Ken Moss lawsuit vs. Arnold officials

IN THE CIRCUIT COURT OF JEFFERSON COUSTATE OF MISSOURI

KENNETH J. MOSS,

Plaintiff,

v.

ROBERT K. SWEENEYServe at: 503 Main St.

Hillsboro, MO 63050

and

MAYOR RON COTINTS,in his individual and official capacities,

Serve at 2101Jeffco Blvd.Amold, MO 630i0

CHIEF ROBERT T. SHOCKEY,in his individual and official capacities,

Serve at 2107 Jeffco Blvd.Arnold, MO 63010

SUSAN BOONE;in her individual and official capacities,

Sen e at 2l0l Jeffco Bivd.Arnold, MO 63010

)KEVIN L. GARRISON )

Sen e at: 18I 0 Craig Rd., Suite 1 05 )St. Louis. Mo 63146 )

)Defendants. )

PLAINTIFF'S PETITION FOR DAMAGES

FACTS COMMON TO ALL COUNTS

1. plaintiff, Kenneth J. Moss (hereinafter "Moss") is a resident of the City of Arnold

in Jefferson County, Missouri. He is also an eiected Councilman of the City'5 4tl'Ward and a

business owner in the City of Arnold, as co-owner and General Manager of Arnold Stove &

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cause No. 1 3) 7- LLo o ral

Division No. b

Fireplace Center.

2. Defendant, Robert K. Sweeney (hereinafter "sweeney") , is a lawyer licensed to

practice law in the State of Missouri. His practice is located in Jefferson County, Missouri. He

is the City Attorney for the City of Arnold, Jefferson County, Missouri. He has been Amold's

City Attorney for 19 years, except for a 10-month period in 2010 when he was fired as the City

Attorney by a majority of the Council.

3. Defendant Mayor Ron Counts (hereinafter "Counts") is a resident of the City of

Arnold in Jefferson County, Missouri. He is the Mayor of the City of Arnold. He is sued in both

his official and individual capacities'

4. Defendant Robert T. Shockey (hereinafter "Shockey") is the Police Chief and

Acting City Administrator of the City of Arnold, Missouri. He is sued in both his official and

individual capacities.

5. Defendant Susan Boone (hereinafter "Boone") is the Director of Parks and

Recreation for the City of Arnold, Missouri. She is sued in both her official and individual

capacities.

6. Defendant Kevin L. Garrison (hereinafter "Garrison") is an individual who

operates Protective & Investigative Services, Inc. in St. Louis County, Missouri. He was hired

by Shockey to conduct the sham "investigation" into Boone's allegations against Moss discussed

in more detail below.

7 . Venue is proper in the Circuit Court of Jefferson County, Missouri pursuant to

$ 508.010.4 R.S.Mo. because Moss was first injured by the wrongful acts of the Defendants as

alleged herein in Jefferson County, Missouri.

8. Upon information and belief, the City of Arnold maintains a policy or policies of

insurance with respect to tort claims filed against the City's elected and/or appointed officials,

and therefore, to the extent that any of the Defendants in their offrcial capacities may assert the

defense of sovereign immunity with respect to any tort claims set forth below, the Defendants

have waived such defense under the provisions of $537.610 R.S.Mo. by maintaining such policy

or policies of insurance.

9. In 20i0, Moss's sister, Rebecca Moss, was targeted for termination by the City of

Arnold. Moss sought and obtained legal advice from Sweeney regarding the City and Boone's

efforts to terminate his sister. Sweeney communicated with Moss options and strategies that

could be pursued by Rebecca Moss'

10. Additionally, and without waiver of the foregoing, the Moss family business,

Arnold Stove & Fireplace Center, previously retained Sweeney to provide legal services to it. At

the time these legal services were provided by Sweeney, he was the City Attorney and

representing Arnold Stove & Fireplace Center relating to the Amold Triangle Deveiopment

Transportation Development District.

1 1. After her termination, Rebecca Moss sought a Personnel Review Board hearing.

On July 23,2012, Rebecca Moss's attorney repeated her request that she be provided with the

Personnel Review Boald hearing to which she was entitled as a result of her discharge, but which

she had never been provided. See Exhibit 1 attached hereto and incorporated by reference

herein. Rebecca Moss's attorney requested that this hearing be held in late-August 2012. As of

the filing of this Petition, the Personnel Review Boald hearing requested by Rebecca Moss still

has not been scheduled or held. Once again, her request was ignored.

12. in the wake of Rebecca Moss's renewed request for a hearing, on or about

September 14,2012, Boone filed a repofi with Shockey alleging that she had learned through

another City employee that Moss had allegedly referred to her as a "f---ing b---h." Boone

complained that this had been an ongoing problem with Moss since the termination of his sister,

in which Boone was involved. Moss has publicly denied making this statement about Boone.

13. In the September 14,2072 repoft, Boone stated that she was contemplating filing

an EEOC complaint against Moss for this "continuous harassment."

