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Secret tape leads to $500,000 suit

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 laCarrie J. Sidener and Alicia Petska
The News & Advance

Published: August 5, 2009


A covertly taped meeting between a Lynchburg police detective, the city manager and the police chief, has become the subject of a $500,000 lawsuit.

Detective John Romano filed suit against the city of Lynchburg, City Manager Kimball Payne and Police Chief Parks Snead on Tuesday, claiming he was harassed and intimidated after publicly criticizing the city manager during a March City Council meeting.

Click to view the lawsuit

Guide to tape
00:08 Police Chief Parks Snead and Detective John Romano discuss the city manager’s reaction to Romano’s public statement, made 24 days earlier, questioning the city manager’s handling of the budget. Snead tells Romano the city manager was upset early on, “but that was a long time ago. He’s fine now.“ He also offers words of support for the detective. “You work here and you’re in the years-long habit of doing the right thing. I know that. I’m not concerned about that.“
01:30 Awaiting the city manager’s arrival, Snead and Romano engage in small talk. Snead explains the history of a keepsake on his desk. Romano reports on some of the cases he is working on.

City Manager Kimball Payne arrives. The recording rustles for several seconds as the men exchange greetings.
08:15 The conversation at the center of Romano’s lawsuit begins. During this period, Payne tells Romano that his earlier statement contained inaccuracies and was personally insulting to him. He also criticizes Romano for failing to identify himself as a city employee at the time, saying the detective misrepresented himself and fell short of the level of integrity expected in city government. Romano responded he wanted to separate his professional and personal life in this matter and repeatedly requests that they discuss this at a time when he isn’t working. He also said he was observing the wishes of the police chief by not mentioning his place of employment. The chief, who remained quiet during most of the meeting, acknowledges that Romano was advised to omit the fact that he’s a city employee.
At one point, Payne tells Romano that if he continues to do these things it will affect his career and “you’ll never be able to prove it didn’t.“ Romano responds that he did not violate any city policy and says he’s feel the city manager may have crossed a line. “You’re basically threatening me that if I speak again that I’m going to be penalized in a way that may not be easily detectable. And I don’t think that’s appropriate.“
Payne later apologizes and says it was never his intent to threaten Romano. He also indicates he does not intend to hold a grudge. “As far as I’m concerned when this is over, this is over,“ he said. “Because I don’t live my life that way. And if you thought I was threatening you earlier, I apologize for that. I certainly didn’t mean to do that. Because I don’t intend to do anything, other than hopefully answer your (budget) questions some day when we have that chance.“
45:52 The conversation begins to digress into a form of friendly small talk. Topics include issues related to computer crime — a specialty of Romano’s — and a shooting simulation program operated at the Central Virginia Criminal Justice Academy.
The 54-minute recording, filed in evidence in the U.S. District Court for the Western District of Virginia, begins with Snead and Romano chatting about the upcoming meeting with Payne and various cases before Payne arrives to talk about Romano’s statements during the prior month’s meeting.
Payne said in a statement he read during a news conference Wednesday that he called the meeting to discuss what he felt was Romano’s unfair criticism of the city’s budget process and of Payne himself.
“During a portion of that meeting, I regret to say that I lost my temper when Officer Romano refused to discuss the substance of the comments he made to City Council,” Payne said. “In my anger, I made some harsh comments for which I apologized at the time, and I apologize again. I was wrong to lose my temper, and I should not have said what I did.”
Romano’s suit claims he was retaliated against for speech that is protected by the First and Fourteenth amendments after he addressed City Council on March 10, as the president of the New Towne Homeowners Association and a city resident. He, however, did not identify himself at that time as a city employee or a police detective.
“… Payne and Snead conspired to confront John C. Romano in an effort to harass, intimidate and otherwise threaten him in the exercise of his Federal and State Constitutional rights by isolating him during normal employment hours and at a location utilizing City of Lynchburg public property to create an atmosphere of maximum intimidation and emotional distress which could be inflicted on the plaintiff …,” the lawsuit said.
