Electronically Filed - Jefferson - March 23, 2018 - 08:20 AM

18JE-CC00199

STATE OF MISSOURI )
) SS
COUNTY OF JEFFERSON )

IN THE CIRCUIT COURT OF THE TWENTY-THIRD JUDICIAL CIRCUIT

OF MISSOURI AT HILLSBORO, JEFFERSON COUNTY, MISSOURI

MICHAEL MCMUNN, )
)
Plaintiff, )
)
v. ) Cause No. 18JE-CC
) Division
CITY OF DE SOTO )
SERVE: 17 Boyd Street )
DeSoto, MO 63020 )
)
and )
)
COUNCILMEMBER RICK MCCANE )
SERVE: 322 N. Thomas Street )
DeSoto, MO 63020 )
)
and )
)
COUNCILMEMBER RICK LANE )
SERVE: 1700 N. 6th Street )
DeSoto, MO 63020 )
)
and )
)
COUNCILMEMBER )
ROGER CHARLEVILLE )
SERVE: 1505 Essex Heights Dr. )
DeSoto, MO 63020 )
)
and )
)
COUNCILMEMBER CLAYTON HENRY )
SERVE: 622 W. Stone Street )
DeSoto, MO 63020 )
)
and )
)

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 Electronically Filed - Jefferson - March 23, 2018 - 08:20 AM
MAYOR LARRY SANDERS )
SERVE: 224 Patricia Lee Drive )
DeSoto, MO 63020 )
)
and )
)
CITY MANAGER ANN BAKER )
SERVE: 17 Boyd Street )
DeSoto, MO 63020 )
)
and )
)
CITY ATTORNEY MARK BISHOP )
SERVE: 455 Maple Street )
Hillsboro, MO 63050 )
)
Defendant. )

PETITION FOR BREACH OF CONTRACT

AND FIRST AMENDMENT VIOLATION

Comes now Plaintiff, Michael McMunn, by and through Attorney, Allison

Sweeney, and for his Petition for Breach of Contract and First Amendment Violation

against Defendants, states as follows:

Facts Common to All Counts

1. Plaintiff, Michael McMunn (hereinafter “Plaintiff”) is a natural person who

at all times relevant to this action, resides in the County of Jefferson, State of Missouri.

2. Defendant, City of De Soto (hereinafter “City”) is a municipal corporation, a

City of the third class, organized and existing in accordance with the laws for the State

of Missouri, which conducts business in the State of Missouri in an office building

located at 17 Boyd Street, De Soto, Missouri 63020.

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3. The De Soto City Council (hereinafter the “Council”) is comprised of four

elected Council members, namely Rick McCane, Rick Lane, Roger Charleville and

Clayton Henry, and the elected Mayor.

4. Defendant, Mark Bishop (hereinafter “City Attorney”) at all times relevant

hereto is a contract employee, contracted to advise the City of legal matters.

5. Defendant, Ann Baker (hereinafter “City Manager), at all times relevant

hereto is employed as the City Manager for the City of De Soto.

6. Plaintiff has been employed for approximately ten years as a police officer,

and on or about November 3, 2017 was named the Interim Police Chief.

Count I - Breach of Contract

Comes again Plaintiff and for Count I Breach of Contract, states:

7. Plaintiff incorporates by reference herein and makes a part hereof each

and every allegation of Paragraphs 1 through 6.

8. On or about November 3, 2017, Plaintiff and the City entered into an

employment agreement (hereinafter “Agreement”). See Exhibit 1 attached hereto and

incorporated herein by this reference.

9. The Agreement states, in paragraph 1(C)(i) that Plaintiff may be

terminated without cause at the sole discretion of the City Council.

10. The Agreement states, in paragraph 1(C)(ii) that Plaintiff may be

terminated with cause at the sole discretion of the City Council.

11. Plaintiff reasonably believes the spirit of the Agreement was intended to

allow the City to seek applications for a full-time Chief of Police, and at the time a Chief

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was selected, Plaintiff would return to his position as Sergeant, and therefore Plaintiff

would waive any protection under Section 106.273 as it pertains to his replacement by

the new Chief.

12. The Agreement states in paragraph 3(A) that Plaintiff’s compensation shall

be $21.58 per hour.

13. On or about November 20, 2017, the Council approved a higher rate of

pay at $22.84 per hour.

14. The City paid Plaintiff $22.84 per hour from December 2017 through his

termination.

15. On or about January 29, 2017, Plaintiff was off duty, but was at City Hall

performing administrative duties.

16. A call was dispatched that a burglary had occurred at the De Soto Library

and Plaintiff responded to the Library.

17. The burglary suspects fled in their vehicle, and two on-duty police officers

engaged in a pursuit of the suspects.

