Opposition Brief — Cureton v. Sharpe

Supreme Court, U.S.

FILED

JUN 9 1999

No. 98-1808

| CLERK

IN THE '

Supreme Court of the United States

BRUCE CURETON, et al.,

Petitioners,

v.

GARY G. SHARPE, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS For THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

WANDA G. SOBIESKI

Counsel of Record

DIANE M. MESSER

SOBIESKI, MESSER & ASSOCIATES

Attorneys for Respondents

Riverview Tower

900 S. Gay Street, Suite 1801

Knoxville, TN 37902

(423) 546-7770

153361 @ Counsel! Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED FOR REVIEW

Respondents object to the Question Presented for

Review in Petitioners’ Writ of Certiorari, in that they

characterize respondents’ claims as based only upon First

Amendment violations. Respondents’ claims were brought

pursuant to the Fifth and Fourteenth Amendments as well.

Petitioners also misstate the extent of the damages to the

respondents. Based upon the facts of the case, the following

question is presented for review:

Whether petitioners knew or should have known

that abrupt and unjustified transfers, denial of cycle pay,

revocation of drive-home car rights, demotion,

assignment to work in a supply closet, reduction of

hourly wages, failure to promote, denials of merit pay

and refusals to consider for merit pay, all motivated by

political animus, violated the clearly established

constitutional rights of respondents (government

employees).

il

TABLE OF CONTENTS

Page

Question Presented for Review ................ i

Fees OE CO nie eo bees eke il

Table of Cited Authorities .........cccsccceses iil

Table Of Appendices 2... ccc cccccccccvevessces vi

Constitutional and Statutory Provisions Involved. . l

pemamnent OF Git GOOe os oe oid ea Sean l

Reasons for Denying the Writ ................. 3

I. The Petition For Writ Of Certiorari Does Not

Meet The Standards For Review By This

Pree re eee er oe 3

II. There Is No Conflict In The Circuits

Regarding Patronage Cases. ............. 4

III. There Is No Unsettled Question Of Federal

Law Implicated Here. .........eceeee: ; 8

ere oe i ee ' 11

ii

TABLE OF CITED AUTHORITIES

Page

Cases:

Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993) .. 5

Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) ..... 7

Brady v. Fort Bend County, 145 F.3d 691 (Sth Cir.

SS SE Re ee en nee ee 5

Branti v. Finkel, 445 U.S. 507 (1980) ........... 8

Burlington Industries v. Ellerth, 524 U.S. 742, 118

Sa EE on a 8 dbo 00 50d We 0000-00 0000: 6,8

Coogan v. Smyers, 134 F.3d 479 (2nd Cir. 1998) .. 5

Elrod v. Burns, 427 U.S. 347 (1976) ............ 4,5,8

Faragher v. City of Boca Raton, 524 U.S. 775, 118

ee PERE oo ee vv wesceccecccvesecessx 6,8

Faughender v. City of North Olmstead, 927 F.2d 909

EE sibel de kbeccddduecdeweuceots 5

Heck v. City of Freeport, 985 F.2d 305 (7th Cir.

NN a a ee ee eee ue a i a 5

Larou v. Ridlon, 98 F.3d 659 (1st Cir. 1996) ..... 6,7

Mayer v. Mylod, 988 F.2d 635 (6th Cir. 1993) .... 3

iv

Cited Authorities

Page

O'Hare Truck Serv., Inc. v. City of Northlake, 518

(3 @ oo... errr re rere rrr rT 5,8

Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ... 5

Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir. 1989)

Se eer errr ee ere Tre 7

Rivera-Ruiz v. Gonzalez-Rivera, 983 F.2d 332 (lst

Se Ss & veuneehuneeedsadaenorvaceeeees 4,5

Rogers v. Miller, 57 F.3d 986 (11th Cir. 1995) ... 6

Rutan v. Republican Party of Ill., 497 U.S. 62

Te évcedwiteeuueeaneerwenueeeaeene 4,5, 6, 7,9

Stephens v. Kerrigan, 122 F.3d 171 (3d Cir. 1997)

uP MMKER SLE AARE REO aes 5

Walsh v. Ward, 991 F.2d 1344 (7th Cir. 1993) .... 6,7

Statute:

