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Independence agrees to pay former police lieutenant nearly $1,000,000 over his First Amendment–retaliation claims

Wednesday, May 11, 2022

The city, former mayor, and police chief will dismiss their appeals and the city will pay Leonard Mazzola a settlement that incorporates his badge number.

Independence agrees to pay former police lieutenant nearly $1,000,000 over his First Amendment–retaliation claims

Independence, OH – The city of Independence, Ohio has agreed to pay Leonard Mazzola, a former City of Independence police lieutenant, nearly $1,000,000 for his First Amendment–retaliation lawsuits against the city; former mayor Anthony Togliatti; former police chief, Michael Kilbane; and law director, Gregory J. O’Brien.

The settlement follows orders by U.S. District Judge James S. Gwin denying the defendants’ motions seeking to throw out Mr. Mazzola’s case, and ordering that the matter proceed to trial. It also follows a December 2021 oral argument before the U.S. Court of Appeals for the Sixth Circuit that did not go well for the appealing defendants. The defendants have agreed to dismiss their pending appeals.

Factual overview

Court, public records, and testimony in the case showed the following.

  • After then-Mayor Anthony Togliatti instructed then-Chief of Police Michael Kilbane to increase traffic-citation revenues in summer 2018, Chief Kilbane ordered then-Lieutenant Mazzola to implement a so-called “performance standard” requiring patrol officers to issue at least 10 traffic citations per month.
  • Recognizing this “performance standard” for what it was—an unethical quota—Lt. Mazzola urged Chief Kilbane to use an activity-based performance metric instead.
  • Chief Kilbane refused.
  • Although Lt. Mazzola successfully led his patrol officers to increase “production” by 27% in August 2018, Chief Kilbane subjected him to a pre-disciplinary proceeding on September 13, 2019 for not achieving even greater “productivity” within the six weeks since Kilbane ordered the quota.
  • Despite voicing concerns about the quota internally, Lt. Mazzola followed Chief Kilbane’s orders, requiring all patrol officers to meet the “performance standard.” He even issued a written reprimand to a patrol officer for failing to meet the Chief’s standard.
  • After apparently obtaining copies of Mr. Mazzola’s memorandum to sergeants and email to all officers and dispatchers—both of which were public records—Fox News 8 I-TEAM reporter Ed Gallek on January 14, 2019 exposed the City’s traffic-ticket quota. That same day, Gallek sent a public-records request to Chief Kilbane. After the news coverage, and after taking a course ordered by Chief Kilbane that condemned quotas, Lt. Mazzola continued to express concerns about the quota internally, to Chief Kilbane’s anger and frustration.
  • Enraged and embarrassed by the media coverage, Defendants launched an internal investigation to find out who “leaked” the public records. Chief Kilbane ordered Lt. Mazzola to take a polygraph—contravening the City’s own policy limiting use of polygraphs to criminal investigations. Then they presented Lt. Mazzola with a choice: either retire immediately, forfeiting substantial financial benefits from the Ohio Police & Fire Pension Fund’s Deferred Retirement Option Plan (DROP), or be demoted from lieutenant to patrolman and be added to the Brady/Giglio list of lying cops—a career killer.
  • They gave him three hours to decide. Fearful that a Brady/Giglio designation would be career-ending, Mr. Mazzola—involuntarily—retired.
  • He signed no releases of liability.
  • Just one month and two days after he was forced to retire based on Defendants’ erroneous belief that he “leaked” public records to Fox 8 News, on May 3, 2019, reporter Ed Gallek publicly confirmed that Mr. Mazzola was not the I-Team’s source for information on the quota. Despite that, the defendants never tried to find the “real” leaker.
  • As a result of his premature, involuntary retirement, Lt. Mazzola lost wages and job benefits, and missed out on the substantial DROP pension payment.

In October 2019—just before the municipal election for mayor—Chandra Law filed a federal civil-rights lawsuit against the City of Independence and three of its top officials—Mayor Anthony Togliatti, Chief of Police Michael Kilbane, and Director of Law Gregory O’Brien—alleging First Amendment–retaliation and related claims.

In October 2020, U.S. District Judge James S. Gwin denied summary judgment to the City, Togliatti, and Kilbane, but granted summary judgment to Director O’Brien. He did so just before Defendants turned over—at the Court’s order—new “smoking-gun” evidence directly implicating O’Brien—a memo from O’Brien to Michael Kilbane (cc-ing: H.R. director Letitia Linker and Mayor Anthony Togliatti) dated March 25, 2019 (the “Smoking-Gun Memo”), in which O’Brien recounted his efforts to make Lt. Mazzola retire (attached as Ex. 9-1 to the Second Deposition of Greg O’Brien).

The Smoking-Gun Memo and O'Brien's court-ordered deposition testimony show that the defendants’ previous sworn deposition testimony denying that they had tried to force Lt. Mazzola to retire was... inaccurate.

The new evidence formed the basis for a motion for reconsideration of summary judgment for Director O’Brien and a newer lawsuit filed against O’Brien. Those proceedings were stayed pending appeal of the first suit. The settlement resolves all pending cases.

Defendants’ exposure

Defendants’ actions constituted classic First Amendment retaliation. In a highly similar recent Sixth Circuit case our firm handled, DeCrane v. Eckart, 12 F.4th 586 (6th Cir. 2021), a supervisor mistakenly believed that our firefighter client Sean DeCrane leaked information about the Cleveland fire chief's training ineligibility to be chief, and the appeals court held our client was entitled to First Amendment protection from retaliation.

