Two former Smithville city employees, who had been charged with theft of property for allegedly taking scrap brass from the water treatment plant and selling it to a recycling center, have now filed a lawsuit in DeKalb County Circuit Court against the City of Smithville. The suit was filed last Thursday, February 17th.
45 year old Kenny Waymon Dyal, Sr. and 42 year old Christopher Derrick Ferrell are asking for a jury trial. They want their old jobs back, compensatory damages for wages and benefits lost during the period of their unemployment, punitive damages for intentional, malicious, and reckless conduct of the city, for attorney fees and costs, and any other relief to which they may be properly and justly entitled. In the event they cannot be given back their jobs, Dyal and Ferrell are seeking lost differential wages and benefits to the date of their expected retirement.
Dyal was the supervisor of the Smithville Water Treatment Plant and Ferrell was a city maintenance employee and water meter reader.
Last month, Dyal and Ferrell appeared in DeKalb County General Sessions Court where, under a settlement, they agreed to make restitution in the amount of $1,348 jointly and severally. Once each defendant pays his half of the restitution, $674 the case against him will be dismissed and his record expunged
Dyal and Ferrell allege that they were discharged by the city to keep them from talking to state auditors about alleged misconduct of city Secretary-Treasurer Hunter Hendrixson and Public Works Director Kevin Robinson and that they were denied due process by not being afforded an opportunity to state their case in front of a board consisting of the mayor, department commissioner, and the secretary-treasurer.
WJLE contacted both Hunter Hendrixson and Kevin RobinsonTuesday afternoon for a comment on the lawsuit. Both are eager to respond but have not yet given a statement.
The lawsuit alleges that "shortly after Ferrell was hired, Robinson conducted Ferrell's training by taking him around and showing him where each of the water meters were located and how to read them. During this training, the pair visited the Smithville Municipal Golf and Swim Club to read the meters located on the premises. At this time, Ferrell was instructed by Robinson to not read the meter anymore because he (Kevin) had "taken care if it".
"Despite being instructed not to continue to take the meter readings, Ferrell continued to read the meters and reported those readings to Dyal, because he (Dyal) had to prepare reports of lost water usage to be submitted to the aldermen," according to the lawsuit.
"In the spring of 2010, during a meeting of the aldermen of the City of Smithville, Dyal was asked by Alderman Steve White to conduct an investigation into the lost water usage because the amount of water not being billed was regarded as high. Hunter Hendrixson was present at this meeting."
"In or around July, 2010, the Aldermen of the City of Smithville requested a state audit from the State of Tennessee's Comptroller of the Treasury to address the allegations related to the city's golf course and swimming pool operations."
The lawsuit alleges that "Hunter Hendrixson had knowledge of this impending audit and knew of the investigation that Dyal was conducting."
"In or around the summer of 2010, the City of Smithville entered into a contract with W&O Construction to replace water pipes at the water treatment plant. The contract between the City of Smithville and W&O Construction indicates it is the responsibility of W&O Construction to remove all of the scrap metal from the construction."
"When W&O Construction first began the construction process, another employee along with his son removed scrap pipe from the construction site and sold it to a scrap metal shop. To date, no charges have been filed against this employee nor have any disciplinary actions been taken by the City of Smithville."
"Having witnessed this, Dyal asked Hendrixson for permission to take other scrap metal off to be sold. Hendrixson gave his permission," according to the lawsuit.
"Dyal also spoke with Rick at W&O Construction to see if he could have his permission to remove the scrap metal. Rick told Dyal that the scrap "didn't mean anything to W&O and that he could take it."
"On October 21st, November 3rd, and November 4th, Dyal and Ferrell removed the scrap metal and sold it to a scrap metal business."
"On November 4th, even though both the City of Smithville and a representative from W&O Construction gave permission for Dyal and Ferrell to remove scrap metal, a complaint was filed with the Smithville Police Department and Dyal and Ferrell were arrested for theft of property."
"Without conducting proper dismissal proceedings as outlined in the City of Smithville Municipal Code, Dyal and Ferrell's employment was terminated on November 4th. This occurred just six days prior to the audit."
"Dyal and Ferrell allege that Hendrixson and Robinson, as officials of the City of Smithville, used their position with the city to intentionally defraud the city of money owed to it for water usage thereby committing theft of services as defined in (state law) in order to inflate the profits of Smithville Golf Management, LLC for which they would benefit as members."
"Dyal and Ferrell claim they had knowledge of this illegal activity and were prepared to disclose this activity to the auditor."
"They further allege that their arrests and subsequent dismissal was calculated in an effort to prevent them from talking with the state auditor and disclosing the results of the meter readings and investigation conducted by them" (Dyal and Ferrell).
Dyal and Ferrell allege that "It is the policy and law of the state of Tennessee that an employee must be able to disclose a violation of state law and or to refuse to violate state law without fear of reprisal or penalty from an employer."
They further claim that their exercise of this right protected by public policy was a substantial factor motivating the city's decision to discharge them.
Dyal and Ferrell assert that they were "terminated for theft of municipal property as a pretext, and that it is false and designed to cover up an illegal motive."
Under the Tennessee Public Protection Act, an employer is prohibited from discharging an employee solely for refusing to participate in, or for refusing to remain silent about illegal activities. According to Dyal and Ferrell, the City of Smithville violated state law as their refusal to participate in or remain silent about the illegal activities was the exclusive and only cause of the city's decision to terminate their employment.
Further, Dyal and Ferrell allege that the "City of Smithville violated the City of Smithville Municipal Code by terminating their employment without a suspension period, by not providing a hearing within three working days of the suspension, and by not affording them an opportunity to state their case in front of a board consisting of the mayor, department commissioner, and the secretary-treasurer."
The lawsuit claims that "The City of Smithville's conduct toward Dyal and Ferrell was committed in an intentional or reckless manner thereby causing them to suffer severe emotional distress."
Dyal and Ferrell are being represented in this case by attorney John W. Rodgers of Murfreesboro.
When contacted by WJLE for a response on behalf of the city Tuesday afternoon, Mayor Taft Hendrixson said he could not comment because of the pending litigation. A response has not yet been filed by attorneys for the city.