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County, Mitchell respond to civil suit

Former employee seeking damages for dismissal

Cliff Clark General Manager/Editor cclark@civitasmedia.com

8 months 2 days 15 hours ago |1457 Views | | | Email | Print

Attorneys representing Ashe County, Animal Control and former manager Dr. Pat Mitchell responded to a civil complaint filed in September by a former county animal control officer who is seeking compensation for alleged defamation and negligence related to the circumstances surrounding his dismissal last year.


The county’s response to the civil lawsuit, filed by former animal control officer James Walters in September 2013 and seeking in “excess of $20,000,” answered the complaint by denying, without elaboration, that Walters did not lie and act unprofessionally, admitted to releasing information requested by the Jefferson Post about his firing, and asked the court for a dismissal or a trial by jury.


In October 2012, Walters was discharged from his duties as an animal control officer/cruelty investigator for Ashe County Animal Control for allegedly not following procedures and allegedly lying to his supervisor after an incident involving the attempted capture and eventual shooting of an aggressive-acting German shepherd in the Beaver Creek area in September 2012.


The details of the incident and the communication between Walter’s supervisor Joe Testerman and Mitchell were released, after a public records request, to the Jefferson Post in October 2012.


In the Post’s story about the termination in October 2012, the correspondence between Testerman and Mitchell was quoted as, “Walters did not follow procedure nor conduct his actions in a professional manner” in responding to a call “regarding an injured and suffering dog in the Beaver Creek area that had been shot by animal control that morning…”


According to the Testerman/Mitchell email correspondence, animal control had been trying to capture the aggressive shepherd in late September 2012. Using traps had been unsuccessful, so Testerman approved shooting the dog “when a safe opportunity was presented.”


The dog was shot, not fatally, and escaped on Sept. 27, 2012. Later that night, the wounded dog was found in an area resident’s basement.


According to Testerman’s letter to Mitchell, Walters did not respond to several calls to Animal Control that night about the wounded dog, and “did lie to me and the county manager regarding the information he received.”


Mitchell said at the time of Walter’s dismissal, “He was terminated for failure to appropriately do his job.”


In the September 2013 complaint filed by Walters, he accuses the defendants (Testerman, Mitchell, the county and animal control), “either singularly or in concert with each and the other of them, printed and published, or caused to be printed and published, false statements concerning (Walters), knowing that such statements were false. Specifically, on or about November 26, 2012, the…false statements were printed and published in the Jefferson Post.”


In the complaint, Walters also challenges Testerman’s and Mitchell’s accusation of not being truthful, acting unprofessionally and admitting wrongdoing when approached about the incident prior to his termination.


Walter’s complaint says he “did not” lie or admit wrongdoing and “acted professionally and responded appropriately” during and after the incident.


In the response to Walters’ civil complaint, the defendants denied that Walters didn’t lie, denied Walters didn’t act unprofessionally, and denied that when confronted with the incident, prior to his firing, he didn’t admit wrongdoing.


The defendants also denied Walters suffered any harm because of the termination, including an “affront to his dignity, embarrassment, and damage to his professional reputation, and deprivation of competitive compensation and loss of livelihood” and denied Walters is entitled to compensatory damages for lost wages, lost earning potential, and loss of his livelihood.


The defendants offered seven defenses for the court to dismiss the complaint and/or have a jury decide on the merits of the complaint.


• In the first defense, the defendants, answering the complaint, said Walters failed to state a claim upon which relief can be granted and should be dismissed pursuant to the N.C. Rules of Civil Procedure.


• The second defense is based on the county’s animal control department being part of the Ashe County government and not a separate legal entity, and therefore, the complaint should be dismissed.


• The third defense answers Walters’ claim that the county’s sovereign immunity does not apply because the county has a liability insurance policy. The defendants said the liability insurance does not apply and therefore it is legally protected by sovereign immunity.


• The fourth defense by the defendants involves the publication of the information about the incident and Walters in the Jefferson Post. The information, said the defendants, was offered because of the public records’ request by the Post.


• The fifth defense involves the qualified privilege of the documents provided to the Post and that because the county had to honor the request, it cannot be a held liable for the documents’ publication.


• The sixth defense by the defendants claims Walters is barred from seeking punitive damages against Mitchell and the county because of settled case law.


• The seventh defense is that all of the statements of the defendants are true about the termination of Walters’ employment.


Attorneys for Walters and for the defendants were contacted for comment. Both deferred.

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