enjoyed a sparkling professional reputation, and was

a candidate for appointments to the local Airport

Authority and to the Virginia judiciary as a Juvenile

and Domestic Relations Judge. (Appendix E-5, E-6,

E-66)

Respondent Griffith, at the culmination of a four-

year investigation of the role of Petitioner in the

award and execution of a 1997 contract between

Respondent City of Norfolk and Tidewater Towing

Services, Inc., published a_ report massively

defamatory of Petitioner. (Appendix E-3 to E-4).

Respondent Griffith's report falsely and maliciously

maintained that Petitioner was guilty of

reprehensible, unethical, and dishonest conduct and

favoritism towards Tidewater Towing, Inc. in the

award of a city towing contract. (Appendix E-5).

Respondent Griffith's report was published by

distribution, inter alia, to the City of Norfolk

manager, the Mayor of Norfoik, Respondent Pishko,

all of the members of the Norfolk City Council, and

members of the press. Respondent Griffith knew that -

his report would be published and re-published in

the local media. (Appendix E-4).

Respondent Griffith's report was first reported in the

news media on March 28, 2000, and continued,

including, but not limited to, articles published on or

about March 28, 2000, March 29, 2000, March 30,

2000, April 5, 2000 and April 19, 2000. Those media

stories contained the false statements and innuendos

of Respondent Griffith's report, which would lead a

reasonable citizen to conclude that Petitioner was a

corrupt lawyer, unfit to perform his duties as a city

employee, and probably guilty of criminal conduct

involving moral turpitude. The public airing of the

report damaged Petitioner's professional and

personal reputation for competence and integrity

and humiliated him. (Appendix E-4 to E-5).

Respondent Pishko, knowing fully the falsity of the

defamatory statements and innuendo contained in

Respondent Griffith's report and the subsequent

republications, nevertheless relied on the report to

demote and reassign Petitioner to Assistant City

Attorney, with an annual loss of $25,000 in salary.

The Griffith report plus the devastating demotion

and slash in remuneration aborted Petitioner's

candidacies to the Airport Authority and the state

judiciary. (Appendix E-5 to E-6).

Respondent Pishko took the crippling adverse

personnel action without affording Petitioner an

opportunity to be heard despite Petitioner's several

requests to present evidence in an official pre-

termination hearing to publicly clear his good name

and to remain in his job. Respondent City of Norfolk

likewise refused Petitioner's requests for a hearing.

(Appendix E-6, E-7, E-13).

Respondents, jointly and severally, violated the

constitutionally protected liberty interest of

Petitioner by causing him to suffer a vertical plunge

in remuneration and employment status with

Respondent City of Norfolk as caused by the

publication of malicious and fallacious insinuations

and innuendo contained in the report of Respondent

Griffith and without affording Petitioner an

opportunity for a hearing. (Appendix E-6, E-7, E-13).

The District Court dismissed Petitioner's liberty

interest claim on the illogical theory that a property interest

in contractual employment was necessary to create a

constitutionally protected liberty interest when combined

VO ee

with the government's destruction of Petitioner's good

name. (Appendix C-1). In other words, liberty interest and

property interest claims are conflated under section 1983.

The court of appeals affirmed the dismissal for

equally unsound reasons. First, the two member panel

erroneously declared that the Fourth Circuit's decision in

Johnson v. Morris, 903 F.2d 966 (1992), held that a demotion,

no matter how severe in loss of duties and plunging pay,

can never sustain a liberty interest claim. (Appendix A-15).

That wild assertion clashed with the words of Johnson itself,

which stated that "for a liberty interest to have been

implicated [in defamation] some damage [to plaintiff's]

employment status must have resulted from the reasons for

his demotion." 903 F.2d at 999. That precedent declined to

state what the two member panel insisted it stated; namely,

that employment termination was a sine qua non of a viable

liberty interest claim. (Appendix A-15).

The two member panel also obtusely denied that

Petitioner's pronounced demotion and _ slashing of

remuneration was caused by Respondent Griffith's

defamatory report. (Appendix A-15). But Petitioner's

complaint alleged precisely that; ie. that Respondents

Pishko and the City of Norfolk demoted Petitioner from

Deputy City Attorney to Assistant City Attorney with a loss

in annual salary of $25,000 because of Respondent Griffith's

defamatory report. (Appendix E-6 to E-7). The two member

panel inarguably misread the complaint.

BS eth A eR BG BAS AE Sh FOP AR IEE an Cn Bt Me Dh CN oe

REASONS FOR GRANTING THE WRIT

1. The Fourth Circuit's decision conflicts with

decisions of this Court, other Circuits, and the

Fourth Circuit itself in Johnson v. Morris.

This Court's decisions in Wisconsin v. Constantineau,

400 U.S. 564 (1971), Paul v. Davis, 424 U.S. 693 (1976), and

Owen v. City of Independence, 445 U.S. 622, 633 n. 13 (1980)

collectively declared that defamatory or stigmatizing

statements by a government official that cause the

government to take material adverse employment or other

action against the defamed or stigmatized victim establish a

liberty interest protected by constitutional due process.

Petitioner's case is indistinguishable from Owen, supra,

except for the fact that his devastating demotion and loss of

remuneration fell short of an actual discharge. There, a city

council published an allegedly false resolution impugning

the honesty and integrity of a police chief, who was

discharged the next day. The resolution received extensive

coverage in the press. This Court explained:

"[E]ven if they did not in point of fact 'cause'

petitioner's discharge, the defamatory and

stigmatizing charges certainly 'occur[red] in

the course of the termination of employment

[Citation omitted]. Yet the city twice refused

petitioner's request that he be given written

specification of the charges against him and

an opportunity to clear his name. Under the

circumstances, we have no doubt that the

city's action deprived petitioner of liberty

without due process of law." 445 U.S. at 633

n. 13

In Constantineau, this Court recognized a liberty

interest "[w]here a person's good name, reputation, honor,

or integrity is at stake because of what the government is

doing to him, [and thus] notice and an opportunity to be

heard are essential." See Constantineau at 437. As explained

in Paul, what the government did to the plaintiff in

Constantineau, in addition to defamation, was to deny the

opportunity to purchase alcohol. What the government

allegedly did to Foreman because of Griffith's defamatory

report was much worse: a demotion, a loss of approximately

25% of his salary and additional fringe benefits, a loss of title

and responsibilities and, a killing of his candidacies for a

judgeship and the Airport Authority. Thus, to deny

Foreman's liberty interest claim would be to flout the

teaching of Constantineau as to the severity of adverse

government action caused by defamatory or stigmatizing

statements needed to create a constitutionally protected

liberty interest.

The Paul precedent has been interpreted by federal

circuit courts to require a sufficient "plus" factor in addition

to defamation to make out a protected liberty interest.

The District of Columbia Circuit in Mosrie v. Barry,

718 F.2d 1151 (D.C. 1983), maintained that: "[flor a

defamation to give rise to a right to procedural due process,

it is necessary... that the defamation be accompanied by a

discharge from government employment or at least a

demotion in rank and pay." Jd. at 1161, restated in Doe v.

United States Department of Justice, 753 F.2d 1092 at 1109

(D.C. 1985).

The Third Circuit, in its analysis of the "plus" factor

required by Paul, observed in Ersek v. Town of Springfield, 102

F.3d 79 (3'4 Cir. 1996) that:

"it is not clear whether a demotion in rank, in

contrast to an actual termination § or

discharge, is a sufficient "plus." Cases cited to

us by both parties disagree over the matter.

Without so holding, we implicitly assumed in

Clark v. Township of Falls, 890 F.2d 611 (3*4 Cir.

1989), that a demotion would have sufficed.

The courts in Oladeinde v. City of Birmingham,

963 F.2d 1481, 1486 (11% Cir. 1992)... and

Mosrie [citation omitted] seem to agree." Ersek

at 83, n. 5.

The Third Circuit, however, neglected, as it had done in

Clark, to definitively rule on the sufficiency of a crippling

demotion to satisfy the "plus" requirement of Paul.

The First Circuit has acknowledged the befuddling

parameters of the "plus" factor required by Paul. Ruling in

Beitzell v. Jeffrey, 643) F.2d 870 (1st Cir. 1981), the First Circuit

followed the instruction of this Court in Owen, stating

broadly:

"The [Supreme] Court has not interpreted the

requirement of change in 'rights' or 'status'

technically... Thus, the cases suggest there is

a core interest in reputation which is

protected from interference by individualized

government action; the Fourteenth

Amendment procedurally protects reputation

only where (1) government action threatens

it, (2) with unusually serious harm, (3) as

evidenced by the fact that employment... is

affected." Beitzell, at 878.

The First Circuit's ruling in Beitzell restated its holding in

Rodriguez de Quinonez v. Perez, 596 F.2d 486 at 489 (1st Cir.

1979) that "[w]hile defamation by a government official,

10

standing alone, does not work a deprivation of liberty

protected by the fourteenth amendment, government action

altering a right or status previously held... combined with

the injury resulting from the defamation justifie[s] the

invocation of procedural safeguards."

In sum, neither this Court nor any court of appeals-

but for the Fourth Circuit in this case- has declared that a

termination of government employment is indispensable for

a viable liberty interest claim. Indeed, such an

interpretation would be unpersuasive, and __ invite

government circumventions by defamation-caused

demotions of professionals to menial work with minimal

compensation.

Certiorari is warranted in this case to provide

guidance as to the "plus" factor required to demonstrate a

protected liberty interest under Paul, Constantineau, and

Owen in the context of adverse employment action because

of government defamation. The issue is recurring, not

flukish.

z. The Fourth Circuit's application of its own liberty

interest precedent in Johnson v. Morris egregiously

wrenched the facts and law and caused a flagrant

miscarriage of justice.

The Fourth Circuit's liberty interest dismissal in this

case pivoted on Johnson, but overlooked constitutionally

decisive distinctions in Petitioner's case. The panel absurdly

maintained that Petitioner "suffered no damage to his

employment status" because he remained employed in the

Norfolk City Attorney's office. (Appendix A-15). But

Petitioner's salary was slashed by $25,000 annually and his

job responsibilities and job title plunged.

In Johnson, by contrast, there was no discernible

change in the complaining employee's job status; the

a ae eg ae Re ee Bh

11

employee was transferred, with apparent retention of rank

and pay. 903 F.2d at 999. Further, the employee was

afforded the opportunity of a due process hearing to clear

this name. 903 F.2d at 998. Petitioner Foreman, in stark

contrast, was repeatedly denied a hearing to clear his name.

In Johnson, it was plaintiff's adverse employment treatment

which occasioned a public announcement of derogatory

statements about plaintiff. The employment action in

Johnson engendered the defamation, not vice versa. But in

Petitioner's case, the complaint alleges that Respondent

Griffith's defamatory report caused Petitioner's devastating

demotion and slash of pay, which made out a protected

liberty interest in the language of Johnson itself: "[F]or a

liberty interest to have been implicated, some damage to

Johnson's employment status must have resulted from

publication of the reasons for his demotion.” See Johnson,

903 F. 2d at 999. That observation fits Foreman's liberty

interest claim like a glove.

The two member panel's unpublished ruling

rejecting that claim and egregiously misreading Johnson

constituted a flagrant miscarriage of justice that cries out for

correction.

12

CONCLUSION

For these various reasons, this petition for certiorari

should be granted.

Of Counsel:

Andre A. Foreman

500 E. Main Street

Suite 1530

Norfolk, Virginia 23510

March 10, 2004

Respectfully submitted,

Bruce Fein

Counsel of Record

Fein & Fein

910 17 Street NW, Suite 800

Washington, DC 20006

(202) 775-1776

Gilbert K. Davis

Davis & Associates, LLC

9502-A Lee Highway

Fairfax, VA 22031

Counsel for Petitioner

APPENDIX

DRDO ei PETA CE

Bisdaik ber

RRR DIRS SEGRE REN OOS

CV EN MEAL Head i ed

TABLE OF CONTENTS

Appendix Page

Opinion of

The United States Court of Appeals for the

Fourth Circuit

Re: Affirming in Part, Vacating in Part, and

Remanding for Further Proceedings

entered November 17, 2003 ............:.sscccccsssssssseeeeeeees A-1

Judgment

exrbered MOVeTUOT 17, DIGS cocccencscsesisescssssessnesovesesionve B-1

Dismissal Order of

The Honorable Robert G. Doumar

Pe hee || * ERE en C-1

Order of

The United States Court of Appeals for the

Fourth Circuit

Re: Denying Petition for Rehearing and -

Rehearing En Banc

entered December 12, ZU .nscccscscecssssscesnesescscsensecesees D-1

li

Plaintiff's Amended Motion for Judgment,

With Exhibits,

CPRCTOE FODTURRY 'F,, BIEL on ccs scensesesnennsarsevanostcssanaiesenss E-1

Exhibits:

A. Report to \

Regina V.K. Williams from

Charles D. Griffith, Jr.

Re: Investigation into the

1997 Norfolk Towing Contract

dated March 27, 2000 .............00 E-16

B. Various Newspaper Articles from

The Virginian-Pilot

dated March 28 and 29, 2000......... E-66

<. Resume of Andre A. Foreman

Plaintiffs’ More Definite Statement

Ctmered Amuse TZ, DIOS senecvvsseccescisvssssssesnnessmessssesnees F-1

A-1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Andre Foreman, )

Plaintiff-Appellant, )

)

and )

)

William Summs, )

Plaintiff, ) No. 02-2284

)

Vv. )

)

Charles D. Griffith, Jr.; )

Bernard Pishko; Calvin )

Depew; The City of Norfolk, )

Defendants-Appellees. )

)

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(CA-02-380-2, CA-02-394-2)

Argued: September 26, 2003

Decided: November 17, 2003

ENTERED: November 17, 2003

Before WILKINS, Chief Judge, and

HAMILTON, Senior Circuit Judge."

Affirmed in Part, vacated in part, and remanded by

unpublished per curiam opinion.

* The Opinion is filed by a quorum of the panel pursuant to 28

U.S.C § 46(d).

A-2

COUNSEL

ARGUED: Bruce Elliot Fein, FEIN & FEIN, Washington,

D.C., for Appellant. Alan Brody Rashkind, FURNESS,

DAVIS, RASHKIND & SAUNDERS, P.C., Norfolk, Virginia,

for Appellees Pishko and Norfolk; Michael Eugene Ornoff,

ORNOFF & ARNOLD, P.C., Virginia Beach, Virginia, for

Appellees Griffith and Depew. ON BRIEF: Gilbert K.

Davis, DAVIS & STANLEY, L.L.C., Fairfax, Virginia, for

Appellant. James A. Cales, III, FURNISS, DAVIS,

RASHKIND & SAUNDERS, P.C., Norfolk, Virginia, for

Appellees Pishko and Norfolk.

Unpublished opinions are not precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Andre Foreman (Foreman) appeals the district

court’s dismissal of his § 1983 claims alleging deprivation of

liberty and property interests without due process of law in

violation of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. U.S. Const.

amend. XIV; 42 U.S.C. § 1983. He also appeals the district

court’s dismissal of his state law defamation claim. We

affirm in part, vacate in part, and remand for further

proceedings.

I.

Foreman is a deputy attorney for the City of Norfolk,

Virginia (the City). He filed the present action after he was

demoted to a lesser position in the City Attorney’s Office

following the release of an investigative report (the Report)

spb Sth sae AT a a ti

PRE ee eee

A-3

prepared by Charles Griffith, the Virginia Commonwealth's

Attorney for the City of Norfolk. In the Report, Griffith

concluded that Foreman had acted improperly, although not

criminally, in negotiating a towing contract on behalf of the

City with Tidewater Towing, Inc. Bernard Pishko was

Foreman’s boss at the City Attorney’s Office, and the person

who demoted him.

Griffith released the Report to print and broadcast

media, which media outlets in turn quoted portions of the

Report that Foreman claims are defamatory. The primary

accusation against Foreman in the Report was that he

engaged in unethical favoritism of Tidewater Towing, Inc. at

the City’s expense and to enrich himself. Foreman alleges

that the accusation is false and damaging his professional

reputation.

At issue in the present appeal are the following three

claims by Foreman:

(1) a property interest claim, based upon Foreman’s

particular position in the City Attorney’s Office, against

Pishko and the City, alleging the failure to provide him a

name-clearing hearing prior to his demotion violated the

Due Process Clause of the Fourteenth Amendment;

(2) a liberty interest claim against Pishko and the

City, alleging harm to Foreman’s professional reputation,

because Pishko and the City failed to provide him a name-

clearing hearing prior to releasing the Report and demoting

him, in violation of the Due Process Clause of the

Fourteenth Amendment; and

(3) a defamation claim under Virginia common law

against Griffith, without specifying capacity, individual or

official.

ee ee ee eee

A-4

Foreman originally filed this action in state court.

