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2011-02-03

Settlement or trial in Sharp lawsuit by Feb. 28

By Judith Pannebaker BCC Editor

Federal Judge Harry Lee Hudspeth recently granted a joint motion to postpone the civil trial brought against Bandera County and Sheriff Weldon Tucker by former Bandera County Sheriff's Office Deputy Scott Sharp.
'Amicable solution'
In court documents filed Tuesday, Jan. 18, Hudspeth's continuance gives both parties time to "finalize the amicable resolution of all claims ... on or before Friday, Feb. 28." In simple parlance, a settlement in Sharp's whistleblower case seems imminent.
Prior to the continuance, the case was set for trial on Monday, Feb. 7, in the United States District Court for the Western District of Texas, San Antonio Division.
All reports indicate Tucker and other county elected officials would like the civil case to be wrapped up before Tucker's criminal trial for his alleged personal use of a county water rescue boat begins on April 4 in the 216th District Court in Bandera.
In part, the apparent looming settlement may have resulted from a failed attempt of defense attorney Vanessa A. Gonzalez of the Austin law firm of Allison, Bass & Associates, LLP to have Sharp's complaint against Tucker in his official capacity dismissed. Hudspeth denied the defense's motion on Dec. 21.
Tucker is being sued both in his official capacity and individually because, according to Sharp's attorney, Grace S. Bellomy of Boerne, the sheriff acted as policymaker for the county in numerous adverse employment actions against her client.
On May 20, 2009, Tucker fired Sharp for "reporting acts of corruption and wrongdoing" within the department, she maintained.
Tucker's 'official capacity'
If the "official capacity" claims against Tucker had been dismissed, the result would have been no liability against Bandera County for the sheriff's actions. After describing Tucker as the "final policymaker for the county," Bellomy indicated that Sharp's complaint contains interchangeable allegations against both Bandera County and the sheriff. Actions Tucker instigated in his official capacity against Sharp would allow the former deputy to collect monetary damages from the county.
Federal law, Bellomy contended in her successful response, imposes liability on governmental entities for constitutional violations by their final policymakers. Sharp is seeking compensation from the county for the "flagrant, egregious and repeated violations of his constitutional right to free speech."
If Sharp proves his claims against Tucker in his official capacity, Bandera County will be required to pay the judgment. If Sharp proves his claims against Tucker as an individual, then the sheriff must pony up.
No qualified immunity
Additionally, in a previous ruling, the court apparently found that Tucker was not entitled to qualified immunity. A doctrine of US federal law, qualified immunity essentially shields federal and state government officials from liability for violating an individual's federal constitutional rights. However, as previously outlined by the Supreme Court, qualified immunity only shields government officials from actions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Advancing her argument, Bellomy noted that, according to state statutes, sheriffs in all 254 counties in Texas are the "final policymaker[s] for matters of hiring and firing" in their departments.
In addition, she wrote, "The defendants have already admitted the sheriff's status as a final policymaker," noting: "[t]he Sheriff is the final policy maker of the Sheriff's Office and has the final say on employment matters in his office."
Taking this to its logical conclusion, if the decision of Tucker as a final policymaker of Bandera County to terminate Sharp violated his constitutional rights, Bandera County would be liable for all allowable damages.
In her response, Bellomy reviewed the allegations against Tucker in his official capacity as a final policymaker for Bandera County, indicating that he took adverse employment action against Sharp for pretextual reasons.
Taken from the word "pretext," pretextual can be defined as "a fabricated reason for an action offered to cover up a true motive or intention."
Litany of grievances
Sharp's grievances against Tucker include:
• Transferring the plaintiff out of Criminal Investigative Division into Support Division on or about Dec. 15, 2008.
• Writing and signing a reprimand justifying Sharp's transfer for pretextual reasons.
• Telling Sharp that he did not want him talking to the 216th District Attorney.
• Informing Sharp his reassignment stemmed from the exchange Sharp had had with personnel at the DA's office and instructing him never to do it again.
• Telling Sharp he would never again be an investigator in the BCSO.
• Transferring Sharp from Support Division to Patrol Division on or about Jan. 1, 2009.
• Conducting surveillance on Sharp's home and firing him in front of his home on or about May 20, 2009.
• Sending a signed letter to Sharp on or about June 26, 2009, informing him that his "request for an appeal has been denied."
• Telling others that Sharp had been reassigned to "teach him a lesson," which indicated to Sharp that Bandera County officials and Tucker were aware that he had reported corruption.
Additionally, Sharp's complaint asserts that other Bandera County elected officials were well aware that corruption, intimidation and favoritism existed within the BCSO and chose not to address the issues. "Clear constitutional violations occurred and the policies, customs or practices of corruption, intimidation and favoritism served as the moving force behind the violation of basic constitutional rights," Bellomy wrote.
"Given that a single act of a final policymaker is sufficient to place liability on the local government entity, Sheriff Tucker's string of [10] retaliatory acts against Officer Sharp, all set forth in the pleadings, provide the causal connection to place liability on the County of Bandera."