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Freebery v. Coons

November 21, 2008


The opinion of the court was delivered by: Paul S. Diamond, J.

Diamond, J.


Plaintiff Joseph Freebery alleges that Defendants Christopher Coons and New Castle County violated the United States Constitution and Delaware state law when they fired him. I grant Defendants' Motion for Summary Judgment.


I have construed the facts in the light most favorable to Plaintiff, resolving all disputes and making all reasonable inferences in his favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Legislative Changes Following The 1996 County Election

In 1996, Thomas Gordon was elected County Executive -- the highest ranking official in New Castle County's Executive Branch. (Compl. at ¶ 18.) See 9 Del. C. § 1111. Mr. Gordon appointed Plaintiff's sister, Sherry Freebery, Chief Administrative Officer -- the second highest Executive Branch position. (Compl. at ¶ 18; Freebery Dep. at 255.)

Delaware statutory law then provided that the County's ten Departments were to be headed by Directors whom the County Executive appointed and who served at the Executive's pleasure. (Id. at ¶ 17.) See also 9 Del. C. § 1120(b) (1997). In 1997, Mr. Gordon asked the Legislature to change the law so that the ten County Departments would merge into five, each headed by a General Manager. (Id. at ¶ 20.) Under the Gordon proposal, GMs would be "classified" positions within the Merit System. (Id. at ¶ 21.) See also 29 Del C. § 5901 et seq. Classified employees may be terminated only "for cause," as defined in the Merit System rules. See 29 Del C. § 5930; Ringer v. Fallis, 848 F. Supp. 519, 526 (D. Del. 1994). In 1997, the Delaware Legislature enacted Mr. Gordon's proposed statutory changes, which the New Castle County Council then implemented. (Id. at ¶¶ 25-26.) See also 71 Laws 1998 ch. 401 §17, eff. July 13, 1998.

Plaintiff's Employment With New Castle County

In 1984, the County hired Plaintiff as its Superintendent of Parks. (Compl. at ¶ 13.) In 1997, following the Legislature's enactment of Mr. Gordon's proposal, Plaintiff was promoted to County GM of Special Services. (Id. at ¶ 32.) All GMs reported directly to the CAO. (Freebery Dep. at 257.) As GM, Plaintiff was among the highest paid County employees. (Id. at 310.)

Plaintiff's responsibilities, as established by state statute, included: managing and developing plans for public facilities and infrastructure; preparing designs and specifications for all types of public facilities and infrastructure; managing, maintaining, and operating public facilities, infrastructure, public water supply systems, and public buildings; and managing and maintaining the County fleet and central garages for the storage and maintenance of equipment.

9 Del. C. § 1341. In addition, Plaintiff testified that he recommended policy to the Administration, and prepared ordinance packages and budgets that he submitted to the County Executive and CAO. (Freebery Dep. at 337-39.) Finally, Plaintiff managed a workforce of up to 475 people, recommended employee disciplinary action, managed a $70 million operating budget and $500 million capital budget, and negotiated contracts on behalf of the County. (Compl. at ¶ 41; Freebery Dep. at 255; 338-39.)

In 2003, Mr. Coons, who was then County Council President, proposed legislation to remove GMs from the Merit System and to reinstate politically appointed Directors to head each County Department. (Freebery Dep. at 62-63.) Plaintiff lobbied against the bill. (Freebery Dep. at 62-63.) On June 25, 2003, the Delaware House of Representatives passed the bill, which failed to pass the Senate. (Id.; Doc. No. 176, Ex. 2.)

On November 24, 2003, Mr. Gordon and Ms. Freebery, reiterating their earlier "oral promises," wrote a memorandum to the GMs:

Lest some forget the promises that were made to you when you accepted the promotion to General Manager, these same promises are hereby re-stated to you so that you may rely upon them legally. The politically-appointed position of "director" was intentionally deleted from state law as the head of each department. In its place, a merit system title of "General Manager" was used to denote the head of each department.

