Former Greensboro Police Chief David Wray filed a slander lawsuit against Greensboro Mayor Nancy Vaughan and City Attorney Tom Carruthers last week.
This lawsuit seems to be the result of the city forgetting why it refused to pay Wray’s legal fees, which is not as strange as it sounds.
According to the lawsuit, filed by Wray’s attorney Ken Keller of Carruthers & Roth, when City Attorney Tom Carruthers was asked why the city was not paying Wray’s legal fees, Carruthers was quoted in the June 11, 2016 News & Record as saying that “four city managers have taken the position that David Wray’s actions were malicious.”
The lawsuit also states that Vaughan was quoted in a N&R article on June 20, 2016 stating that “the city ‘felt there was maliciousness behind’ David Wray’s actions.”
When Vaughan was asked why she used the word maliciousness, she said, “that is the word that the city attorney used and that is in the statute.” She said, “The way Tom [Carruthers] laid it out was that what Wray did was beyond the scope of his authority.”
She added, “I am not a lawyer. I rely on the legal advice of our city attorney.”
She noted that in her quote, where she used maliciousness, she was attempting to state the position of the city as she understood it at the time, and that both malicious behavior and outside the scope of his authority are part of the same policy.
After Carruthers made the statement about malice, Councilmember Tony Wilkins asked for a record of the four city managers alleging malice or maliciousness, and no written record of why Wray’s attorney’s fees were not paid could be found, even after the city staff searched the closed session minutes of City Council meetings.
According to the city policy, it is up to the city manager to determine if the legal fees of a city employee will be paid, and the city can choose not to pay if the actions were not associated with their job or if they acted in a malicious, corrupt, fraudulent or oppressive manner.
It appears that what happened in this case is that neither Carruthers nor Vaughan knew exactly why the city was not paying Wray’s legal fees and assumed that if fell under the clause about behavior.
Carruthers was quoted in the July 26, 2016 Rhino Times as saying that he was trying to use shorthand for the city policy and used a “poor choice of words.”
Wray has a lawsuit against the city challenging the city’s refusal to pay his legal expenses for lawsuits resulting from actions while he was police chief. That lawsuit is currently before the North Carolina Supreme Court for a ruling.
Greensboro has a policy dating back to 1980 to pay the legal expenses of all city employees who are sued as a result of their actions as employees.
Numerous city employees were sued in the rash of lawsuits that were precipitated by Wray’s forced resignation as police chief, including former City Manager Mitch Johnson, who was fired by the City Council on March 3, 2009. The city has paid the legal fees or reached an agreement with all of them except Wray.
When the city refused to pay Wray’s $220,000 legal fees resulting from those lawsuits, Wray sued the city. Greensboro has now spent over $500,000 defending itself against Wray’s initial lawsuit now before the state Supreme Court.
In its defense, the city has not argued that Wray was acting maliciously or outside the scope of his office. The city’s argument is that Wray can’t sue Greensboro because Greensboro has governmental immunity. The Superior Court ruled in Greensboro’s favor that Wray could not sue the city. However, the North Carolina Court of Appeals reversed the lower court ruling in Wray’s favor that Greensboro did not have governmental immunity in this case.
The arguments were made before the North Carolina Supreme Court in May and a decision is expected sometime this summer. If Wray wins his appeal that means Greensboro will have to go to court and explain the rational for not following the city policy and paying Wray’s legal bills. Since the city has reported that there is no written record of why Wray’s legal fees were not paid, that might not be easy.
After Carruthers and Vaughan made their comments about “malice” being the reason that Wray’s legal bills were not paid, Wilkins, by a vote of the City Council, received the authority to look at Wray’s personnel file.
Wilkins said he could not discuss the contents of the file but did say that the file showed that Wray had had an “exemplary” career with the Greensboro Police Department and there was nothing in the file to indicate any charges that he had ever acted with malice.
The original decision not to pay Wray’s legal expenses was made by Johnson who was then city manager. Johnson locked Wray out of his office on Friday, Jan. 6, 2006 and then forced Wray to resign on Monday, Jan. 9.
At the time, Johnson and the City Council said that they expected the investigation of the Police Department while Wray was police chief to result in serious criminal charges against Wray and some of his command staff. Despite lengthy investigations, no charges were ever filed against Wray or anyone on his command staff.
But the forced resignation did result in a flurry of lawsuits against Greensboro, Wray, Johnson and others. In those lawsuits Greensboro defended the actions of Wray in court repeatedly. Several suits were based on the “black book,” which the city argued in court was the result of rumor but didn’t actually exist.
The black book was supposed to contain the photo of every black Greensboro police officer and shown to a wide variety of people in an attempt to bring allegations against black police officers.
It seems the truth is that this case between Wray and the City of Greensboro has become like a family feud, where after several generations people feuding don’t even know how the feud got started. Evidently neither Carruthers nor Vaughan actually knew why Wray’s legal fees were not being paid. Carruthers, as he said, tried to use shorthand for the city policy when he used the term “malice” in giving the reason why the city had refused to pay the legal fees, but it turned out he was summarizing the wrong part of the policy.
The part of the policy that, according to the current city stance, does apply is a bunch of legal language stating the city will pay the legal fees “when resulting from any act done or omission made, or any act allegedly done or omission allegedly made, in the scope and course of their employment or duty as employees or officers of the City.”
The portion of the policy that was being shorthanded by Carruthers and then repeated by Vaughan based on Carruthers statement is, “except and unless it is determined that an officer or employee (1) acted or failed to act because of actual fraud, corruption or actual malice, or (2) acted or failed to act in a wanton or oppressive manner.”
According to the slander statutes, a person has to know that the slanderous statement is false or have shown reckless disregard for the facts, meaning that they should have known that it was false.
The lawsuit alleges that since Carruthers was the city attorney and had been an assistant city attorney before that, and since Vaughan as mayor, and as a councilmember before that during the time the city has been involved in the lawsuit, they should have known the reason that Wray’s legal fees were not being paid and knew, or should have known, that there was never an accusation of malice or corruption.
However, it may be difficult to prove that either Carruthers or Vaughan knew or should have known the reason for not paying the legal fees. As noted, there is no written record of why the legal fees were not being paid. The lawsuit before the state Supreme Court is not being argued on the merits of the case, but on whether the city’s claim of governmental immunity is correct or not.
The Wray lawsuit could have been discussed numerous times in detail without anyone ever mentioning the reason that Johnson decided not to pay Wray’s legal fees, because the case in the courts now has nothing to do with the validity of that decision but with Wray’s legal right to sue.