14. On the same day, September 14,2012, Boone provided Shockey with a list of

examples of Moss's aileged harassment of her. In this regard, Boone aileged conduct that

occurred between August 2010 and April 2011 purportedly involving Moss. No acts were

alleged to have occurred between April 2011 and September 2012, and therefore, had a fair and

impaftial investigation occurred into Boone's allegations, as opposed to the sham investigation

described beiow as part of the broader conspiracy alleged herein, the investigator likely wouid

have first questioned why Boone falsely represented that she had suffered "continuous

harassment" from Moss when her own documentation refuted this claim.

15. The events that Boone alieged as "harassment" making it difficult for her to

function in her job in September 2Ol2 were the following: (a) the incident alleged in paragraph

12 above,which even if it occuned, did not occur in Boone's presence: and (b) a claim made by

Boone that Moss spoke to her only once during Amold Days (held in September 2012) and

allegedly turned his head at other times to avoid talking to Boone. The acts described herein do

not constitute harassment even if they occurred, which Moss denies taking place. Any other

alleged acts of "harassment" alleged by Boone, which similarly did not constitute harassment

and Moss denies, could no longer be pursued by Boone because not pursued by Boone timely.

16. On September 20,201.2, Counts, Sweeney, and Shockey met with Moss. Counts

told Moss that Boone would not file a hostile work environment complaint against him if Moss

resigned his position on the Council and agreed not to hold an1, elective office in the City while

Boone remained employed by it. At the time these defendants pressured Moss to resign

and hold no elective office in the future, no "investigation" had begun into Boone's allegations.

17. At the time that Counts, Sweeney, and Shockey attempted to pressure Moss to

resign and agree not to run for elective office in the future, Defendants knew that Moss intended

to run against Counts for Mayor of the City of Arnold in the April 2,2073 general election.

Upon information and belief, the Defendants actions set forth below were designed and intended

to deter Moss from rururing for mayor and/or to ensure that he would be defeated if he ran for

mayor because perceived by the public as someone wiro abuses city employees, creates a hostile

work environment, and/or is a harasser.

18. On September 24,2012, at a meeting at which Sweeney and Shockey were

present, Moss was threatened that if he did not apologize to Boone and accede to her

wishes (whatever they might be), the City would begin an investigation into Moss with a vieu'

towards impeaching him. Based upon the September 20,2012 meettng with Counts, Sweeney,

and Shockey, Moss alread;, knew that Counts had insisted upon Moss's resignation from the

counsel and that he agree not to hoid elective office in the future. Once again, these threats were

made without the benefit of any investigation in an effort to ensure that Moss did not run for

mayor in the April2 election.

19. Because of the previous legal advice Sweeney had provided to Moss, in

correspondence dated September 26,2012 Moss (through counsel) advised Sweeney that lie had

a conflict of interest that prevented him fi'om participating in the Boone/Moss matter in an5'

capacity, other than as a potential witness, because Moss would not waive the conflict. Sweeney

was further advised that if the City and/or Boone decided to pursue a frivolous and politically

rnotivated claim against Moss, Sweeney (and Counts) would be called as witnesses for Moss.

See Exhibit2 attached hereto and incorporated by reference herein.

20. Additionally, after Boone made her allegations against Moss, Moss (tlirough his

attorneys) attempted on numerous occasions to conduct his own investigation into the allegations

by interviewing Sweeney, Boone, Counts, and Shockey. Boone, Counts, and Shockey refused to

be interviewed. Sweeney would only submit to a limited inten iew. Ironically, after numerous

attempts were made to interview Shockey, Shockey toid Moss: "tell yout'iawyer to go f--k

himself." Shockey admitted making this statement, but took the incredible position in light of

the Boone complaint set forth in paragraph 12 above that he did not make the comment directly

to Moss's a6omey. Upon information and beiief, despite a request for an investigation into

Shockey's behavior, the City conducted no investigation to determine whether Shockey's

unprofessionai statement/conduct was pafi of a broader pattern and practice of misconduct to

include abusing officers of the Amoid Police Department. The investigation of Shockey was

requested in light of his dual roles as Acting City Administrator and Chief of Police.

21. Thereafter, on September 27,2012, Boone submitted an intake Questionnaire to

the Missouri Commission on Human Rights (hereinafter "MCHR"). Immediately above the

signature line, the Intake Questionnaire states as follows:

I understand that this questionnaire is not a compiaint form and that

I have not yet filed a complaint of discrimination' A copy of the

Intake Questionnaire is attached hereto and incorporated by reference

herein as Exhibit 3.

22. More significantiy, in describing the discrimination Boone allegedly suffered

from Moss. she stated as foilows on the Intake Questionnaire:

I am the Director of Parks and Recreation for the CitS' of Arnold Missouri.

Around September 2010.I was directlf it"o'"d in the tennination ofRebecca Moss, a former parks department employee and sister of

Councilman Moss. Since that time, and as recentiy as September 1 1, 2012,

Councilman Moss has engaged in a systematic pattern of harassment and

intimidation by repeatedly accusing me of wrongdoing, incompetence

and undercutting my authority by making false and defamatory statements

to staff,, elected officials, and the general public. See Exhibit 3.

23. While the intake Questioruraire clearly lists sex, sexual harassment, and age as

types of iilegal employment discrimination, Boone only claimed that Moss took the actions

against her that she alleged in retaliation for her involvement in the termination of his sister. See

Exhibit 3.

