# Petition for Writ of Certiorari — Foreman v. Griffith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1042

## Text

SUPTET€ Court, U8,
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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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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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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.

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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” contracti

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1195%3A1. Public record. Not legal advice.