The City's Response

The City Attorney has responded to the Whistleblower lawsuit filed by Tom Coffin in the Fulton County Superior Court. In summary, the City’s response is to deny all allegations and call for dismissal of the suit. I hesitate to post the city’s entire response here as it is lengthy and repetitious ("Defendant denies, denies, denies…"), but in Tom’s desire for continuing openness and transparency, I have posted the City’s response in its entirety below.

The suit has now entered the "discovery" phase, with the first set of "Request to Produce" demands delivered to the City this week. Tom’s legal team will soon be taking depositions in preparation for a court trail by jury.

In an email Tom issued his supporters Friday, Tom says,

I greatly appreciate your continued interest in this case, the importance of which extends far beyond me. In a cynical end-around of the many individuals and groups who worked for years to rationalize and strengthen the law, City policy is now to not enforce the Tree Protection Ordinance while proclaiming otherwise. This is a major setback to both environmentally aware and concerned citizens and to developers and builders who seek the legal protection of a "level playing field" not subject to the cronyism and arbitrary decision-making characteristic of past -- and again present -- practice of the Bureau of Buildings.

Here is Tom Coffin's Complaint against the City of Atlanta in italics, followed by the City’s Answer in regular text. It is slightly abridged by the elimination of nine boiler plate “affirmative defenses” that precede the answer below.

Please remember that donations to the Tom Coffin Legal Fund can be made payable to Tom Coffin, at 1021 Highland View NE, Atlanta, GA 30306. (Please indicate "Legal Fund" on the "Memo" or "For" line on your check.)

JURISDICTION AND VENUE

1. This is a civil action arising under O.C.G.A. §§ 45-1-4(d), and Article 1, Section 1, paragraphs 3, 5 and 9 of the Georgia Constitution.

Defendants assert that the allegations contained in Paragraph 1 of the Complaint are legal conclusions and require no response from Defendant. To the extent that Plaintiffs seek to impose or imply liability upon Defendants by asserting the remaining allegations contained in Paragraph I, said allegations are denied.

2. Venue is proper because the Defendant, City of Atlanta, is located in Atlanta, Fulton County, Georgia which is located in the Atlanta Judicial Circuit.

Defendants assert that the allegations contained in Paragraph 2 of the Complaint are legal conclusions and require no response from Defendant. To the extent that Plaintiffs seek to impose or imply liability upon Defendants by asserting the remaining allegations contained in Paragraph 2, said allegations are denied.

PARTIES

3. Plaintiff Thomas Coffin is a resident of Atlanta, Fulton County, Georgia. During all times relevant to this Complaint, Plaintiff was an employee of the City of Atlanta and served as Senior Arborist. He was a public employee of a local governmental entity that receives funds from the State of Georgia and state agencies.

Upon information and belief, Defendants admit the allegations contained In Paragraph 3 of the Complaint.

4. Defendant City of Atlanta, employed Plaintiff, and terminated him as a result of his raising concerns about the failure of several arborists to enforce Atlanta’s Tree Protection Ordinance. Defendant receives funds from the State of Georgia and its agencies.

Defendant denies the allegations contained in the first sentence of Paragraph 4 of the Complaint. Defendant admits the allegations contained in the second sentence of Paragraph 4 of the Complaint.

FACTUAL ALLEGATIONS

5. Tom Coffin served as an arborist for the City of Atlanta for the years 2000 to 2008. Over this time, Coffin witnessed disproportionate enforcement of Atlanta’s Tree Protection Ordinance. Some arborists enforced the ordinance, and protected trees under the ordinance, while other often failed to follow and enforce the legal requirements of the ordinance.

Defendant admits the allegations contained in the first sentence of Paragraph 5 of the Complaint. Defendant denies the remaining allegations contained in Paragraph 5 of the Complaint.

6. In the summer of 2007, Dr. Coffin applied for the newly created position of Arborist Senior.

Defendant admits the allegations contained in Paragraph 6 of the Complaint.