Ge a Oe SE oe. daeedsinb needs) Sacaeuean |

United States Constitution:

ade ede Cueeeees ts

Pe EE ac ccvectncneseeneeeees eves ]

Fourteenth Amendment ............-ccccceeees i, |

Cited Authorities

Page

United States Constitution: _

| United States Supreme Court Rule 10(a) ........ 3

United States Supreme Court Rule 10(c) ........ 3

vi

TABLE OF APPENDICES

Page

Appendix A — Fifth And Fourteenth Amendments

To The United States Constitution ........... la

Appendix B — Affidavit Of William H. McGinnis

Dated August 28, 1997 .......cccccccevecees 3a

Appendix C — Affidavit Of Patrick Cummins Dated

August 28, 1997 ...ccccicccccccvccvscceees 7a

]

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondents object to the petitioners’ characterization

of the constitutional and statutory provisions involved.

Respondents’ case was brought pursuant to the First, Fifth,

and Fourteenth Amendments of the United States

Constitution. The First Amendment is set forth in Petitioners’

Appendix (“Pet. App.”) at 69a. The Fifth Amendment is found

in Respondents’ Appendix at la, and the Fourteenth

Amendment is found in Respondents’ Appendix (Resp.

App.’) at 2a. The pertinent statute, 42 U.S.C. § 1983, is found

in Pet. App. at 70a.

STATEMENT OF THE CASE

In 1995, multi-term Mayor Victor Ashe (“Ashe”) faced

his most serious challenge in an election against opponent

Ivan Harmon (“Harmon”). Sixth Circuit Opinion, Pet. App.

at 2a. Within hours of his re-election, Ashe’s retaliation

against those who had not supported him began (id. at 3a)

and included the following:

At 10:48 p.m. on election night, Fire Officer Kenneth

Scarbrough (Harmon supporter) was ordered to transfer from

North Knoxville to South Knoxville. In Scarbrough’s then

twenty-eight (28) years with the department he had never

been stationed in South Knoxville. District Court

Memorandum Opinion, Pet. App. at 21a.

Assistant Chief Frank Potter (Harmon supporter) who

had served virtually all of his career in North Knoxville was,

on the eve of the election, abruptly transferred to the West

District with which he was unfamiliar. Jd.

2

Assistant Chief William McGinnis (non-supporter of

Ashe) was transferred on the eve of the election, mid-cycle

causing him to lose cycle pay. /d. at 22a.

The day after the election, William Potter, brother of

Frank Potter and Administrative Deputy Chief of Firefighting

(Harmon supporter) was relieved of his duties in the

administrative office and assigned a “new” job that was

created the day after the election and a “new office” in a

supply closet. Jd. at 22a, 25a. Chief William Potter had no

experience or training for his “new job.” /d. He lost the use

of his drive home car with that transfer. /d. at 22a. Chief

Potter was later demoted to Shift Chief and his hours were

increased from 40 hours per week to 56 hours per week. /d.

His hourly pay was reduced from $21.25 per hour to $15.18

per hour. Armstrong Affidavit, Pet. App. at 60a, Paragraph

No. 5.

Master firefighter Gary Sharpe who had applied for

promotion to Fire Officer was ranked sixth (6th) among the

thirty-nine (39) applicants who passed the Civil Service

examination. Sharpe (Harmon supporter) was denied

promotion as were all other Harmon supporters. 6th Cir.

Opinion, Pet. App. at 2a; District Court Memorandum

Opinion, Pet. App. at 23a; McGinnis Affidavit, Resp. App.

at 3a-6a. The petitioners went to the bottom of the list,

number thirty-nine (39), to distribute the twenty (20)

available promotions. Pet. App. at 23a; McGinnis Affidavit,

Resp. App. at Sa.

Not a single person associated with Harmon (including

all respondents) received a step increase (permanent two and

one-half percent 242%) pay raise) or a promotion following

the 1995 election. McGinnis Affidavit, Resp. App. at 3a-6a.

