Preston v. City Council of Petersburg

JOSEPH E. PRESTON, Plaintiff, v. CITY COUNCIL OF THE CITY OF PETERSBURG, et al., Defendants.

Civil Action No. 3:19-cv-00750

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 26, 2021

MEMORANDUM OPINION

This matter is before the Court on two summary judgment motions: one from Tribune Broadcasting Co. II, LLC ("Tribune" or "WTVR") and one from the City Council of the City of Petersburg ("City Council") along with the individual City Council members (i.e., Treska Wilson-Smith, Darrin Hill, Samuel Parham, Charlie Cuthbert, W. Howard Myers, Annette Smith-Lee, and John A. Hart, Sr.). Tribune requests that the Court grant its MOTION FOR SUMMARY JUDGMENT ("Tribune Motion for Summary Judgment") (ECF No. 47) and enter judgment in its favor on Count III of the Amended Complaint ("AC") (ECF No. 20). The City Council and the individual City Council members (together the "City Defendants") request that the Court grant their MOTION FOR SUMMARY JUDGMENT ("City Motion for Summary Judgment") (ECF No. 49) and enter judgment in their favor on Counts I, II, and IV. The City Defendants further request that the Court award them costs and attorneys' fees. For the reasons set forth below, the Tribune Motion for Summary Judgment (ECF No. 47) will be granted and the City Motion for Summary Judgment (ECF No. 49) will be granted in part and denied in part. The City Defendants' request for costs and attorneys' fees is improperly joined with the City Motion for Summary Judgment, and in any event, the request is not documented. Hence, it will be denied without prejudice.

I. BACKGROUND

This case arises out of events that occurred at a meeting of the Petersburg City Council at which the City Council passed two motions, one terminating Plaintiff Joseph E. Preston from his job as the city attorney and one restricting his ability to enter City Hall. Preston now sues the City Defendants for breach of contract, defamation, and a violation of his constitutional rights. Preston also sues Tribune, owner of local news station, WTVR, for WTVR's erroneous, and allegedly defamatory, news report of Preston's termination. The following facts are presented in the light most favorable to Preston, and Preston is afforded the benefit of all reasonable inferences.

A. Preston's Termination

Preston served as the City Attorney for the City of Petersburg from October 10, 2016 to September 4, 2018. Tribune Summ. J. Mem. ¶ 1, ECF No. 48; PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 3, ECFNo. 55. As city attorney, Preston attended every City Council meeting until the meeting on September 4, 2018. Tribune Summ. J. Mem. ¶ 1, ECF No. 48.

On September 4, 2018, the City Council held a special meeting at the Union Train Station rather than at City Hall, as usual. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 3, ECF No. 55. Preston was not present, being on vacation. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 3, ECF No. 55. In fact, Preston did not know about the meeting or that his termination was being discussed. PLS' RESP. OPP'N. CITY MOT. SUMM. J. at 7, ECF No. 56.

After a period in closed session, the City Council returned to open session and unanimously approved a motion to terminate Preston and a motion to restrict his ability to enter City Hall. Ex. 2, ECF No. 55-2. The first motion, introduced by Council Member Treska Wilson-Smith, terminated Preston as City Attorney, effective immediately. The motion contained the curious language that "[t]o the extent that contractual provisions, if any[,] may apply, Mr. Preston is terminated for cause." Ex. 2, ECF No. 55-2. However, no "cause" was listed in the motion. PLS' RESP. OPP'N. CITY MOT. SUMM. J. at 7, ECF No. 56.

The second motion, introduced by Council Member Charles Cuthbert, stated:

I move that Council hereby instructs the Clerk of Council to notify Joseph E. Preston, in writing, hand delivered immediately, of his dismissal and that hemay enter City Hall, to retrieve personal items or otherwise, only by appointment and only if accompanied by a police officer of the Petersburg Police Department, such officer to be designated by the City Manager or her representative upon the request of Mr. Preston.

Ex. 1, ECF No. 55-1; PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 3, ECF No. 55. As was the case with the first motion, there was no reason cited in support of the second motion.

The special meeting adjourned at 6:33 PM. PLS' RESP. OPP'N. TRIBUNE MOT, SUMM. J. at 3, ECF No. 55.