7. When interviewed, he urged that the arborist division of the department needed effective operational and performance standards and needed implementation of employee accountability of those standards.

Defendant asserts that there are no allegations contained in Paragraph 7 of the Complaint and therefore require no response from Defendant. To the extent that Plaintiff seeks to impose or imply liability upon Defendant by asserting the allegations contained in Paragraph 7, said allegations are denied.

8. Dr. Coffin informed the interviewers that if hired he would anticipate holding himself and his subordinates accountable to the Tree Protection Ordinance of the City of Atlanta, and to the established Standards of Practice.

Defendant asserts that there are no allegations contained in Paragraph 8 of the Complaint and therefore require no response from Defendant. To the extent that Plaintiff seeks to impose or imply liability upon Defendant by asserting the allegations contained in Paragraph 8, said allegations are denied.

9. In late September of 2007, Dr. Coffin was promoted to the position of Senior Arborist, and was thereby assigned supervisory duties over other arborists in the division.

Defendant admits the allegations contained in Paragraph 9 of the Complaint.

10. According to the rating system used to rate Dr. Coffin’s job performance, one of Dr. Coffin’s “critical job elements” was to “follow and ensure that arborist [sic] follow the Standards of Practice as required.”

Defendant admits the allegations contained in Paragraph 10 of the Complaint.

11. When Dr. Coffin was promoted, the day to day operations of the arborist division were to be conducted by the staff of the division in accordance with the Standards of Practice which had been promulgated for such purposes prior to February of 2006.

Defendant admits only that the Standard of Practices provided guidelines for general work procedures within the City of Atlanta Arborist Division.

12. In April of 2008, Ainsley Caldwell, Arborcultural Manager of the Arborist Division of the Department of Planning and Community Development of the City of Atlanta re-released “Standards of Practice” to the Division.

Defendant admits the allegations contained in Paragraph 12 of the Complaint.

13. Although Caldwell’s transmittal memo in April of 2008 characterized the Standards as having been “revised and updated,” the Standards of Practice re-released by Caldwell were the same set of Standards which had been previously in place for the Arborist Division.

Defendant denies the allegations contained in Paragraph 13 of the Complaint.

14. Said Standards of Practice provided guidelines by which to ensure that the staff of the Arborist Division complied with the requirements of the City of Atlanta’s Tree Protection Ordinance.

Defendant admits only that the Standard of Practices provided guidelines for compliance with general work procedures within the City of Atlanta Arborist Division.

15. Attached hereto and incorporated herein as if fully set forth is a true and correct copy of the Caldwell memo described above. Said memo directed that “staff shall adhere to the Standards of Practice.”

Defendant admits the allegations contained in the first sentence of Paragraph 15 of the Complaint. Defendant asserts that the referenced letter speaks for itself. Defendant specifically denies that the second sentence of Paragraph 15 is stated in its entirety. To the extent that Plaintiff seeks to impose or imply liability upon Defendant by asserting the allegations contained in second sentence of Paragraph 15, said allegations are denied as stated.

16. Training of the arborists was instituted by Mr. Caldwell.

Defendant denies the allegations contained in Paragraph 16 of the Complaint as stated.

17. Both before and after the promulgation of the memo from Mr. Caldwell, Mr. Coffin engaged in conduct which constituted the reporting by him to his supervisors of actions being taken by other arborists employed by the City of Atlanta which were in violation of or noncompliance with the laws, rules or regulations of the City of Atlanta.

Defendant admits only that Plaintiff engaged in a habitual process of accusing and reporting others for alleged violations. Defendant asserts that the majority of the alleged violations were unfounded.

18. On or about May 1, 2008, Paul Lewkowicz was working as an arborist for the City of Atlanta. Mr. Lewkowicz was issued an Oral Admonishment for an improper “Preliminary Posting” in violation or noncompliance with the ruled and regulations of the Division. A “Preliminary Posting” references the placing of a sign on property that is subject to a building permit application requiring the removal of threes. When a property is “posted” such action indicates that the submitted site plan matches the site and is in compliance with the applicable provisions of the Tree Protection Ordinance of the City of Atlanta.