Specifically, he filed a complaint and an amended

complaint, respectively entitled motion for judgment and

amended motion for judgment. The action was

subsequently removed to the United States District Court

for the Eastern District of Virginia. Griffith, Pishko, and the

City (collectively the Defendants) moved to dismiss the

entire action pursuant to Federal Rule of Civil Procedure

12(b)(6), and Griffith filed a separate motion for a more

definite statement pursuant to Federal Rule of Civil

Procedure 12(e). The district court granted the motion for a

more definite statement, and Foreman complied.!

The Defendants then renewed their Rule 12(b)(6)

motions, which the district court granted. Foreman noted

this timely appeal.

Hi.

We review de novo a district court’s dismissal of a

complaint pursuant to Rule 12(b)(6). Mylan Labs., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). “[A] Rule 12(b)(6)

motion should only be granted if, after accepting all well-

pleaded allegations in the plaintiff's complaint as true and

drawing all reasonable factual inferences from those facts in

the plaintiff's favor, it appears certain that the plaintiff

cannot prove any set of facts in support of his claim entitling

him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244

(4th Cir. 1999).

III.

Foreman first contends that the district court

committed reversible error by dismissing his Virginia state

law defamation claim against Griffith. We agree.

1 From here forward, we will refer to the complaint, amended

complaint, and more definite statement collectively as “the Complaint.”

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A-5

Relying exclusively on Eighth Circuit precedent, see

Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th

Cir. 1995); and Nix v. Norman, 879 F.2d 429, 431 (8th Cir.

1989), the district court dismissed Foreman’s defamation

claim on the basis that, because the Complaint failed to

expressly state that Griffith was being sued in his individual

capacity, the Eleventh Amendment to the United States

Constitution barred his claim. U.S. Const. amend. XI. The

Eleventh Amendment to the United States Constitution

provides, “The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” Id. While “the text of the Amendment

would appear to restrict only the Article III diversity

jurisdiction of the federal courts,” Seminole Tribe v. Florida,

517 US. 44, 54 (1996), the Supreme Court has long

““understood the Eleventh Amendment to stand not so

much for what it says, but for the presupposition . . . which

it confirms,” id. (quoting Blatchford v. Native Village of

Noatak, 501 U.S. 775, 779 (1991)). That presupposition is

“that an unconsenting State is immune from suits brought in

federal courts by its own citizens as well as by citizens of

another State,” Edelman v. Jordan, 415 U.S. 651, 663 (1974),

“unless [it] consent[s] to [such suits] in unequivocal terms or

unless Congress, pursuant to a valid exercise of power,

unequivocally expresses its intent to abrogate the

immunity,” Green v. Mansour, 474 U.S. 64, 68 (1985).

Notably, the Supreme Court has made clear that the

“Eleventh Amendment bars a suit against state officials

when the state is the real, substantial party in interest.”

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101

(1984) (internal quotation marks omitted).

The Eighth Circuit cases relied upon by the district

court stand for the proposition that if a plaintiff's complaint

is silent about the capacity in which he has sued a state

A-6

actor, the court should interpret the complaint as including

only official capacity claims. Egerdahl, 72 F.3d at 619; Nix,

879 F.2d at 431.

In Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995), the

Fourth Circuit expressly rejected the Eighth Circuit's

mechanical approach to determining the capacity (official

versus individual) in which a plaintiff has sued a state actor

in favor of a more flexible approach that looks to the nature

of the plaintiff's claim or claims, the relief sought, and the

course of proceedings. Id. at 59-60. With respect to

assessing the nature of a plaintiff's claim or claims, the Biggs

court stated that the plaintiff's failure to allege that the

defendant acted in accordance with a governmental policy

or custom or the lack of indicia of such a policy or custom

on the face of the complaint indicates that a state actor has

been sued in his individual capacity. Id. at 61. With respect

to the nature of the relief sought, the Biggs court also stated

that the plaintiff's request for compensatory or punitive

damages indicates an individual capacity suit since such

relief is unavailable in official capacity suits. Id. Finally,

with respect to the course of proceedings, the Biggs court

stated that the defendant's assertion of qualified immunity

as a defense indicates an individual capacity suit, since such

a defense is only available in individual capacity suits. Id.

In resolving the question of whether Foreman sued

Griffith for defamation in his individual or his official

capacity, the district court erred in applying the Eighth

Circuit’s mechanical approach.2_ The district court should

2 Griffith argues that, because Foreman failed to make a motion

to alter or amend the judgment pursuant to Rule 59(e) of the Federal

Rules of Civil Procedure, he should be barred from challenging the

district court's dismissal of his defamation claim. Griffith’s argument is

without merit. Foreman is entitled to challenge the district court’s Rule

12(b)(6) dismissal of his defamation claim on appeal without having first

made a Rule 59(c) motion below.

sie state BN a ta

A-7

{

have applied the more flexible approach set forth in Biggs.3

Our own application of the Biggs approach to the Complaint

leads to the inescapable conclusion that Foreman sued

Griffith for defamation in his individual capacity.

The nature of Foreman’s defamation claim suggests

that Foreman sued Griffith in his individual capacity.

Under Virginia law, defamation is an intentional tort for

which the government officials do not enjoy sovereign

immunity, irrespective of whether they acted within or

without the scope of their employment. Fox v. Deese, 362

S.E.2d 699, 705-06 (Va. 1987); Elder v. Holland, 155 S.E.2d 369,

372-73 (Va. 1967). Additionally, the Complaint does not

allege that Griffith, in allegedly defaming Foreman, acted in

accordance with a governmental policy or custom.

The nature of the relief sought by Foreman with

respect to his defamation claim, compensatory and punitive

damages, suggests that Foreman sued Griffith in his

individual capacity. Finally, Griffith’s assertion of qualified

immunity, a defense only asserted in individual capacity

Suits, suggests that Foreman sued Griffith in his individual

capacity.

3 We observe that Biggs involved federal claims brought

pursuant to 42 U.S.C. § 1983 as opposed to a state law claim such is at

issue here. This distinction is of no moment given that the Eleventh

Amendment applies to bar law suits against states in federal court

regardless of the federal or state law nature of the underlying claims in

such suits.

A-8

In sum, we hold that the district court erred in

dismissing Foreman’s defamation claim at the pleading

stage.4

IV.

Foreman next argues that the district court erred in

dismissing his claim alleging that Pishko and the City

deprived him of his alleged property interest in his

particular position at the City Attorney’s Office in violation

of the Due Process Clause of the Fourteenth Amendment.

In the Complaint, Foreman alleges that the Due Process

Clause required that he be afforded a name-clearing hearing

prior to being demoted, which he did not receive.

Foreman’s challenge to the district court's dismissal

of his property interest claim is without merit. Whether a

plaintiff has a protectable property interest under the Due

Process Clause turns upon the plaintiff's property rights

under state law. Bd. of Regents of State Colleges v. Roth, 408

U.S. 564, 577 (1972). The district court dismissed Foreman’s

property interest claim on the basis that, under Virginia law,

4 Griffith offers three alternative grounds for affirmance not

addressed by the district court. First, Griffith argues the Complaint fails

to allege actual malice as required by New York Times v. Sullivan, 376 U.S.

254 (1964), when the alleged victim of defamation is a public figure.

Second, Griffith claims a qualified privilege under Virginia law. Larimore

v. Blaylock, 528 S.E.2d 119 (Va. 2000) (collecting cases where court applied

doctrine of qualified privilege in cases involving defamatory statements

made between co-employees and employers in the course of employee

disciplinary or discharge matters). Finally, Griffith argues that Foreman

has not alleged any statements that are actually defamatory.

We reject each of these arguments. Accepting the allegations in

the Complaint as true and viewing them in the light most favorable to

Foreman reveals that: (1) Foreman has sufficiently alleged actual malice

as required by New York Times v. Sullivan; (2) the same allegation

disqualifies Griffith from entitlement to a qualified privilege, Southeastern

Tidewater Opportunity Project v. Bade, 435 S.E.2d 131, 132-33 (Va. 1993); and

(3) the Complaint sufficiently alleges defamatory statements.

ee

A-9

“Foreman was an_ at-will employee who -had_ no

constitutionally protected property interest in his continued

employment as such.” (J.A. 396). We agree.

In the Complaint, Foreman initially concedes that he

“was an at-will employee” of the City Attorney’s Office.

(J.A. 335). By this statement, Foreman appears to

acknowledge that Norfolk City Charter § 53 provides that

Norfolk City Attorneys are at-will employees, nominated by

the City Attorney and appointed by the City Counsel.

Norfolk City Charter § 53. Section 53 of the Norfolk City

Charter is squarely in accord with Virginia’s strong

adherence to the common law employment-at-will doctrine.

Bailey v. Scott-Gallagher, Inc., 480 S.E.2d 502, 503 (Va. 1997).

However, Foreman attempts to nullify the effect of

Norfolk City Charter § 53 by also alleging that:

The longstanding custom of [the City

Attorney’s Office] was to terminate or

discipline or demote only for just cause. That

was the case during Foreman’s

approximately 17 years of legal service in the

City Attorney’s office. Foreman recalls no

case in which any lawyer-employee was ever

terminated, disciplined, or demoted without

cause. That understanding was_ the

“common law” of the workplace, and was

communicated to Foreman directly and

personally by Pishko, the City Attorney, on

more than three occasions. It was also

communicated to Foreman and others on

numerous occasions by Pishko’s predecessor,

Phil Trapani.

(J.A. 335-336).

A-10

Foreman is correct that a common law of a particular

institution developed by circumstances of the employee’s

service can create a property protected by the Due Process

Clause of the Fourteenth Amendment. Perry v. Sinderman,

408 U.S. 593, 602 (1972) (finding that a “common law” of a

particular institution developed by circumstances of the

employee’s service can also create a property interest). We

find the decision of County of Giles v. Wines, 546 S.E.2d 721

(Va. 2001), dispositive in that circumstances of the nature

alleged by Foreman do not create a common law of the

workplace to discharge only for cause in the face of the

strong presumption under Virginia common law that an

employment relationship in Virginia is at-will.

In County of Giles, D. Chad Wines (Wines) sued Giles

County, Virginia and its Board of Supervisors following his

termination as a County employee without any pre or post

termination hearing procedures. Id. at 722. Like Foreman,

Wines asserted a property interest claim under the Due

Process Clause of the Fourteenth Amendment. — Id.

Specifically, Wines alleged that the County and the Board of

Supervisors had violated the Due Process Clause of the

Fourteenth Amendment by depriving him of his property

interested in continued employment with the County,

subject to termination only for cause, without providing him

name clearing procedures.5 Id. In support of his claimed

property interest in continued employment with the

County, Wines relied upon the County’s Personnel Policy,

enacted by its Board of Supervisors. In relevant part, the

County’s Personnel Policy provided:

> According to Wines, personality conflicts with the County’s

Board of Supervisors, rather than any fault on his part, resulted in his

termination.

oct

Aisa. satel alee hp SARA DIS Cae Sed birth

A-11

8-5 Discharges

An employee may be discharged for

inefficiency, insubordination, misconduct, or

other just cause. Discharge may be made by

the Department Head with approval of the

County Administrator in the case of

employees below department head level.

The County Adminstrator with the approval

of the Board of Supervisors may discharge

other employees. A written statement of the

reasons for such action shall be furnished the

employee and a copy shall be made part of

the personnel file of the individual.

Id. at 722. Additionally, § 8-7 of the County’s Personnel

Policy enumerated “Causes for Suspension, Demotion, or

Dismissal.” County of Giles, 546 S.E.2d at 723. The Jury

returned a verdict in favor of Wines. Id. at 722.

At the conclusion of Wines’ evidence and at the

conclusion of all the evidence, the County and the Board of

Supervisors made motions to strike Wines’ evidence on the

basis that Wines was an employee terminable at-will and,

therefore, the County was not limited to terminating him

solely for cause nor required to provide him with

procedural due process in connection with terminating him.

Id. at 722. The trial court denied all such motions based

upon its holding that the County Personnel Policy created

an employment contract under which the County could

only discharge Wines for cause. Id. Thus, the trial court

entered an order confirming the jury’s verdict in favor of

Wines. Id. The County and the Board of Supervisors

appealed.

On appeal the County and the Board of Supervisors

denied that Wines had a constitutionally protected property

A-12

interest in his employment position with the County. Id. at

724-25. According to the County, under Virginia common

law Wines’ employment with the County was presumed to

be terminable at-will, and the evidence presented at trial

was insufficient to rebut the presumption. Id. at 723-25.

Wines, on the other hand, argues that §§ 8-5 and 8-7 of the

County’s Personnel Policy created an employment contract

guaranteeing him the right to be terminated solely for cause,

and that such right translated to afford him a

constitutionally protected property interest. Giles, 546

S.E.2d at 725.

The Supreme Court of Virginia unequivocally held

in favor of the County and the Board of Supervisors. Id. at

725. In so doing, the court reiterated the rule that Virginia

strongly adheres to the common law employment-at-will

doctrine. Id. at 723, 725. Under that doctrine, there is a

strong rebuttable presumption that an employment

relationship is at-will for an indefinite period of time, with

either party free to terminate the relationship at any time

and for any reason. Id. at 723. The court applied this

doctrine to the evidence before it and held: “Wines failed to

present evidence that he had an employment contract

terminable solely for cause sufficient to rebut the

employment at-will presumption.” Id. According to the

court:

Section 8-5 of the County’s Personnel

Policy does not change the nature of Wines’

employment at-will contract with the

County. The language upon which Wines

-relied states that an “employee may be

discharged for inefficiency, insubordination,

misconduct, or other just cause.” This

sentence does not state that an employee shall

only be discharged for inefficiency,

insubordination, misconduct, or other just

A-13

cause; nor does it state that an employee will

not be discharged without just cause. We

hold that the personnel policy at issue in this

case is not sufficient to rebut the strong

presumption in favor of the at-will

employment relationship in this

Commonwealth.

We note that Wines also relies upon §

8-7 of the County’s Personnel Policy which

enumerates “Causes for Suspension,

Demotion, or Dismissal.” However, this

section is devoid of any language which

changes the nature of the at-will employment

relationship between the County and _ its

employees. There is simply no language in

this section that limits the County’s power to

discharge an employee without cause.

Id. The court also held that the County’s interim

administrator’s mistaken belief that Wines could only be

discharged for cause was insufficient to change Wines’ at-

will employment relationship with the County. Id. Because

Wines failed to establish that he was an employee

terminable solely for cause, he had no property right

protected by the Fourteenth Amendment. Id. at 725.

Accordingly, the court reversed the judgment of the trial

court with respect to Wines’ property interest claim and

entered final judgment in favor of the County and the Board

of Supervisors. Id.

The facts of the present case, taken in the light most

favorable to Foreman, are even less compelling than the

facts in Giles. Giles involved written language in a formal

personnel policy, which written language at least arguably

gave employees the impression that terminations and

demotions would be for cause. No such comparable

et ane een Se ene ae

A-14

evidence exists in the present case. Indeed, the only

officially issued written directive on the subject, Norfolk

City Charter § 53, clearly provides that attorneys in the City

Attorney's Office are employees at-will, with no guarantee

of continued employment or of a particular rank. The

arguable longstanding custom of the City Attorney’s Office

not to terminate or demote attorneys except for cause

coupled with the multiple verbal assurances of similar effect

by Pishko and his predecessor are simply insufficient to

vitiate the combined force of this express language and the

strong presumption of an at-will employment relationship

under Virginia law.

In sum, we hold Foreman did not have a property

interest in his continued employment nor his particular rank

at the City Attorney’s Office. Accordingly, he cannot

sustain his property interest claim under the Due Process

Clause. We, therefore, affirm the district court’s Rule

12(b)(6) dismissal of such claim.

V.

Foreman challenges the district court’s dismissal of

his liberty interest claim alleging that Pishko and the City

deprived him of his liberty interest in his professional

reputation and future employment opportunities in

violation of the Due Process Clause of the Fourteenth

Amendment. According to Foreman, the violation occurred

when Pishko and the City failed to give him a name-clearing

hearing prior to making the Report public and demoting

him for reasons contained in the Report. Foreman’s liberty

interest claim is foreclosed by our decision in Johnson v.

Morris, 903 F.2d 996, 999 (4th Cir. 1990). Accordingly, we

affirm the district court’s dismissal of this claim.

In Johnson, the plaintiff, a public employee who had

been demoted and transferred for alleged misconduct on

A-15

the job, alleged that his employer's public announcement of

the reasons for his demotion without notice and an

opportunity to be heard prior to the demotion deprived him

of his liberty interests in his reputation and future career

opportunities in violation of the Due Process Clause. Id. at

998. Following a bench trial, the district court entered

judgment in favor of the plaintiff. Id.

