EMPLOYMENT LAW ATTORNEYS February 15, 2024 Sent via E-Mail Gmoss@miottawa.org) Joe Moss, Chairperson Ottawa County Board of Commissioners 12220 Fillmore Street West Olive, Michigan 49460 RE: John Gibbs Employment Confidential pursuant MRE 408 and FRE 408 Dear Mr. Moss: I represent Ottawa County Administrator John Gibbs in connection with his employment with Ottawa County (‘the County”). As you are already aware through communication with my client's prelitigation counsel, the County stands to assume significant liability should it proceed with continuing to harass, defame and belittle my client following his constitutional expression of free speech under the First Amendment rightfully criticizing the performance of the County’s Corporation Counsel in furtherance of the public interest. Mr. Gibbs has already been subjected to adverse employment actions, including demands that he resign, threats of termination, and disparagement in the public eye. Such retaliation violates 42 U.S.C. §1983 and Michigan’s Whistleblower Protection Act (“WPA”). Accordingly, the purpose of this letter is to convey that Mr. Gibbs is amenable to resigning his position in consideration for a lump sum payment of the entire amount owed to Mr. Gibbs pursuant to his employment agreement, i. $630,000.00. Mr. Gibbs is not demanding a king’s ransom like some of his contemporaries. Rather, the demand reflects the County’s contractual obligations to my client and represents a substantial discount from the damages, costs, and attomey fees that arise from litigation. Let me be clear, however, that Mr. Gibbs is not voluntarily relinquishing his employment or terminating his employment agreement. On the contrary, Mr. Gibbs has admirably met this job responsibilities and the County has not legal basis to terminate him “for cause.” L Factual Background Mr. Gibbs was hired by the County as Ottawa County Administrator on January 3, 2023, upon which he executed the “Employment Agreement for Ottawa County, Michigan Administrator” (the “Employment Agreement”). The Employment Agreement establishes that Mr. Gibbs’ employment term runs from January 3, 2023, until January 2, 2026. Section 9 of the Employment Agreement governs separation. Specifically, the Employment Agreement can only yotesiess tes reas — @wnwhinwatawcom — toabensstavcom wee =O © 8HURWITZ LAW be terminated for cause in the event of intentional fraud, dishonesty, gross misconduct, or willful malfeasance in connection with the performance of Mr. Gibbs’ job duties. As evident from Mr. Gibbs" consistently positive performance record, none of these requisite circumstances are present. Meaning, the County cannot lawfully terminate Mr. Gibbs “for cause.” And in the event the ‘County attempts to terminate Mr. Gibbs with a majority vote by the Board of Commissioners (“the Board”), section 9(a) provides that such action requires the County to pay Mr. Gibbs an additional nine months’ salary, together with paid health insurance for nine months. ‘The County engages Kallman Legal Group as its Corporation Counsel. From the beginning, of Mr, Gibbs’ employment, he observed that Corporation Counsel was deficient in its performance to the detriment of the County. Mr. Gibbs communicated his concerns about the Corporation Counsel's performance in an email to Attorney David Kallman and members of the Board on March 10, 2023. In that email, Mr. Gibbs explained three specific issues with the Corporation Counsel's performance, namely (1) the insufficient availability of legal counsel with the effect that the County was ofien left without legal advice; (2) the complete lack of any system with which to track legal deliverables, with the effect that requests for legal service were left outstanding for long periods of time; and (3) the competency of the Corporation Counsel to give appropriate legal advice. Mr. Gibbs’ email was not simply limited to complaints, but rather he provided actionable and reasonable solutions to each problem asserted. However, none of his complaints were acted upon and no solutions were adopted, ‘After several months of continued poor performance on the Corporation Counsel's part, Mr. Gibbs sent a letter to you and Vice Chair Rhodea on July 18, 2023, detailing the extensive deficiencies he had uncovered in relation to the Corporation Counsel’ performance (the “Counsel Deficiency Letter”). Many of