24. On October 1,2012, Boone was notified by the MCHR that retaliation for her

invoivement in the termination of Moss's sister (even if true) was not the type of retaliation

covered by the Missouri Human Rights Act, and therefore, the MCHR would not be able to assist

Boone. See Exhibit 4 atlached hereto and incorporated by reference herein.

25. Even though Sweeney, counts, Shockey, and Boone knew or should

have known that Moss had not engaged in any activity that violated state or federal

discrimination laws (even if ali that Boone said was true, which Moss denies), Shockey

nonetheless hired Ganison to conduct what was purported to be an "independent investigation"

into Boone's complaint against Moss on October 3,2072. Garrison was hired by Shockey after

consultation with Counts and Sweeney. The stated purpose of hiring an "independent

investigator" was to avoid even the appearance of impropriety.

26. At the time Garrison was hired by Shockey to conduct this "independent

investigation," a judgment and tax lien had been entered against Garrison by the Missouri

Department of Revenue because of his failure to pay the State of Missouri $57,610.34 owed on

his 2005, 2006, and 2008 income taxes. Garrison himself admitted that he still owed $18,000.00

on the tax lien. No explanation has been provided as to why an investigator. who has himself

engaged in conduct detrimental to the State of Missouri, was selected by Shockey to conduct this

purported "independent investi gation. "

27. Garrison interviewed purported witnesses to Boone's allegations against Moss

from October 8 thlough25,2012. Major Nick McBroom of the Arnold Police Depaftment,

Shockey's subordinate, was present for each of the interviews conducted by the "independent

investigator." Upon information and belief Maj. McBroom was present in an effort to intimidate

the witnesses to support the Defendants' public account of the events at issue.

28. it is unclear when Garrison provided his report of his investigation to the City

because the letter transmitting the report is undated. This is only one of many flaws in this

purported "independent investigation," which are discussed in more detail below.

29. Significantly, while Moss appeared to be interviewed as part of the

City's "investigation," the transcript of his appearance was not provided to the City because

Moss's counsel raised such issues as why the City was wasting taxpayer money on a Charge of

Discrimination that had never been filed with the MCHR, as weli as Garrison's unpaid taxes

owed to the State of Missouri.

30. More troubling, Garrison omitted from his report, statements that he and Maj.

McBroom made about certain witnesses after those witnesses left the room when Garrison

neglected to turn off the tape recorder. These statements show that the "investigation" was

neither fair, nor impartial, but rather a sham. By way of example, but in no way exhaustive of

the inappropriate conduct of Galrison and Maj. McBroom during the conduct of this purported

"independent investigation," the following comtnents were made:

a. After City empioyee Karen Fay ieft her interview, Gar:rison stated,

"She's fuIl of s--t... She knows something, but she ain't saying."Later Garrison and Maj. McBroom can be ireard laughing about

Ms. Fay, and Garrison can be heard saying, "'I don't knora' nothing'

... There's not a woman in my life who don't know nothing.

b. After Arnold Police Detective Omar Ruiz left his interview,Garrison and Maj. McBroom discussed his statement saying that Det.

Ruiz was "fu1l of s--t." As to Det. Ruiz's clairn that he had not

heard any cofi)ments at issue in the investigation, Garrison stated

that such a claim was "bulls--t."

31. More troubling than the sham investigation orchestrated by the Defendants are

the public comments made by Sweeney before this investigation was completed and possibly

even before it began, depending on the date such comments were made to the media. In an

article pubiished in the October 11,2012 Arnold-Imperiai Leader, the following statements were

made bylattributed to Sweeney:

a. That Boone had filed a complaint that Moss had been harassing her

for 2 years with the MCHR on September 27,2412.

b. That several city officials asked Moss to resign his seat on the

Council on September 20,2012but Moss refused.

ir.

That the findings would be presented to the Council, which could then

take action against Moss to inciude censuring him or impeaching him.Sweeney advised the Council it could censure or impeach Moss

on September 20,2072, but the Council took no action.

That the harassment began after Moss's sister was fired fi'om her jobwith the Palks and Recreation Department in September 2010. Thegrounds for Moss,'s sister's discharge had been substantiated verywell and the City had been through the file with Moss.

That other City staff and officials had talked to Moss about his poortreatment of Boone. "Everyone has talked to [Moss] about

tt."

That Boone did not deserve to be treated badly. "She's a 60-year oldwoman in a man's world, and she's fought her way through that and

this is what she's deait."

That Boone was frightened for her job and of Moss. Sweenel'told Boone,

she would be more protected bi,telling the Council everything.

That Boone told City officials she would not file a complaint if Moss

d.

ob'

agreed to stop harassing her and publicly apologize to her. Sweeny was

"happy" because his'Job is to protect the city and [he] didn't want the cityto get a black eye over this." Because Moss would not apologize, Boone

filed the complaint.

That Moss denigrated Boone to a City employee, who reported this back

to Boone, who had had enough.

A copy of the October 11,2012 Arnold-Imperial Leader is attached hereto and incorporated by

reference herein as Exhibit 5.

32. Additionally, Counts made the following statements in the October 11,2012

Arnold-Imperial Leader article:

a. That Moss's harassment of Boone began after Moss's sister was firedfrom her job with the Parks and Recreation Depafiment in September

2010.