On appeal, we reversed on the ground that no

protectable liberty interest was implicated by the public

announcement of the reasons for the plaintiff's demotion.

Id. at 1000. In this regard, we held that “for a liberty interest

to have been implicated, some damage to [the plaintiff's]

employment status must have resulted from publication of

the reasons for his demotion.” Id. at 999. Because the

plaintiff remained employed for his public employer, we

concluded that he suffered no damage to his employment

status, and thus, could not be heard to complain that he had

been made unemployable as the result of the publication.

Id. We also concluded that any harm to the plaintiff's

chances for career advancement with his public employer

did not result from the publication of the reasons for his

demotion, but from the reasons from the demotion itself. Id.

at 999-1000.

In the present case, like the plaintiff in Johnson,

Foreman remained employed by his public employer after

the public announcement of the reasons for his demotion.

Accordingly he suffered no damage to his employment

status and cannot be heard to complain that he has been

made unemployable. Furthermore, any harm that came to

Foreman’s chances for career advancement with the City

Attorney’s Office did not result from the publication of the

actual reasons for his demotion, but from the actual reasons

themselves. In short, even accepting all of the facts in

Foreman’s complaint as true, Foreman cannot establish that

he has been deprived of a liberty interest protected by the

r

A-16

Due Process Clause, and therefore, we affirm the district

court’s dismissal of Foreman’s liberty interest claim against

Pishko and the City.°®

VI.

In conclusion, we: (1) vacate the district court's

dismissal of Foreman’s defamation claim against Griffith

and remand that claim for further proceedings; (2) affirm

the district court’s dismissal of Foreman’s property interest

claim; and (3) affirm the district court’s dismissal of

Foreman’s liberty interest claim.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

6 In support of his liberty interest claim, Foreman makes mention

of the following statement in a footnote in Stone v. University of Maryland

Medical System Corp., 855 F.2d 167 (4th Cir. 1988): “[A] public employer's

stigmatizing remarks do not deprive an employee of a liberty interest

unless they are made in the course of a discharge or significant

demotion.” Id. at 172 n.5. Any reliance that Foreman places on this

statement in support of his liberty interest claim is misplaced. The

statement is not only nonbinding dicta, but also pre-Johnson, which

squarely rejected the idea that a mere demotion can sustain a liberty

interest claim.

ash a il tek a ne ee

B-1

JUDGMENT

FILED: November 17, 2003

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

NO. 02-2284

CA-02-394-2

CA-02-380-2

ANDRE FOREMAN

Plaintiff - Appellant

and

WILLIAM SUMMS

Plaintiff

V's

CHARLES D. GRIFFITH, JR.;

BERNARD PISHKO; CALVIN DEPEW;

The CITY OF NORFOLK

Defendants - Appellees

ENTERED: November 17, 2003

Appeal from the United States District Court for the

Eastern District of Virginia at Norfolk

In accordance with the written opinion of this Court

filed this day, the Court affirms in part and vacates in part

the judgment of the District Court.

B-2

This case is remanded to the District Court for

further proceedings consistent with the Court's opinion.

/s/ Patricia S. Connor

CLERK

C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ANDRE FOREMAN,

Plaintiff,

Vv. CIVIL ACTION NO. 2:02cv380

CHARLES D. GRIFFITH, JR., et al.,

Defendants.

WILLIAM SUMMS,

Plaintiff,

Vv. CIVIL ACTION NO. 2:02cv394

CHARLES D. GRIFFITH, JR.., et al.,

Defendants.

ENTERED: October 3, 2002

DISMISSAL ORDER

This matter is before the Court on Defendants'

Renewed Motion to Dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. For the reasons set forth

herein, Defendants’ Motion to Dismiss is GRANTED, and

these actions are DISMISSED.

‘ Factual and Procedural Background

In 1997, the Norfolk Police Department and the Office

of the Commonwealth's Attorney for the City of Norfolk

began a joint investigation into the City of Norfolk's April

15, 1997, towing contract with Tidewater Towing Services.

C-2

The investigation spanned four years, and ultimately

culminated in a report “Investigation into the 1997 Norfolk

City Towing Contract” (hereinafter “The Report”). The

Report was written by Defendant Griffith, the

Commonwealth’s Attorney for Norfolk, and was distributed

to the City Manager, the Mayor, City Attorney Pishko, the

members of the City Council, and members of the press.

While the Report found that there had been inappropriate

contacts between Plaintiff Foreman, who was an Assistant

City Attorney for Norfolk at the time of the investigation,

and Tidewater Towing, especially its then-owner Plaintiff

Summs, it concluded Plaintiffs’ actions were not criminal.

Additionally, the Report criticized the system of public

procurement utilized in awarding the contract. The above-

referenced actions relate directly to the Report, its release on

March 27, 2000, and its subsequent references in local

newspaper articles.

Plaintiff Foreman and Summs each filed a Motion for

Judgment and then an Amended Motion for Judgment in

the Circuit Court for the City of Fairfax. In their respective

complaints, Plaintiffs alleged defamation of character,

intentional infliction of emotional distress, violation of due

process and equal protections rights, and conspiracy. On

April 11, 2002, the cases were then removed to the United

States District Court for the Eastern District of Virginia, and

on May 21, 2002, they were transferred to the Norfolk

Division.

On April 18, 2002, Defendants filed various motions

including a Motion to Dismiss and a Motion for a More

Definitive Statement. The cases were subsequently

consolidated on June 19, 2002, and a hearing on Defendants’

motions was held before this Court on July 31, 2002. At the

hearing, Plaintiffs indicated their intention to voluntarily

dismiss their due process and equal protection claims

against Defendants Griffith and Depew and their conspiracy

C-3

claims against all Defendants. Those claims were

subsequently dismissed by this Court on August 1, 2002.

The Court also dismissed Plaintiff's claims of intentional

infliction of emotional distress claims, Plaintiff Foreman’s

claim of defamation of character when Defendant Pishko sent

a letter to Alfred Coker, and Plaintiff Summs’ claim of

defamation of character when Defendant Depew sent a letter

about Plaintiff Foreman to the Virginia State Bar. The Court

then ordered Plaintiffs to file a More Definitive Statements,

and Plaintiffs complied on August 12, 2002. Upon Plaintiffs’

request in their More Definitive Statement, the Court

dismissed the following claims: (1) Plaintiffs’ defamation of

character claims against Defendants Pishko, Depew, and the

City of Norfolk; (2) Plaintiff Foreman’s claim of due process

and equal protection violations against Defendant Depew; (3)

Plaintiff Summs’ claim of due process and equal protection

violations against Defendants Pishko and Depew; (4) the

property interest component of Plaintiff Summs’ claim of

due process and equal protection violations. On August 23,

2002, Defendants then filed a Renewed Motion to Dismiss.

All of the parties to the present action have agreed to submit

Defendants’ Renewed Motion to Dismiss to the Court on the

basis of the briefs and prior oral argument.

With regard to the counts that remain, Plaintiffs

Foreman and Summs allege that Defendant Griffith

defamed them upon the release of the Report and every

time the Report was subsequently quoted by the press.

Plaintiff Foreman further alleges that Defendants Pishko and

the City of Norfolk violated his due process rights under 42

U.S.C. § 1983 by refusing a public hearing either before or

after his demotion and by damaging his personal and

professional reputation. Similarly, Plaintiff Summs in his

Amended Motion for Judgment alleges that Defendant City

of Norfolk violated his due process rights under 42 U.S.C. §

1983 by refusing a public hearing either before or after his

demotion and by damaging his personal and professional

C-4

reputation. The language in Plaintiff Summs’ Amended

Motion for Judgment was apparently copied verbatim from

Plaintiff Foreman’s Amended Motion for Judgment, and it is

clearly in error because Plaintiff Summs was never an

employee of the City of Norfolk. In his More Definitive

Statement, Plaintiff Summs clarifies that his due process

rights, more specifically his liberty interests, under 42 U.S.C. §

1983 were violated when the City of Norfolk refused to

renew the towing contract with Tidewater Towing.

II. Legal Analysis

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits a

party to move the Court to dismiss an action if the plaintiff

fails to state a claim upon which relief can be granted. The

function of a motion to dismiss for failure to state a claim is

to test the legal sufficiency of the complaint. Neitzke v.

Williams, 409 U.S. 319, 326-27, 109 S. Ct. 1827, 1833, 104

L.Ed.2d 338 (1989). When considering a motion made

pursuant to Rule 12(b)(6), the Court is generally limited to a

review of the pleadings filed in the case. Exhibits attached

to the pleadings are considered a part of the complaint.

Fed.R.Civ.P. 10(c). Thus, “[i]n ruling on a 12(b)(6) motion,

the Court can rely only upon the allegations in the

complaint and those documents attached as exhibits or

incorporated by reference.” Norfolk Fed’n of Bus. Districts.

v. Dep’t of Hous. and Urban Dev., 932 F. Supp. 730 (E.D.Va.

1996). See also, Huntingdon Life Sciences, Inc. v. Rokke, 986

F. Supp. 982, 985 (E.D.Va. 1997); Davis, 896 F. Supp. at 566;

Simons v. Montgomery County Police Officers, 762 F.2d 30,

31 (4t Cir. 1985), cert. denied, 747 U.S. 1054 (1986).

The Fourth Circuit has held that a motion to dismiss

under Rule 12(b)(6) should only be granted in “very limited

circumstances.” Rogers v. Jefferson-Pilot Life Ins. Co., 883

F.2d 324, 325 (4t Cir. 1989). However, dismissal is

C-5

appropriate if it appears that the plaintiff is not “entitled to

relief under any legal theory which might plausibly be

suggested by the facts alleged.” Harrison v. United States

Postal Serv., 840 F.2d 1149, 1152 (4% Cir. 1988)(citation

omitted). See also, Davis v. Hudgins, 896 F.Supp. 561, 566

(E.D.Va. 1995)(citing Conley _v. Gibson, 355 U.S. 41, 45-46

(1957)); Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991).

When reviewing the legal sufficiency of a complaint, the

Court must construe the factual allegations “in the light

most favorable to plaintiff.” Schatz, 943 F.2d at 489

(quotation omitted). See also, Davis, 896 F.Supp. at 566

(citing Martin Marietta Corp. v. Int'l Telecomm. Satellite

Org., 991 F.2d 94, 97 (4'* Cir. 1992)).

B. Sovereign Immunity

The jurisdiction of the federal courts is limited by the

Eleventh Amendment. California _v. Deep Sea Research,

Inc., 523 U.S. 491, 501, 118 S. Ct. 1464 (1998). The Eleventh

Amendment provides that “[t]he Judicial power of the

United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. CONST. amend XI.

Although seemingly applicable only to federal courts’

diversity jurisdiction under Article III, the Supreme Court has

broadly interpreted the Eleventh Amendment. It is now

widely accepted that the Eleventh Amendment grants each

state sovereign immunity from lawsuits brought by private

citizens, even citizens of its own state. “Suits against state

officials in their official capacities are considered suits

against the state.” Shepard v. Irving, 204 F. Supp.2d 902, 912

(E.D.Va. 2002). Thus, as Supreme Court precedent

concerning the Eleventh Amendment dictates, state officials

are immune from suit in federal court for actions taken in

their official capacity. Deep Sea Research, 523 US. at 503

C-6

(citing Smith v. Reeves, 178 U.S. 436,20 S. Ct. 919, 44 L.Ed.

1140 (1900)). :

While the Eleventh Amendment bars state officials

from being sued in their official capacities, it does not

prevent state officials from being sued in their individual

capacities for acts performed in the course of their official

duties nor does it bar state officials from being sued

individually for their tortious conduct. Russ v. Uppah, 972

F.2d 300 (10 Cir. 1992); Wilson v. Beebe, 770 F.2d 578 (6th

Cir. 1985). A plaintiff who wishes to sue a state official in“

his personal capacity must specify so in his complaint. Nix

v. Norman, 879 F.2d 429, 431 (8 Cir. 1989). When a

plaintiff's complaint is silent about the capacity in which he

is suing the defendant, the Court is to interpret the

complaint as including only-official capacity claims, even if

defendant is only referred to by name rather than official

capacity. Egerdahl v. Hibbing Community College, 72 F.3d

615, 619 (8 Cir. 1995).

In regard to the case currently before this Court, all

of the remaining defamation counts are against Defendant

Griffith. At all times relevant to the case at hand,

Defendant Griffith was the Commonwealth Attorney for

the City of Norfolk. It goes without saying that the

Commonwealth Attorney is an agent of the state.

Defendant Griffith is, therefore, entitled to sovereign

immunity under the Eleventh Amendment for all actions

taken in his official capacity. Plaintiffs could have sued

Defendant Griffith in his individual capacity, but they did

not do so. Nowhere in either their Amended Motions for

Judgment or their More Definitive Statement do Plaintiffs

state that they are suing Defendant Griffith in his

individual capacity. Indeed, the Amended Motion for

Judgment indicates Defendant Griffith’s business address,

thereby providing evidence that Defendant Griffith was in

fact sued in his official capacity. Moreover, the investigation

C-7

was performed by Griffith only because Griffith was the

prosecuting attorney. Absent any specific statement by

Plaintiffs of their intention to sue Defendant Griffith in his

individual capacity, this Court finds that Plaintiffs sued

Defendant Griffith in his official capacity only.

The question then becomes whether the Report was

authored and released by Defendant Griffith in the course

of his official duties as the Commonwealth Attorney for the

City of Norfolk. Without a doubt, it was. For several years,

the Norfolk Police Department and the Commonwealth

Attorney’s office had been conducting a joint investigation

into the propriety of the City of Norfolk’s towing contract

with Tidewater Towing. As the Commonwealth Attorney

for the City of Norfolk, this Court believes that it was

Defendant Griffith's official responsibility to report on the

findings of the investigation. To find otherwise would

thwart similar investigations into possible government

corruption. Defendant Griffith carried out his official

responsibility by authoring the Report which he sent to the

Norfolk Mayor, the Norfolk City Manager, and the Norfolk

City Attorney on March 27, 2000. There are no facts before

this Court to indicate that Defendant Griffith acted outside

the scope of his official capacity. Indeed, the facts before this

Court indicate that Defendant Griffith conducted himself

with the utmost regard for his official responsibilities.

To summarize, the Court finds that .Defendant

Griffith was sued in his official capacity for actions taken

pursuant to his official capacity as the Commonwealth

Attorney for the City of Norfolk. As such, the Court holds

that Defendant Griffith is entitled to sovereign immunity

pursuant to the Eleventh Amendment. Therefore, Plaintiffs

have failed to state a claim upon which relief can be granted

and the Court hereby DISMISSES all of Plaintiff's claims of

defamation of character against Defendant Griffith.

C-8

C. 42U.S.C.§ 1983

To establish a claim under 42 US.C. § 1983, a

plaintiff must allege facts sufficient to show that his rights

under the Constitution or the laws of the United States were

violated by a person acting under the color of state law. 42

U.S.C. § 1983. See also, Maine v. Thiboutot, 428 U.S. 1, 100 S.

Ct. 2502, 65 L.Ed.2d 555 (1980). In this case, Plaintiff

Foreman claims that his rights under the Equal Protection

and Due Process Clauses of the Constitution were violated,

and Plaintiff Summs alleges that his rights under the Due

Process Clause of the Constitution were abridged. Thus, the

issue presently before this Court is whether the Plaintiffs

have alleged facts sufficient to show that their rights under

either the Equal Protection Clause or the Due Process

Clause of the Constitution were violated.

1. Plaintiff Foreman's Equal Protection

é Claim

Nowhere in either his Amended Motion for

Judgment or his More Definitive Statement does Plaintiff

Foreman specify facts tending to show that he was denied

the equal protection of the laws in violation of 42 U.S.C. §

1983. With regard to his equal protection claim, Plaintiff

Foreman has failed to meet the liberal pleading

requirements of the Federal Rules of Civil Procedure.

Thus, to the extent that Plaintiff Foreman was claiming a

equal protection violation, his claim is hereby DISMISSED

for failure to state a claim upon which relief can be

granted.

y # Plaintiff Foreman's Due Process

Claim

Plaintiff Foreman alleges that both his

constitutionally protected property and liberty interests

C-9

were abridged in violation of the Due Process Clause of the

Constitution. More specifically, Plaintiff Foreman claims

that he “had a constitutionally protected property interest in

his position, pay and benefits, and a liberty interest in his

personal and professional reputation.” PI's Amended

Motion for Judgment 460. This Court disagrees.

To establish a deprivation of a property interest

under the Due Process Clause, a plaintiff must show that

state law rules and understandings provide a “sufficient

expectation of continued employment.” Jenkins _v.