the issues described in the Counsel Deficiency Letter were addressed in Mr, Gibbs’ March 10, 2023 email, which went unheard. The Counsel Deficiency Letter addresses a litany of shortcomings in the Corporation Counsel's performance, including inter alict the provision of incorrect legal advice, significant privacy violations, delays of weeks or months in the provision of routine advice, continued insufficient availability of counsel, a continued lack of organization or deliverables tracking systems, and unprofessional conduct on the part of the Corporation Counsel. Each of these complaints constitutes a legitimate concern with the operation of the Corporation Counsel in its service to the County. That is, the Counsel Deficiency Letter is directed specifically to complaints about the Corporation Counsel’s competency to perform public ‘government functions. There are two important statements within the Counsel Deficiency Letter that should be understood. First, Mr. Gibbs stated that “the Office of Corporation Counsel in its current state not able to effectively perform the above functions and is thus ill-positioned to serve you or the County.” In so stating, Mr. Gibbs directly criticized the ability of the Corporation Counsel to perform its duties towards the County, a matter clearly of public concern. Second, Mr. Gibbs sro boat st sts secure — Qnwsunstaveam —_ hoatnsitewcom Omusian @ co) 8HURWITZ LAW stated that the Corporation Counsel “is properly and correctly handling matters of li that “iJ is important to note that [Mr. Gibbs’) analysis does not reflect upon the ind character of the persons or firm that currently comprise the Office of Corporation Counsel. Nor does it reflect upon any problem with any said individuals on a personal level. Rather, this analysis is strictly professional in nature, focusing narrowly on the functioning of the Office of Corporation Counsel.” Clearly, Mr. Gibbs” criticism of the Corporation Counsel is narrowly directed to the performance of the Corporation Counsel in its advisory position and is not directed to any private concerns whatsoever. Indeed, clearly Mr. Gibbs did not address a private or personal concern because he specifically suggested that the Corporation Counsel be retained for litigation matters. In response to the Counsel Deficiency Letter, members of the Board and Mr. Kallman met with Mr, Gibbs. During this meeting, Mr. Gibbs’ concems regarding the Corporation Counsel were not addressed. Rather, Mr. Kallman insulted Mr. Gibbs’ professionalism and stated that the true motivation behind Mr. Gibbs’ complaint was an attempt to seize power within the County, ‘The Board conducted no investigation into Mr. Gibbs’ complaints, and instead began to plan Mr. Gibbs’ expulsion, In the time since Mr. Gibbs expressed his concerns about the Corporation Counsel, the Board has become increasingly hostile towards him and some members aligned with the Corporation Counsel have openly expressed their lack of confidence in Mr. Gibbs, despite his consistently positive performance record, On October 24, 2023, a court complaint was filed against the County alleging, infer alia, that Mr. Gibbs had unlawfully discriminated against an applicant for employment with the County (the “Kimball matter”). As the Board is no doubt aware, this is entirely baseless and is not borne out on the true facts of the matter, However, the Kimball matter quickly became the vehicle for the County's attempt to fire Mr. Gibbs. After its own failure to secure a settlement in the Kimball matter, the Corporation Counsel seized an opportunity to exact its revenge on Mr. Gibbs by offering his termination as part of a settlement offer in that matter. Accordingly, Mr. Gibbs was approached by the Board on January 9, 2024, to request that he tender his resignation. The Board was clear that, should Mr. Gibbs not tender his resignation, he would be terminated with cause. ‘This threat was renewed again on February 12, 2024, when you called Mr. Gibbs to again ask for his resignation and inform him that the Board wanted to take action to effect his ouster as soon as possible, Again, Mr. Gibbs’ performance has been beyond reproach throughout his employment, and his Employment Agreement remains in effect until January 2, 2026. In the absence of any alternative explan clear that the Corporation Counsel has collaborated with the