That other City staff and officials had talked to Moss about his poortreatment of Boone.

That Moss was asked to refrain from running for political office whileBoone was employed by the City.

That he was "ashamed Susie has been treated this way. It got to where itwas creating a hostile work environment. She shouldn't have to be

worried about her job. She's done nothing wrong. She's been a great

employee, one of the finest people I've ever worked with, handling herjob well and working hard. The city couldn't do any better."

That Boone had tried to smooth things over with Moss and been "morethan nice." See Exhibit 5.

33. Both Sweeney and Counts publicly convicted Moss of misconduct, to include

harassing Boone, before the "independent investigation" into her allegations had been completed

and the results of the "investigation" provided to them, and possibly even before the

investigation had begun.

34. According to Sweeney, Boone decided to go public with her allegations

b.

d.

e.

10

against Moss, In the same October 11, 2012 edition of the Arnold-Imperial Leader, Boone stated

that "Moss had been harassing her for more than two years." See Exhibit 5.

35. More troubling than the public comments made by Sweenel,, Counts, and Boone

designed to convict Moss in the court of public opinion and damage his personal and

professional reputation before the investigation of Boone's allegations had been completed is the

statement made by Boone in an October 19,2012 article published by tlie Arnold Patch.

According to the Arnold Patch, when Boone was contacted for comment, she declined to

comment, deferring the Patch to her attorney: Sweeney. See Exhibit 6 attached hereto and

incorporated by reference herein.

36. In an oral statement provided by Sweeney on October 29.2012, he stated

that to the extent that Boone filed an MCHR complaint against Moss and to the extent a 90-day

right to sue letter was issued, at least initially, he would represent Moss in such claims.

37. In correspondence dated November 16, 2012, Moss's counsel directed

correspondence to Sweeney again advising him of a conflict of interest in the Boone rnatter that

Moss was not wiliing to waive. A copy of this correspondence is attached hereto and

incorporated by reference herein as Exhibit 7. Sweeney remained involved in this matter despite

this conflict. Upon information and belief, Sweeney et,en ret iewed a rough draft of Garrison's

report.

38. This is not the first time conflict issues have been raised with Sweeney. In

corespondence dated February 8, 2011, the Advisory Committee of the Supreme Courl of

Missouri cautioned Sweeney about "the disclosures and communications necessary, under Rules

a-1.0(e) and 4.1-7, in situations involr,ing conflicts of interest and consent to conflicting

representation." A copy ofthis correspondence is attached hereto and incorporated by reference

11

herein as Exiribit 8.

39. As set forth above, on an unknown date, Garrison's report was completed and

submitted to Shockey. This report was titled "Confidential Report of Investigation: City of

Arnold Missouri: Hostile Work Environment." In his summary, Garrison falsely represented

that Maj. McBroom had no input in any interview. This claim is refuted by the taped

conversations between Garrison and Maj. McBroom set forth in paragraph 30 above, which

further show that Maj. McBroom did provide input into the interviews conducted by Garrison.

See Exhibit 9 attached hereto and incorporated by reference herein.

40. After conducting 26 tnterviews and billing the City $6,800.00 for this

"investigation," the report concluded that Moss "held a two-year grudge against Susie Boone

since she was involved in the termination of his sister for cause, from the City of Arnold." lt is

unclear as to how Garison could conciude that Rebecca Moss was terminated for cause when he

was not even charged to investigate this termination. However, more importantly, after

interviewing some 26 witnesses, no evidence was presented that Moss has acted towards Boone

in any way because of her gender or age, that he had sexualiy harassed Boone, or that he

retaliated against her for protected activity under the Missouri Human Rights Act. even if the

claims Boone rnade against Moss were accepted as true, which Moss denies.

41. In his October 29,2012 oral statement, even Sweeney conceded that an1'alleged

dispute between Moss and Boone was related to the termination of Moss's sister, not any

protected class or activity under the Missouri Human Rights Act.

42. On December 20,2012, a majority of the Arnold City Council refused to accept

Garrison's "investigative" report. The Garrison reporl was rejected by a majority of the

Council because a great deal of it was hearsay, unnecessary questions were asked, and/or the

12

investigation was not conducted properly or fairly. One Council member even referred to the

investigation as a "sham."

43. Incredibly, this "Confidential Report of Investigation" was released by

Defendants to the media/general public before it was reviewed by and acted upon b)'the

Council. Upon information and belief the confidential report was released by Sweeney,

Shockey, Counts, andlor Boone as parl of the broader conspiracy to damage the personal and

professional reputation of Moss to either deter him from running for mayor or ensure his defeat if

he remained in the race. Additionally, upon information and belief, Sweeney, Shockey and/or

Counts released this "Confidentiai Report of Investigation" to Boone.

44. On December 21,2012, the day after the majority of the Council rejected the

"investigative" report because it was a sham and deficient, Boone filed a Charge of

Discrimination with the MCHR. For the first time, Boone claimed that she was being

discriminated against because of her sex and age, that she was being sexually harassed, and that

she was being retaliated against, apparently now for engaging in protected activity. even though

none of the 26 witnesses interviewed by the City supported these claims. See Exhibit 10

attached hereto and incorporated b)/ reference herein'

45. Ms. Boone filed the December 21,2012 Charge of Discrimination under penalty

of perjury. See Exhibit 10.

