Claims found in ethics report could surface in Hardy suit

By Emily Le Coz/NEMS Daily Journal

TUPELO – A former police captain’s lawsuit could stir up some of the same allegations made in the city’s controversial ethics report – namely, that the Tupelo Police Department practices racial bias.
In Cliff Hardy v. the city of Tupelo, the former officer must prove he lost his job responsibilities because of a public speech he made alleging racial discrimination in the police department.
He also must prove he had valid reason to believe those allegations, which means the court might hear testimony against the Police Department’s internal practices regarding minorities.
“I do anticipate asking them about other incidents of race discrimination,” said Hardy’s attorney, Jim Waide of Tupelo. “Whether the judge will allow that or not, I don’t know.”
Hardy resigned from the force in early 2008 after being stripped of his previous duties. He claims he was being punished for speaking out on behalf of a black colleague several months prior.
His trial is set for July 20 in the U.S. District Court in Aberdeen with U.S. District Judge Sharion Aycock presiding.
The city is represented by attorneys with Mitchell McNutt and Sams. Berk Huskison from that office did not immediately return a call for comment.
Both sides met during a pre-trial conference Tuesday with U.S. Magistrate Judge Jerry Davis. A settlement was discussed during the one-hour meeting, but Waide said it’s unlikely to happen.
The other incidents of racial bias to which Waide referred could be some of the same accusations that surfaced in the ethics report, delivered to the city in September by hired consultant Cindy Brown of EthicsNow.
Brown spent two years compiling data about the department and other city agencies before issuing a 133-page document.
Among some of the report’s allegations were that the Police Department uses racial profiling and excessive force, violates constitutional rights, misuses equipment, fixes tickets and stacks tickets – a practice whereby officers write multiple tickets per stop.
Although the Office of the State Auditor last month declined to investigate claims made in Brown’s report, some of it might be relevant in Hardy’s trial. Waide had subpoenaed – and received – redacted portions of the report relating to racial bias. He said some of it was filed in his client’s case.
Aycock said last week she didn’t want to put on trial all the various allegations against the police department. But she also wrote that the plaintiff must show he had “reasonable belief that the employer was engaged in unlawful employment practices.”
The lawsuit stems from an Oct. 12, 2006, community meeting to discuss race issues in Tupelo.
At that meeting, Hardy claimed his friend, Robert Hall, the former TPD deputy chief, had been “persecuted,” and Hardy suggested he believed Hall, who is black, was targeted because of his race.
Hardy, who is white, retired from the department in March 2007, four months after he was removed as internal affairs investigator and moved to other assignments he considered menial jobs.
Title VII of the Civil Rights Act prohibits employment retaliation because of public speech. The U.S. Supreme Court generally has held that the First Amendment of the Constitution protects an employee when his interests to comment on “matters of public concern” outweigh an employer’s interest in public service.
During a hearing last week, the city argued that Hardy’s speech was reckless, hurt department morale and embarrassed the department. Defense attorneys wanted the case dismissed.
Aycock agreed that Hardy’s statement was insubordinate because it violated department policy against public pronouncements without proper authority.
But ultimately, she wrote, the city has not proven that its interests as an employer “outweigh the significant interest in potentially exposing official misconduct in the operation of a police department.”
And the city did not show Hardy would have been treated the same if he hadn’t made the speech, she said.
Aycock declined to dismiss the case, and it’s set to go to trial.
Contact Emily Le Coz at (662) 678-1588 or emily.lecoz@djournal.com.