Fired utility GM sues city of Willmar, Minn., and utility, lawsuit includes defamation allegations against Frank Yanish and Ron Christianson
WILLMAR -- The fired general manager of the Willmar Municipal Utilities has filed a lawsuit against the city of Willmar and the utilities alleging discrimination, breach of contract, fraud, and violation of the Open Meeting Law.
The lawsuit filed by Bruce Gomm also alleges defamation and specifically alleges defamation by Mayor Frank Yanish and City Council member Ron Christianson.
The lawsuit filed Friday by Gomm in Kandiyohi County District Court asks the court for a judgment of more than $50,000, for reinstatement of his position with front pay and back pay and for a full one year's severance pay together with benefits in accordance with his contract.
Gomm also asks the court for costs, disbursements, and punitive damages under the Minnesota Human Rights Act, reasonable attorney's fees, and for an order discharging the members of the Willmar Municipal Utilities Commission for more than three violations of the state's Open Meeting Law.
The commission voted Monday to terminate Gomm, effective March 28, for policy violations and findings in a report from an attorney's investigation into possible misconduct by Gomm. Many of the findings in the lengthy report centered on hiring practices and decisions by Gomm, and others reflected communication problems between Gomm and employees and between Gomm and members of the Municipal Utilities Commission. (The investigative report, and Gomm's written responses to the findings, can be found online at www.wctrib.com.)
The commission on Dec. 12 placed Gomm on paid administrative leave, pending the outcome of the investigation. The commission's action Monday extends his leave to the end of March to meet the contract requirement for 30 days' notice of termination.
Attorney Paul Reuvers of Bloomington will be representing the city and the utility. Reuvers said the commission had an obligation to investigate and determine the merit of allegations of misconduct levied against Gomm.
Reuvers said the commission, "with the guidance of the League of Minnesota Cities Insurance Trust, undertook the necessary steps to ensure an unbiased investigation and retained Dyan Ebert, a well-respected attorney, to complete the necessary inquiry.''
Reuvers said Ebert had no vested interest in the outcome of her investigation, which was outlined at the commission's meeting on Monday.
Reuvers said the commission "maintains its actions were lawful and proper in all respects and will vigorously defend the claims in this lawsuit. Mr. Gomm's lawsuit has no merit and we look forward to having his claims adjudicated in a court of law.''
Copies of the summons and complaint were served Friday at Willmar City Offices and at the utilities office. The summons requires the defendants to provide an answer to the complaint within 20 days after being served. (A copy of the summons can be found online at www.wctrib.com.)
"I feel that there are a lot of discriminatory actions that led to this action, and I feel that religious discrimination is one of them,'' Gomm told the Tribune.
Gomm, 44, is a member of the Church of Jesus Christ of Latter-Day Saints (Mormons). He was hired on May 14, 2007, and began work on June 18.
Gomm alleges he was discharged because of his religion. The lawsuit alleges he was subjected to harassment based on his religion that included criticism from commission members, their employees and various city officials for hiring members of his faith; firing members of his faith in an attempt to deprecate his and their religion; discharging him as a result of his religious faith; and interfering with the performance of his duties resulting from a prejudice against Gomm's faith.
The lawsuit alleges Gomm's employment contract entitled him to one year's salary upon termination, together with various benefits as outlined in the agreement. The suit alleges the utilities violated the agreement by failing to pay Gomm the severance pay and benefits to which he was entitled.
Under the agreement, the utilities would be entitled to refuse severance pay and related benefits only if Gomm were to be discharged for cause.
Despite utilities' claim of cause, the lawsuit alleges, Gomm's employment was not legally discharged, that he was never the subject of discipline under utilities' employee handbook and that utilities' justification for its claimed "for cause'' discharge was "wholly pretextual.''
The lawsuit states that Gomm and the utilities entered into contract negotiations on or before May 11, 2007, and that as an inducement to accept employment, utilities offered to pay one year severance pay upon termination of Gomm's employ. The suit says Gomm relied on this representation in accepting the job.
At the time utilities entered into negotiations, according to the lawsuit, utilities, its agent and attorneys actually and/or constructively knew that the offer made of one year's severance pay was illegal, and failed to tell Gomm that it drafted and was offering him an illegal contract as an inducement for employing him.
During the special Monday commission meeting called to act on the investigative report, Reuvers said he was not representing the commission or the city at the time Gomm's contract was negotiated. "I can't speak to the dynamics of how that was put in,'' he said.
However, Reuvers said that the one-year compensation package violates state law and is not enforceable.
The lawsuit alleges that after the utilities fired Gomm, it refused to pay him the severance pay and other benefits, citing the illegality of the contract it had drafted.
The lawsuit alleges that "as a result of utilities' fraudulent misrepresentations,'' Gomm accepted employment, foregoing more lucrative opportunities.
The lawsuit alleges defendants defamed and slandered Gomm to various people and institutions. The suit alleges Yanish told former utilities commissioner and commission president Bob Bonawitz that Gomm had made hotel charges in Washington, D.C., which were unauthorized.
The suit alleges Christianson stated to investigative attorney Dyan Ebert that there was a hotel charge in Washington, D.C., which was $800 per night and that Gomm's use of the utility credit card was unauthorized and unlawful.
Gomm told the Tribune the $800 cost included hotel costs for commissioners who were also attending a conference with Gomm in Washington, D.C.
One of the findings in Ebert's report was that Gomm violated the credit card policy by failing to turn in timely receipts to support the charges he made. However, Ebert found no evidence to support the allegation that Gomm made improper or "unapproved'' credit card purchases.
The lawsuit alleges numerous officials of the City Council, city and utility employees, and commissioners stated that Gomm was hiring unqualified employees because they were members of his own faith, and cites other statements that the lawsuit alleges were untrue, defamatory and actually or constructively malicious.
The lawsuit alleges the utilities and the city held many illegal closed meetings, although the suit does not specify dates. At many closed meetings, whether legal in form or illegal, utilities and the city had in attendance persons not authorized to appear at closed meeting.
That allegation is in reference to the Dec. 12 closed meeting that was attended by Christianson. The closed meeting was called to discuss possible utility employee misconduct.
The Tribune asked City Attorney Rich Ronning in December if it was appropriate for the commission to allow Christianson, who said he was appearing as a citizen, to attend a closed meeting where private personnel data may be discussed.
In a written response, Ronning said the Minnesota Open Meeting Law and Minnesota Government Data Practices Act set forth parameters regarding who may attend closed meetings and he said the commission acted in accordance with these requirements.
The lawsuit also alleges both city and utilities failed to properly memorialize the meetings, failed to post proper three days' notice of a pending closed meeting, did not properly post the information on that notice required by law, including the subject to be discussed, the person or persons who were to be discussed and the statutory authority under which the meeting was to be closed.
The lawsuit also alleges that on numerous occasions after closing its meetings to the public, utilities failed to state to the public what the subject of the closed meetings had been and what issues had been discussed or resolved in the closed meetings.