46. In correspondence dated January 30,2013, Moss requested that the Boone

complaint be tumed over to the appropriate lau,enforcement agency to conduct an investigation

into whether Boone committed perjury. Moss further requested that this investigation examine

the Defendants' political motives for making false and frivolous claims against Moss to

determine if the MCHR's process has been abused. See Exhibit 11 attached hereto and

13

incotporated by reference herein.

47. On January 3,2073, a majority of the City Council voted against paying Garrison

for his "investigation" and report because Ganison provided an inferior product in that the reporl

relied on hearsay, questions were asked with the intention of getting a cedain answer, none of the

statements were swom, there were inaccuracies in the transcripts, which were also incomplete, to

include the failure to transcribe comments made by Garrison and Maj. McBroom after certain

witnesses left the room.

48. After the Council refused to pay the Garison bill, Sweeney publicly stated that

the Council's decision "looks like retaliation." Sweeney further publicly stated: "In addition to

my initial concern of getting sued, I wonder if this person (Ganison) now has some type of

action under the Missouri Commission on Human fughts for retaliation. His result was to find

that the claims by an employee were credible. and non' he's being punished for doing what he

was instructed to do. I've never seen anything like it. I have seen lots of dumb stuff and this is

the dumbest. It can't get any dumber." (emphasis added) Sweeney's public comments were

included in the.Tanuary 10,2013 edition of the Arnold-Imperial Leader. See Exhibit12 attached

hereto and incorporated by reference herein.

49 . Thereafter, on January l0 , 2013, Sweeney addressed a memo to the

Mayor, Council, and Shockey. In this memo, Sweeney stated:

My predictions are as follows:'Other complaints/suits will follou'; MIRMAwill farm these matters out to loca1 defense counsel(s); Ultimately, the

City, through MIRMA will pay significant amounts to settle these matters;

It is possible the settlement amounts will be in excess of the limits; If so,

the City's general fund u,ill come into play. Some of the majority maybe sued individuaily (as I understand it, Ms. Borgelt owns very little, so

has very little to risk; I am not sure of the case for others); worthwhile,l ' public projects are not and will not be completed because hnite time,

money, energy and effort are being expended on this silliness.

t4

See Exhibit 13 attached hereto and incotporated by reference herein.

50. Sweeney has gone so far in his efforts to protect Counts' reelection in order to

keep his own job that he has resorted to threatening other members of the Council with personal

liability for actions that violate no law.

51. on or about January 71,2013, the dal' 21i"t Sweenel'submitted Exhibit 13,

Shockey filed a Charge of Discrimination against the Citl', Moss and Doris Borgelt as parl of

the conspiracy among the Defendants to ensure that Counts is reelected by pubiicly embarrassing

and damaging the personal and professional reputations of his opponents. See Exhibit 14

attached hereto and incorporated by reference herein. Interestingly, this Charge of

Discrimination was f,rled oniy against the two people running against Counts for mayor: Moss

and Ms. Borgelt. This Charge of Discrimination, like the allegations made by Boone against

Moss, has been disclosed to the news media by one or more of the Defendants. See Exhibit 15

attached hereto and incorporated by reference herein. Sweenel, confinned this conf,rdential

information through the rnedia even though he couid only have leamed this information as a

result of his position as City Attomey.

52. In conespondence dated Janu ary 77,Zll2,Sweeney was informed that his

outrageous conduct, to include but not be limited to his unauthorized comments to the media and

failure and/or refusai to acknowledge his conflict of interest in the Boone/Moss matter, had

caused considerable damage to Moss. See Exiribit 16 attached hereto and incorporated by

reference herein. Sweeney was asked to provide a copy of the January 17 ,2012 corespondence

to his insurance carrier, thereby giving him notice of Moss's intent to pursue a claim against him

because ofhis conduct.

53. Despite numerous complaints from Moss about Sweeney's conflict of interest,

15

Sweeney participated in the mediation of Boone's MCHR Charge of Discrimination on February

6,2013, which resulted in the settlement of Boone's Cirarge to the City's detriment. Upon

information and belief, Boone's legally frivolous and/or time barred allegations were settled on

February 6,2013 to protect the Defendants from the consequences of their own misconduct as

set forth above.

54. The improper conduct set forth above is not the only time or way that Sweeney

has interfered with elections in the Cit5, of Arnold to ensure that his political allies rerrain on the

Council so that he will keep his job as the City Attorney. On or about January 18, 2013, two

candidates for the Arnold City Council challenging allies of Counts were removed from the April

2,2013 general election ballot for the same reason that Sweeney said could not be used to

remove candidates from the general election ballot in 201 1. In fact, in 201 1, Sweeney provided

legal advice that the City Clerk had no duty to determine any alleged tax delinquency of

candidates for municipal office. In 20i 1, when Sweeney gave his legai opinion that conflicts

with the actions taken by the Cit1, in 2013, political allies of Counts were ruming for the

Council, and neither Counts, nor Sweeney, wanted them removed from the ballot.