Weatherholtz, 909 F.2d 105, 107 (4t» Cir. 1990) (quoting

Bishop v. Wood, 426 US. 341, 344 (1976)). See also,

Cleveland Board of Education v. Loudermill, 470 US. a2

(1985)(noting that a plaintiff possess a property right in

continued employment before any constitutional due

process rights are triggered). “A local government

employee serving at the will and pleasure of the

government employer has no legitimate expectancy of

continued employment and thus has no protectible property

interest.” Id. Under Virginia law, no property interest is

created by at-will employment. Skeeter v. City of Norfolk,

681 F.Supp. 1149, 1155 (E.D.Va. 1987). In Norfolk, Assistant

City Attorneys are at-will employees nominated by the City

Attorney and appointed by the City Counsel. Norfolk City

Charter § 53. Indeed, Plaintiff Foreman acknowledges that

he was an at-will employee. PI’s More Definitive Statement

qIG2. Plaintiff Foreman argues that it was the “common

law” understanding of the workplace that no lawyer-

employee was ever terminated, disciplined, or demoted

without cause. The Court is not persuaded. It is the state

law rules and understandings that govern, not workplace

understandings. Thus, the Court finds that Plaintiff

Foreman was an at-will employee who had no

constitutionally protected property interest in his continued

employment as such.

C-10

To establish a deprivation of a liberty interest under

the Due Process Clause of the Constitution, a plaintiff must

allege facts sufficient to “imply the existence of serious

character defects such as dishonesty or immorality.”

Robertson v. Rogers, 679 F.2d 1090, 1092 (4'" Cir. 1982). The

Supreme Court has unequivocally held that reputation

alone is not a liberty interest entitled to constitutional

protection. Siegert v. Gilley, 500 U.S. 226, 233 (1991); Paul v.

Davis, 424 U.S. 693, 712 (1976). Plaintiff Foreman claims that

the violation of his due process rights came from the

allegedly “defamatory Report coupled with the demotion

and ruination of Foreman’s standing and associations

within his profession.” PI's More Definitive Statement

¢1G1. Therefore, it appears that Plaintiff Foreman is

claiming that his constitutionally protected liberty interest is

his reputation and his employment as an Assistant City

Attorney with the City of Norfolk. This claim lacks merit.

As previously discussed, Plaintiff Foreman was an at-will

employee. As such, he lacked an expectation of continued

employment, and therefore, he had no constitutionally

protected interests with regard to his employment.

Moreover, as dictated by the Supreme Court precedent,

Plaintiff Foreman had no constitutionally protected liberty

interest in his reputation. Thus, neither of the interests that

Plaintiff Foreman points to are sufficient, either individually

or coupled together, to state a constitutionally protected

liberty interest.

Plaintiff Foreman has failed to state either a

constitutionally protected property or liberty interest.

Absent a constitutionally protected property or liberty

interest, there can be no claim of a violation of the Due

Process Clause of the Constitution and 42 U.S.C. § 1983.

Therefore, Plaintiff Foreman has failed to state a claim upon

which relief can be granted. Plaintiff Foreman's claim under

42 U.S.C. § 1983 is hereby DISMISSED.

C-11

3. Plaintiff Summs' Due Process Claims

In support of his claim under 42 U.S.C. § 1983,

Plaintiff Summs alleges that he had a constitutionally

protected liberty interest. Unlike Plaintiff Foreman, Plaintiff

Summs is not alleging that he had a constitutionally

protected property interest. In regard to the constitutionally

protected liberty interest, Plaintiff Summs’ argument is

plagued by the same problems as Plaintiff Foreman’s. In

fact, Plaintiff Summs makes essentially the same argument

as Plaintiff Foreman. Plaintiff Summs argues that the

“defamatory report coupled with the non-renewal [of the

towing contract], seriously damaged Summs’ standing and

associations within his business community and city

contracting officials generally’. PI's More Definitive

Statement §IIBB 1. In a nutshell, Plaintiff Summs is

complaining about alleged damage to his reputation. The

non-renewal of the towing contract is a non-issue in this

case. Not only did Plaintiff Summs have no protected

interest in the continuation of the towing contract, but

Plaintiff Summs was no longer the owner of Tidewater

Towing at the time of the non-renewal. Thus, Plaintiff

Summs claim is solely reputational. Yet the law is clear that

reputation cannot form the basis of a constitutionally

protected liberty interest. Plaintiff Summs has failed to

state a constitutionally protected liberty interest, and

absent such an interest, there can be no claim of a violation

of the Due Process Clause of the Constitution and 42 U.S.C.

§ 1983. Therefore, Plaintiff Summs has failed to state a

claim upon which relief can be granted. Plaintiff Summs’

claim under 42 U.S.C. § 1983 is hereby DISMISSED.

III. Conclusion

For the reasons discussed herein, the Court holds

that Plaintiffs have failed to state any claim upon which

relief can be granted. The Court hereby GRANTS

C-12

Defendants Renewed Motion to Dismiss and DISMISSES

Plaintiffs’ complaint.

The Clerk of the Court is INSTRUCTED to forward

a copy of this Order to all counsel of record.

IT IS SO ORDERED.

/s/Robert G. Doumar

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

October 3, 2002

D-1

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

December 12, 2003

No. 02-2284

CA-02-394-2

CA-02-380-2

ANDRE FOREMAN

Plaintiff - Appellant

and

WILLIAM SUMMS

Plaintiff

Vv.

CHARLES D. GRIFFITH, JR.; BERNARD PISHKO;

CALVIN DEPEW;; The CITY OF NORFOLK

Defendants - Appellees

ENTERED: December 12, 2003

On Petition for Rehearing and Rehearing En Banc

The appellant's petition for rehearing and rehearing

en banc was submitted to this Court. As no member of this

Court or the panel requested a poll on the petition for

rehearing en banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

D-2

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

Entered for a panel comprised of Judge Wilkins and

Judge Hamilton.

For the Court,

/s/ Patricia S. Connor

CLERK

E-1

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF FAIRFAX

ENTERED: February 19, 2002

ANDRE FOREMAN

Plaintiff,

V

CHARLES D. GRIFFITH, JR.,

Serve: Circuit Court for

City of Norfolk

100 St. Paul’s Boulevard

Norfolk, VA 23510

Tel: 757/664-4593

At Law No:

194542

and

: BERNARD PISHKO,

Serve: City of Norfolk Attorney's Office

810 Union Street

Norfolk, VA 23510

Tel: 757/664-4529

and

2) a2 ae Cake

CALVIN DEPEW,

Serve: Commonwealth’s Attorney's Office

2425 Nimmo Parkway

Virginia Beach, VA 23456

Tel: 757/427-4401

ee eee eee eee eee eee OO OOO OOO CU”

and

THE CITY OF NORFOLK,

Serve: Bernard Pishko,

City Attorney

City of Norfolk Attorney’s Office

810 Union Street

Norfolk, VA 23510

Tel: 757/664-4529

Defendants.

AMENDED MOTION FOR JUDGMENT

COMES NOW, Plaintiff, Andrew Foremen by

counsel, and files this Amended Motion for Judgment which

replaces the original Motion for Judgment filed herein on

March 4, 2001, against the defendants jointly and severally

and states for his causes of action the following:

:. Plaintiff Andre Foremen was, at all times

pertinent herein, an attorney licensed to

practice law in the Commonwealth of

Virginia. He resides at 113 North Shore

Road, Norfolk, VA 23502 and is a citizen of

the state of Virginia.

2. Defendant Charles D. Griffith, Jr. was, at all

times pertinent herein, the Commonwealth's

Attorney for the City of Norfolk.

4. Defendant Bernard Pishko was, at all times

pertinent herein, City Attorney for the City of

Norfolk whose office employed Andre

Foreman as a deputy or assistant City

attorney.

10.

E-3

Defendant Calvin Depew, was, at all times

pertinent herein, Deputy City Attorney for

the City of Norfolk, Virginia.

Defendant City of Norfolk is an incorporated

municipality of the Commonwealth of

Virginia.

Venue and jurisdiction are proper in this

matter.

FACTS

The genesis of this case is the culmination of

a four-year investigation by the Norfolk

Police Department and the office of the

Commonwealth’s Attorney for the City of

Norfolk, Virginia, into the Defendant City of

Norfolk’s April 15, 1997, towing contract with

Tidewater Towing Service, Inc. (hereinafter

“Tidewater Towing”), and the role of Andre

Foreman, as Deputy City Attorney, and

William Summs, as owner and _ chief

executive officer of Tidewater Towing, in the

award and execution of the contract.

The investigatin uncovered insufficient

evidence of crim ial or civil violation of law

by either William Summs or plaintiff Andre

Foreman.

The investigation concluded with a report

(herinafter “Report”) authored by defendant

Griffith and his office that was published by

one or more of defendants by distribution,

inter alia, to the City manager, the Mayor,

defendant Pishko, all Members of the City

ti.

12.

E-4

Council, and members of the press or others.

A copy of this Report is attached hereto as

Exhibit “A” and made part by reference

hereof.

Defendsats intended and knew that the

Report would be published and re-published

by the media as the controversy continued

over the City’s towing contract and the

involvement of plaintiff. Indeed, defendant

Griffith released the Report to print and

broadcast media, and this defendant and the

other defendants are believed to have spoken

to various media representatives about it.

The publications of the Report commenced

on March 28, 2000 and continued on various

dates thereafter, including but not limited to

articles published in the local paper on or

about, March 28, 2000, March 29, 2000, March

30, 2000, April 5, 2000 and April 19, 2000.

These articles are attached and incorporated

herein as Exhibit “B.”

Defendant Calvin Depew filed a grievance

with the Virginia State Bar after the initial

publication of the Report which included a

copy thereof. However, Depew declined to

be a complainant to the Bar, and therefore,

there can be no claim of privilege for this

republication. There were other publications

and republications of this report which

severely damaged plaintiff.

There were other publications and

republication of this report which severely

damaged plaintiff. All publications and

republication were caused and proximately

14.

ie.

16.

17.

18.

19.

E-5

caused on the acts and publications of the

defendants.

The Report, by assertion of fact, implication,

inference, insinuation and_ innuendo,

maliciously, recklessly and falsely

maintained that Plaintiff Foreman was guilty

of reprehensible and unethical conduct and

favoritism towards William Summs and his

company.

These false statements and innuendoes

would lead a reasonable citizen to conclude

that Plaintiff was a corrupt lawyer, unfit to

perform his duties as a city employee, and

probably guilty of criminal conduct involving

moral turpitude.

The publication and republication of the

Report damaged the Plaintiff's professional

and personal reputation for competence and

integrity and humiliated him.

Defendant Pishko, knowing the falsity of the

defamatory statements and innuendoes in the

Report, invoked it to demote and reassign

Plaintiff to lesser duties at substantially lesser

pay, which also caused additional harm to

Plaintiff's | professinal standing and

reputation. 7

Defendant Pishko also refused to make an

apology or any public statement to clear

Foreman’s reputation.

Defendant Pishko took this adverse

personnel action without affording Plaintiff

2.

E-6

Foreman an opportunity to be heard despite

Plaintiff's several requests to _ present

evidence in an official pre-termination

hearing to publicly clear his good name and

to remain in his job. Defendant City of

Norfolk likewise refused plaintiff's request

for such a hearing.

Plaintiff's demotion, re-assignment, and

professional degradation caused by

Defendant Pishko, and Defendants generally,

caused Plaintiff Foreman to lose an

opportunity to be elected by the Virginia

General Assembly as a Juvenile and Domestic

Relations Judge.

The Report’s statements and innuendoes

inferred the Plaintiff was corrupted by

William Summs in the performance of his

official duties in that the towing contract was

steered to Tidewater Towing, the terms of the

contract were altered to favor Tidewater

Towing, and that plaintiff showed favor to

Summ’s company in other ways to the City’s

detriment.

The Report’s statements and innuendoes

alleged above were false and made with

malice, recklessness, or negligence actuated

by personal motives of spite and ill-will on

the part of the defendants.

The defamatory, slanderous, and libelous

publications of the Report were made by

defendants without notice or an opportunity

to be heard by plaintiff Foreman to clear his

good name and maintain his good standing

24.

25.

26.

E-7

within his profession and the community at

large. Plaintiff's resume is attached and

incorporated herein as Exhibit “C,” as

evidence of plaintiff's excellent reputation

and professional achievements in positions of

trust and honor.

CAUSES OF ACTION

Plaintiff incorporates paragraphs 1-23 as if re-

alleged herein.

Defendants jointly and severally defamed

plaintiff by their malicious, reckless, and/or

negligent actions in publishing, causing to be

published, and republishing the false Report,

and by their additional false statements to the

media in commenting thereon. Defendants

jointly and severally intentionally and/or

negligently inflicted emotional distress on

Plaintiff by their actions in publishing and

republishing the false Report and falsely

commenting to the media thereon.

As a direct result of defendants’ actions in

publishing and republishing the Report,

plaintiff has suffered loss of personal and

professional reputation. He has lost income

and been compelled to incur expenses

including for legal services. He has suffered

emotional distress. He has _ sustained

compensatory losses. Moreover, he is

entitled to receive an amount as punitive

damages, and for expenses including legal

fees and costs.

af.

28.

31.

E-8

Much of the alleged defamation is

defamatory per se.

Defendants jointly and severally violated the

constitutional rights of plaintiff by causing

him to suffer in his profession, in conjunction

with the publishing and republishing of the

false Report and making false comments

thereon to the media without an opportunity

for a hearing, thus depriving defendant of a

liberty interest in his personal and

professional reputation and a_ property

interest in his business and income without

due process and equal protection under the

law.

COUNT I

Defamation of Character

Plaintiff incorporates paragraphs 1-28 as if re-

alleged herein.

The defendants, jointly and _ severally,

knowingly, recklessly and with malice

defamed the plaintiff as aforementioned on

March 28, 2000. At the time the defamatory

statements were made, the defendants knew

or should have known that they were in false.

The allegations contained in the defamatory

statements were in fact false.

The plaintiff has suffered, and continues to

suffer damages resulting from this

defamation of him by Defendants.

34.

36.

38.

E-9

COUNT II

Defamation of Character

Plaintiff incorporates paragraphs 1-32 as if re-

alleged herein.

The defendants, jointly and _ severally,

knowingly, recklessly and with malice

defamed the plaintiff as aforementioned on

March 29, 2000. At the time of the

publication of the defamatory statements,

defendants knew or should have known that

the statements were in fact false.

The allegations contained in the defamatory

statements were in fact false.

The plaintiff has suffered, and continues to

suffer damages resulting from __ this

defamation of him by Defendants.

COUNT III

Defamation of Character

Plaintiff incorporates paragraphs 1-36 as if re-

alleged herein.

The defendants, jointly and _ severally,

knowingly, recklessly and with malice

defamed the plaintiff as aforementioned on

March 30, 2000. At the time of the

publication of the defamatory statements, the

defendants knew and/or should have known

that the statements were in fact false.

The allegations contained in the defamatory

statements were in fact false.

40.

41.

42.

43.

44.

45.

E-10

The plaintiff has suffered, and continues to

suffer damages resulting from this

defamation of him by Defendants.

COUNT IV

Defamation of Character

Plaintiff incorporates paragraphs 1-39 as if re-

alleged herein.

The defendants, jointly and severally,

knowingly, recklessly and with malice

defamed the plaintiff as aforementioned on

April 5, 2000. At the time of the publication

of the defamatory statements, the defendants

knew and/or should have known that the

statements were in fact false.

The allegations contained in the defamatory

statements were in fact false.

The plaintiff has suffered, and continues to

suffer damages resulting from this

defamation of him by defendants.

COUNT V

Defamation of Character

Plaintiff incorporates paragraphs 1-43 as if re-

alleged herein.

On or about April 6, 2000, defendant Pishko

libeled Plaintiff in a letter to Alfred D. Coker.

In this letter, Pishko said he “counseled Mr.

Foreman on [Coker’s complaint] and other

personnel relationship matter,” and cited

46.

47.

48.

49.

50.

3 a

E-11

“news” reports inferring that Pishko had to

take adverse actions against plaintiff because

of news reports implicating Mr. Foreman as a

corrupt lawyer-employee.

This April 6th letter is attached and

incorporated herein as Exhibit “D”.

COUNT VI

Defamation of Character

Plaintiff incorporates paragraphs 1-46 as if re-

alleged herein.

The defendants, jointly and _ severally,

knowingly, recklessly and with malice

defamed the plaintiff as aforementioned on

April 19, 2000. At the time of the publication

of the defamatory statements, the defendants

knew and/or should have known that the

statements were in fact false.

The allegations contained in the defamatory

statements were in fact false.

The plaintiff has suffered, and continues to

suffer damages resulting from __ this

defamation of him by defendants.

