FORT SMITH -- A Sebastian County Circuit judge Tuesday dismissed the whistleblower lawsuit of a former Fort Smith police officer and two current officers after ruling they did not refute the city's arguments and their lawsuit lacked issues for a jury to decide.
Circuit Judge James Cox, ruling from the bench after a two-hour hearing, said the officers had to present some proof of the arguments in their case to refute the city's supporting evidence that summary judgment should be granted.
Instead, Cox said, the officers' attorney, Matthew Campbell of North Little Rock, offered only criticism of the city's positions.
Campbell argued during the hearing that Fort Smith was attempting to impose a burden to prove his case at that time instead of before a jury, where the presentation of his case belonged. He argued that inconsistencies arising in testimony versus documents were things that should be sorted out by a jury at trial.
A summary judgment is granted when there are no material facts for a jury to decide, and the judge decides the case based on the law.
The case had been scheduled for a five-day trial beginning Tuesday.
Cox also denied a motion by Campbell to sanction the city for giving him a computer hard drive that he said was intentionally infected with malicious software, making it possible for someone to hack into his computer.
Cox denied the motion after an attorney for the city, Doug Carson, argued Campbell refused to provide the hard drive so the city could test it to determine the validity of his accusations.
Campbell told Cox that he did not want to turn over the hard drive, which had emails he requested as evidence for his case, without knowledge of what the city would do with it.
Cox said the only evidence he had on the motion was one affidavit from each side. The affidavit from Campbell was from a computer expert believing the city intentionally installed the malware. The affidavit from the city involved a Police Department computer technician describing how he installed data on the hard drive and saying it had no malicious software.
The two affidavits canceled each other out, Cox said, denying the motion.
In his April 10 motion, Campbell requested that the city be found in criminal contempt, that its answers to the officers' allegations be stricken and that the officers be granted a default judgment.
Campbell said in the motion that the city gave him a hard drive of documents infected with malicious software, destroyed documents it was supposed to give him and failed to turn over other documents in a usable form.
Campbell filed the motion for sanctions the same day the city filed its summary judgment motion.
Plaintiffs in the whistleblower case were Don Paul Bales, Rick Entmeier and Wendall Sampson Jr. Entmeier and Sampson are current Fort Smith police officers. Bales, formerly a sergeant, was fired from the department Oct. 20 and has appealed his firing in another Sebastian County Circuit Court lawsuit.
The officers filed the suit in January 2014 against the city and Police Chief Kevin Lindsey. Other officers and city officials initially were named in the suit but dismissed as defendants March 2.
The officers said they encountered retaliation after they approached Lindsey with information that city and Police Department policies were being violated.
Bales and Entmeier reported they believed Entmeier's son, Addisen, was unfairly dismissed as a probationary officer after he accused the wife of a police captain of involvement in overtime irregularities in the dispatch center.
Carson argued to Cox that Bales and Entmeier's complaint of unfair dismissal of Addisen Entmeier was not a claim that could be brought under the whistleblower law.
Carson said Lindsey had decided to terminate Addisen Entmeier based on a review board's evaluation of his performance.
After Bales and Entmeier went to Lindsey, Lindsey had the department's internal affairs office investigate their allegations and found them to be false. Lindsey punished them for conduct unbecoming an officer for giving him false information, Carson said.
Carson said the actions against Bales and Entmeier were not brought on because of their protected communications under the whistleblower law but because of the false information they gave to Lindsey.
Also, Carson said arguments the officers made that the overtime irregularities were wasting city money did not fall under the whistleblower law because there was no money wasted.
He said city human resources Director Richard Jones testified in an affidavit that since work was being done, wages had to be paid under federal laws. Carson said that if there was no waste of money, there was no whistleblower case.
State Desk on 07/01/2015