Board to ‘expel Mr. Gibbs in retaliation for his criticism of the Corporation Counsel's performance. Most recently, the County has intensified its attack on Mr. Gibbs, creating a full blown hostile work environment. In January 2024, the Board created a Board of Commissioners Strategic Planning subcommittee to micromanage a responsibility that has traditionally belonged to the County Administrator. All eleven commissioners were placed on that subcommittee, which is ayo ents st sie 5 seaienumT2 — @wwustrittaveon —_@oarrvtewcom race @ ® ®HURWITZ LAW EMPLOYMENT LAW ATTORNEYS unheard of. On January 23, 2024, Mr. Gibbs was cut out of the loop on a critical meeting between the Corporation Counsel and Human Resources to determine significant policy changes that Mr. Gibbs himself had proposed. This too is unprecedented and clearly retaliatory. On February 6, 2024, Mr. Gibbs was then completely divested of his responsibility for the County Strategic Plan, My client has similarly been stripped of his hiring authority after the Board voted to bar him from hiring or transferring employees under his purview. It was thus no surprise that Mr. Gibbs was confronted by Board Chair Joe Moss carlier this week (February 12) and threatened with termination if he did not voluntarily resign. In doing so, Mr. Moss, incriminated the County for violations of the Whistleblower Protection Act, telling my client that “board members want you gone, especially after the letter Butzel sent.” The facts being what they are, the County has seemingly only three options with regard to Mr. Gibbs. The County can either (a) honor its obligations under the Employment Contract until January 2, 2026; (b) proceed with unlawfully terminating Mr. Gibbs; or (c) negotiate an amicable resolution. Please be advised that termination will not only invoke the separation payments discussed above, but will in addition give rise to causes of action described below. IL Violation of the First Amendment. To prevail on a First Amendment retaliation claim, Mr. Gibbs will prove that (1) he was engaged in a constitutionally protected activity; (2) the County's adverse action caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) the adverse action was motivated at least in part as a response to the exercise of his constitutional rights. Alliance For Children, Ine v City of Detroit Pub Sch, 475 F Supp 24 655, 667 (ED Mich 2007) (quoting Leary v Daeschner, 228 F3d 729, 737 (6th Cir. 2000)). The Supreme Court has recognized that pubiie employers can be afforded greater leeway to control their employees’ speech under certain circumstances. United States v. Nat'l Treasury Employees Union, $13 U.S. 454, 475 (1995). Accordingly, the Supreme Court established a tripartite test when considering whether a public employer violated an employee's First Amendment rights: (1) determine whether the relevant specch addressed a matter of public concern, (2) if yes, then balance the interests of the employee as a citizen commenting on matters of public concern, with the interests of the public employer in promoting the efficiency of the public services it provides, and (3) ifemployee's interests are greater, decide whether the employee's speech was a substantial ‘or motivating factor in the employer's decision to take adverse employment action against the employee. Rodgers v Banks, 344 F3d 587, 596 (6th Cir 2003) (citing Pickering v Board of Ed, 391 US 563, 568 (1968). One® © °HURWITZ LAW EMPLOYMENT LAW ATTORNEYS yeech Addressed a Matter of Public Speech is constitutionally protected if it addresses a matter of public concern. Rodgers v Banks, 344 F3d 587, 596 (6th Cir 2003). “Speech involves matters of public concern when it can be fairly considered as relating to [1] any matter of political, social, or other concem to the ‘community, or [2] when it isa subject of legitimate news interest; that is, subject of general interest and value of concem to the public.” Lane v. Franks, 573 U.S. 228, 241 (2014). An employee's speech is protected “as long as some portion of the speech” addresses a matter of public concern. Rodgers v. Banks, 344 F.3d 587, 597 (6th Cir. 2003), and relevantly, calling attention to the ineptitude of public employees or officials constitutes speech on a matter of public concern. Connick v Myers, 461 US 138, 148 (1983); Rodgers, 344 F3d at 596, Indeed, “[p]ublic interest is