B. News Coverage of Preston's Termination

At 7:03 PM, the Petersburg City Manager, Aretha Ferrell-Benevides, who had been at the special meeting, Ex. 2, ECF No. 55-2, texted Wayne Covil, a senior WTVR reporter, saying, "They just fired joe." Ex. 2 at 5, ECF No. 48-2. Covil responded, "Wow. Good for them. Thx for letting me know[.] Is he even there?" Ex. 2, ECF No. 48-2. To which Ferrell-Benevides replied, "Nope[.] Immediately and to only be allowed back to pack under supervision."¹ Ex. 2, ECF No. 48-2. Covil responded, "Wow. That'sintense for them." Ex. 2, ECF No. 48-2.²

A game of telephone then commenced. Covil called WTVR's late-night news producer, Jennifer Carr, to inform her of Preston's termination. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55. There is no evidence suggesting that Covil told Carr that Preston was not at the meeting or that Covil gave Carr the actual text of his exchange with Ferrell-Benevides, the city manager. See PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55; Tribune Summ. J. Mem. ¶ 4, ECF No. 48.

Carr, in turn, called Jon Burkett, a reporter for WTVR, and sent him to the public City Council meeting (held after the special meeting) to cover the story.³ PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55. Although Burkett was, in theory, a general assignment reporter, in practice, he primarily covered crime, and he had not had occasion to attend many city council meetings. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55.

Burkett arrived at the public meeting approximately one hour after it started and made his way to the back of the room. PLS'RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55. There, he briefly interacted with the Chief of Public Safety who Burkett knew from his normal crime beat. See PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55. Burkett made no attempt to discuss the Preston story with the Chief of Public Safety (although he would often want to talk to a member of command staff for his crime stories). See PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55.

While at the City Council meeting, Burkett spoke to someone named Michael Edwards who Burkett knew and who "regularly attended Petersburg City Council meetings and was knowledgeable about events in Petersburg."⁴ Tribune Summ. J. Mem. ¶ 6, ECF No. 48. Edwards confirmed that Preston had been terminated. Tribune Summ. J. Mem. ¶ 7, ECF No. 48. Edwards also went on to say that, if Preston were "'to come back on property there's a resolution or a motion that council has put out that says he cannot come back without an escort.'" PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 5, ECF No. 55; Tribune Summ. J. Mem. ¶ 7, ECF No. 48.

Burkett remained at the public meeting for approximately 45 minutes to an hour and took video to use in his report. Tribune Summ. J. Mem. ¶ 5, ECF No. 48. He did not see Preston at themeeting during that time, PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 4, ECF No. 55, and the City Council made no mention of Preston's termination. Tribune Summ. J. Mem. ¶ 5, ECF No. 48.

Burkett knew that an attorney was usually present at council meetings. Tribune Summ. J. Mem. ¶ 8, ECF No. 48. So based on his knowledge of the motion restricting Preston's ability to enter City Hall and the fact that Preston was not at the meeting, Burkett came to the conclusion that Preston had been at the meeting, but had been escorted out.⁵ PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 5, ECF No. 55.

After attending the meeting, Burkett reported to Jennifer Carr that "[Preston] has been fired, there was a motion that the City Council put out that says [Preston] cannot come back without an escort, and [Preston] was not in his chair." PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 5, ECF No. 55.

No one ever actually told Burkett that Preston had been escorted out of the meeting. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM.J. at 5, ECF No. 55; accord Tribune Summ. J. Mem. ¶¶ 5-9, ECF No. 48. And neither Burkett nor Carr nor Covil were aware that Preston was out of town on September 4, 2018.⁶ Tribune Summ. J. Mem. ¶ 9, ECF No. 48.

WTVR's 11:00 PM news segment reported Preston's termination based on the information that Burkett reported to Jennifer Carr. Tribune Summ. J. Mem. ¶ 10, ECF No. 48. The script for the 11:00 PM broadcast stated,

And breaking news out of Petersburg. That's where City Council members have unanimously voted . . . to dismiss City Attorney Joeseph[sic] Preston — two years after he was hired. He was escorted out of tonight's regularly scheduled meeting. Council also voted unanimously to make sure Preston is escorted by police anytime he steps into City Hall. The reason for his dismissal is unclear.

Ex. A, ECF No. 48-5 (emphasis added). The script was read "against video Burkett had taken at the City Council meeting" which showed that Preston was absent from the meeting and with "the headline 'City Attorney Joseph Preston Dismissed: Escorted out of Tonight's Regularly Scheduled Meeting'" displayed on the bottom of the screen. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 5, ECF No. 55 (emphasis added).

It is beyond dispute that Preston was not at the City Council meeting on September 4, 2018. And, therefore, Preston was, of course, not escorted out of the meeting by police officers.

For reasons neither explained nor readily apparent, WTVR never contacted Preston to verify any of the information that it reported. PLS' RESP. OPP'N. TRIBUNE MOT. SUMM. J. at 5, ECF No. 55. And Preston never contacted...