Payne acknowledged Romano’s right to address council but, in the recording, he can be heard discussing the ethics of Romano not disclosing his status as a city employee.
Payne said Wednesday he wasn’t aware of being recorded, but later learned of it after Romano filed an internal complaint with his lieutenant. He has heard the recording and said, “It’s accurate. It’s complete. It is what it is.”
“No actions whatsoever have been or will be taken against Officer Romano by me, the Chief of Police, or anyone else in city government as Officer Romano was told during and has been told repeatedly since our meeting,” Payne said. “I regret that this matter takes away attention from other important city matters, and I apologize for any embarrassment that my role might cause City Council, the city of Lynchburg and city employees.”
Some of statements made by Payne that are at issue in the lawsuit include:
• “If I was a vindictive son of a bitch, you would have a lot of problems on your hands. You’re lucky I am not.”
• “You can’t just draw a line… we’re not gonna start letting any employee ... cause I’m gonna start takin’ it personally ... to stand up in front of city council as a citizen when that son of a bitch doesn’t know what he’s doing and expect there not to be any repercussions.”
• “I’m just telling you for the rest of your career, don’t pretend you can do this because you can’t. You’re gonna get away with it this time because I’m not a vindictive person, but don’t pretend you can do that because it’s gonna make a difference in your career, and you’ll never be able to prove it didn’t. I’m telling you the truth as I see it.”
• “But if I start to see a line of employees coming to city council meetings hiding behind their constitutional rights to insult me, it’s not gonna work ... there’s gonna be repercussions.”
The lawsuit also claims that after this meeting there continued to be a pattern of restraint and repercussions for Romano, and seeks damages for a loss of “enjoyment of his profession and will,” the loss of earning capacity and injury to his name, character and reputation as a detective.
Romano and his attorney, Michael Kernbach of Fairfax, could not be reached for comment.
City Attorney Walter Erwin said early Wednesday afternoon he was aware of the suit but not yet been served with the complaint. He declined to make any additional comment in advance of the city manager’s statement, which had been scheduled for later that day.
Snead declined to answer questions about the pending lawsuit but issued a brief statement to police department employees.
“I have not at this point had an opportunity to review any of the documents filed in relation to this suit,” the e-mail said. “ … I am providing this information so that you will all hear about this directly from me. I do not intend that this matter will affect Police Department operations in any way. I simply want all of you to be aware of the situation.”
During the March meeting, Romano publicly criticized Payne for his handling of the budget during a citizen presentation to City Council, saying the budget was “dubious” and calling for greater transparency in the city’s financial processes.
“In closing, it is apparent to me that (City Manager Kimball Payne) has made several decisions in the implementation and management of the FY09 budget that make me uncertain of his logic and reasoning,” Romano said while addressing City Council last week.
“While I do not believe that manager Payne has intentionally taken these steps without the best interest of the citizens and those who provide services to them, I believe that it is our duty as citizens to see to it that these misfortunes are not repeated in FY2010.”
He did not identify himself as a city employee during his comments to council and declined to answer any questions related to his employment in a later interview with The News & Advance.
In the recording, Romano told Payne he was sorry if he took those comments as a personal attack. He also said he was instructed to make his comments as a private citizen by his supervisors. He also said in the recording that he ran his prepared statement by his lieutenant prior to giving his address.
“You misrepresented yourself,” Payne said in the recording. “That causes concern. To stand up and pretend you’re not a city employee is not the truth. To misrepresent yourself, to not fully represent yourself is not the level of integrity we try to maintain around here.
“I’m telling you, you are going to damage the integrity of the police department. If you and your colleagues continue to do this, it will do damage. There will be repercussions. I’m not threatening you at all.”
Romano said in the recording that perhaps in hindsight he should have addressed those concerns privately with Payne, adding “I would have to be one stupid individual to publicly criticize the city manager, who is my boss, to get up there and say those things and not feel like I was speaking from the heart …  I’m not questioning your integrity, not at all.”