Of the firefighters who received the most coveted awards

for 1995 (two steps, five percent (5%) salary increase),

3

virtually all had given financial contributions to Ashe’s

campaign or served on the host committees for Ashe

campaign events. Jd. Because respondents exercised their

right to file this lawsuit, none of them was even considered

for the merit pay increases awarded for 1996. 6th Cir.

Opinion, Pet. App. at 3a.

REASONS FOR DENYING THE WRIT

I.

THE PETITION FOR WRIT OF CERTIORARI DOES

NOT MEET THE STANDARDS FOR REVIEW

BY THIS COURT.

Petitioners apparently rely upon Supreme Court Rule

10(a) (“a decision in conflict with the decision of another

United States court of appeals on the same important matter”)

and/or Rule 10(c) (“an important question of federal law that

has not been, but should be, settled by this Court’) to advance

their Petition for Certiorari, but they fail to Satisfy either

standard.

This is a pretrial, interlocutory appeal of the decision of

the United States Court of Appeals for the Sixth Circuit

affirming the trial court’s denial of petitioners’ claim of

qualified immunity. In this procedural posture, petitioners

have conceded that their actions were motivated by political

animus and all facts must be viewed in the light most

favorable to respondents. See, e.g., 6th Cir. Opinion, Pet.

App. at 4a; District Court Memorandum Opinion, Pet. App.

at 23a-24a; and Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.

1993). Hence, the only question properly before this Court

is whether the Sixth Circuit erred in denying qualified

immunity.

4

One would expect that the issue in such a qualified

immunity appeal would be either the legal standard for

qualified immunity or its application. What petitioners seek

instead, is reversal or modification of Rutan v. Republican

Party of Ill., 497 U.S. 62 (1990), the undisputed yardstick

by which the petitioners’ conduct was, and is, measured. To

the extent that petitioners seek a modification of Rutan, the

issue is not properly before this Court since qualified

immunity requires that the conduct of the petitioners be

measured against the existing law in 1995. However

dissatisfied petitioners may be with Rutan and its progeny,

the attack on Rutan must await another day.

Petitioners’ second approach is to suggest that the Sixth

Circuit misapplied Rutan. Conspicuously absent from the

_ Petition, however, is any reference to language in Rutan that

was theoretically misapplied. Quite the contrary, if anything,

petitioners attack the Sixth Circuit because it did apply the

teachings of Rutan — that the government must have a

compelling state’s interest to abridge the fundamental right

of political freedom. Rutan, 497 U.S. at 74. Petitioners have

not identified a compelling state’s interest for their action,

only a desire to be free to use governmental power and the

bounty of the public trust as they wish and without

accountability.

Il.

THERE IS NO CONFLICT IN THE CIRCUITS

REGARDING PATRONAGE CASES.

Both lower courts followed this Court’s mandate in

Rutan, which evolved from well-settled precedent of Elrod

v. Burns, 427 U.S. 347 (1976). Like the Sixth Circuit, the

other circuits continue to recognize the vitality of Rutan in

patronage cases. See, e.g., Rivera-Ruiz v. Gonzalez-Rivera,

5

983 F.2d 332 (1st Cir. 1993) (demotion and transfer based

on political discrimination violated clearly established

rights); Coogan v. Smyers, 134 F.3d 479 (2nd Cir. 1998)

(vacated and remanded to determine whether the decision

not to reappoint City Clerk was based on political animus;

cites Rutan with approval); Stephens v. Kerrigan, 122 F.3d

171 (3d Cir. 1997) (summary judgment reversed where

evidence of improper political motive shown; cites Rutan

with approval); Akers v. Caperton, 998 F.2d 220 (4th Cir.

1993) (explains that after Rutan, claims based on transfers

for improper political motive are actionable); Brady v. Fort

Bend County, 145 F.3d 691 (5th Cir. 1998) (failure to rehire

for politically motivated reasons is actionable; cites Rutan

with approval); Faughender v. City of North Olmstead, 927

F.2d 909 (6th Cir. 1991) (cites Rutan and applies it to “other

common varieties of patronage preferment”); Heck v. City

of Freeport, 985 F.2d 305, 308 (7th Cir. 1993) (Rutan

“expanded the set of banned practices from firings to virtually

all employment decisions”).