Of course, someone could change state law, or even without a change, could re-hire political appointees as department directors, as in the days of old. Thus, a political appointee could direct you and your subordinates. We eliminated these costly positions to save money, and to induce you to accept a leadership role in your department, immune from political pressure, and still secure in a merit system position. You accepted your position as general manager based on that understanding.

Today, it is again re-stated. You may rely upon your position as general manager remaining as a merit system position, devoid of political whims and pressures. No threat of termination may affect you, except for just cause or non-performance. (Doc. No. 183, Ex. 7.)

Before Plaintiff's 1997 promotion to GM, he served as Superintendent of Parks -- a classified position. (Compl. at ¶¶ 13, 33; Freebery Dep. at 14.) Plaintiff testified that when he accepted the promotion to GM, he relied on the oral and written promises made by his sister and Mr. Gordon that GMs would always be classified, regardless of changes in state law. (Compl. at ¶ ¶ 34-36; Freebery Dep. at 369-71.)

The 2004 Election And Subsequent Changes In Delaware Law

"In September, 2002, it became public knowledge that [Mr.] Gordon and [Ms.] Freebery were the subjects and/or targets of a federal grand jury investigation in the District of Delaware." (Compl. at ¶ 44.) In February 2004, Ms. Freebery announced that she would seek the Democratic nomination for New Castle County Executive. (Id. at ¶ 45.) In April 2004, Mr. Coons announced his candidacy for the same nomination. (Id. at ¶ 46.)

On May 27, 2004, the grand jury in this District returned a wide-ranging indictment against Mr. Gordon and Ms. Freebery, charging corruption and dishonesty in their operation of County government. (Id. at ¶ 47.) Plaintiff was "privately supportive of his sister and publicly supportive of her." (Id. at ¶ 52.) Despite the pending criminal charges, Ms. Freebery continued to campaign for the County Executive nomination. The contest between her and Mr. Coons was "bitter and hotly contested." (Id. at ¶¶ 48-49.)

On September 11, 2004, Mr. Coons won the Democratic nomination, was elected County Executive in November 2004, and took office on January 4, 2005. (Id. at ¶ ¶ 54, 60.) Mr. Coons appointed David Singleton to serve as Chief Administrative Officer. (Singleton Dep. at 16.)

At Mr. Coons' urging, on January 25, 2005, House Bill #29 was introduced in the Delaware Legislature. (Id. at ¶ 63.) The Bill stated in relevant part:

b) The County Executive, with the advice and consent of the County Council, shall appoint the General Manager of Land Use, the General Manager of Special Services, the General Manager of Community Services, the Chief Procurement Officer, the Chief Financial Officer, the Chief Human Resources Officer, as well as the heads of any subsequently created departments, who shall each serve at the pleasure of the County Executive.

c) Notwithstanding any other provision of state or county law, on February 9, 2005, any persons then serving in any of the positions enumerated in this section shall cease to be classified service members of the New Castle County Merit System, but may thereafter continue to serve at the pleasure of the County Executive.

9 Del. C. § 1120. H.B. #29 became law on February 9, 2005. Id.

On January 27, 2005, Acting County Attorney Dennis Siebold advised Mr. Coons by memorandum (with a copy to Plaintiff) that under the new law, incumbent GMs automatically became unclassified employees, serving at the pleasure of the County Executive. (Doc. No. 176, Ex. 10.) Mr. Coons directed Mr. Singleton to evaluate the incumbent GMs. (Coons Dep. at 61.) The CAO reported that "there were a number of ways in which Mr. Freebery's performance was not supportive of what the new administration was trying to achieve." (Singleton Dep. at 61.)

On April 6, 2005, Mr. Coons fired Plaintiff. (Compl. at ΒΆ 72.) Mr. Coons testified that Plaintiff was non-responsive, did not follow through on his responsibilities, and did not fit "what [Mr. Coons] was looking for, for [his] senior team, which was a more proactive policymaking." (Coons Dep. at 136.) Mr. Coons also testified that he retained the other remaining incumbent GM, Charles Baker, in part ...

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