Adam J.Conti, LLC - 404.531.0701

STATE OF GEORGIA

CHATHAM COUNTY SUPERIOR COURT

WALTER J. WOZNIAK,

Plaintiff,

CIVIL ACTION FILE NO.:

v.

TIDELANDS COMMUNITY SERVICE

BOARD and THOMAS BROOME, IN

HIS INDIVIDUAL CAPACITY,

Defendants.

COMPLAINT

I. PARTIES

1.

Plaintiff, Walter J. Wozniak, resides in Winter Springs, Florida and is subject to the jurisdiction of this Court.

2.

Defendant Tidelands Community Service Board (TCSB) is an instrumentality of the State of Georgia.

3.

The TCSB is subject to suit in contract and tort.

4.

The TCSB has offices located in Chatham County at 607 Abercorn Street, Savannah, Georgia. It may be served personally at that location in care of Thomas Hodgson, its Area Director.

5.

Defendant Thomas Broome held the position of Area Director of the TCSB until May, 1995. He resides in Effingham County at Blandford Road, Rincon, Georgia 31326. He may be served personally at his residence.

II. JURISDICTION

6.

This action is brought pursuant to 42 U.S.C. 1983, the U.S. Constitution and the Constitution of the State of Georgia.

7.

Pursuant to O.C.G.A. 9-10-30, venue is proper in the Chatham County Superior Court as Defendant TCSB is headquartered within the geographical boundaries of that Court and equitable relief is sought against that Defendant.

III. FACTS

8.

From April 1, 1993 until November 17, 1994, Plaintiff held the position of Director of Administrative Services of the TCSB and its predecessor agency, Tidelands Community Mental Health, Mental Retardation and Substance Abuse.

9.

As Director of Administrative Services, Plaintiff was the Chief Financial Officer of the TCSB. Plaintiff was, therefore, under a professional and ethical duty to ensure that the highest standards of financial propriety were observed at all times by all personnel within the TCSB. This duty extended to his obligation to report suspected improprieties and take action to minimize the TCSB's potential liability.

10.

Beginning in June, 1993, Plaintiff discovered that over $600,000.00 had been expended by the TCSB during fiscal years 1990, 1991, 1992 and 1993 for repairs and maintenance on property rented by the TCSB.

11.

Plaintiff suspected that these expenditures may have been improper in that repairs of this nature are customarily the responsibility of the owner of the property and not its tenants.

12.

Plaintiff reported his findings in writing to the Area Director, the Assistant Area Director and the Chatham County Board of Health in August, 1993. As a result of Plaintiff's action, the Chatham County Public Health Director notified the Georgia Department of Fraud and Abuse of the questionable large expenditures.

13.

The TCSB lost $748,000.00 in fiscal year 1993 from operations.

14.

The Budget Director, who had retired in December, 1992, was given a contract as a consultant by the Executive Director in January, 1993 for six (6) months and was paid $38,000.00. He was given another contract by the Area Director for fiscal year 1994 for $65,000.00. When Plaintiff discovered this renewed consulting contract with the former Budget Director in July, 1993, he terminated this contract by giving the thirty (30) days' notice specified in the contract.

15.

In August, 1993, Plaintiff discovered that $63,000.00 had been paid to the son of the Purchasing Agent for lawn maintenance over a two (2) year period. Plaintiff questioned this expenditure because the lease on the Abercorn facility required the landlord to perform all lawn maintenance at the landlord's expense.

16.

In August, 1993, Plaintiff discovered that the TCSB had been paying rent on a flooded basement for two (2) years even though that rent should have been abated. Plaintiff renegotiated the lease with the landlord and had the rent reduced by $45,000.00 over the remaining life of the lease.

17.

In June, 1993, Plaintiff discovered that the TCSB had paid its laboratory contractor almost $30,000.00 for erroneous lab test charges. Plaintiff was successful in recovering overcharges for these payments from the vendor in June, 1993.

18.

In July, 1993, Plaintiff presented a financial plan to the Area Director, the Assistant Area Director and the Assistant Directors of various components. The financial plan was approved unanimously at the weekly management council meeting in July, 1993. This plan discussed measures necessary to balance the budget for fiscal year 1994. In addition, the plan specified a system of internal controls to be implemented.

19.