Defendant admits the first two sentences contained in Paragraph 18 of the Complaint. Defendant asserts that there are no allegations contained in remainder of Paragraph 18 of the Complaint and therefore require no response from Defendant. To the extent that Plaintiff seeks to impose or imply liability upon Defendant by asserting the remaining allegations contained in Paragraph 18, said allegations are denied.

19. In late May of 2008, Mr. Michael Franklin met with Dr. Coffin and Mr. Caldwell. The meeting was conducted as a result of reports by Mr. Coffin to Mr. Caldwell to the effect that Mr. Franklin had engaged in conduct which was in violation of or constituted noncompliance with a law, rule or regulation of the City of Atlanta including, but not limited to, the Standards of Practice, the Department of Planning and Community Development’s Code of Code of Conduct, and the City of Atlanta Code of Ordinances.

Defendant admits only that Plaintiff accused Michael Franklin of an alleged violation. However, the City of Atlanta Civil Service Board found no violation.

20. Following the May, 2008 report by Coffin, Dr. Coffin reported additional breaches of the Standards of Practice on Mr. Franklin’s part to Mr. Caldwell in late June of 2008. Mr. Franklin received a verbal reprimand for failure to follow City procedures. Other deficiencies in Franklin’s adherence to the laws and regulations of the City were reported by Dr. Coffin to Mr. Caldwell.

Defendant admits only the Plaintiff made additional accusations of Michael Franklin's alleged violations and deficiencies. Defendant further admits that Michael Franklin received a verbal reprimand.

21. In late April of 2008, Dr. Coffin reported conduct on the part of arborist Janelle Bazile which he believed to constitute a violation of or non-compliance with the laws, rules or regulations of the City of Atlanta, including the Standards of Practice. Dr. Coffin reported both the facts of Ms. Bazile’s conduct and her refusal to cooperate with his inquiry as to her conduct, despite his capacity as her supervisor, and despite Department of Planning and Community Development’s Code of Conduct mandating employees to cooperate with requests for information from their supervisors. Dr. Coffin’s efforts to obtain explanations from Ms. Bazile as to her actions which were the subject of Dr. Coffin’s reports to his supervisors were rebuffed.

Defendant admits only that Plaintiff accused Janelle Bazile of an alleged violation. The allegations of Janelle Bazile were not substantiated.

22. In the course of reporting the violations of the Standards of Practice on the part of other arborists, Dr. Coffin recommended that admonishments be issued to other members of the staff of the department.

Defendant admits only that Plaintiff made numerous and constant recommendations for admonishments to be issued to other members of the staff.

23. Dr. Coffin recommended admonishments of other arborist division employees for mis-classifying trees to permit their removal, which constituted a direct violation of the Division’s Standards of Practice.

Defendant admits only that Plaintiff made numerous and constant recommendations for admonishments to be issued to other members of the staff. Defendant denies the remaining allegations contained in Paragraph 23 of the Complaint as stated.

24. On or about July 14, 2008, Dr. Coffin submitted a report to his supervisor, Mr. Caldwell, in which Dr. Coffin pointed out that a survey of the performance on the part of the staff of the Arborist Division reflected that Dr. Coffin was the only field arborist engaged in systematic enforcement of the Tree Protection Ordinance through application of and compliance with the Standards of Practice. The survey reflected that other staff routinely failed to enforce the tree protection ordinance and sanctioned removal of trees that should have been protected under the Tree Protection Ordinance.

Defendant admits only that Plaintiff submitted a self-generated report. Defendant denies the remaining allegations contained in Paragraph 24 of the Complaint as stated.