Throughout this appeal process, the petitioners have been

unable to identify a single patronage case holding contrary

to the Elrod-Rutan authority. Instead, petitioners have

attempted to create the required conflict in the circuits by

citing a number of First Amendment, Title VII, and ADA

cases. As this Court has taught, First Amendment freedom

of speech claims involve a different inquiry and use a distinct

test from that applied to patronage claims. See, e.g., O’Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996);

and Pickering v. Bd. of Educ., 391 U.S. 563 (1968)

(establishes balancing test for analyzing freedom of speech

cases).

Further, this Court expressly rejected the attempt in

Rutan to apply Title VII precedent to that patronage case

and thereby require a “significant adverse action” by the

6

employer. Rutan, 497 U.S. at 73, n.6. Moreover, the Title

VII/ADA cases cited by petitioners below have been

implicitly overruled or modified by this Court’s decisions of

Burlington Industries v. Ellerth, 524 U.S. 742, 118 S. Ct.

2257 (1998), and Faragher v. City of Boca Raton, 524 U.S.

775, 118 S. Ct. 2275 (1998). The “sufficiently adverse”

inquiry for Title VII cases is no longer critical to a prima

facie case. Specifically, if no “tangible employment action”

is found, the employer may raise an affirmative defense to

liability (if the employer has undertaken appropriate

preventive/curative actions). Faragher, 524 U.S. at __, 118

S. Ct. at 2292. If, however, adverse employment action has

resulted, the employer’s liability is vicarious and certain. See

Faragher 524 U.S. at __, 118 S. Ct. at 2292 and Burlington

Industries, 524 U.S. at __, 118 S. Ct. at 2270.

Petitioners rely upon Rogers v. Miller, 57 F.3d 986 (11th

Cir. 1995); Larou v. Ridlon, 98 F.3d 659 (1st Cir. 1996); and

Walsh v. Ward, 991 F.2d 1344 (7th Cir. 1993) as their only

support for arguing that a division exists in the circuit courts

on the interpretation and application of Rutan. Those cases

do not establish such a division.

In Rogers, for example, the Eleventh Circuit made no

criticism whatsoever of Rutan, and expressly acknowledged

that “adverse employment action” is “broadly defined and

as a matter of law includes not only discharges, but also

demotions, refusals to hire, refusals to promote, and

reprimands.” Rogers, 57 F.3d at 992. On the particular facts

of that case the court did not find political animus associated

with the transfers (id. at 991), nor sufficient precedent

existing at that time to make public officials aware that mere

warnings regarding political activities could subject those

Officials to liability. Jd. at 992. Rogers does not criticize Rutan

much less deviate from it. It cannot provide a basis for this

Court to grant review.

7

Petitioners’ reliance on Larou is likewise misplaced.

Larou neither criticizes nor applies Rutan. The Larou plaintiff

did not prevail because the evidence failed regarding political

motives. Id. at 662.

Finally, although petitioners claim that Walsh conflicts

with the Sixth Circuit’s construction of Rutan (Petition for

Writ of Certiorari at 18), Walsh merely holds that:

Reasonable supervisors acting in 1988 would not

have understood that the law ‘clearly established’

that a promotion to a suitable job can nonetheless

violate the Constitution when it diminishes an

employee’s opportunity to make money

elsewhere.

Id. at 1347 (emphasis added). The Walsh court applied the

law as it existed before it’s en banc decision in Rutan was

reversed by this Court. The Walsh decision does not construe

or apply Rutan — it cannot possibly be the source of a

conflict in the circuits on the construction of Rutan.

Moreover, the Seventh Circuit in Walsh cited with approval

its earlier finding that “[a] campaign of petty harassment

may achieve the same effect as an explicit punishment.”

Walsh, 991 F.2d at 1345, citing Pieczynski v. Duffy, 875 F.2d

1331 (7th Cir. 1989) and Bart v. Telford, 677 F.2d 622 (7th

Cir. 1982). That finding is particularly pertinent on

petitioners’ claim of a safe harbor for petty harassment. There

is no conflict among the circuits regarding the application

of Rutan to facts such as these.