COUNT VII

Defamation of Character

Plaintiff incorporates paragraphs 1-50 as if re-

alleged herein.

E-12

Se Defendant Calvin Depew submitted a letter

to the Virginia State Bar after the initial

publication of the Report which included a

copy thereof.

J By declining to be a complainant there can be

no claim of privilege for this republication.

54. The plaintiff has suffered, and continues to

suffer damages resulting from this

defamation of him by defendant.

COUNT VIII

Intentional Infliction of Emotional Distress

55. Plaintiff incorporates paragraphs 1-54 as if re-

alleged herein.

56. The defendants, both individually and in

conjunction with one another, by their

actions, intentionally, knowingly, recklessly

and with malicious intent, inflicted emotional

distress upon the plaintiff with callous

disregard for the plaintiff's rights and mental

well-being.

= Y That in fact, the plaintiff was caused to suffer

severe emotional distress by the actions of the

defendants. Such distress includes, but is not

limited to, anxiety, uncontrollable anger, fear,

distress in sleep patterns, severe depression

and mood swings.

58. The plaintiff's distress is continuing, ongoing

and severe and was solely caused by the

intentional actions of the defendants

previously alleged.

a9.

60.

61.

62.

63.

E-13

COUNT Ix

Violation of Plaintiff’s Due Process and

Equal Protection Rights

Plaintiff incorporates paragraphs 1-58 as if re-

alleged herein.

Plaintiff has a constitutionally protected

property interest in his position, pay and

benefits, and a liberty interest in his personal

and professional reputation.

Defendants, in refusing Plaintiff a public

hearing either before or after his demotion,

and an opportunity to clear his good name,

have taken his property interest and

damaged his liberty interest irreparably

without due process and equal protection of

the law under the United States and Virginia

Constitutions and 42 U.S.C. §1983.

COUNT X

Conspiracy

Plaintiff incorporates paragraphs 1-61 as if re-

alleged herein.

Defendant’s conspired to violate plaintiff's

rights alleged in Count IX above in violation

of Title 42 U.S.C. §1985.

CLAIM FOR RELIEF

WHEREFORE, your plaintiff, Andre Foreman, prays

for the following relief:

E-14

That this court enter judgment against the

Defendants, in favor of the Plaintiff, for the

claims found in Counts I through X;

That the plaintiff be awarded compensatory

damages in the sum of Four Million dollars

($4,000,000.00) to be paid by the defendants,

jointly and severally, for their liability to the

plaintiff arising in his causes of action Counts

I through X;

That the plaintiff be awarded punitive

damages against the defendants for their

wanton, willful, reckless, and malicious

actions against the plaintiff in the sum of Two

Million Dollars ($2,000,000.00) on each count;

That this court award his attorney’s fees and

costs expended in this litigation; and

That the Court award any other such relief

that the Court deems just under the

circumstances.

JURY DEMAND

A trial by jury on the merits is demanded by the

Se eT oe ee

— ee

E-15

Respectfully submitted,

ANDRE FOREMAN

By Counsel

/s/ Gilbert K. Davis by Diane D. Stanley

Gilbert K. Davis, Esquire

VSB#4683

DAVIS & STANLEY, LLC

9502-A Lee Highway

Fairfax, Virginia 22031

Tel: 703/352-3850

Fax: 703/352-9320

E-16

COMMONWEALTH OF VIRGINIA

OFFICE OF THE COMMONWEALTH’S ATTORNEY

CITY OF NORFOLK

Suite 600

800 E. City Hall Avenue

Norfolk, Virginia 23510-2719

(757) 664-4444

March 27, 2000

Ms. Regina V.K. Williams, City Manager

Office of the City Manager

11¢ Floor, City Hall Building

Norfolk, Virginia 23510

RE: Investigation into the 1997 Norfolk City

Towing Contract

Dear Regina:

On February 20, 1997 tow trucks from Tidewater

Towing Service, Inc. [hereinafter “Tidewater Towing” ]

towed several cars from a parking lot at 1355 De Bree

Avenue in the city of Norfolk, Virginia. Based upon citizen

complaints regarding these tows, the Norfolk Police

Department initiated an investigation into the activities of

Tidewater Towing, 1195 Lance Road, Norfolk, Virginia.

During this investigation information revealed that criminal

activities had occurred at Atlantic Auto Auction, 1195 Lance

Road [auction site 101 Liberty Street, Chesapeake, Virginia]

over the course of several years whereby Atlantic Auto

Auction had underreported the sales prices of auctioned

cars to the beneficiaries of the sales. William Summs owned

both Tidewater Towing and Atlantic Auto Auction [the two

entities were corporately related].

ae ee a

EO

E-17

While the Norfolk Police Investigation into

Tidewater Towing was still ongoing, the city of Norfolk

awarded a consolidated Towing contract on April 15, 1997

to Tidewater Towing. This contract [hereinafter referenced

as the “1997 City Towing Contract”] consolidated in one

contract the removal and disposal of motor vehicles towed

pursuant to Sections 29-58, 25-591 and 25-593 of the Code of

the City of Norfolk, Virginia, 1979, as amended.

During the police investigation into the February 20,

1997 towing incident and Tidewater Towing, police

investigators received information from both past and

present employees of Tidewater Towing that raised

questions concerning the propriety of Tidewater Towing’s

receipt of the 1997 City Tow Contract as well as the terms of

the contract. Additional concerns surfaced involving the

nature of the relationship of Deputy City Attorney Andre

Foreman of the Office of the City Attorney, Norfolk with

Tidewater Towing.

On January 4, 1999 Barry Rudiger, the General

Manager of Tidewater Towing. through April of 1997

responsible for day to day operations of both Tidewater

Towing and Atlantic Auto Auction, plead guilty to three

counts of misdemeanor embezzlement in Norfolk Circuit

Court. Rudiger was sentenced to thirty-six (36) months in

the Norfolk City Jail the execution of which was suspended

on several conditions including restitution and Rudiger’s

cooperation with the ongoing investigation of Tidewater

Towing.

On behalf of the Norfolk Police Department and my

office, I hereby forward the following information and

attached documents gathered during our investigation. I

have included, where appropriate, analysis with respect to

insights on city operations suggested by the investigation.

E-18

FINDINGS

The investigation conducted by the Norfolk Police

Department and by the Office of the Commonwealth's

Attorney documented not only issues regarding the manner

in which the 1997 City Tow Contract was awarded but also

the nature of the relationship between city employees and

city contractors. These findings highlight not only

questionable actions but also apparent systemic flaws in the

contracting process for towing services in Norfolk:

1)

Over Centralization of Authority in City

Government Regarding Towing Issues: By the

spring of 1997 in Norfolk, Virginia several offices of

city government had, in essence, abdicated any

authority to act with respect to the administration

or review of towing matters to the Office of the City

Attorney in Norfolk, specifically Deputy City

Attorney Andre Foreman. Foreman was cloaked

both in the role of the impartial legal advisor to the

city of Norfolk with respect to all towing concerns

as well as being the equivalent of a partisan

departmental officer for towing issues. During the

time period leading up to the awarding of the 1997

City Tow Contract, Foreman served as an action

officer in the towing field, as an advocate on behalf

of a city-wide towing strategy, and as the impartial

legal officer for the city tasked with drafting the

contracts and providing legal advice to the

participants. Once the contracting process was

initiated, the Towing Advisory Board created by the

city of Norfolk could not, by definition, serve as a

counterbalance during the contracting process.

There was no effective check and balance system on

decision-making in the towing field.

ee ee a ee ae

2)

ee ee

E-19

Appearance of a Conflict of Interest: From at least

1993 onward the primary officers of Tidewater

Towing [William Summs and Barry Rudiger]

maintained a personal relationship with Deputy City

Attorney Foreman that benefited Tidewater Towing

and impacted the administration of towing contracts

in Norfolk, Virginia. This relationship involved

regular meetings [to include in excess of twenty-five

(25) meetings at the Town Point Club over several

years] between Foreman and representatives of

Tidewater Towing, according to Rudiger. At such

meetings the status of towing contracts in the city of

Norfolk, the position of Tidewater Towing with

respect to these contracts, and the ramifications of

towing regulations were routinely discussed.

Summs and Rudiger would discuss with Foreman

their thoughts on the content of prospective towing

regulations. The discussion included how contracts

could be structured to allow the towing company to

make a greater profit.

The investigation indicates that after such discussion

the structure of city contracts ‘ the towing

field was changed to make them more

advantageous to Tidewater To ing.

Tidewater Towing set, and then attainea the

goal of receiving the primary towing

contracts for the city of Norfolk. There was

no evidence revealed during the

investigation to indicate Foreman had similar

meetings or a similar relationship with any

other towing contractors. In fact, Foreman’s

relationship with other towing contractors

was extremely circumspect. Finally, after the

receipt of the 1997 City Towing Contract, this

investigation documented that Foreman had

repeatedly interceded on Tidewater Towing’s

3)

4)

E-20

behalf with representatives of the Norfolk

Police Department with respect to

regulations governing the processing, storage

and auction of impounded vehicles.

Foreman reportedly provided legal advice to

Tidewater Towing with respect to towing issues

encountered by Tidewater towing. Further, the

investigation details that during the evaluation

portion of the con .acting procedure for the 1997

City Tow Contract Foreman provided advice to

Tidewater Towing as to the drafting and distribution

of correspondence concerning issues raised during

the contracting process.

Inappropriate Receipt of Gifts: Deputy City

Attorney Foreman over several years received gifts

[arguably of de minimus value] from Tidewater

Towing. These gifts included automotive work from

1993 to 1997 performed on Foreman’s car by

employees of Tidewater Towing at Tidewater

Towing’s 1195 Lance Road location at either cost or

gratis. The lot at 1195 Lance Road was not generally

an “open to the public” service facility as it was used

for work on the auction car and towing equipment.

Tidewater Towing arranged for Foreman to use one

of the dealer cars while his car was being serviced.

The timing of the work on Foreman’s car coincided

with periods during which city towing contracts

were bid. Foreman also received varied other gifts

including tickets to golf and tennis tournaments, as

well as boxes of Cuban cigars from representatives of

Tidewater Towing.

Form of Contracting Procedure Utilized by City of

Norfolk: The contracting process chosen to award

the 1997 City Towing Contract [“Competitive Sealed

5)

6)

E-21

Proposals” with certain base criteria] implicitly

created a more subjective rationale with respect to

the awarding of a contract. Given the fact that

within the city of Norfolk essentially one man had

been acknowledged as the primary gatekeeper in

towing matters, the utilization of a_ subjective-

analysis oriented contracting procedure increased

the chances of collusion. The investigation indicated

that the criteria emphasized for the review of the

bidders from the 1997 City Tow Contract were

designed to make Tidewater Towing the only

responsive bidder. |

Opposition to Awarding of Contract to Tidewater

Towing: The Norfolk Police Department strongly

opposed the awarding of the 1997 City Tow Contract

to Tidewater Towing based upon past experience

with the business operations of Tidewater Towing.

The prophetic nature of these concerns raised by the

Norfolk Police Department were born out by the

problematic history of Tidewater Towing’s first year

of operation under the new contract from 1997

through 1998. The attached materials detail this

opposition to the awarding of the contract to

Tidewater Towing.

Errors in Form and Substance of the 1997 City Tow

Contract: The 1997 City Tow Contract, approved as

to form and correctness by Deputy City Attorney

Foreman, includes numerous provisions less

favorable to the city of Norfolk than prior executed

towing contracts. For instance, under the 1997 City

Tow Contract the contractor may access all funds in

the escrow account created by the sale of cars at

auction. Previously, under the 1992 contract, the

contractor could access only up to 1/3 of the funds

available in the escrow account. Additionally, under

E-22

the 1997 City Tow Contract the annual lease

payment for the use of the city owned Goff Street

storage lot was $1,500 for years one and two of the

contract. Previously, under the 1992 contract, the

monthly lease payment was $1,050. These issues and

others with respect to the text and effect of the 1997

City Tow Contract were repeatedly raised by the

Norfolk Police Department to city officials to no

avail prior to the signing of the contract.

EVIDENCE

The evidence produced by the Norfolk Police

Department investigation includes witness testimony to the

acts described, documentary evidence of the acts, city

contracts and correspondence that circumstantially

corroborate the witnesses as well as the investigative notes

of members of the Norfolk Police Department. The

evidence referenced in this memorandum where possible

has been attached as indicated. This letter further serves as

an introduction to the Norfolk Police Department's

“Summary of Investigation of Tidewater Towing and Andre

Foreman” attached in full. (TAB A) An additional event

time line detailing the interaction between Tidewater

Towing and Andre Foreman from 1992 onward is also

included. (TAB B)

WITNESS INFORMATION

1) BARRY RUDIGER

Rudiger was the General Manager of Tidewater

Towing from approximately 1992 through his departure in

the spring of 1997. Rudiger was a participant in the majority

of the meetings [both at Tidewater Towing and at other

locations such as the Town Point Club] between Foreman

and Summs during that period referenced above. Rudiger

describes the substance of the conversations with Foreman

E-23

to include Tidewater Towing suggesting changes to city

codes or regulations that would benefit Tidewater Towing

as well as discussions between Foreman and Tidewater

Towing indicating how Tidewater Towing could position

itself to receive City of Norfolk Towing Contracts. These

ongoing discussions included how Tidewater Towing could

profit from said contracts. Rudiger further stated that

Foreman routinely provided ad hoc legal advice to

Tidewater Towing to include guidance on the drafting of

correspondence to the city and to whom _= such

correspondence should be directed. Rudiger also had

personal knowledge regarding Foreman’s receipt of auto

service from Tidewater Towing; Foreman’s receipt of other

gifts from Tidewater Towing; and Foreman’s role in

advising Tidewater Towing.

On January 4, 1999 in Norfolk Circuit Court Rudiger

plead guilty to three counts of misdemeanor embezzlement

related to the Atlantic Auto Auction and the auctioning of

cars donated to the American Cancer Society. Rudiger was

sentenced to thirty-six (36) months in the Norfolk City Jail

the execution of which was suspended on several conditions

including restitution and Rudiger’s “complete cooperation,

to include truthful testimony if called as a witness, in any

law enforcement investigation and/or criminal prosecution

arising out of or related to the current investigation into any

and all activities related to Tidewater Towing, its officers, or

related concerns.” The Investigator’s Notes of SGT Johnson

and Investigator Dayton and a synopsis of Rudiger’s

statement in the Office of the Commonwealth’s Attorney on

October 5, 1998 are attached. (TAB C)

Barry Rudiger was further interviewed in the Office

of the Commonwealth’s Attorney of October 28, 1999 and

then again on November 1, 1999. The substance of his

comments is as follows:

E-24

Barry Rudiger and his wife, Melba, came to

Tidewater Towing with prior experience in the towing field.

Rudiger indicated that Billy Summs hired both Rudiger and

his wife as salaried employees with a significant amount of

Barry Rudiger’s compensation being paid to his wife as

Rudiger had an IRS lien on his compensation. By 1997

Rudiger stated that he and his wife were paid $70,000 jointly

by Tidewater Towing. However, due to Summs’ failure to

deliver on promises of bonuses and revenue sharing within

Tidewater Towing, Rudiger indicated he and his wife had

given Summs their letters of resignation with 90 days notice

in the spring of 1997. Thereafter, Summs fired Rudiger

theoretically due to questions concerning expenditures for

carpeting [which turned out to be carpeting for Summs’

own motor home]. Summs communicated Rudiger’s

discharge by voicemail. Melba Rudiger worked for the

balance of the 90-day period.

Rudiger had known Deputy City Attorney Andre

Foreman through Rudiger’s prior experience with another

towing company Rudiger owned., Rudiger stated that

Foreman in Rudiger’s past dealings with him had been

100% business. However, Foreman’s relationship with Billy

Summs was much different, according to Rudiger. During

the period from the spring of 1994 through the end of 1996

Rudiger was aware that Summs frequently gave Foreman

tickets to golf tournaments such as the Bruce Smith Charity

Golf Tournament or celebrity events such as the Tim Reid

Event for Norfolk State University. Many of these tickets

Summs would receive for conducting the charity auctions at

each event. Specifically, Rudiger recalled delivering the

tickets for several years to Foreman for the Tim Reid Event.

He also specifically recalled picking up tickets for the Bruce

Smith Celebrity Golf Tournament and giving them to

Summs who then gave them to Foreman.

