Alderman's removal said illegal

Wednesday, May 20, 2009

PETERSBURG -- The alderman who was removed from office by the town board in December has filed a complaint in federal court alleging it was a violation of his constitutional rights.

When asked on Monday for their side of the story, Aldermen John Cowden and Kenneth Boles said their Tennessee Municipal League attorney advised against commenting until he had enough information.

Attempts to reach the other defendants were unsuccessful, but one of Anthony Nichols' attorneys, Michael Wall of the Nashville law firm of Howell & Fisher, explained the origins of the allegations.

"Mr. Nichols had been raising issues that made other people feel uncomfortable, but they're important to the town," Wall said, citing a few points made in the complaint filed in April at U.S. District Court in Winchester.

They include: Town Recorder Dawn Forlines' use of town funds for too much paid vacation time and overtime hours that weren't sufficiently documented; Police Chief Larry Hardin's use of his patrol car to drive his girlfriend to work, and; The state comptroller's identification of irregularities cited in an audit, Nichols' attorney explained.

"His decision to bring these things up on behalf of his constituents led to his removal," Wall said. "He wasn't trying to make them personal, but he felt an obligation to do it."

A vote by aldermen during a special called meeting for one purpose other than ouster was in retaliation against Nichols, his lawyer said while discussing the complaint in a telephone interview.

Reasons given by aldermen and then-Mayor Cowden included Nichols' alleged display on Oct. 31 of a digitally-altered photo of a bare chested woman with the face of Sarah Palin superimposed on the other woman's head.

"It also included a profile of John McCain's face, which appeared to be staring at the body of the Sara Palin figure," the complaint states of an incident at Town Hall including Hardin, Forlines, Alderman Kenneth Richardson and Nichols.

Forlines saw Nichols show the image on his cellphone to Hardin and Richardson, but Nichols said he wouldn't show it to Forlines.

"When Mr. Nichols said this, Ms. Forlines grabbed his hand and turned it so that she could see the display of his cellphone," the complaint states. "Ms. Forlines made a casual remark and returned to her business. She did not say she was offended and did not appear to be so. She continued to participate in the others' conversation."

Hardin said he had already seen the picture and Richardson said it might help get McCain elected, according to the suit.

Within two weeks, at the town board's November meeting, Nichols "alluded to Ms. Forlines' improper receipt of wages and ... leave," the complaint states. "'Stealing is stealing,'" Nichols said to Cowden in an exchange that apparently prompted Forlines' husband, Eugene, to ask who Nichols was calling a thief.

Eugene Forlines was an unsuccessful candidate for alderman in the election that put Nichols in office.

On Nov. 26, Cowden and then-vice mayor James Owen, who's since succeeded Cowden as mayor, met with Nichols at Town Hall where Nichols was told Ms. Forlines threatened litigation against the town and Nichols over the display of the image on Nichols' cellphone.

Nichols was asked to resign. He didn't and during the town's regular meeting on Dec. 8, a Monday, when Nichols couldn't attend, the board discussed the Oct. 31 incident. Alderman Brad Dillenback moved to table the discussion and the board agreed.

Subsequently, Nichols asked Owen for copies of statements about the Oct. 31 incident and city documents on Forlines, Hardin and town policy. He didn't get them and then on Dec. 15, when the board was to deal with only one other matter, the board voted to remove Nichols and appoint Ricky Wright. If successful, the lawsuit would result in Wright's removal, Wall said.

Dillenback voted no. He's not a defendant in Nichols' complaint. Named defendants are the town and Cowden, Owen, Boles, Richardson, Wright and Phillip McMillin.

If Nichols' display of the image showing faces of Palin and McCain was why he was removed, the complaint states that "The showing and discussion of this image constituted political speech and parody, protected by the First Amendment."

Removing Nichols had "a chilling effect on free speech and would deter an ordinary person from engaging in it," the complaint states.

Removing Nichols denied him from free association with town officials and that's another constitutionally protected right, the suit states.

Nichols was also denied equal protection under the law since he was removed from the board for exercising his rights and elected authority when Forlines and Hardin were only reprimanded for their actions, the suit alleges.

Furthermore, Nichols was denied his constitutionally-protected right of due process under law when he was removed from office, the complaint states.

The town has no pre-established system to remove aldermen and the town did so when it could have taken the case to Marshall County Chancery Court.

Nichols' complaint asks the federal court to require the town and six of the men on the board to explain in open court what authority was used to remove Nichols. The federal court is also asked to compel the town officials to recognize Nichols as a duly elected alderman.

While an award of damages is sought by the case, no specific amount is stated. Wall said "it's very, very hard to quantify the monetary damages" of what was done to Nichols.

The complaint also seeks attorney's fees and other costs arising from the litigation. A jury trial is requested.

A case management conference is a likely juncture for the parties in the case although none had been set, Wall said. Official notification has recently been delivered to the defendants who might normally have about two weeks to reply. The complaint was dated April 17. Wall said he might anticipate more than one defense team because some defendants might have different interests. Wright could be an example since he was not on the board when Nichols was removed.