Petitioners apparently hope that personnel changes in

the court since Rutan will be sufficient to reverse this Court’s

longstanding prohibition on patronage. Experience with

Rutan, however, has demonstrated that the flood of litigation

that many predicted simply did not materialize. See, e.g.,

8

O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S.

712 (1996). Against the backdrop of Faragher and Burlington

Industries there is no reason to believe that this Court should

be tempted to retreat from protecting the most fundamental

of democratic rights.

To permit the overwhelming power of government to be

used to coerce political belief is a threat to both the system

and to the individual’s fundamental freedom. This Court

should not empower such governmental abuse by allowing

government employers with political animus to defend on a

claim that their intentional, hurtful acts were too petty for

redress.

III.

THERE IS NO UNSETTLED QUESTION OF

FEDERAL LAW IMPLICATED HERE.

The prohibition on political patronage and the scope of

that prohibition have been clearly, consistently, and

repeatedly addressed by this Court. For over twenty (20)

years, this Court has recognized that “political belief and

association constitute the core of those activities protected

by the First Amendment,” and that to condition public

employment on partisan support “prevents support of

competing political interests.” Elrod, 427 U.S. at 356

(emphasis added). Moreover, in Elrod this Court warned that

the impermissible motive is the focus, even if the injury is

the mere withholding of one penny. /d. at 360, n.13.

The “important question of federal law” was, therefore,

settled decades ago and reinforced in 1980 in Branti v. Finkel,

445 U.S. 507 (1980), in 1990 in Elrod, and again in 1996 in

O'Hare Trucking. The message has been clear: political

discrimination against governmental employees will not be

9

tolerated whether the action is great or small. Petty

retaliations will not be encouraged by giving protection to

actors who intend to inflict injury and then complain about

the burden they face if called to answer for their actions.

Moreover, although petitioners attempt to trivialize their

actions herein, this is not a “withheld birthday party” or a

petty case. This is a classic case of an improper exercise of

power to punish those who would not bow to the political

agenda of those wishing to continue control of the local

government.

In many respects, these facts are more egregious than

those in Rutan where the denial of a transfer to a more

convenient office was of potential constitutional magnitude.

Rutan, 497 U.S. at 73. These respondents have not

complained of denial of a hoped-for transfer for convenience,

but of punitive, abrupt, and unjustified transfers, demotion,

loss of cycle pay, loss of drive home car, assignment to work

in a closet, reduction in pay, failure to promote, denial of

merit pay, denial of consideration for merit pay and other

punitive conduct. The actions complained of were so punitive

that the Sixth Circuit rightly found “[o]ne would have to be

a person of more than ordinary firmness to be willing to pay

the price allegedly exacted by the Ashe administration for

the privilege of declining a place on the mayor’s bandwagon.”

Pet. App. at. Sa.

Petitioners’ selective molding of their “facts” cannot alter

reality. For example, petitioners’ assertion that Kenneth

Scarbrough, Frank Potter and William McGinnis were

returned to their “favored” fire departments within one (1)

year of their transfers (Petition for Writ of Certiorari at 3-4)

(as though a year of punishment were de minimis) is

misleading. They were returned to their districts only after

nearly a year of legal proceedings and as part of a failed

10

attempt at settlement in the grievance proceedings. District

Court Memorandum Opinion, Pet. App. at 3 1a-32a.

Petitioners mischaracterize the transfers as being “across

the street.” The transfers were from the North end of the city

to the South (as to Kenneth Scarbrough) (District Court

Memorandum Opinion, Pet. App. at 21a), and between the

North and the West (as to Frank Potter and William

McGinnis). Moreover, William Potter’s transfer out of the

Administrative Offices to the closet at Headquarters may not

have involved a great distance, but the intent to injure 1s

undeniable.

Finally, petitioners complain that respondents are

elevating personal grievances to the level of constitutional

claims, referring to the Mayor’s refusal to support a pension

amendment. This mischaracterization by petitioners has

occurred time and again throughout this lawsuit. District

Court Memorandum Opinion, Pet. App. at 35a. Petitioners

continue to miss the point. The pension issue has never been

a separate claim, only more evidence of the political animus

and retaliation that pervades the Ashe administration. See

generally, Cummins Affidavit, Resp. App. at 7a to 10a.