Pe re ee ee >

TO Le ee yO Oe ee OP es Pe ae

E-25

Rudiger also observed Deputy City Attorrney

Foreman having his black Mercedes detailed or undergoing

minor repairs at Tidewater Towing’s facility. Rudiger stated

that to his knowledge Foreman never paid for the detailing

work. Foreman would pay only for parts [such as tires] at

the dealer cost, not any labor. While his car was being

repaired or detailed, Foreman would drive one of the

auction cars with dealer tags at no cost. Rudiger recalls

personally picking up Foreman’s car at least 10-12 times and

dropping off the dealer car. Usually, Foreman later would

return to Tidewater Towing’s lot and pick up his car

dropping off the dealer car. (See TAB E for documentation

of repairs)

During the period from 1995 to 1997 Billy Summs

went to Cuba several times. Each time Summs would

return with a large amount of Cuban cigars in his briefcase,

according to Rudiger. (See TAB C) Each year Summs

would give a box of cigars to Foreman in Summ’s office at

Tidewater Towing. Rudiger recalls personally delivering a

box of cigars to Foreman one year and Foreman telling

Rudiger, “Tell Billy thanks a lot” with no offer to pay being

made by Foreman. Rudiger said that it was his

understanding that Foreman entertained the idea of

becoming a judge in Norfolk. To that end, Rudiger said that

Summs made several calls to politicians toward that goal.

Rudiger said Summs indicated he wanted to maintain a

favorable position with Foreman.

Rudiger described Foreman and Summs as very

good friends. With respect to the awarding of the 1997 City

Tow Contract Rudiger commented that they [Foreman and

Summs] had convinced each other that Tidewater Towing

was the only contractor that could handle the contract.

Summs convinced Foreman of the importance of

computerization for any company receiving a city tow

contract.

E-26

Foreman, Summs and Rudiger met in excess of 25

times according to Rudiger at the Town Point Club usually

for breakfast starting after the bid the Nuisance Abatement

Contract. Summs and Rudiger each had a membership

through Tidewater Towing. (See TAB K) It was at these

meetings where Summs, Rudiger and Foreman would often

discuss Tidewater Towing’s situation with respect to city

tow contracts. Additionally, Foreman would often provide

Summs and Rudiger with legal advice, according to

Rudiger. At one point Rudiger commented that he

questioned Foreman about the nature of the relationship

with Tidewater Towing. Foreman responded, “I have

nothing to hide. I’m doing everything legal.”

The closeness of this relationship was evidenced by a

couple of situations. Shortly after Rudiger’s arrival,

Tidewater Towing bid for and received the Nuisance

Abatement Contract on December 14, 1993. Unfortunately

the bid terms were not favorable. Rudiger stated he

watched Summs call Foreman and leave a message stating

that “here’s what we bid”, “I need you to get back” and

could we make this contract a sole solicitation? Rudiger

said that later Summs said to Foreman, “I can’t make money

at $30 [a tow] and $3 [a day storage fee].” Foreman

responded by agreeing to convert the contract into a “trial

thing” to see how it worked which enabled the city (through

Foreman) to change the contract terms. Thereafter,

Tidewater Towing completed the initial “trial period” and

received two extensions, according to Rudiger. Rudiger

recalls he and Summs meeting Foreman in Foreman’s office

approximately three to five times.

In the fall of 1996, when Pete Penello of Pete’s

Towing gave notice to terminate his contract due to the

terms, Foreman directly conference-called Tidewater

Towing to have them “step in and take over contract.”

Foreman described that “Pete [was] back on the warpath.”

E-27

After the awarding of the 1997 City Tow Contract, Rudiger

negotiated with Pete Penello to purchase the trailer, phone

and other improvements that Penello had made to the Goff

Street Lot. Eventually, they agreed on $12,000 for Tidewater

Towing to pay to Penello.

With respect to the 1997 City Tow Contract, Rudiger

reported that Summs was concerned when he learned that

Dale Old Wrecker Service, Inc. had also bid the contract

since Dale Old had the capacity to fulfill the contractual

requirements. (TAB O) “Don’t worry about it,” Foreman

told Summs, according to Rudiger. Foreman told them that

he was “going to take it [the contract] out of the hands of the

purchasing department.” [See Statement of James Waller at

page 14] Rudiger said the 1997 City Tow Contract was to be

the first time price was not the prime issue in the bids. At

one of their breakfast meetings during the period of late

1996 or early 1997, Rudiger recalls Foreman stating that

“You [Tidewater Towing] will be the only responsible

bidder.” Further, Foreman had told them that “Pete [Pete’s

Towing] will not win [the] contract.”

Rudiger said that he personally did not believe prior

to the awarding of the 1997 City Tow Contract that Foreman

had as much control as he [Foreman] expressed. Foreman

told Tidewater Towing that “You'll get the contract” shortly

after the proposals were submitted. In fact, Rudiger said he

called Jim Waller, the purchasing agent, four to five times to

ensure Tidewater Towing had included all the necessary

materials for their proposal. Waller said, it was “in the

hands of the city attorney’s office.” When the Norfolk

Police Department raised concerns about Tidewater Towing,

Rudiger said Foreman directly advised Summs and

Tidewater Towing as to how to answer the concerns in

writing. (See Tidewater Towing Letter of February 26, 1997

included at TAB P)

E-28

During the period from 1993 through the spring of

1997 when Tidewater Towing received the 1997 City

Towing Contract Rudiger reported that the earnings and the

profit margin for Tidewater Towing increased significantly

due to the city tow contracts. These factors put Tidewater

Towing in a solid financial position that made the company

an attractive target for corporate acquisition.

Rudiger gave three formal signed statements to the

Norfolk Police Department, included in this report at TABs

C1, C2, and C3.

2) ANGELO J. “PETE” PENELLO:

Pete Penello is the owner of Pete’s Wrecker Service.

Penello gave a statement to the Norfolk Police Department

in which he described a history of preferential treatment

with respect to city contracts going back to 1994 that

benefited Tidewater Towing over its competitors. For

example, in 1994 the city set out the Nuisance Abatement

Contract with a tow price of $30 and $3 per day storage, a

rate at which Penello states that no towing company could

show a profit. Tidewater Towing was the only company to

respond and received the contract. Forty-five days later the

contract rate for tows increased to $45 a tow as well as $5 a

day storage fees. Penello complained to Foreman asking

how the fee was suddenly raised after Tidewater Towing

got the contract and why didn’t he or others get the chance

to bid at that rate. Foreman responded that “I'm not

changing the contract like that. I’m making a pilot program

out of this.” Penello gave a formal signed statement to the

Norfolk Police Department, included in this report at TAB J.

The following is a summary of an additional

statement given by Pete Penello in the Office of the

Commonwealth’s Attorney on September 30, 1999:

E-29

Penello is the owner of Pete’s Towing. He stated that

he had been involved with city towing contracts in Norfolk

for eight to ten years prior to the awarding of the 1997 City

Tow Contract. Penello had held the contracts for the towing

of nuisance and abandoned cars as well as police initiated

tows while Tidewater Towing had held the contract for

Norfolk Redevelopment and Housing Authority tows.

Penello stated that with respect to towing contracts in

Norfolk “Andre Foreman always [had] been the guy with

the reins with city contracts.” Penello had been a member of

the Towing Advisory Board and stated that he attended

every board meeting of which he received notice. However,

Penello does not recall ever having a Towing Advisory

Board discussion that supported combining all the towing

contracts into a single contract.

Penello indicated he felt there was some impropriety

in Tidewater Towing’s receipt of the Nuisance Abatement

Towing Contract in 1994 as it was bid at $30 a tow and $3 a

day storage. Due to these low bid terms [levels at which

Penello indicated no towing company could make any

profit] only Tidewater Towing submitted a bid. Penello

recalled approximately 40-50 days later Deputy City

Attorney Andre Foreman announced a “pilot program” that

caused the fees to be raised to $45 a tow and $5 a day

storage. Penello felt that all towing contractors should have

been given the opportunity to bid for the contract at those

higher rates.

Penello recalled that he paid approximately $1,050 a

month rent for the Goff Street Lot under the 1992 Police Tow

Contract. (TAB T) The 1997 City Tow Contract awarded to

Tidewater Towing contained a significantly lower lease

term. (TAB R) Additionally, under the 1992 Police Tow

Contract that Penello held until the creation of the single

contract in 1997, Penello received $30 a tow and $2 a day

storage. Penello recalled talking to Foreman to actually

E-30

speed_up car sales as he was losing money under the

contract. Foreman refused to take any action [although

Penello knew he had done so previously for Tidewater

Towing] and said, “Any changes in [the] contract have to be

approved by the Towing Advisory Board.” Since Penello

felt that Foreman would not even consider his situation,

Penello determined he had no choice but to send the city of

Norfolk a letter in the fall of 1996 in which he asked to

terminate the existing contract. (TAB L)

Under the contract terms of the 1992 Police Tow

Contract the city of Norfolk received 2/3 of the balance of

funds in. escrow after payment of all costs and Pete's

Towing could apply for fees against the remaining 1/3 at

the end of every 90 days. Penello noted that this restriction

was completely eliminated with the 1997 City Tow Contract

and Tidewater Towing had access to the entire escrow

amount. (TAB S)

Penello submitted his proposal on behalf of Pete's

Towing for the 1997 City Tow Contract. In the past, Penello

indicated James Waller from the city purchasing office

would generally be there. Either Waller or another man in

January 1997 said the proposals would be reviewed and you

will be called in for inquiry. Penello said he never was

called or notified in any way by the city of Norfolk with

respect to the 1997 City Tow Contract. In fact, the first

indication he had that Pete’s Towing had lost the contract

was when Barry Rudiger called Penello and asked when

Pete’s Towing could be out of the lot. Penello said that he

was never told that the ownership of a large wrecker was a

consideration in the awarding of the 1997 City Tow

Contract. During the period that Penello had held a city

contract, he never had an incident where he could not

promptly tow any vehicle either using his own vehicles or

subcontracting the tow. Penello indicated that there were

few tows in Norfolk that would require the large wrecker.

;

:

be

;

ee ee ee eee ee Le pee

E-31

Penello eventually decided to sell some of the

physical improvements he had added to the lot [such as the

trailer] to Tidewater Towing so that he could move out of

the lot as quickly as Tidewater Towing was trying to move

in. Foreman acted as an intermediary in the discussions

over this transfer. Penello commented that some of the

“problems” Tidewater Towing encountered upon

assumption of the 1997 City Tow Contract [such as receiving

Department of Motor Vehicle transcripts] had not been a

problem at all for Pete’s Towing.

3) LT JOEL HOWARD:

LT Joel Howard was interviewed in the Office of the

Commonwealth’s Attorney on July 26, 1999. LT Howard

replaced LT Creekmore in the Special Enforcement Division

of the Norfolk Police Department in early 1997. LT Howard

had prior exposure to towing matters and became aware

that Pete’s Towing had wanted the authorized tow fees

increased and had sent in a letter of termination that

prompted the need for a new contract.

In late January 1997 Assistant Chief Darden

contacted LT Howard and several other officers in the

Special Enforcement Division and tasked them with the

evaluation of the three bids for the new 1997 City Tow

Contract. LT Howard recalled reviewing the fact sheets of

the bidders. With respect to the annual lease payment for

the Goff Street Lot, Tidewater Towing was only offering

$1500 a year, a figure that attracted their attention. Lt

Howard and the other members of the Special Enforcement

Division summarized their conclusions in the February 7,

1997 letter that recommended against awarding the contract

to any single bidder. Lt Howard indicated it was clear that

Tidewater Towing was the only bidder with the capacity to

perform the contract but had a long record of questionable

towing practices and problems with the Norfolk Police

E-32

Department. Pete’s Towing was. clearly more “user

friendly” but did not have sufficient capacity to perform the

contract. (TAB P)

Shortly after the issuance of the February 7, 1997

letter, LT Howard recalls being present at a meeting on the

10 floor in City Hall in Norfolk. LT Howard recalls

Assistant Chief Hierstein, Assistant Chief Jackson, Assistant

Chief Darden, and LT Howard being present when Deputy

City Manager Sterling Cheatham said [with respect to the

three bids for the 1997 City tow Contract] that he

understood that “we do not want to accept any of these

bids” and that we want to “put it back out to bid.” LT

Howard recalled Chief High then saying , “No, we're going

to go with Tidewater Towing” which prompted a strong

response by Assistant Chief Darden who had signed the

February 7, 1997 letter opposing Tidewater Towing’s receipt

of the contract. LT Howard vividly remembered Deputy

City Attorney Foreman in an animated tone challenging the

opposition to Tidewater Towing verbalized by Assistant

Chief Darden. Foreman asked what Tidewater Towing had

done and said to “tell them [Tidewater Towing], bring them

in,” LT Howard described Foreman as advocating on behalf

of Tidewater Towing.

As a result of the City Hall meeting LT Howard

recalls being present at a follow-up meeting involving

Assistant Chief Darden, Assistant Chief Jackson, Assistant

Chief Hierstein, Billy Summ: of Tidewater Towing, and

Barry Rudiger of Tidewater Towing. No other bidders were

invited to this meeting. LT Howard believes this meeting

came about as a result of Foreman’s comments at the

meeting at City Hall. At this meeting, the police officials

talked through a checklist of issues concerning towing

practices by Tidewater Towing. Tidewater Towing

promised to do a better job in the noted areas. (TAB P)

E-33

LT Howard did not recall any other involvement in

1997 City Tow Contract process until he was asked to

review a draft contract. LT Howard stated that the Special

Enforcement Division [as documented by a letter from CPT

Young] once again indicated the contract as drafted was not

correct. (TAB Q) LT Howard believed Chief High was not

going to sign the contract in its present form.

Once the 1997 City Tow Contract was awarded to

Tidewater Towing LT Howard stated that problems began

to arise very quickly. The Special Enforcement Division and

LT Howard documented numerous concerns brought to his

attention by Johnnie Speight. These problem areas included

insufficient appraisers for vehicles, proper notification to

registered owners as required by the Department of Motor

Vehicles, and storage fees raised in numerous letters during

the summer and fall of 1997. (TAB U) According to LT

Howard the Norfolk Police Department had to assume

responsibility not only for monitoring compliance with the

1997 City Tow Contract, but to also perform several contract

requirements that Tidewater Towing failed to perform.

These documents confirm that on July 17, 1997 LT

Howard and Johnnie Speigiit notified William Summs [then

running the daily operations of Tidewater Towing in the

wake of Rudiger’s departure in the spring of 1997] of the

requirement for three appraisers contained in Norfolk City

Code Section 25-596 and the 1997 City Tow Contract.

Summs claimed ignorance regarding the contract

requirement, but indicated he would ask Deputy City

Attorney Foreman about the requirement.

Foreman and Summs were observed on July 29, 1997

at approximately 9:30 p.m. entering Summs’ office at 975

Goff Street, Norfolk, Virginia by Mitchell Landrum, an

employee of Tidewater Towing. The next day, July 30, 1997,

LT Howard asked Summs for the names of his three

E-34

appraisers. Summs stated he had just heard of this

requirement and deferred the issue to Foreman. Summs

claimed the requirement would be a waste of money as the

auction itself would determine the cost of the vehicle. LT

Howard also notified Summs that Tidewater Towing was

still violating Norfolk City Code Section 25-595 requiring

that registered vehicle owners oF lien holders be notified

within fifteen (15) days of the tow by certified mail.

On August 13, 1997 Deputy City Attorney Foreman

notified LT Howard that the requirement for three

appraisers was not necessary as the auction would

determine the value of a vehicle. When LT Howard said

that the Norfolk City Code required three appraisers,

Foreman responded that he wrote that code section and the

he [Foreman] was holding the three-appraiser requirement

in abeyance with respect to Tidewater Towing. LT Howard

documented his observations of violations by Tidewater

Towing of the 1997 City Tow Contract in a letter to the Chief

of Police dated August 25, 1997. (TAB U)

Later, on March 20, 1998, Lt. Howard noted that

Tidewater Towing was moving vehicles from Liberty Street

(impound lot) to Tidewater Towing at Lance Road, contrary

to contract terms. Lt. Howard stated that Tom Rule [by then

the General Manager at Tidewater Towing] said Foreman

told Tidewater Towing they could move them.

4) JAMES WALLER [Purchasing Agent. for City of

Norfolk]:

James Waller was interviewed on August 26, 1999 in

the Office of the Commonwealth's Attorney concerning 1997

City of Norfolk Towing Contract. Waller noted that the

contracting process chosen by the City of Norfolk for the

1997 City Tow Contract was the “Competitive Sealed

Proposal” process in which the City of Norfolk solicited

E-35

“Requests for Proposals” from interested vendors. The

Competitive Sealed Proposal contracting process [as

opposed to the more commonly utilized “Competitive

Sealed Bid” in which the city would have solicited

“Invitations for Bids” ] allowed the city to select the proposal

deemed to be “most advantageous” to the city taking into

account selection criteria.