55. As a result of the public embarrassment that Moss has suffered as a result of the

conduct described above, as well as the damage done to his personal and professional reputation,

Moss withdreu,as a candidate for mayor in the City of Arnold on January 15. 2013.

56. As a direct and proximate result of the acts of the Defendants alleged herein,

Moss has suffered financial damages that include but are not limited to business loss and

interruption, as well as the pal,ment of attorneys' fees and expenses to defend against the false

and defamatofl, n11.tu,'ons made publicl1, against him by the Defendants,

57. As a direct and proximate resuit of the acts of the Defendants alleged irerein,

16

Moss has suffered and will continue to suffer emotional pain, inconvenience, mental anguish,

loss of enjoyment of life, humiliation and stress, and loss of personal and professional reputation.

COUNT I - MALPRACTICE AGAINSTDEFENDANT ROBERT K. SWEENEY

As to Count I against Defendant Robert K. Sweeney, Plaintiff states as follows:

58. Plaintiff incorporates b),reference as if fully set forth herein, paragraphs 1

through 57 of this petition.

59. An attorney-client relationship existed between Moss and Sweeney because of the

legal advice Moss sought and obtained from Sweeney when his sister was targeted for

termination by the City.

60. Additionally, and without waiver of the foregoing, Sweeney admiued that he

represents Moss as a City Council member and that, at least initially, he wouid represent Moss in

the event a Charge of Discrimination and/or lau,suit was filed against Moss by Boone.

61. Sweeney faiied to exercise reasonable care in providing legal representation to

Moss when he publicly stated that Moss was guilty of the acts of misconduct alleged by Boone

in the Arnold-Imperial Leader as set forth in paragraph 31 above. Sweeney pgrticularlS, failed to

exercise reasonable care in publiciy representing that Moss was guilty of the acts alleged by

Boone before the purported "investigation" of this tnatter was completed.

62. Sweeney further failed to exercise reasonable care in providing legal

representation to Moss when he publicly admitted that Moss was guilty of the acts of misconduct

alleged by Boone because none of these public admissions could have been made in Moss's best

interest (or even in the City's best interest) because they would instead prejudice Moss (and the

Cit1,) at any later trial of this matter because Moss's and the City's attorney had already publicly

stated tirat Boone's allegations against Moss were true.

17

63. Sweeney also faiied to exercise reasonable care in providing legal representation

to Moss when he involved himself in the conspiracy to coerce Moss to resign and agree not to

run for elected office in the future, particuiarly before any "investigation" into the Boone

allegations had even begun.

64. Sweeney furlher failed to exercise reasonable care in providing legal

representation and advice to Moss (and the City) when he advised the City to settle the Boone

allegations (under threat of personal iiability to other Council members) when he knew or

through the exercise of reasonable care shouid have known that Boone's claims were legally

frivoious, factually unsupported by some 26 witnesses, and generally time barred.

65. Sweeney also failed to exercise reasonable care in providing legal representation

and advice to Moss (and the City) because he knew he wouid be a witness in this matter, but

nonetheless continued to involve himself in it,

66. As a direct and proximate result of Sweeney's breach of the duty of care owed to

Moss when providing legai advice and services, Moss has suffered financial damages that

include but are not limited to business loss and interruption, as well as the payment of attorneys'

f'ees and expenses to defend against the false and defamatory allegations made publicly against

him bi, the Defendants and publicly corroborated by Sweeney as part of the conspiracy alleged

below.

67 . As a direct and proximate result of Sweeney's breach of the duty of care owed to

Moss when providing legal advice and services, Moss has suffered and wiil continue to suffer

emotional pain, inconvenience, mental anguish,loss of enjoyment of iife, humiliation and stress,

and loss ofpersonal and professional reputation.

68. Sweeney knew or had reason to know that his breach of tire duty of care owed to

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Moss in providing legal advice and services would result in injury to Moss in that Sweeney's

actions were tantamount to intentional wrongdoing because Sweeney knew or reasonably should

have known that his actions would naturally and/or probably result in injury to Moss, particularly

when Sweeney threw Moss under the bus by publicly stating that Moss was guilty of the

allegations Boone made against him, thereby ensuring that Moss could never get a fair trial. It is

particularly egregious that Sweeney would take these actions in violation of his professional

duties so that he could protect Counts from a Moss challenge in the mayoral election, and

thereby protect his own job as City Attorney. Such rnisconduct entities Moss to an award of

punitive damages.

WHEREFORE, Plaintiff Kenneth Moss prays for the entry ofjudgment against

Defendant Robert K. Sweeney for a sum that is fair and reasonable for his damages alleged

herein in the amount of at least $25,000.00, the jurisdictional minimum of this Courl; for

punitive damages; for his costs herein expended, including but not limited to reasonabie

attorneys' fees; and for such other and fuither relief as this Court deems appropriate and just

under the circumstances.

COUNT II _ DEFAMATION OF CHARACTER AGAINST ALL DEFENDANTS

As to Count II against all Defendants, Plaintiff states as follows:

69. Plaintiff incorporates by reference as if fuliy set forth herein, paragraphs 1

through 68 of this petition.