near its zenith when ensuring that public organizations are being operated in accordance with the law.” Marohnic v. Walker, $00 F.2d 613, 616 (6th Cir. 1986). The Counsel Deficiency Letter relates in great detail the various deficiencies in the Corporation Counsel’s performance in its public duties, Mr. Gibbs’ complaints within that leter implicate the propriety of public conduct, including alluding to complaints about the Corporation Counsel from other public stakeholders, which therefore renders his speech of gravity sufficient to warrant First Amendment protection. Marohnic 800 F.3d 613 at 616 A public employee must be speaking as a citizen, rather than an employee, for their speech to enliven First Amendment protection. Connick, 461 U.S. at 146-147. Accordingly, the County may wish to argue that Mr. Gibbs spoke as an employee in the course of his duties, or that the Counsel Deficiency Letter constitutes an “internal personnel dispute or complaint about an employer's performance” which does not touch upon a matter of public concern. Brandenburg v. Hou, Auth, of Irvine, 253 F.3d 891, 898 (6th Cir. 2001). Such an argument would fail for the following reasons. Where an employee's complaint constitutes an extraordinary, rather than everyday communication, that complaint will fall outside the scope of the employee's duties and therefore within the scope of the First Amendment protections. Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 768 (6th Cir. 2010). Here, the Counsel Deficiency Letter is plainly not an everyday communication, but rather constitutes an extraordinary communication necessitated by extraordinary circumstances. Indeed, Mr. Gibbs writes in the Counsel Deficiency Letter that “...after much deliberation, [he was] duty-bound to inform you of a significant issue which hinders his] ability to carry out the responsibility you have entrusted to [him]....”. Accordingly, the Counsel Deficiency Letter falls outside the scope of Mr. Gibbs” employment and his speech pursuant to which was undertaken as a private citizen, Moreover, “even ifa public employee were acting out of a private motive with no intent to air [his] speech publicly . ., so long as the speech relates to matters of “political, social, or other concern to the community,’ as opposed to matters ‘only of personal interest,’ it shall be considered as touching upon matters of public concern.” Alliance For Children, 475 F3d at 667-68 (quoting 340 Books st sto 15 seqahunverz ra awcom Ios HurwtLawcom Rinarbor Masten e © 8HURWITZ LAW EMPLOYMENT LAW ATTORNEYS Cockrel v Shelby Cry Sch Dist, 270 F3d 1036, 1052 (6th Cir 2002)). As above, the Counsel Deficiency Letter communicates a significant number of concerns regarding the Corporation Counsel's execution of its public duties, and the County's expenditure of public monies in such execution. The purpose of the Counsel Deficiency Letter was not to advance any personal interest of Mr. Gibbs, but to address and remediate impropriety that directly affected the County’s ability to discharge its public functions. Furthermore, the mere fact that the Counsel Deficiency Letter related to Mr. Gibbs’ employment does not strip his speech from First Amendment protection. Bohler v. City of Fairview, Tennessee, 429 F, Supp. 3d 477, 487 (M.D. Tenn, 2019) (quoting Lane. 573 USS. at 240). In fact, the Supreme Court in Lane explained that “speech made by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Lane, 573 US, at 240, ‘Mr. Gibbs” Interest in Speaking Outweighs the County’s Interest in Silencing Him, ‘After determining that Mr. Gibbs's speech is protected because it addressed matters of public concern, the court will weigh his interest in speaking with the County’s interest “as an employer, in promoting the efficiency of the public services it performs through its employees.” Rankin v McPherson, 483 US 378, 388 (1987) (quoting Pickering, 391 US at 568). In weighing these interests, the court will consider “whether an employee's comments meaningfully interfere with the performance of {his} duties, undermine a legitimate goal or mission of the employer, create disharmony among co-workers, impair discipline by superiors, or destroy the relationship of loyalty and trust required of confidential employees.” Williams v. Kentucky, 24 F.3d 1526, 1536 (6th Cir. 1994), Here, Mr. Gibbs’ speech presents no such