2011 and Earlier / News

Judge's ruling affirmed; Sheriff can be sued

A federal appeals court panel in Cincinnati ruled Tuesday that Sheriff Michael Oltersdorf can’t claim immunity from complaints that he violated the First Amendment rights of deputies who are currently suing the county in a U.S. District Court in Grand Rapids.

Last year, U.S. District Court Judge Janet Neff denied a motion by the county’s attorneys that the sheriff and undersheriff Scott Wooters be granted qualified immunity on the First Amendment complaints. The county’s attorneys then appealed the judge’s denial of their motion to the U.S. Court of Appeals for the Sixth District in Cincinnati. The three-judge appeals panel this week affirmed Judge’s Neff’s ruling.

The appeals court ruling means that as the case proceeds to trial in Grand Rapids, the sheriff, undersheriff and Leelanau County will need to answer to complaints from the deputies that their First Amendment rights – specifically their rights to free speech and union association – were violated.

Two of the plaintiff deputies in the case, James Kiessel and Mike Bankey, were suspended from duty for 40 hours by the sheriff after they sent a letter to the editor of a local newspaper in June 2008 claiming that the sheriff had broken the law by recording and listening to their “private” phone conversations on government phone lines in the county Law Enforcement Center.

An investigation had shown, however, that the sheriff had not broken the law. The Sheriff then suspended the deputies for publicly making false accusations against him. The plaintiff’s attorneys characterized that action as retaliation against the deputies for their lawful exercise of their First Amendment rights.

The defendant’s attorneys argued that the sheriff was entitled to qualified immunity from the First Amendment retaliation claim because what the deputies said in their letter “did not address a matter of public concern.”

In addition, the defendant’s attorneys argued that a reasonable person “could conclude that plaintiffs (the deputies) knowingly and recklessly made false statements”.

The appeals court panel said it disagreed with both of the arguments from the defendant’s attorneys.

The deputies were engaged in “protected speech” because their concerns about the sheriff’s department were indeed a matter of public concern, the appeals panel opined.

In addition, it was not clear that the deputies acted “with reckless indifference to the truth” because the investigation of the “eavesdropping” incident dealt only with its legality under state law, not federal law, according to the federal appeals court panel.

By Eric Carlson
Of The Enterprise staff
eric@leelanaunews.com

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