25. On or about July 11, 2008, Dr. Coffin sought to obtain a meeting with Mr. Caldwell to discuss the possibility of discipline to be imposed on Division employees. On July 14, 2008, Dr. Coffin met with Mr. Caldwell and provided him with an analysis of arborist production and enforcement activities. On July 18, 2008, Dr. Coffin again made a request to Mr. Caldwell for a meeting to be attended by Caldwell, Bazile and Franklin.

Defendant admits the allegations contained in Paragraph 25 of the Complaint.

26. On July 21, 2008, Mr. Caldwell responded to Dr. Coffin that Bazile and Franklin had asked to meet with Mr. Maslamani.

Defendant admits the allegations contained in Paragraph 26 of the Complaint.

27. On July 25, 2008, Dr. Coffin again asked for a meeting with Mr. Caldwell to which he could submit additional proposed oral admonishments to Bazile and Franklin.

Defendant admits the allegations contained in Paragraph 27 of the Complaint.

28. After Dr. Coffin’s reporting of such violations of the Standards of Practice to his supervisors, the three staff members of the arborists department about whom Dr. Coffin had complained met with Mr. Caldwell and with Mr. Maslamani, Mr. Caldwell’s supervisor.

Defendant admits only that Mr. Caldwell and Mr. Maslarnani met with individuals whom Plaintiff had reported.

29. Mr. Maslamani received the reports that Dr. Coffin had been reporting non-compliance with the City’s Standards of Practice and Tree Protection Ordinance on the part of the other three staff members of the arborists department.

Defendant denies the allegations contained in Paragraph 29 of the Complaint.

30. Mr. Maslamani decided to terminate Dr. Coffin as a direct result of Mr. Maslamani’s receipt of the reports from other staff that Dr. Coffin had been reporting violations of, and non-compliance with, the laws and regulations of the City of Atlanta.

Defendant admits only that Plaintiff was terminated. Defendant denies the remaining allegations contained in Paragraph 30 of the Complaint.

31. Dr. Coffin was terminated despite the fact that the rating of Dr. Coffin’s job performance conducted closest in time to his eventual termination rated him as “effective” in his job performance.

Defendant admits that Plaintiff was terminated. Defendant further admits that Plaintiffs last performance rating was "effective".

32. Dr. Coffin was terminated despite the fact that he had not engaged in conduct which constituted the violation of, or non-compliance with, the Standards of Practice established and promulgated for the operations of the Arborist Division.

Defendant denies the allegations contained in Paragraph 32 of the Complaint.

CLAIMS FOR RELIEF -
VIOLATION OF O.C.G.A. § 45-1-4

33. The foregoing paragraphs are realleged and incorporated herein by reference.

34. Section 45-1-4(d) of the Georgia Code provides that “[n]o action against any public employee shall be taken or threatened by any public employer who has authority to take, direct others to take, recommend, or approve any personnel action as a reprisal for making a complaint or disclosing information to the public employer . . . . ” The Section 45-1-4 (c)(2) provides as well that “No public employer shall retaliate against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity.”

Defendants assert that the allegations contained in Paragraph 34 of the Complaint are legal conclusions and require no response from Defendant. To the extent that Plaintiffs seek to impose or imply liability upon Defendants by asserting the remaining allegations contained in Paragraph 34, said allegations are denied.

35. Plaintiff had reasonable cause to believe a violation of or non-compliance with a law, rule, or regulation: He reported that arborists employed by the City of Atlanta were failing to enforce the Atlanta Tree Protection Ordinance. In doing so, he disclosed violations of or noncompliance with a laws, rules, or regulations to his supervisor and government agencies.

Defendants assert that the allegations contained in Paragraph 35 of the Complaint are legal conclusions and require no response from Defendant. To the extent that Plaintiffs seek to impose or imply liability upon Defendants by asserting the remaining allegations contained in Paragraph 35, said allegations are denied.