70. Defendants caused to be published false statements about Moss.

71. Sweeney caused to be published the following false statements in the Arnold-

inrperial Leader on October 17,20L2 as set forth in Exhibit 5 attached hereto:

a. That Boone had filed a cornplaint that Moss had been harassing her for 2years with the MCHR on September 27,2012.

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b. That the harassment began after Moss's sister was fired from her job

with the Parks and Recreation Deparlment in September 2010.

c. That other City staff and officials had talked to Moss about his poortreatment of Boone. "Everyone has talked to fMoss] aboutit."

d. That Boone did not deserve to be treated badly. "She's a 60-year old

woman in a man's world. and she's fought her way through that and

this is what she's dealt."

e. Because Moss would not apologize, Boone filed the discriminationcomplaint with the MCHR.

f. That Moss denigrated Boone to a City employee, who reported this back

to Boone, who had had enough.

72. Counts caused to be published the foliowing faise statements in the Arnold-

imperial Leader on October 11.,2072 as set forlh in Exhibit 5 attached hereto:

a. That Moss's harassment of Boone began after Moss's sister was firedfrom her job with the Parks and Recreation Department in September

2010.

b. That Counts was "ashamed Susie has been treated this way. It got to wirere

it was creating a hostile work environment. She shouldn't have to be

worried about her job. She's done nothing wrong. She's been a great

employee, one of the finest people I've ever worked with, handiing herjob well and working hald. The city couldn't do any better."

73. Boone caused to be published the following false statement in the Amold-

Imperial Leader on October 11,2012 as set forth in Exhibit 5 attached hereto: "Moss had been

harassing her for more than two years." Additionally, according to Sweeney, it was Boone's

decision to "go pubiic" with Boone's false complaint.

74. Additionally, Boone falseiy stated in her MCHR Charge of Discrimination filed

on Decemb er 27,2012 that Moss had discriminated against her because of her gender and age,

tirat he sexually harassed her, and that he retaliated against her for engaging in protected activity

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under the Missouri Human fughts Act. See Exhibit 10.

75. Shockey falsely stated in his MCHR Charge of Discrimination filed on January

ll,2013 that Moss had retaliated against him for engaging in protected activity. See Exhibit 14.

76. Garrison published tlie "Confidential Report of Investigation: City of Arnold

Missouri: Hostile Work Environment" that falsely stated that Moss harassed Boone and/or that

Boone's claim had merit.

77. Such statements pubiished by Defendants were false'

78. At the time Defendants caused the publications of the statements set forth above,

they knew that such statements were false, or acted with a reckless disregard for u'hether the

statements were true or false at a time when these Defendants had serious doubt as to the truth of

the statements at issue because these Defendants knew that Boone had not filed a Charge of

Discrimination with the MCHR and fuither knew that the only reason Boone even compiained

about Moss was to prevent Moss from running for mayor against Counts andlor to ensure his

defeat if he could not be coerced to drop his run for mayor'

79. The statements which Defendants caused to be pubiished against Moss were made

willfully and maliciously in an effort to discredit Moss and destroy his personal and professional

reputation within the community in an effort to either keep him from running for mayor of the

City of Arnold or to ensure his defeat if he did run for lnayor.

80. The statements of Defendants tended to expose Moss to embarrassment, ridicule

and contempt, and as a result, have injured his personal and professional reputation. As a direct

and proximate result of Defendant's statements, Moss has suffered pubiic ridicuie, personal

humiliation, and loss of reputation, public confidence, respect, and personal and professionai

standing within the community, and he will also lose business contacts and opporlunities due to

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::*.*

the cloud placed upon his reputation as a harasser.

81. The statements made by Sweeney, Counts, and Boone were read by members of

the general public who subscribe to the Arnold-imperial Leader and or see the publication on the

internet.

82. Additionally, the false Charge of Discrirnination filed by Boone against Moss on

December 21,2012, which upon information and belief one or more of these Defendants caused

to be made public, was published on January 2,2013 on KMOV TV and continues to appear on

the KMOV website, thereby continuing to expose Moss to embarrassment, ridicule, contempt,

and loss of personal and professional reputation in the community. See Exhibit 17 attached

hereto and incorporated by reference herein.

83. Similarly, the faise Charge of Discrimination filed by Shockey on January 1 1 ,

2013 against Moss and Ms. Borgelt was published on February 13,2013. See Exhibit 15.

84. Moss's reputation has been damaged by the pubiications caused by Defendant's

as set forth in paragraphs 71 through 76 above.

85. As a direct and proximate result of the defamatory statements alleged herein,


intenuption, as well as the payment of attorneys' fees and expenses to defend against the false

and defamatory allegations made publicly against him by the Defendants as part of their broader

conspiracy.



loss of enjoyment of life, humiliation and stress, and loss of personal and professional leputation.

87. Punitive damages are appropriate in this case to punish Defendants and deter them

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and others from like conduct in the future.


Defendants Robert K. Sweeney, Ron Counts, Susan Boone, Robert T. Shockey, and Kevin L.

Garrison for a sum that is fair and reasonable, in an atnount that exceeds $ 25,000.00, the

jurisdictional minimum of this court, for punitive damages, for his costs herein expended,

including but not limited to reasonable attorneys' fees, and for such other and fuither relief as

this Court deems appropriate

and just under the circumstances.

