Sheriff Gary Cutler may have thought it was over. But the federal lawsuit against him by former Hays County Sheriff’s Office (HCSO) employee Richard “Dickey” Haverda just took another turn.
The July 17 judgment by Circuit Judges Jennifer Elrod and Stephen Higginson, and District Judge Phillip R. Martinez, found “the district court erred in granting summary judgment in Appellees’ favor on both Haverda’s First Amendment retaliation claim and on Appellees’ qualified immunity defense,” noting that Haverda had a “clearly established constitutional right not be fired for engaging in protected speech.”
Back in 2010, Haverda, then a 20-year employee with HCSO, was a captain of jail operations. He worked under several previous sheriffs, including Ratliff, Allen Bridges and Don Montague.
Haverda exercised his right to free speech by submitting a letter to the editor to the Hays Free Press and the San Marcos Mercury expressing his favorable opinion of Ratliff’s handling of the jail, despite crumbling infrastructure and multiple problems cited during previous inspections. In addition, Haverda actively campaigned for Ratliff by posting signs in locations throughout Hays County and delivering food and water to campaign volunteers on Election Day.
The Texas Commission on Jail Standards ordered a shutdown of the jail’s kitchen in November 2009, citing several serious problems. The jail did not pass inspections three times while Ratliff was in office; it did, however, pass a surprise inspection just before the 2010 elections.
Haverda’s letter said Ratliff was doing what he could with no additional funding from the Hays County Commissioners Court.
At the end of the letter, he wrote, “Sheriff Ratliff is doing a great job. Sheriff Ratliff didn’t come in here and bring a whole new staff like your alternative conservative Mr. Cutler wants to do.”
That was the only line where Haverda referenced Cutler.
That same fall, another HCSO employee, Gilbert Hernandez, wrote a letter to the editor in positive support of Ratliff. That employee still holds a maintenance position in the jail and was not demoted.
Haverda, who began his employment as a corrections officer in the Hays County Jail, was promoted to Captain of Corrections in 2004. In that position, he was responsible for jail security, proper maintenance and supervision over jail staff.
The week Cutler took office, his new chief deputy, Jamie Page, spent a night in the jail. During that stay, Page said he found numerous health, safety and security issues. For more details on what Page found, the full text of the appeal is on www.haysfreepress.com.
Page recommended to Cutler that all Haverda and two other jail command staff members, Major Brad Robinson and Lieutenant Juan Saenz, be terminated, saying they were equally responsible for the poor state of the facility. Cutler did not accept the recommendation. Page then proposed a suspended termination, which would allow 60 days to assess the employees’ performance; Cutler accepted this recommendation.
During his campaign, Cutler was quoted as saying he would not fire the existing staff who worked under Ratliff.
On Nov. 22, 2010, Page told the three jail command staff members they would retain their jobs if they worked hard and the jail substantially improved. At the end of the time period, none of the three were fired or demoted.
But in February, 2011, Robinson informed Haverda that he had been instructed by Page to tell Haverda to “get on the train or [Haverda would] be moved to [a] maintenance [position].”
Confused, Haverda said he feared that statement referred to his political activity on behalf of Ratliff. Haverda asked Cutler for clarification.
In a February 23, 2011, memorandum from Cutler, Haverda learned he was demoted to Corrections Officer, scheduled to be effective on March 1. Haverda delivered a letter dated Feb. 28 to Cutler, saying he intended to retire effective April 1.
During a March 15 meeting with Cutler, Haverda secretly recorded the conversation. In it, Cutler mentioned his campaign promise not to fire any employees and said he knew Haverda had made several comments, during the campaign, about Sheriff Cutler “run[ning] everybody off.” Cutler also discussed the poor condition of the jail and accepted Haverda’s retirement.
Haverda filed suit in the United States District Court for the Western District of Texas on August 8, 2011, alleging constitutional violations against the county, the sheriff’s office and Cutler. In that suit, Haverda said he maintained a “long-time personal relationship” with former Sheriff Tommy Ratliff.
HCSO moved for summary judgment and won, citing the alleged work deficiencies claimed by Cutler. Mike Shawnessy, a Hays County attorney from the law firm Sedgwick, said Judge Sam Sparks ruled a summary judgment in favor of Cutler, which essentially means the plaintiff cannot win based on the known facts of the case. Haverda appealed the summary judgment.
On appeal, the court noted the alleged deficiencies but rejected the lower court’s finding that the employee was simply disagreeing with the employer’s assessment of his work performance. According to Shawnessy, the Fifth Circuit Court of Appeals found that though the evidence may be weak, there is enough to take the case to a jury trial.
Shawnessy said he will attend a status confirmation today with Sparks where he expects the case will be put on the trial docket. No court orderedmediation has been scheduled, but it is a possibility, according to Shawnessy. He was unable to discuss any possible settlement terms with Haverda, but he said if the case proceeds to trial, “I think we’re ready.”
“I’m a big believer in our jury system,” he said. “They’ll give the best effort they can. I‘m a firm believe that our justice system works because of the jury.”