36. On information and belief, Defendant disclosed Plaintiff’s identity as a provider of information, without the written consent of Plaintiff, and such disclosure was not necessary and unavoidable during the course of a investigation. Plaintiff was not notified in writing at least seven days prior to such disclosure.

Defendant denies the allegations contained in Paragraph 36 of the Complaint.

37. Defendant terminated Plaintiff from his position as Senior Arborist after Plaintiff reported that arborists employed by the City of Atlanta were failing to enforce the Atlanta Tree Protection Ordinance.

Defendant denies the allegations contained in Paragraph 37 of the Complaint as stated.

38. Defendant’s action of terminating Plaintiff was in retaliation for Plaintiff reporting that arborists employed by the City of Atlanta were failing to enforce the Atlanta Tree Protection Ordinance.

Defendant denies the allegations contained in Paragraph 38 of the Complaint.

39. As a result of Defendant’s retaliatory actions, Plaintiff was wrongfully terminated from his position as Senior Arborist, and lost wages and all benefits that he had accrued up until the time of his termination, including sick time, compensatory time and accumulated pension vesting time.

Defendant denies the allegations contained in Paragraph 39 of the Complaint.

COUNT TWO

VIOLATION OF RIGHT TO FREE SPEECH
UNDER THE GEORGIA CONSTITUTION

40. The foregoing paragraphs are re-alleged and incorporated herein by reference.

41. Plaintiff reported that arborists employed by the City of Atlanta were failing to enforce the Atlanta Tree Protection Ordinance.

Defendant denies the allegations contained in Paragraph 32 of the Complaint.

42. Plaintiff’s statements regarding the failure to enforce the Atlanta Tree Protection Ordinance were a matter of public concern and protected speech under Georgia Constitution, Article 1, Section 1, paragraphs 3, 5 and 9.

Defendants assert that the allegations contained in Paragraph 42 of the Complaint are legal conclusions and require no response from Defendant. To the extent that Plaintiffs seek to impose or imply liability upon Defendants by asserting the remaining allegations contained in Paragraph 42, said allegations are denied.

43. Plaintiff’s speech was a substantial motivating factor in Defendants’ decision to terminate Plaintiff from his position as Senior Arborist.

Defendant denies the allegations contained in Paragraph 43 of the Complaint.

44. The Defendant’s action of terminating Plaintiff constitutes violation of the Georgia Constitution, Article 1, Section 1, paragraphs 3, 5 and 9.

Defendant denies the allegations contained in Paragraph 44 of the Complaint.

45. The Defendant’s action of terminating Plaintiff was done with malice and/or reckless disregard for Plaintiff’s constitutional rights. The Defendants’ actions were intentional and taken in bad faith.

Defendant denies the allegations contained in Paragraph 45 of the Complaint.

46. As a result of the Defendant’s retaliatory actions against Plaintiff for exercising his constitutional rights, Plaintiff has suffered monetary loss, loss of reputation, emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life.

Defendant denies the allegations contained in Paragraph 46 of the Complaint.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as follows:
a. Reinstatement to his position as Senior Arborist, or a comparable position;
b. Reinstatement of all benefits that Plaintiff accrued up until his wrongful termination and would have accrued had he not been terminated, including lost wages, dental health insurance, retirement benefits, all fringe benefits and seniority status;
c. Compensatory damages against the Defendant in an amount reasonable and commensurate with the loss of reputation, emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life imposed upon him by the Defendants’ unlawful acts;
d. An injunction restraining violations of O.C.G.A. § 45-1-4;
e. Trial by jury;
f. Reasonable attorney's fees, court costs, and expenses; and
g. Such other relief that this Court deems proper and just.


WHEREFORE, having answered within the time provided by law, Defendant respectfully prays that:
1) all Plaintiff's claims be dismissed;
2) Plaintiff's Complaint be denied in its entirety;
3) all Plaintiff's prayers for relief (a) through (g) be denied;
4) judgment be entered in favor of Defendant; and
5) all costs incurred by Defendant to defend this action be assessed against Plaintiff.