COUNT III - PRIMA FACIE TORT AGAINST ALL DEFENDANTS

In the alternative to, but without waiver of Count II, for Count III against all Defendants,

Piaintiff states as follows:

88. Plaintiff incorporates by reference as if fully set forth herein, paragraphs 1

through 55 and paragraph 57 above.

89. The Defendants named herein, engaged in the intentional lanful acts of:

a. Causing to be published that Moss engaged in acts of retaiiation,

discrimination, and harassment against Boone ;

b. Causing to be published that Moss retaliated against Shockey;

c. Attempting to coerce Moss to resign his Council seat and agree not to run

for any other elected office;

d. Conducting a sham investigation into the Boone allegations against Moss;

e. Releasing the sham investigation to the public before it was reviewed or

approved by the Council; and

f. Publicly commenting on the veracity of Boone's complaint (throwing

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Moss under the bus) before the "investigation" of Boone's allegations

against Moss was even comPleted.

90. In engaging in the intentionai lawful acts set forth in paragraph 89 above, the

Defendants named herein acted with the intent to injure Moss.

91. As a direct and proximate result of the intentional larvful acts alleged herein,


interruption, as well as the payment of attorneys' fees and expenses to defend against the public

allegations made against him by the Defendants as part of their broader conspiracl'.



loss of enjoyment of life, humiliation and stress, and loss of personal and professional reputation.

93. There was an absence of or insufficient justification for the Defendants named

herein to take the actions against Moss set forlh in paragraph 89 above.

94. The acts and conduct of Defendants named herein, as described above were

outrageous because of their evil motive and reckless indifference to Moss's rights, making an

award of punitive damages appropriate under the circumstances.


Defendants Roberl K. Sweeney, Ron Counts, Susan Boone, Robert T. Sweeney, and Kevin L.

Garrison for a sum that is fair and reasonable, in an amount that exceeds $ 25,000.00, the


including but not lirnited to reasonable attomeys' fees- and for such other and fuilher relief as

this Court deems appropriate and just under the circumstances.

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*

COUNT IV - CIVL CONSPIRACY AGAINST ALL DEFENDANTS

As to Count IV against all Defendants, Plaintiff states as follows:

95. Plaintiff incorporates by reference as if fully set forth herein, paragraphs 1

through 57 and 69 through 94 of this petition.

96. Defendants Sweeney, Counts, Boone, Shockey, and Garrison, or two or more of

them, entered into an agreement or understanding amongst and between themselves to do an

unlaurful act,to wit, to defame Moss, or alternatively to commit a prima facie tort by engaging

in the intentional lau,ftl acts set forth in Count III.

97. Defendants (constituting two or more people) had an unlawful objective to

commit the unlawfui acts set forth in paragraph 96 above.

98. The Defendants had a unity of purpose, common design and understanding,

andlor meeting of the minds to defame Moss, or alternatively, to commit a prima facie tort.

99. In fuitherance of the conspiracy alleged herein, Defendants took the following

overt acts:

a. Falsely accusing Moss of age and gender discrimination, harassment,

sexual harassment, and retaliation through the MCHR Questionnaire and

Charge of Discrimination filed by Boone;

b, Falsely accusing Moss of retaliating through the MCHR Charge

of Discrimination fiIed by Shockey;

c. Publicly accusing, Moss of harassing Boone for over two years;

d. Pubiicly accusing Moss of retaliating against Shockey;

e. Attempting to coerce Moss to resign his Council seat and agree not to run

for any other elected office;

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h.

Conducting a sham investigation into the Boone allegations against Moss;

Releasing the sham investigation to the public before it was reviewed or

approved by the Council; and

Publicly commenting on the veracity of Boone's complaint (throwing

Moss under the bus) before the "investigation" of Boone's aliegations

against Moss was even completed.

100. As a direct and proximate result of the conspiracy alleged herein, Moss has

suffered financial damages that include but are not limited to business loss and interruption, as

well as the payment of attorneys' fees and expenses to defend against the false and defamatory

and/or public allegations made against him by the Defendants as part of their broader conspiracy.



loss of enjoyment of iife, humiliation and stress, and loss of personal and professional reputation.

102. Defendants' conduct was outrageous because of their evil motive and reckless

indifference to the rights of Moss making an award of punitive damages proper in this case to

deter them and others from the same or similar conduct in the future.

WHEREFORE, Plaintiff Kenneth Moss prays for the entry ofjudgment against all

Defendants for a sum that is fair and reasonable, in an amount that exceeds $ 25,000.00, the


including but not timited to reasonable attomeys' fees, and for such other and fuither relief as

this Court deems appropriate and just under the circumstances.

f.

ob'

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Respectfully submitted,

by:

Lynette M. Petruska, #41212Michael A. Owens, #619902010 South Big Bend Blvd.St. Louis, Missouri 63117(314) 645-6666 - Telephone(314) 645-7376 - Facsimile

Attorneys for Plaintiff

& PETRUSKA LAW,L.L.C.

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Documents

Ken Moss lawsuit vs. Arnold officials