Public employees cannot be retaliated against for sharing public information with the media or the public.[1] Public employees also cannot be retaliated against for raising concerns internally.[2] Mr. Mazzola’s efforts to advocate to the police chief, HR director, and then-mayor regarding ethical and legal concerns about the City’s traffic-ticket quota are protected speech and not subject to discipline.

Although Mr. Mazzola was not the source of the information reported in the January 14, 2019 Fox 8 story—as the May 3, 2019 follow-up story unambiguously confirms—whoever shared this public information with the news media was engaged in First Amendment­–protected free speech.

And the law confers the same protection against retaliation upon people believed to have engaged in protected conduct, like Mr. Mazzola.[3] Both documents the I-TEAM referenced or displayed were public records not subject to any exemption from disclosure under Ohio law. As to any information otherwise communicated to the I-TEAM, public employees have the right to communicate with the media and the public about information they learn in their jobs.[4]

Defendants recognized the First Amendment and retaliation issues implicated by their conduct. At Chief Kilbane’s direction, the attorney/polygrapher hired to conduct the “investigation” and outside city attorneys noted the “1stAmendment issue” and that “retaliation could be a problem.” Undeterred, however, the defendants continued their unconstitutional investigation and constructively discharged Lt. Mazzola.

Lt. Mazzola would have continued working until November 2026—the time at which he would have maximized his DROP pension benefit.

Settlement of nearly $1,000,000 incorporates Mr. Mazzola’s badge number—3940

The City of Independence will pay Mr. Mazzola $973,940 to settle his lawsuit. The number incorporates his Independence police badge number, 3940. The Independence City Council on May 10, 2022 also passed a resolution honoring Mr. Mazzola and his career, including his graduation with highest honors in academics from the Ohio State Highway Patrol Academy; his completion of K9-officer training with K9 Yambo, with whom he served as as a team until 2007; his receipt of multiple recognitions for patrol activities; his promotions to sergeant and lieutenant, and most recently his service as the Department’s patrol commander. The Council also noted Mazzola has been recognized multiple times by neighboring communities and received multiple special recognitions by the Federal Bureau of Investigation.

The City and Mr. Mazzola made the following joint statement, “Mr. Mazzola and the City are mutually satisfied that this resolves the dispute against the City and thus avoiding additional protracted future litigation costs. The City wishes to thank Mr. Mazzola for his years of service to the residents of the City of Independence.”

Subodh Chandra, Mr. Mazzola’s lead counsel, said:

Mr. Mazzola opposed a dubious traffic-ticket quota that would have harmed Independence residents and non-residents alike. While he didn’t leak the quota’s existence to the media, he had every right under the First Amendment to do so because the quota was a matter of public concern. Nevertheless, he paid a heavy price, losing a career in public service that he treasured. The settlement amount incorporating his badge number—3940—speaks volumes about how badly he was wronged, and will enable him to move forward. Voters should always hold accountable all those who violate the Constitution, retaliate—and then aren’t truthful about it.

Mayor Togliatti was voted out of office by Independence voters in 2018. But he was elected to Independence City Council in 2021. Chief Michael Kilbane retired in 2021 and now touts himself as an "Instructor and Internship Coordinator" at the University of North Florida. Gregory J. O'Brien remains law director of Independence.

Mr. Mazzola was represented by Subodh Chandra, Donald Screen, and Patrick Haney.


[1] See, e.g., State ex rel. Hutson Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623–24 (1994) (“In Ohio, public records are the people’s records, and officials … are merely trustees for the people[.]”); Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988) (public employee’s statements to reporter about public records were protected by First Amendment); See v. City of Elyria, 502 F.3d 484. 495 (6th Cir. 2007) (a public employee’s right to speak on matters of public concern without government retaliation is settled); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 182 (6th Cir. 2008) (public employee’s conversations with reporter regarding public official’s improprieties were protected speech); Miller v. City of Canton, 319 Fed. Appx. 411, 418–19 (6th Cir. 2009) (police officer who issued a press release about misconduct in department was engaged in protected speech); Whitney v. City of Milan, 677 F.3d 292, 297–98 (6th Cir. 2012) (public employee’s right to speak out about mayor’s corruption was clearly established); Kiessel v. Oltersdorf, 459 F. App’x 510, 514–15 (6th Cir. 2012) (police sergeants’ letter to editor revealing improper department practice was protected conduct); Spencer v. City of Catlettsburg, 506 F. App’x 392, 395–96 (6th Cir. 2012) (public employee’s speech publicly revealing missing records was protected); Lane v. Franks, 573 U.S. 228, 240 (2014) (“[T]he mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech… [The issue] is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”).

[2] Way v. Shawnee Twp., 192 F. Supp. 3d 867, 879 (N.D. Ohio 2016) (“an employee’s choice to communicate privately with an employer does not strip the concern of its public nature.”).

[3] Heffernan v. City of Paterson, N.J., 578 U.S. 266, 272–73 (2016) (mistaken belief that an employee engaged in protected conduct extends protection from retaliation to that employee); DeCrane v. Eckart, 12 F.4th 586, 591 (6th Cir. 2021) (same; citing Heffernan).

[4] Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015) (citation omitted).

Related Practice Areas
Employment retaliationFirst AmendmentGovernment ethics, misconduct, fraud, & abuseWhistleblower actions (False Claims Act)
Tags
sean-decraneanthony-togliattifirst-amendmentmichael-kilbanegregory-j.-o'brienleonard-mazzolafirst-amendment-retaliationcity-of-independenceedward-eckart

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