interference. On the contrary, the Counsel Deficiency Letter seeks to further the goals of the County by ensuring that its Corporation Counsel functions appropriately and efficiently. For the County's part, “a stronger showing [of government interests] may be necessary if the employee's speech more substantially involvefs] matters of public concern, Connick, 461 U.S.. at 152. As above, Mr. Gibbs’ speech does substantially involve matters of public concern, however the County will fail to show that it seeks to protect a government interest by sti Amendment rights. Here, asin Lane, the “employer's side of the Pickering scale is entirely empty’ Lane, 573 USS. at 242, In that case, the employer did not assert and could not demonstrate that any government interest that would justify the interference with the petitioner's freedom of speech was present, Here too, the County has proffered no explanation of any government interest that ‘would be protected by terminating Mr. Gibbs. Indeed, the only interest that would be furthered by his termination would be the private interests of the Corporation Counsel to retain its employment, and the private interests of the County Board to settle the Kimbal! litigation in a manner less ‘embarrassing to it than its resolution to litigation with Public Health Officer Adeline Hambley. 4 Boas st sto 25 seagnurwrz rut ewicom Ino HurwaLaw com Binavor at aetog 8 © 8HURWITZ LAW EMPLOYMENT LAW ATTORNEYS ‘There Exists a Causal Connection between Mr. Gibbs’ Speech and the County's Threats. Pursuant to Rogers, the final consideration is whether Mr. Gibbs’ protected speech was a substantial or motivating factor in the County's decision to take adverse employment action against him. The determination of consideration is best addressed by first considering (1) whether the adverse action was proximately caused by a defendant's acts; and (2) whether the defendant was motivated by a desire to punish the plaintiff for the exercise of a constitutional right. Paterek v. Vill. of Amada, Mich., 801 F.3d 630, 646 (6th Cir. 2015). In the event that the County proceeds with termination, Mr. Gibbs will readily establish causation by presenting evidence that the County's decision was motivated by Mr. Gibbs’ criticism of the Corporation Counsel. This can be readily seen from the County's immense hostility towards Mr. Gibbs only after he submitted the Counsel Deficiency Letter, and the fact that the Corporation Counsel offered up Mr. Gibbs" termination as part of the settlement discussions in the Kimball matter. “[A]lthough at-will Government employees may be fired with or without reason, they may not be fired for exercising their constitutional rights.” Dambrot v Cent Michigan Univ, 839 F Supp 477, 485 (ED Mich 1993) (quoting McMullen v Carson, 754 F2d 936, 938 (6th Cir 1985)). “If the employce can make this showing, the burden shifts to the employer to prove, by a preponderance, that ‘it would have taken the same action even in the absence of the protected conduct.” Phillips v Ingham Co, 371 F Supp 2d 918, 928 (WD Mich 2005) (quoting Jackson v Leighton, 168 F3d 903, 909 (6th Cir 1999)), Here, the County will be unable to make such a showing given that Mr. Gibbs has excelled in the performance of his role, and the fact that his Employment Agreement extends to January 2, 2026. It is simply not the case that the County would have demanded that Mr. Gibbs resign had he not engaged in constitutionally protected conduct by criticizing the Corporation Counsel. IL. Violation of 42 U.S.C. § 1983. Pursuant to 42 U.S.C. § 1983, Mr. Gibbs is entitled to seek remedies against the County Board and Corporation Counsel for their violations of his constitutional rights, performed “under color of state law”. In other words, “to prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived the plaintiff of a right secured by the Constitution ‘or laws of the United States.” Waters v City of Morristown, 242 F3d 353, 358-59 (6th Cir 2001), Here, both the County and the Corporation Counsel acted under color of state law. “The traditional definition of acting under color of state law requires that the defendant ... exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988). Effectively, a defendant in an action under § 1983 must have intended to act in an official capacity or to exercise official yo Beaten tt 25 seyqHunaTz sy HuraLaweom