Plaintiff met at the facility with Barbara Rubin, investigator for the Georgia Department of Fraud and Abuse in Savannah, in September, 1993. At that time, Plaintiff expressed concern that inappropriate expenditures had been made over the past three (3) years. Plaintiff provided written documentation including canceled checks, computer reports, purchase orders and purchase requests to the investigator at that time.

20.

Plaintiff met with the internal audit staff of Chatham County in December, 1993 to review an anonymous complaint letter received by Chatham County Commission Chairman regarding expenditures of the TCSB. A confidential report was eventually published by the County's internal audit staff with recommendations to prevent further questionable expenditures.

21.

Beginning in February, 1994, Plaintiff repeatedly shared his concerns regarding excessive expenditures for personnel, supplies, utilities and contracts with the Area Director and the other Assistant Directors.

22.

In June, 1994, the TCSB experienced a cash flow shortage of $500,000.00 due to unbudgeted actual expenditures and lapsed funds by departments and because of a carryover loss from the previous fiscal year of $434,000.00.

23.

In July, 1994, at a budget retreat, Plaintiff reported to the Management Council, which consisted of the Area Director and the Assistant Directors, that operations for fiscal year 1994 showed a substantial deficit. Plaintiff also presented a fiscal budget for 1995 which specified that expenses would have to be held to a three percent (3%) increase during the new fiscal year to balance the budget. The Area Director and the Assistant Directors approved the budget.

24.

During August, September and October, 1994, Plaintiff presented numerous financial reports to the Area Director and the Assistant Directors presenting them with actual and projected financial operation of the TCSB showing $1,000,000.00 loss in fiscal year 1995 if expenditures were not reduced.

25.

On October 31, 1994, the Area Director sent two letters to Plaintiff accusing him of allowing state funds to lapse and of not balancing the budget. Plaintiff sent the Area Director a written response on November 4, 1994 denying accusations and explaining the reasons for lapsed funds and budget not balanced.

26.

On November 17, 1994, Plaintiff and Richard Henry, Holland & Henry CPA, external auditors, made a report to the Community Service Board stating the deficit for fiscal year 1994 was $500,000.00.

27.

Plaintiff was discharged by Defendant Broome on the afternoon of November 17, 1994 following the monthly service board meeting. Defendant Broome refused to provide Plaintiff with a reason for the discharge.

28.

Plaintiff was not given advance notice of the discharge decision, any opportunity to respond prior to his separation nor any hearing on the decision to terminate his employment.

29.

The conduct of the Defendants as set forth above demonstrates malice, wantonness, willfulness, evil motive or intent and reckless or callous indifference to the protected rights of Plaintiff.

30.

As a result of Plaintiff's discharge, he has been deprived of his livelihood, subjected to great humiliation and mental anguish and subjected to other damages.

COUNT I

42 U.S.C. 1983 VIOLATION

31.

Paragraphs 1 through 30 are incorporated by reference as if set forth directly herein.

32.

Plaintiff's communications with external auditors, the Chatham County Regional Board, the Georgia Department of Fraud and Abuse, the TCSB, the Area Directors, the Assistant Directors, and other managers of the TCSB and other individuals regarding financial status of the TCSB, perceived management deficiencies, questionable expenditures and possible fiscal improprieties on behalf of the TCSB constituted free speech on matters of concern to the public which were protected by the First Amendment to the Constitution of the United States of America.

33.

Plaintiff's complaints to the Georgia Department of Fraud and Abuse, external auditors, Area Director and the Chatham County Internal Auditors constituted petitions to the government for the redress of grievances protected by the First Amendment of the Constitution of the United States of America.

34.

Plaintiff was discharged by the TCSB as a result of his exercise of the First Amendment rights described above in Paragraphs 32 and 33.

35.

Plaintiff's discharge for the exercise of constitutional rights violates 42 U.S.C. 1983 in that it constitutes a deprivation of rights, privileges and immunities secured by the Constitution by persons acting under color of State law.

COUNT II

INFRINGEMENT OF LIBERTY INTEREST

36.

Paragraphs 1 through 35 are hereby incorporated by reference as if set forth directly herein.

37.

The TCSB was informed by the Area Director that the financial projections for the fiscal year ending June 30, 1994 were incorrectly reported and that the resulting loss was the Plaintiff's fault.