1]

CONCLUSION

There is no conflict between the Sixth Circuit’s

application of patronage law and that of other circuits. Nor

is there a need for this Court to re-address the decades of

well-settled law that limits governmental abuse of power.

Those who abuse the public trust for their own gratification

should continue to bear the burden of answering for their

actions, whether grand or petty. Hence, the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

Wanpba G. SoBigskKI

Counsel of Record

DIANE M. MESSER

SOBIESKI, MESSER & ASSOCIATES

Attorneys for Respondents

Riverview Tower

900 S. Gay Street, Suite 1801

Knoxville, TN 37902

(423) 546-7770

APPENDIX

la

APPENDIX A — FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION

AMENDMENT 5 —

UNITED STATES CONSTITUTION

Section 1 — Trials for crimes; just

compensation for private property taken for

public use. No person shall be held to answer

for a capital, or otherwise infamous crime, unless

on a presentment or indictment by a grand jury,

except in cases arising in the land or naval forces,

or in the militia, when in actual service in time

of war or public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against

himself; nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

OP ast

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2a

Appendix A

AMENDMENT 14 —

UNITED STATES CONSTITUTION

Section 1 — Citizenship defined; privileges of

citizens. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

3a

APPENDIX B — AFFIDAVIT OF

WILLIAM H. MCGINNIS

DATED AUGUST 28, 1997

IN THE FEDERAL DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

No. 3:96-CV-916

JURY DEMAND

GARY G. SHARPE, WILLIAM G. POTTER, KENNETH

F. SCARBROUGH, FRANK E. POTTER, AND WILLIAM

H. McGINNIS,

Plaintiffs,

v.

FIRE CHIEF BRUCE CURETON, in his individual and

official capacities, MAYOR VICTOR ASHE, in his

individual and official Capacities, and DEPUTY FIRE

CHIEF ROBERT PRESSLEY, in his individual and official

capacities, and THE CITY OF KNOXVILLE,

Defendants.

AFFIDAVIT OF WILLIAM H. McGINNIS

I, William H. McGinnis, upon personal knowledge, do

hereby swear and affirm as follows:

1. I am an Assistant Chief at the Knoxville Fire

Department.

4a

Appendix B

2. I have reviewed the records of the Knox County

Election Commission setting forth the reported

contributions to the 1995 Mayoral campaign.

3. I have reviewed the Knoxville Fire Department's

final list of merit pay awards for 1995 and 1996.

4. I have reviewed the 1995 Host Committee list for

the Ashe campaign event held at Gene Hamlin’s house.

5. I have reviewed the Knoxville Fire Department

promotion lists for early 1996.

6. I have reviewed the Union vote list generated by

Deputy Chief Robert Pressley identifying the votes of the

firefighters at the 1995 Firefighters Association meeting

regarding endorsement of Mayoral candidates in the 1995

race.

7. Not a single firefighter associated with the Ivan

Harmon Mayoral campaign received a step increase (2'2 to

5% salary increase) for the 1995 year, or promotion in 1996.

8. Only one Ivan Harmon supporter was offered a

bonus during that year.

9. Of the forty-nine (49) firefighters on the Host

Committee for the Ashe fund-raiser held at Gene Hamlin’s

house, forty-three (43) received merit pay and/or promotion

(88%).

10. Of the fifty-four (54) firefighters recorded by

Robert Pressley-as voting for Mayor Ashe at the Union

Sa

Appendix B

meeting who were eligible for merit pay or promotions,

fifty-one (51) received merit pay or a promotion shortly

after the election (94%). None of the firefighters who were

identified as voting for Ivan Harmon (20) at the Union

meeting received merit pay or promotion.

11. Similarly, ninety-one (91) percent of the

firefighters identified in the Election Commission records

as Ashe contributors, benefited with merit pay ora

promotion shortly after the election.

12. Of those firefighters who received the most coveted

awards (two steps, a five 5% salary increase) seventy-nine

percent (79%) gave financial contributions to Mayor Ashe’s

campaign and/or served on the Host Committee for Mayor

Ashe’s campaign events.

