WilCo Sheriff's Office Lawsuit: 'Stuff rolls downhill'

Williamson Co. and its sheriff, James Wilson, could stand trial on civil charges for violating the First Amendment rights of two former deputies and the Texas Whistleblower Act

Williamson County and its sheriff, James Wilson, could stand trial on civil charges for violating the First Amendment rights of two former deputies and the Texas Whistleblower Act by demoting the deputies. On Nov. 1, U.S. Magistrate Judge Robert Pitman recommended denial of a motion for summary judgment in the whistle-blower lawsuit styled Ralph Fisher and Barry Simmons v. Sheriff James Wilson. Upon the request of U.S. District Judge Lee Yeakel, to whose court the case is assigned, Pitman reviewed all the pleadings and the entire case file. He recommended against a summary judgment for the defendants on all counts, at one point calling the motion "doomed," and throughout faulting the county for legal missteps such as vagueness, lack of evidence, and failure to accurately describe precedents.

In the lawsuit, former deputies allege that James Wilson (the current sheriff) rubber-stamped their demotions from lieutenant to patrol deputy for two reasons. First, the deputies say they had reported to Wilson's predecessor Jim Wilson (no relation, but the appointed sheriff in 2004, after John Maspero resigned under pressure) what they believed to be unlawful activity (sexual harassment and theft) by Sheriff's Officer Lt. Shawn Newsom. Jim Wilson fired Newsom once he took office. Second, Simmons and Fisher say that their political support of Jim Wilson, one of James Wilson's opponents in the primary election for a new sheriff, also contributed to their demotions. Newsom and James Wilson both testified under oath that Newsom and current Assistant Chief Robert Chapman (who had resigned when Jim Wilson became sheriff) were architects of James Wilson's new organizational chart, which called for the demotions, and that Newsom and Chapman began work on the chart before the sheriff took office and rehired them.

According to affidavit testimony of Simmons that was cited by the judge, when Chapman eventually informed Simmons of the demotion, he told him, "You can support whoever you want to [for Sheriff] – it is your constitutional right. But as you know, stuff rolls downhill and all we have to offer you is a Patrol position."

"[James] Wilson testified he did not independently review the personnel files for either man [Simmons or Fisher], but accepted the recommendation of Chapman," Judge Pitman wrote. Pitman also cited a television interview in which Wilson "stated he made his staffing changes based on the 'top level people's perception.'" To the defendants' assertion that plaintiffs did not sufficiently demonstrate that supporting Jim Wilson and reporting Newsom's alleged misconduct had any "causal connection" to their demotions, Pitman cited a sworn deposition statement by Deputy Ron Smith (also a James Wilson rehire) that Newsom was "ticked" about the investigation of his conduct.

The judge defended the plaintiffs' contention – at least for purposes of rejecting summary judgment – that the demotions were the consequences of their political activity and whistle-blower statements. "Simmons and Fisher both provided evidence that their recent performance evaluations were good," Pitman wrote, "casting some doubt on the stated reasons for their demotion [poor job performance]. In other words, they were demoted at the first possible moment Newsom could have affected their employment."

The crux of the county's strategy has been to distance James Wilson from the demotions. But Pitman took note in the ruling that Newsom had openly opposed Jim Wilson on a vituperative Web site, NotJimWilson.org. The site warned Jim Wilson loyalists like then lieutenants Simmons and Fisher that their days with WCSO were numbered. Despite James Wilson's subsequent claim in deposition that he had "no dog in their fight" and had no part in any alleged retaliatory actions, plaintiffs have cited 5th Circuit findings that even if that were true, the person in charge is ultimately liable for the actions of his subordinates. And Pitman affirmed the argument that Wilson could be held responsible for the manner in which Simmons and Fisher were demoted.

The county had also argued that James Wilson is entitled to "qualified immunity" because, as noted by Pitman, "They maintain Plaintiffs have failed to establish the existence of a constitutional violation." But Pitman rejected that argument, writing that "Plaintiffs have identified a First Amendment right protecting their political activities." Finally, he denied yet another justification for demoting Simmons and Fisher: that of "promoting efficiency," as he termed it. "Defendants argue that as sheriff, James Wilson had the right to have management staff which supports his views and policies. … To withstand a challenge to the propriety of a political dismissal, the governmental defendant must show the employee's activities actually or potentially affected the ability of the governmental entity to provide services. Defendants have wholly failed to make such a showing in this case," Pitman wrote.

Pitman affirmed that Simmons and Fisher's allegations of causation had passed the "cat's paw analysis," a legal standard. "If the person making the decision serves as the 'cat's paw' of those who were acting from retaliatory motives, the causal link remains," Pitman wrote.

Attorney for the plaintiffs, Derek Howard, described one effect of the judge's ruling: "These findings keep James Wilson in this lawsuit individually." He continued, "I believe that Williamson County taxpayers wasted their money in regard to the legal fees incurred by this motion for summary judgment," calling it "frivolous then [i.e., the first time a judge ruled against dismissal in the spring] and frivolous now."

The county is expected to respond to Pitman's ruling within 10 days, before Judge Yeakel decides whether to accept the magistrate's recommendation. Attorney Mike Davis, who is representing Williamson Co. in the lawsuit, did not respond to requests for comment.

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Williamson County, James Wilson, Jim Wilson, Robert Pitman, Ralph Fisher, Barry Simmons, Shawn Newsom, Robert Chapman, Derek Howard, Jana Duty

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