Waller stated a “Competitive Sealed Bidding”

process would result in the awarding of a contract based

strictly on low bid assuming capability to fulfill contract

requirements. On the other hand, the “Competitive Sealed

Proposals” process would result in the awarding of the

contract to the lowest “responsible” and “responsive”

bidder [bidder experience and financial capacity to perform

contract and fulfills the criteria deemed by the city]. The

“Competitive Sealed Proposals” contracting process

implicitly allows greater subjective evaluation.

According to Waller, the City Manager's office may

decide to utilize the “Competitive Sealed Proposals”

method of contracting when sealed bidding is not

practicable or physically advantageous. The implementing

mechanism of “Requests for Proposals” lends itself to

situations where the city is contracding for something that

does not lend itself directly to fixed specifications. A letter

from Assistant City Manager Sterling Cheatham dated

January 8, 1997 authorized the use of the “Competitive

Sealed Proposals” method of contracting to select a towing

contractor for the City of Norfolk. (TAB N) The letter also

stated that the Chief of Police would appoint a selection

committee to evaluate the proposals submitted and make

recommendations to the City Manager.

Waller indicated that Andre Foreman, Deputy City

Attorney for the City of Norfolk, developed the language of

the Requests for Proposals for the City Tow Contract and

E-36

then sent it to Waller for comment. Thereafter, on

December 10, 1996 Foreman forwarded a draft of the request

for proposals to Waller for review. Waller recalled that in a

preliminary meeting attended by Sterling Cheatham,

Assistant City Manager, and Andre Foreman that the goal of

combining towing services for the City of Norfolk into one

contract was discussed. Waller noted the fact that a copy of

the proposed contract was attached to the Request for

Proposals was somewhat unusual. (TAB N)

Once the vendors submitted their proposals, Waller

recalled reiterating that the City should only utilize the

factors discussed in the Request for Proposals as evaluation

criteria. Should a modification in criteria be desired, notice

of the same should be given to all vendors so as they each

have an equal opportunity to resubmit. Once the evaluation

process is complete, Waller, as the Purchasing Agent for the

City of Norfolk, would send out letter to the Office of the

City Attorney to prepare the contract. Waller would also

send out letters to individual vendors who submitted

proposals.

With respect to the 1997 City Tow Contract Waller

said he was not named a member of the evaluation

committee to review the proposals. However, Waller did

indicate that he discussed the evaluation process with

Foreman and stressed that the factors in the Request for

Proposals must be the basis for the selection. Waller noted

that during the period immediately after the print media

had written several articles concerning the lease terms

included in the 1997 City Towing Contract the Purchasing

Agent's file for the 1997 City Tow Contract was physically

forwarded to the City Attorney’s Office for several weeks.

Thereafter, Waller stated he believed several of his standard

file documents were missing.

ee iS

E-37

Waller indicated that he talked with Foreman on or

about August 26, 1999 about the 1997 City Tow Contract

after it had received attention from the media. Foreman told

Waller that the “Price Rate Sheet” was the document used in

the contract preparation and that on the prior page

Tidewater Towing had only “suggested” the rate of $1,500 a

month. Foreman also stated that the Norfolk Police

Department had the obligation to administer the contract;

that the Norfolk Police Department evaluated the contract

and approved it. Foreman indicated that the lease rate was

not inconsistent as the price sheet was specific. With respect

to Waller’s upcoming discussion of the contracting process

with the Commonwealth’s Attorney, Foreman stated words

to the effect of “Tell ‘em exactly the truth and then tell him

to get (expletive deleted).”

5) ASSISTANT CHIEF OF POLICE SHELTON

DARDEN:

ACOP Shelton Darden was interviewed in the Office

of the Commonwealth’s Attorney on August 30, 1999.

Darden recalled that prior to the awarding of the 1997 City

Tow Contract there had been discussion of the desire to pull

all the contracts for towing services in Norfolk together into

one towing contract.

Darden sat as a representative of the Norfolk Police

Council to meet and review issues relating to towing service

in Norfolk, Virginia~One such issue was the settling of

towing fees chargeable by tow companies in Norfolk. Billy

Summs, owner of Tidewater Towing, sat as a member of the

Towing Advisory Board and strongly advocated for the

increase of towing fees. (TAB M) During meetings of the

Towing Advisory Board in 1998 Darden stated that Pete

Penello of Pete’s Towing strongly opposed this idea as he

indicated that such a proposal was a guarantee that

Tidewater Towing would receive any prospective contract.

In carrying out these duties, Darden would receive written

E-38

guidance concerning towing matters from Deputy City

Attorney Andre Foreman.

Once the proposals had been received by the City of

Norfolk for the 1997 City Tow Contract, Darden recalled

being asked to have members of his command in the

Norfolk Police Department [with experience in dealing with

the tow companies] review the proposals and comment on

them. Darden’s group detailed their conclusions in a letter

dated February 7, 1997. (TAB P) The letter strongly

recommended against awarding the 1997 City Tow Contract

to Tidewater Towing. Darden recalled that he felt

Tidewater Towing’s proposal was “very deceptive”. As an

example, Darden stated his group noted the difference in

lease terms for the rent on the Goff Street Lot as to where the

cited figure was per month or per year. The Norfolk Police

Department further for many years had received reports of

improper towing practices by Tidewater Towing. Darden

personally felt that representatives of Tidewater Towing

[Billy Summs] had deceptively estimated the percentage of

“dolly usage” in towing vehicles when Tidewater Towing

presented such figures to the Towing Advisory Board.

[Darden stated that other towing operatives including Pete

Penello stated it was a “very small percentage” of tows that

utilized dollys.]

After the submission of his letter opposing the

awarding of the 1997 City Tow Contract to Tidewater

Towing, Darden recalled attending a meeting in City Hall.

At this meeting Darden described the historical problems

the Norfolk Police Department had with Tidewater Towing.

These problems included complaints from citizens and

concerns about Tidewater Towing’s business practices. At

this meeting Darden said that Deputy City Attorney Andre

Foreman strongly argued on behalf of Tidewater Towing

and their capabilities to perform the contract.

ape tet

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E-39

Thereafter, Darden was instructed to bring the

concerns he had directly to Tidewater Towing’s attention to

allow them to respond. Darden stated that he was not

comfortable with the idea of talking with only one vendor.

Darden recalled that he had follow-up meetings with Chief

of Police High and believed that the Chief of Police shared

Darden’s opposition to Tidewater Towing.

Darden met with representatives of Tidewater

Towing [Billy Summs and Barry Rudiger] at Police

Headquarters on or about February 26, 1997. Darden and

representatives of the Norfolk Police Department discussed

point by point concerns that had been raised concerning

Tidewater Towing. Foreman was also involved in this

meeting. These issues were reduced to a checklist that

Tidewater Towing’s representatives signed. Darden’s letter

of February 27, 1997 documents this meeting. (TAB P)

After the meeting on February 27, 1997, Darden did not

recall any further dealings with the 1997 City Tow Contract

process.

Darden stated that Foreman consistently supported

Tidewater towing’s receipt of the 1997 City Tow Contract

saying “...they are the ones that have the ability [to do it].”

During the investigation of the 1997 City Tow Contract

Darden stated that Foreman approached Dardan and asked

“can we talk about the investigation.” Foreman also

expressed concern to Darden that someone was over at the

Town Point Club asking for information.

During the period after the awarding of the 1997

City Tow Contract Darden indicated that many of the

documented problems Tidewater Towing encountered in

performing the contract were presented to the Towing

Advisory Board.

E-40

~

6) ASSISTANT CHIEF OF POLICE JACKSON:

ACOP Jackson was interviewed on July 28, 1999 in

the Office of the Commonwealth’s Attorney. Assistant

Chief Jackson remembers being present at the City Hall

meeting when Assistant Chief Darden _ strongly

recommended against one towing company [Tidewater

Towing] receiving the contract. Assistant Chief Jackson was

familiar with Tidewater Towing’s problems with improper

towing practices in the past. Assistant Chief Jackson

recalled~Chief High, Assistant Chief Darden, LT Howard,

Deputy City Attorney Foreman, Deputy City Manager

Sterling Cheatham and possibly several other individuals

being present at the meeting.

Assistant Chief Jackson recalls Deputy City Manager

Sterling Cheatham opening the meeting and _ shortly

thereafter Assistant Chief Darden outlining on behalf of the

Norfolk Police Department his opposition to Tidewater

Towing receiving the 1997 City Tow Contract. Deputy City

Attorney Foreman questioned Darden about his opposition

indicating that “we'll write this stuff into the contract.”

Assistant Chief Jackson perceived that Deputy City

Attorney Foreman was on Tidewater Towing’s “side”. In

fact, Assistant Chief Jackson stated that the joke was that

“Andre [Foreman] was Tidewater Towing’s lawyer.” Asa

result of the City Hall meeting, Assistant Chief Jackson

stated that he then participated in a follow-up meeting with

the representatives of Tidewater Towing that took place in

the Chief of Police’s conference room. Jackson commented

that it seemed as if it was decided that Tidewater Towing

would get the contract and the meeting to go over specific

concerns was an attempt to appease the Norfolk Police

Department.

Sometime thereafter Assistant Chief Jackson

specifically recalled talking with Chief High in Jackson's

E-41

office concerning the lease term for the compound rental in

the 1997 Tow Contract. They thought the cited figure had to

be a mistake. Chief High picked up Assistant Chief

Jackson’s phone and called Deputy City Attorney Foreman.

Assistant Chief Jackson stated that he heard Chief High say

during an animated conversation, “You're just my lawyer”

and then later “I’m not going to sign the contract.” Chief

High commented on the lease terms in the contract as

drafted indicating that we [the city] thought we were getting

more. It was Assistant Chief Jackson’s understanding that

Foreman was drafting the contract.

Assistant Chief Jackson did not hear anything else

for abovt ten days before hearing that Tidewater Towing

had been awarded the 1997 City Tow Contract. Assistant

Chief Jackson commented that at the time he thought this

was strange given the preceding events. No other city

contract had the same level of city attorney advocacy on

behalf of the job contractor as did the 1997 City Tow

Contract involving Deputy City Attorney Foreman and

Tidewater Towing, according to Assistant Chief Jackson.

Further, Assistant Chief Jackson stated that Foreman

routinely would go over the chain of command in the

Norfolk Police Department and call Chief of Police High

directly on towing issues.

7) CHIEF OF POLICE MELVIN HIGH:

Chief of Police Melvin High was interviewed in the

Office of the Commonwealth’s Attorney. Chief High

recalled that with respect to the 1997 City Tow Contract he

had received in late 1996 recommendations from the

Towing Advisory Board. Chief High further recalled

concurring with the concerns outlined by Assistant Chief

Darden in his memorandum dated February 7, 1997 with

respect to the prospect of Tidewater Towing receiving the

contract. These concerns included the specifics of the

E-42

contract proposal as well as issues concerning Tidewater

Towing’s business practices. (TAB P)

Subsequently, Chief High recalled that a request was

received for the Norfolk Police Department to sit down with

the bidder, Tidewater Towing, to discuss specific concerns.

Chief High could not recall the exact mechanism by which

this request was conveyed to the Norfolk Police

Department. It was conceded that Tidewater Towing had

the requisite content [size and equipment] to perform the

contract by the NPD officials reviewing the bid. However,

Chief High recalled the Special Enforcement Division of the

Norfolk Police Department [LT Howard] communicating

opposition due to Tidewater Towing’s history. Chief High

further recalls being informed by either the City Attorney’s

Office or the City Manager’s Office that “legal reasons”

would be needed to reject. Chief High recalls indicating to

Foreman that should the concerns raised be resolved, he’d

sign the contract.

In other situations should the Norfolk Police

Department identify an issue for which a contract would be

needed, the department would forward the requirement to

the legal office and Jim Waller would write it up, according

to Chief High. In the area of towing matters for the City of

Norfolk, Chief High stated that clearly the principal

mouthpiece for the City of Norfolk was Deputy City

Attorney Andre Foreman. With respect to the process

involved with the awarding of the 1997 City Tow Contract

Chief High said that since several contracts were being

performed on an interim basis, there was clearly a feeling

with the City government that “we have to get it done.”

Chief High stated that he would not have signed the 1997

City Tow Contract unless signed by the Norfolk City

Attorney. Chief High said he trusted the City Attorney to

prepare the proper contractual terms.

E-43

After the 1997 City Tow Contract was awarded to

Tidewater Towing, Chief High recalled receiving reports

Deputy City Attorney Foreman had chastised LT Howard

over what Foreman believed was the fact the Norfolk Police

Department had “it in” for Tidewater Towing and were

“nit-picking” in their concerns over the execution of the

contract. However, one acknowledged goal of the City in

the merger of the multiple city towing contracts with the

1997 City Tow Contract was the reduction of tasks upon the

Norfolk Police Department. Chief High recalls receiving

reports indicating just the opposite had occurred with

Tidewater Towing. “I would want to opt out of the

relationship with [Tidewater Towing]”, Chief High said

recognizing the problems that occurred after the 1997 City

Tow Contract.

During the time period immediately before and after

the awarding of the 1997 City Tow Contract to Tidewater

Towing, Deputy City Attorney Foreman never expressed

any direct relationship with the vendor [Tidewater Towing].

Had Foreman done so, Chief High indicated he would have

asked for another city attorney.

8) DEPUTY CITY MANAGER STERLING

CHEATHAM:

Deputy City Manager Sterling Cheatham was

interviewed briefly in his office on July 30, 1999. Cheatham

indicated that prior to the 1997 City Tow Contract three

different city tow contracts existed with two contracts

expired or about to expire as calendar year 1996 ended.

Cheatham recalled that the city wanted to be more

aggressive in the towing of abandoned cars. Overall, the

intention was to consolidate the multiple towing contracts

into one through the issuance of a single Request For

Proposals (RFP). The result would hopefully take the city

out of much of towing business, Cheatham said. With the

E-44 ~

expiration of some of the existing contracts, completing the

contracting process quickly was important to ensure

continuous service, according to Cheatham.

Cheatham stated that he did not recall one

discussion over the lot lease terms in the 1997 City Tow

contract. After the Request For Proposals went out,

Cheatham did not recall any discussion that the lease fee in

Tidewater Towing’s submission was lower than other

bidders or the prior lease terms. In fact, Cheatham stated

the first time he became aware of the reduced lease fee when

a reporter asked him about it [in 1999]. Cheatham did

indicate that he talked about the contract with Deputy City

Attorney Foreman.

9) JOHNNIE SPEIGHT, NORFOLK POLICE.

DEPARTMENT:

Johnnie Speight was interviewed in the Office of the

Commonwealth’s Attorney. Speight indicated he had

worked in the Goff Street Lot for many years prior to his

retirement and since then returned to work at the lot.

Speight indicated that over his years of service Pete’s

Towing, when they handled city tow contracts, rarely had

complaints filed against them. Pete’s Towing further

worked very smoothly with the Norfolk Police Department

and Speight never considered there to have been any

problem with improper towing practices or the integrity of

their processing of towed vehicles.

On the other hand, Speight stated that he had

encountered problems with Tidewater Towing. Speight had

concerns regarding Tidewater Towing’s storage of towed

cars. Speight believed that employees of Tidewater Towing

removed expensive interior equipment [such as stereos]

from the cars prior to auction. Speight further believed that

personnel from Tidewater Towing tried to increase the time

; ee ee eS OP eT ee eS Oe ee eee we

NN AEST

E-45

that cars were on the lot and thereby increase the storage

fees Tidewater Towing could receive. In -the past the

Norfolk Police Department ran the Goff Street Lot. Once

Tidewater Towing received the contract, the goal was to

alleviate the burden upon the police. Instead, according to

Speight, the burden became greater as the Norfolk Police

Department had to ensure Tidewater Towing followed

proper procedures.

For example, prior to the awarding of the 1997 City

Tow Contract, Speight had been responsible for ensuring

that the registered owners of the towed vehicles received

proper notice. Once that notification had been sent, receipt

of the notification received back, and the required time

period passed, the vehicles could be processed for auction.

After Tidewater Towing assumed this responsibility in 1997,

Speight indicated that notification to the registered owners

slowed down and cars sat on the lot for lengthy periods.

Speight started to make copies of the DMV transcripts

received on towed vehicles so that he could confirm the fact

that Tidewater Towing had received the sufficient

information to process the vehicle. Tidewater Towing

previously had explained the failure to process such cars on

not receiving or lost the DMV transcripts. Speight brought

these problems to the attention of LT Howard who in turn

would contact Tidewater Towing to complain about the

practices.

Representatives of Tidewater Towing, to include

Billy Summs and Tom Rule [who had replaced Barry

Rudiger in the spring of 1997], would come by the lot and

complain to Speight that LT Howard was “out to get them.”

