Tincher exit hits a legal hurdle
The city attorney says a signed agreement is flawed and void. The police chief could possibly bring a lawsuit, he says.
By BARBARA BEHRENDT
Published April 21, 2007
BROOKSVILLE - Police Chief Ed Tincher will not be slipping quietly into retirement after all, not right now at least.
In fact, the agreement Tincher reached recently with the city of Brooksville to avoid a disciplinary hearing is void, according to City Attorney David La Croix.
Now, it seems that the dispute is heading to court.
In a memo to City Council written Friday, La Croix explained that the agreement signed earlier this month between interim City Manager Steve Baumgartner and Tincher is not what the parties previously agreed to. Tincher's attorney made a significant change not discussed with or approved by the city, according to La Croix.
In the original settlement discussions, Tincher had agreed to release the city, its elected officials, employees, agents and attorneys from any liability. In the altered version signed by Baumgartner and Tincher, only the city is released from its liability.
"What this means is that Ed may still pursue any litigation he wants to against the City Council members, personally, and city employees and agents," La Croix wrote. "That is not what we had bargained with him."
The altered agreement was signed by both sides, but La Croix said it was never approved by the City Council or signed and sealed by Mayor David Pugh, all steps required by the city charter before an agreement can be enforced.
La Croix admits he didn't notice the change when he gave it a quick read through the day that the agreement was publicly presented to Tincher.
"It's my fault that the changes were missed before the city manager signed the agreement," he wrote.
"It's absolutely ludicrous" that the city attorney would approve an agreement he had not read, according to Ronald Freeman, Tincher's attorney. "He's been practicing law for over 30 years."
As for the argument that the charter was not followed to validate the agreement, Freeman said that the attorney and the city manager still have the power to bind the city in an agreement.
Freeman said he will file a breach of contract lawsuit on Monday in Brooksville and that, because the city didn't pay Tincher the settlement amount they promised, the city would owe Tincher legal fees as well.
Thursday was the day that the city was set to cut a check for $28,000 as part of their agreement with Tincher, but Freeman said that didn't happen.
"What they're doing to the chief is absolutely abhorrent," Freeman said. "The chief has done exactly what he said he would. He has complied with his part of the agreement ... and here the city has found another way to make his life hard."
Freeman pointed out that Tincher is on leave for a heart condition and that this is just causing more strain. He also pointed out that pulling back the agreement after the city went out of its way to say kind things about Tincher's service is simply insulting.
"This is all because they've had a change of heart after it's been executed and signed by all the parties," he said. "This is going to put the city in a bad light."
Tincher has been on leave for the last several months during an investigation into wrongdoing in his department. An investigator found him to be "incompetent and inefficient" and found problems with his handling of evidence, his treatment of females and his intimidating style of management.
According to La Croix, with the voiding of the agreement, "Ed is still subject to possible disciplinary action on the charges outlined in the city manager's pre-disciplinary letter. Ed still has a right to a due process hearing if he wants one before any possible disciplinary action is taken.
"And Ed is still on indefinite sick leave under the Family Medical Leave Act," La Croix said.
If Tincher's attorney doesn't sign the original agreement which was approved by all the parties beforehand, La Croix said, a pre-disciplinary hearing would be scheduled.
La Croix said there was never a discussion with Tincher or his attorney about allowing Tincher to still sue individual council members and city employees.
"If attorneys are working together, it's only ethical to point out any changes made which we didn't discuss," La Croix said.
As for Freeman's threat to sue over the altered agreement, La Croix responded, "He can file it if he wants to...
"It's hard to sue on a contract that is void."
Barbara Behrendt can be reached at firstname.lastname@example.org or 352 754-6117.