18. The suspects were eventually detained.

19. After the incident, the City Attorney and City Manager, met with Plaintiff at

City Hall.

20. After meeting with the Plaintiff, the City Attorney and City Manager,

unilaterally terminated Plaintiff in Breach of the Agreement, and without authority of the

Council.

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21. The City Attorney then made statements to the local media regarding the

termination of Plaintiff.

22. Plaintiff retained legal counsel, and requested documents pursuant to the

Sunshine Law, at which time City Attorney and Attorney for Plaintiff began negotiating

the return of Plaintiff as an employee of City.

23. City offered to reinstate Plaintiff to his employment as a police sergeant.

24. The terms of Plaintiff’s return as a sergeant were as follows:

a. Plaintiff would return to work at the same rate of pay he received

when he was acting Interim Chief.

b. Plaintiff would return to work at the rank of Sergeant, the position

held prior to becoming the Interim Chief.

c. Plaintiff would not be required to sign a waiver of litigation.

25. Plaintiff returned to work without incident on or about February 21, 2018.

26. Upon his return, Plaintiff was immediately confronted with signing a

litigation waiver by the new Chief.

27. Plaintiff refused to sign the waiver.

28. On the same day, and after refusing to sign the waiver, Plaintiff was then

confronted by the City Manager to sign the litigation waiver.

29. Plaintiff again refused.

30. Later on the same day, Plaintiff received a phone call from the mayor, an

elected official, requesting he sign the waiver.

31. Plaintiff again refused to sign the waiver.

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32. City Attorney then contacted Plaintiff’s lawyer, stating that he would need

to sign the litigation waiver or find employment elsewhere.

33. Plaintiff still refused to sign the waiver.

34. The City then paid Plaintiff his salary and compensated Plaintiff for sick

time accumulated during the time he was terminated.

35. At no point did Plaintiff accept this compensation as terms of a settlement

agreement.

36. On Plaintiff’s next paycheck, the City then reduced his pay by $2.51 per

hour.

37. The Agreement states in paragraph 9 that in the event of a violation of the

Agreement, the prevailing party is entitled to all expenses, costs, and attorney fees.

WHEREFORE, Plaintiff prays his termination be expunged from his record, his

attorney fees associated with the enforcement of this contract be reimbursed by

Defendants, that his pay be restored to $22.84 per hour, and all other relief this Court

deems fair and just.

Count II - First Amendment Violation

Comes again Plaintiff and for Count II First Amendment Violation, states:

38. Plaintiff incorporates by reference herein and makes a part hereof each

and every allegation of Paragraphs 1 through 37.

39. Plaintiff has a good faith and reasonable belief that the City Attorney is

retaliating against him for exercising his First Amendment Right of free speech.

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40. Plaintiff reasonably believes the City Attorney is acting in consort with the

City and for his own benefit in his actions to again terminate Plaintiff.

41. Defendant City Attorney announced his candidacy for County Prosecutor

in 2017.

42. Plaintiff and his wife are outspoken supporters of Defendant’s opponent,

which is a matter of public concern, and is therefore protected speech.

43. Plaintiff and his wife regularly post on Facebook supporting Defendant’s

opponent for the County Prosecutor position.

44. Plaintiff reasonably believes Defendant City Attorney has access to the

posts and is attempting to retaliate against Plaintiff for his support of his opponent, as

they are currently “friends” on social media, therefore allowing the City Attorney to see

the posts.

45. Plaintiff maintains the pressure and insistence by the City Attorney that

Plaintiff sign a litigation waiver or be terminated is in retaliation to Plaintiff’s outspoken

support of the City Attorney’s opponent.

46. Despite negotiations with the City Attorney regarding the return of Plaintiff

to work at the City, the City Attorney is unlawfully pressuring Plaintiff to sign a waiver of

litigation.

47. Plaintiff maintains that because of his support of Defendant’s opponent,

the City Attorney is pressuring him, through demands made to Plaintiff’s attorney, to

sign the litigation waiver, therefore he would be left without a legal remedy, allowing

Defendants to again terminate Plaintiff without cause.

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WHEREFORE, Plaintiff prays the Court enter a judgment ordering that Plaintiff

pay be reinstated at a rate of $22.84 per hour, that Defendant City Attorney be estopped

from taking any additional retaliatory actions against Plaintiff, that the Court enforce the

terms of the settlement agreement entered into by the Parties, and all other legal

remedies the Court deems fair and just.

/s/ Allison Sweeney

Robert K. Sweeney #38322
Allison Sweeney #62000

Attorneys for Plaintiff

P.O. Box 20
Hillsboro, MO 63050
rks@robertsweeneylaw.com
as@robertsweeneylaw.com
636-797-5600 - voice
636-797-4900 - fax
March 23, 2018
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