Summs told Speight to “come to him” with concerns rather

than reporting them to LT Howard. Speight also reported

that Deputy City Attorney Andre Foreman had called him

four to five times after Tidewater towing received the 1997

City Tow Contract. Foreman questioned Speight as to why

E-46

LT Howard was making such a “big deal” out of these

issues. Foreman said that he [Foreman] was “ getting sick of

these stupid little accusations”, according to Speight.

Speight stated that he felt that Foreman wanted Speight to

bring any observed problems to Foreman’s attention, rather

than bring 'them to LT Howard's attention. In these

communications, Speight felt that Foreman tried to use the

fact that both Foreman and Speight were black men as a

factor.

Foreman told Speight that “[I’ve] known Billy

Summs” and “[he] is an old friend”, according to Speight.

As for the problems with Tidewater Towing, Foreman told

Speight that “if the city did not want them [Tidewater

Towing] to have it [the contract], they wouldn't have given

it to thern.” Speight indicated that he concluded that

whatever conversations he had with Foreman were

communicated to Summs and Tidewater Towing. For

example, Speight recalled telling Foreman about a problem

that he’d discussed with LT Howard. Later, Speight

received a telephone call from Summs that started with “it

has been brought to my attention that LT Howard says...”

During the summer of 1998, Speight recalled seeing

Andre Foreman near the Credit Union in City Hall at which

time Foreman started angrily discussing ongoing police

inquiries and stated, “Billy [Summs] and I belong to the

same club, so (expletive deleted) what?” In _ other

conversations, Speight indicated that he felt Foreman tried

to defend the awarding of the contract to Tidewater Towing

by indicating “all Pete [Penello] did is bitch, bitch” and “the

other one [Dale Olds Towing] is out of the city”. With

respect to the events of the fall of 1996 that preceded the

contracting process, Foreman said at that time that “he [Pete

Penello] signed the contract; he’s got to take the bitter with

the sweet. If Pete wants out of the contract, all he’s got to do

is write a letter”, according to Speight.

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E-47

Speight confirmed that awarding Tidewater Towing

the 1997 City Tow Contract did not reduce the workload on

the Norfolk Police Department. Instead, the Norfolk Police

Department over time assumed many of the procedural

requirements of the contract [such as securing the

Department of Motor Vehicles transcripts for towed cars]

and had to scrutinize the entire process to ensure that cars

were processed. Speight routinely called Tidewater Towing

on such problems as cutting the grass at the Goff Street Lot,

“losing” property from towed cars, responding slowly to

tow calls, failing to promptly release towed vehicles to

owners seeking their release, and failing to adhere to proper

procedures at the car auctions. Speight additionally would

regularly bring these issues to the attention of LT Howard

for assistance in resolving them.

Speight recalled one auction at which a bid was

given for a city car and the representative of Tidewater

Towing running the auction said to skip the car. Speight felt

this action [which would result in the car sitting for a longer

period and accumulating more storage fees] was improper

and strongly brought it to Tidewater Towing’s attention

thereby starting a heated argument. The next day Foreman

called Speight apparently having been told of the incident

and tried to pacify Speight. “It seems Tom [Rule] was trying

to do what Billy [Summs] wants him to do and Johnnie

[Speight] is trying to do what LT Howard wants him to do,”

Foreman commented according to Speight. “Are we friends

again?” Foreman asked of Speight.

Speight also reported that representatives of

Tidewater Towing tried to ask him to “do lunch” with them

in an attempt [in Speight’s mind] to gain favor with him.

Speight told Tidewater Towing he did not “do lunch.”

Speight indicated he felt that Billy Summs and Tom Rule

[who had replaced Barry Rudiger at Tidewater Towing]

tried to use Speight to gain information about inquiries into

E-48

towing concerns. “Have you heard anything about an

investigation into Tidewater Towing holding cars?” Billy

Summs asked Speight who noted he would refer Summs or

Pule to LT Howard. Speight commented that he did not

appreciate the continuing efforts by Tidewater Towing to

“hit him up” for such information.

Speight also provided a formal written statement to

the Norfolk Police Department. (TABI) Speight states that

after Tidewater Towing received the City Tow Contract in

April 1997 he had problems getting rid of junk vehicles as

required by state and city codes. Foreman had told him he

[Speight] couldn’t do it because the paperwork [required to

be completed by Tidewater Towing] was not completed.

Speight’s statement read in conjunction with the

information provided by Lt. Howard and others reveals that

Tidewater Towing failed to adhere to any regulations or

rules ensuring the efficient processing of vehicles through

the compound to auction. The benefit to Tidewater Towing

as a result of slow processing was Tidewater Towing’s

ability to “bill” [$10 a day] the city to recoup storage fees.

Speight stated that every time he would try to force

Tidewater Towing to efficiently process the vehicles

impounded, Foreman would. subsequently call him. This

storage fee issue was belatedly addressed by a 1998

Amendment. (TAB V)

10) WILLIAM SUMMS:

William Summs is the past President and Owner of

Tidewater Towing. Summs has never been questioned

specifically regarding the issue of Tidewater Towing’s

relationship with Andre Foreman as it affected the process

of the awarding of city tow contracts.

During the investigation into the original towing

incident and tow fees, Summs was questioned several times

SOR a DMO ies 2 Dewi TNE AOE ELSE PRE Ee

E-49

and his statements are attached that impact on the

performance of automotive work at the Lance Road

compound. Norfolk Police Department investigators

perceived that Summs “distanced” ‘himself from Rudiger

and tried to place all blame for wrongdoing on Rudiger.

Summs does, unwittingly, corroborate Landrum and

Rudiger [with respect to the issue of automotive work

performed for city officials] denying awareness of the work

performed for Foreman. Included is an internal Tidewater

Towing document reflecting Summs’ usage of the Town

Point Club as a business meeting place, thus corroborating

Rudiger’s assertions. A search of Tidewater Towing’s

computer records did not reveal any “readable” records

concerning the Town Point Club; however, the records do

indicate ongoing meetings. (TAB K)

In late 1998 or early 1999 Summs’ interest in

Tidewater Towing was purchased by a “Center Line”

Corporation from Texas that now owns the entity known as

Tidewater Towing. This investigation does not include

information on the specific details of this transaction.

Reportedly, Summs accepted a paid consultant position

with Center Line that keeps Summs in a position to manage

the day-to-day operations of the business operation known

as Tidewater Towing.

11) MITCHELL LANDRUM:

Mitchell Landrum was a mechanic for Tidewater

Towing who confirms the circumstances surrounding the

repeated service work he [Landrum] personally performed

on Foreman’s car [Black Mercedes] in 1996 and 1997. The

work included repairing an electric seat switch; transporting

Foreman’s car to have radio installed; replacing a gas

peddle; and transporting Foreman’s car to have tires

installed. (TAB D) Landrum supplied the Norfolk Police

E-50

Department with the original vouchers reflecting this

service. (TAB E)

12) JOHN WESLEY BRADY:

John Brady was a driver/supervisor for Tidewater

Towing between 1994 and 1997. Brady observed in 1996

Foreman dropping off his [Foreman’s] car to be detailed at

1195 Lance Road. Brady had observed Foreman at

Tidewater Towing’s office on other occasions for meetings

as well as to go to lunch with Summs. Brady recalled

during supervisor's meetings at Tidewater Towing that if

problems arose [for example an incident with the police

over the propriety of a tow], Rudiger would immediately

call Foreman in the middle of the meeting to have problem

resolved. Brady observed Foreman at Tidewater Towing

several weeks after the Norfolk Police executed a search

warrant on 5/7/97. (TAB F)

13) SHARON ROUT:

Sharon Rout was a former Sales Manager with

Tidewater Towing who left employment with Tidewater

Towing on 12/8/95. Rout recalls seeing Foreman bring car

in for service work as a favor. Rout remembers Rudiger

referring to Foreman as “their inside guy”; Rudiger saying

that Foreman kept them “informed” as to towing issues

before city council; and Rudiger saying after Tidewater

Towing got the “Health Department Contract” [Note:

Reference believed to be to the “Nuisance Abutment under

29-58cc, awarded 12/14/93] they were going to get the city

contract [Tow Service Contract signed 4/15/97] and Andre

Foreman was going to help them.” (TABG) —

E-51

14) INVESTIGATOR JOHN MYERS, NORFOLK

POLICE DEPARTMENT:

Investigator John Myers was working off-duty on

May 13, 1997 as security at Atlantic Auto Auction at the

1195 Lance Road location and observed Foreman arrive at

5:00 p.m. and enter William Sumnis’ office. At 6:20 p.m.

Summs and Foreman left the building. This meeting

occurred six days after Investigator Dayton of the Auto

Squad of the Norfolk Police Department executed a search

warrant at the same location [1195 Lance Road] concerning

towing fees [dealing with the original investigation of the

2/20/97 incident]. (See TAB A)

15) DAVID THACKER, NORFOLK POLICE

DEPARTMENT:

David Thacker served as an Operations Officer for

Chief of Police. Thacker would testify that Foreman called

on June 23, 1997 [after Tidewater Towing’s receipt of the

1997 City Tow Contract] asking for a criminal history on

someone who was going to apply for a position at

Tidewater Towing. Foreman knew the individual had a

prior drug conviction and wanted to talk to the Chief [of

Police] to have the guy hired. The person’s name was

Dewitt Rule who subsequently was hired. Foreman called

Thacker back on July 8, 1997 to get a copy of Rule’s criminal

history. Thacker arranged to have this done at Central

Records and told Foreman someone would have to sign for

it pursuant to regulations. Thacker said Foreman directed

him to run the record and give it to the Chief of Police so he

[Foreman] could discuss it with the Chief later. Thacker

gave the record to the Chief of Police on July 9, 1997 and

informed the Chief of what had occurred. (TAB H)

E-52

DOCUMENTARY EVIDENCE/CITY CONTRACTS AND

CORRESPONDENCE

1)

2)

Tidewater Towing Records of Automotive Service

for Andre Foreman: The attached copies of records

recovered from Tidewater Towing corroborate the

statements of Landrum (TAB D) and Rudiger (TAB

C) concerning automotive work performed by

employees of Tidewater Towing on Foreman’s car. A

Norfolk Police Department search of documents and

computer files seized from Tidewater Towing failed

to reveal any specific billing records. The computer

files do include file entries for “Foreman” that

corresponds to the same. Due to computer

programming safeguards installed years ago by

Tidewater Towing, the computer files could not

(after several months of varied attempts) be “read”

or “converted” to useable computer languages.

According to witness testimony Foreman received

this automotive service either free or at reduced rates

dating back to 1994 [documents reflect work

predating 1994]. Additionally, the DMV record of

Foreman’s registration of the 1982 Black Mercedes is

included. (TAB E)

Governmental Correspondence Regarding

Contracting for 1997 City Tow Contract: Included

are several documents detailing the record of the

communications back and forth between various

departments to include the Norfolk Police

Department, the Office of the City Manager, and the

Office of the Purchasing Agent. These documents

when read in connection with the relevant witness

statements reveal that the documents often

memorialize decisions already made. Of note is

Assistant City Manager Sterling B. Cheatham’s

memorandum of December 2, 1996 which while

approving the recommendations of the Towing

3)

E-53

Advisory Board Cheatham specifically rejected “item

number 4” dealing with revenue. The 1997 City Tow

Contract as drafted and signed includes the

distribution percentage of auction proceeds rejected

by Cheatham. (TAB R)

Norfolk Police Department Correspondence

Regarding Awarding of 1997 City Tow Contract:

As related in the Norfolk Police Department

Summary of Investigation (TAB A), those Norfolk

Police Department officers involved day-to-day in

the towing field recommended against awarding the

1997 City Tow Contract solely to Tidewater Towing

and recommended having more than one towing

contract to create a “competitive environment”. The

specific findings were documented in a

memorandum from Assistant Chief of Police Darden

to Chief of Police dated February 7, 1997. (TAB P)

Tidewater Towing was then granted an opportunity

to respond to the noted complaints. The entire

packet was then forwarded to Sterling B. Cheatham,

Assistant City Manager on March 4, 1997. (TAB P)

Thereafter, in a letter dated April 24, 1997 [after the

1997 City Tow Contract had already been approved

and signed], CPT. Young from Special Enforceraent

Division forwarded a seven-page memorandum

outlining continuing problems with the 1997 City

Tow Contract: (TAB Q). This memorandum

specifically referenced the inconsistencies with the

Goff Street Lease rates. CPT Young’s memorandum

is annotated as forwarded to Andre Foreman on

April 30, 1997. [Interestingly, on March 18, 1997 the

Chief of Police forwarded a memorandum to the

Purchasing Agent recommending that Tidewater

Towing receive the 1997 City Tow Contract. ]

4) |

5)

6)

E-54

Comparison of 1992 and 1997 City of Norfolk Tow

Contracts: The Norfolk Police Department prepared

a one page reference key to the relevant differences

between the 1992 City Tow Contract and the 1997

City Tow Contract awarded to Tidewater Towing.

(TAB S) The key areas that benefited Tidewater

Towing were a reduction in the lease fee for the Goff

Street lot; Tidewater Towing’s ability to access 100%

of the generated escrow account to recoup the

contractor’s [Tidewater Towing] costs; a $25 fee for

investigation tows the city pays to Tidewater

Towing; and the overall increase in fees for the

contractor. As reported during July 1999 Tidewater

Towing had failed to timely pay even at the lower

lease rate for the Goff Street Lot. It should be noted

that while there have been subsequent amendments

or changes to the 1997 City Tow Contract in the last

18 months, the investigation has not revealed any

“correction” to the lease rate [should it have been

considered a clerical error]. There has not been a

computation of the losses to the City of Norfolk

based on the 1997 contract.

1992 City of Norfolk Tow Contract and

Accompanying Lease Agreement for Goff Street

Lot. (TAB T)

1997 City of Norfolk Tow Contract and

Accompanying Lease Agreement for Goff Street

Lot. (TAB R) Of interest is the January 8, 1997 City

of Norfolk Request for Proposals No. 9342, Towing

Services in which the ninth page sets out the

language of the Code of the City of Norfolk

Coneerning “Ethics in Public Contracting”. (TAB N)

The covering memorandum from Assistant City

Manager Sterling B. Cheatham dated January 8, 1997

references a “selection committee” to be appointed

by the Chief of Police to evaluate the proposals

Tr eae Pea ae,

a a eT nN NSLS SL ee RSET LED PORE Ee TORE TR veal whet

eed Ree SEAN 10 Sg ee M MUSTER: NEN CURE TET ahr ymin, sis.

(SES Rae

7)

8)

E-55

submitted and recommend an award to the City

Manager. This investigation indicated that

essentially that “selection committee” recommended

against the awarding of the contract to Tidewater

Towing. (See TAB N)

Foreman Memorandum of 4/16/97 Forwarding 1997

City Tow Contract to Chief of Police. Foreman

forwarded the April 15, 1997 City Tow Contract

between the City of Norfolk and Tidewater Towing

Service, Inc. [signed by William J. Summs on April

15, 1997] to Chief of Police requesting approval of

contents and return to Foreman. (TAB Q) The

contract as forwarded and recommended by

Foreman [the city attorney responsible for review as

to form and substance of such contracts] included

the reduction in cost of the lease of the Goff Street

Lot payable by the contractor as well as the

numerous additional terms favorable to Tidewater

Towing.

City Tow Contract Amendment of 1998: One year

after the awarding of the 1997 City Tow Contract to

Tidewater Towing the city of Norfolk passed an

amendment to the ~City Tow Contract. The

Amendment as authored is only requires Tidewater

Towing to perform functions that were supposedly

implicit in the terms of the original contract such as

the prompt notification of owners and lienholders.

(TAB V) On the other hand, the city of Norfolk

agreed to assume responsibility to provide

Tidewater Towing with information from the

Department of Motor Vehicles (DMV) within 48

hours of a tow as to the owner and lienholder so

Tidewater Towing can then provide the required

notice. Tidewater Towing one year earlier in

ee

E-56

bidding for the contract had stated it could provide

this service.

The cap on storage fees included in the

amendment was described as a response to the

practice that Tidewater Towing had failed to

efficiently process towed _ vehicles. [Note:

Financially, there was no incentive under the 1997

City Tow Contract for Tidewater Towing to

efficiently process towed vehicles since they could

“bill” the city, according to witnesses, for storage

fees on towed vehicles and access ine city escrow up

to 100% to recoup such “losses”. The contract

thereby created a profit opportunity for Tidewater

Towing by merely doing nothing. Finally, the cap on

storage fees that was included in the amendment

applies only to vehicles with a value of less than

$3000. Once again, in the context of what is known

concerning the relationship between Foreman and

Tidewater Towing, the passage of the Amendment

over the objection of much of the Norfolk Police ~

Department is similar to the initial awarding of the

unified City Tow Contract to Tidew

This text is long and has been trimmed here. Open the source document for the complete record.