38.

Since the foregoing statements and the manner in which Plaintiff was terminated are stigmatizing and false, they significantly foreclose Plaintiff's possibility of future employment in the field in which he was employed by Defendants.

39.

The manner in which Plaintiff was terminated and the statements made by managers and agents of Defendant TCSB concerning his termination infringed upon Plaintiff's liberty interest in his employment as guaranteed by the Fourteenth Amendment to the Constitution of the United States of America.

COUNT III

PROCEDURAL DUE PROCESS

40.

Paragraphs 1 through 39 are hereby realleged as if set forth directly.

41.

Because Plaintiff was terminated based on grounds which violated the Constitution and because Plaintiff's termination infringed upon his liberty interest, Plaintiff was entitled to a hearing to accord him an opportunity to address the charges against him, before his termination was effectuated.

42.

The TCSB's failure to grant him such a hearing violated Plaintiff's right to procedural due process protected by the Fourteenth Amendment to the U.S. Constitution.

COUNT IV

VIOLATION OF THE GEORGIA CONSTITUTION

43.

Paragraphs 1 through 42 are hereby alleged as if set forth herein.

44.

The manner in which Plaintiff was discharged violated his rights to free speech and his right to petition the government for redress of grievances protected by Article 1, 1, Paragraphs 4 and 9, respectively of the Constitution of the State of Georgia.

45.

The manner in which Plaintiff was discharged and his treatment by the TCSB at the time of his discharge violated his right to equal protection of the law guaranteed by Article 1, 1, Paragraph 2 of the Constitution of the State of Georgia.

COUNT V

LIABILITY OF DEFENDANT BROOME FOR

BREACH OF PLAINTIFF'S CONSTITUTIONAL RIGHTS

46.

Paragraphs 1 through 45 are hereby alleged as if set forth herein.

47.

The constitutional rights of Plaintiff as enumerated above in Counts II through IV were clearly established at the time of his discharge.

48.

Defendant Broome in his individual capacity either actually knew, or in the exercise of his duties should have known, of Plaintiff's constitutional rights.

49.

Defendant Broome in his individual capacity is therefore liable to Plaintiff for breach of Plaintiff's constitutional rights in violation of 42 U.S.C. 1983.

WHEREFORE, the Plaintiff demands that a trial by jury be had on all Counts and that following such trial, judgment be entered on Plaintiff's behalf against Defendant TCSB granting the following relief:

1. Cancellation of Plaintiff's termination;

2. Reinstatement of Plaintiff with back pay and such benefits as Plaintiff would have enjoyed had he never been separated;

3. If reinstatement is impossible under the circumstances, the TCSB be ordered to grant Plaintiff front pay until the Plaintiff reaches age sixty-five (65);

4. Full and fair monetary damages in an amount to be proven at trial to compensate Plaintiff for the mental anguish, humiliation, pain and suffering and such other damages as resulted from the improper conduct of Defendant TCSB;

5. Plaintiff's costs of this action including reasonable attorneys' fees;

6. Such punitive damages as are determined by the enlightened conscience of an impartial jury are warranted to deter Defendant from future conduct of the type proven at trial;

7. Such further and additional relief as the Court may deem is appropriate.

Furthermore, Plaintiff respectfully requests that the Court enter judgment against Defendant Thomas Broome as follows:

1. Damages in the amount of the compensation and value of benefits Plaintiff would have received had he continued in employment and not been terminated on November 17, 1994 with prejudgment interest and full compensation for such benefits as Plaintiff lost;

2. Full and fair monetary damages in an amount to be proven at trial to compensate Plaintiff for the mental anguish, humiliation, pain and suffering and such other damages as resulted from the improper conduct of Defendant Broome;

3. Plaintiff's costs of this action including Plaintiff's reasonable attorneys' fees;

4. Such punitive damages as are determined by the enlightened conscience of an impartial jury are warranted to deter Defendant from future conduct of the type proven at trial;

5. Such further and additional relief as the Court may deem appropriate.

Respectfully submitted this __________ day of ________________, 1996.

______________________________

Adam J. Conti

Georgia Bar No. 182475

Wimberly & Lawson, P.C.

Suite 400, Lenox Towers

3400 Peachtree Road, N.E.

Atlanta, GA 30326

(404) 365-0900