ifoaHaittawcom Orrin 8 ® =}HURWITZ LAW EMPLOYMENT LAW ATTORNEYS responsibilities pursuant to state law. 1d. Inarguably, the County Board would actin an official capacity should it proceed to terminate Mr. Gibbs in connection wit sm of the Corporation Counsel, Indeed, it would only be empowered to terminate Mr. Gibbs because of its exercise of state law. Similarly, the Corporation Counsel, in offering up Mr. Gibbs’ termination in settlement negotiations in the Kimball matter, acted under color of state law. During these negotiations the Corporation Counsel stood in the shoes of the County as a public body and exercised authority under state law to make a settlement offer. “A private actor acts under color of state law when its conduct is ‘fairly attributable to the state.” See Romanski v Detroit Entm't, LLC, 428 F3d 629, 636 (6th Cir 2005). The Corporation Counsel may seek to rely on the proposition that “[a] plaintiff may not proceed under § 1983 against a private party ‘no matter how discriminatory or wrongful the party's conduct.” Tahfs v Proctor, 316 F3d 84, 590 (6th Cir 2003). However, this argument will necessarily fail, Relevantly, “[i}f'a private party has conspired with state officials to violate constitutional rights, then that party qualifies as a state actor and may be held liable pursuant to § 1983.” Cooper v Parrish, 203 F3d 937, 952 n 2 (6th Cir 2000). Here, the Corporation Counsel's advice to terminate Mr. Gibbs is integral to the County’s threats of termination, and any attempt for the County to act on such a threat. In effect, the Corporation Counsel and County have conspired together to terminate Mr. Gibbs in retaliation for his exercise of his constitutional rights. Accordingly, both the County and the Corporation Counsel will be held liable to Mr. Gibbs pursuant to § 1983 in the event of his termination. IV. Violation of Michigan's Whistleblower Protection Act. In the event of his termination, Mr. Gibbs will establish a prima facie case under the WPA by showing that (1) he engaged in protected activity as defined by the act, (2) the County took an adverse employment action against him, and (3) a causal connection exists between the protected activity and the adverse employment action. M.C.L. 15.362; Debano-Griffin v, Lake Cnty, 493 Mich. 167, 175, 828 N.W.2d 634, 638 (2013). “Protected activity under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule; (2) being about to report such a violation to a public body; or (3) being asked by a public body to participate in an investigation.” MeNeil-Marks v. Midmichigan Med. Cir-Gratiot, 316 Mich. App. 1, 16-17, 891 N.W.2d 528 (2016). Accordingly, there can be no dispute that Mr. Gibbs’ complaints regarding the Corporation Counsel, made to the County as a public body, constitute protected activity within the meaning of the WPA. Furthermore, his termination would constitute an adverse employment action. Indeed, M.C.L. 15.362 expands the scope of adverse employment actions to include threats. By threatening Mr. Gibbs with termination, the County has already subjected him to an adverse employment action and 440 Beakes St Sto 25 sssgHuroarz seoestinwtaLawcom InfoaHurtzLwcom fm arbor Mi abto4 8 © 8HURWITZ LAW EMPLOYMENT LAW ATTORNEYS accordingly, irrespective of whether it proceeds with his termination, it has already violated the WPA. As outlined above, there is a clear causal connection between Mr. Gibbs” protected activity and the adverse employment action. But for Mr. Gibbs’ complaints about the Corporation Counsel's performance, he would not have been threatened with termination, V. Litigation Hold Finally, this letter requests that you email me a copy of Mr. Gibbs’ personnel file pursuant to the Bullard-Plawecki Employee Right to Know Act and the Freedom of Information Act of 1976 (‘FOIA”). In addition, you should immediately take all necessary steps to preserve all documents, tangible things, and electronically stored information (“ESI”) relating to his employment and suspend any routine document destruction and any automatic delete functions for any ESI on systems and data storage locations likely to contain documents, data, or information related to his employment. Regards, Noah S. Haruity Noah S. Hurwitz Principal Attorney Noah@HurwitzLaw.com Office: (844)-HURWITZ 40 ost st st. seuusumvare — @)wewstnitdavcon — Qoateevtctawcam Xora ~~ O S ® 7