13. The promotions to Fire Officer were announced in

February 1996. Twenty-two (22) of the twenty-five (25)

promoted had made financial contributions to Ashe’s 1995

campaign or voted for Ashe in the Union vote. All Ivan

Harmon supporters were passed over, and the Fire

Department went all the way to the bottom of the list to

promote Ashe supporters.

FURTHER AFFIANT SAITH NOT.

William H. McGinnis

6a

Appendix B

Sworn to and subscribed before me this day of

, 1997.

Notary Public

My Commission Expires:

7a

APPENDIX C — AFFIDAVIT OF

PATRICK CUMMINS

DATED AUGUST 28, 1997

IN THE FEDERAL DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

No. 3:96-CV-916

JURY DEMAND

GARY G. SHARPE, WILLIAM G. POTTER, KENNETH

F. SCARBROUGH, FRANK E. POTTER, AND WILLIAM

H. McGINNIS,

Plaintiffs,

Vv.

FIRE CHIEF BRUCE CURETON, in his individual and

official capacities, MAYOR VICTOR ASHE, in his

individual and official capacities, and DEPUTY FIRE

CHIEF ROBERT PRESSLEY, in his individual and official

capacities, and THE CITY OF KNOXVILLE,

Defendants.

AFFIDAVIT OF PATRICK CUMMINS

I, Patrick Cummins, upon personal knowledge do

hereby swear and affirm as follows:

1. I worked for the Knoxville Fire Department for

thirty-two (32) years. In July of 1995, I wasa Deputy Chief

with the Knoxville Fire Department and was the supervisor

8a

Appendix C

of James Crawford. On July 9, 1995, James Crawford failed

to report at 7:00 a.m. for his shift. James Crawford, as acting

captain, thus recorded his tardiness as a twelve (12) hour

suspension on the attached time sheet as had always been

the custom and policy within the fire department. During

my employment with the fire department, | always

understood such tardiness to result in a twelve (12) hour

suspension with loss of pay and that such was a disciplinary

action. This is precisely how James Crawford’s and all other

twelve (12) hour suspensions during my employment were

treated.

2. In 1988, when the Knoxville Fire Department hired

its first class of new hires in eleven years, I was on the

committee that reviewed the applications and drafted a list

of recommended new hires. | personally delivered the list

of recommendations to Mayor Ashe, who, in my presence,

struck the names of several people off of the list and

explained that he was doing so because they did not support

him in his Mayoral campaign, were related to firefighters

who did not support him, or did not recognize the name as

associated with campaign efforts.

3. In 1988, I was on the promotion committee for the

promotion of Mechanical Operators within the fire

department. After the promotion committee made the

decisions or recommended promotions, I personally

delivered the list of promotees to Mayor Ashe’s office.

Mayor Ashe reviewed the list in my presence and, when he

saw Michael Floyd’s name on the list, asked me if that was

the same Mr. Floyd who worked at Station 3. When I replied

that such was the case, Mayor Ashe made the comment that

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Appendix C

Michael Floyd did not do a whole lot for him in the election

and struck Mr. Floyd’s name from the list of promotees.

4. During the Assistant Mechanical Operator

promotions, approximately in late 1988, there were at most

twenty-five to thirty (25-30) positions to be filled. Mayor

Ashe instructed me to promote Bob Boatman, who was

number 45 in the rank of Civil Service test scores. Mayor

Ashe explained that he instructed that Mr. Boatman be

promoted because Mr. Boatman had supported Mayor Ashe

in his campaign. I personally delivered the list of promotees

to Mayor Ashe, which also contained the name of Gary

Sharpe. It was well known that Gary Sharpe did not support

Mayor Ashe. Later, when the list was published, Gary

Sharpe’s name had been deleted from the list.

5. I personally supported Ivan Harmon in the last

Mayoral election, and because of my support of Ivan

Harmon, I was refused tuition reimbursement, and was later

selected to be bumped from my position as Deputy Chief

to create the position into which William Potter was

demoted.

FURTHER AFFIANT SAITH NOT.

Patrick Cummins

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Appendix C

Sworn to and subscribed before me this day of

, 1997.

Notary Public

My Commission Expires: