BREAKING: Appeals court nixes bulk of former fire chief's suit

BREAKING: Appeals court nixes bulk of former fire chief's suit

Michele Ellson
David Kapler. Contributed photo.

A state appeals court has thrown out most of former Alameda Fire Chief David Kapler’s wrongful termination suit against the city but will allow Kapler’s claim that the city owes him post-employment benefits to proceed.

In an unpublished opinion issued Thursday, a three-judge First District Court of Appeal panel ruled that city officials’ investigation into Kapler’s gasoline use and their decision to terminate him were protected public participation efforts and that Kapler, an at-will employee, had not demonstrated a likelihood that he would prevail in his case, save his claim that the city owes him benefits.

City Attorney Janet Kern said Friday that the city is still reviewing the decision and that she had no comment “other than to say we are pleased with the decision.” Kapler’s attorney, Denise Eaton-May, could not immediately be reached for comment.

Kapler resigned as the city’s fire chief in November 2010, a few months after photos of him fueling a blue BMW coupe at the city’s pumps exploded into the local and national media and two days before the city planned to fire him based on their investigation of the photos. He had signed an agreement to leave with $75,000 and post-employment insurance benefits, but the City Council rejected the agreement.

In April 2011, Kapler filed a $2 million suit against the city and former city manager Debra Kurita, former Interim City Manager Ann Marie Gallant and City Councilwoman Lena Tam, claiming Tam and the local firefighters union engaged in a conspiracy to destroy his reputation and get him fired due to poor relations at the bargaining table and that Gallant had aided in this effort by providing his termination letter. He also claimed the city stiffed him on promised post-employment benefits.

The judges ruled that Kapler may succeed on his claim that the city owes him benefits, but said pubic officials were within their rights to investigate and fire him and that they weren’t responsible for the photos that appeared in the press, regardless of the political situation that may have surrounded the investigation and termination letters.

“Kapler’s claim that he was the victim of a political conspiracy between the firefighters’ union, council member Tam, and other unnamed city officials to end his
tenure as fire chief, while adding color to his complaint, does not advance his breach of contract claim,” the judges wrote. “At will public officials who serve at the pleasure of a governing body are inevitably subject to prevailing political winds; whether the union and Tam were angered by budget cuts and unhappy with Kapler is immaterial.”

Kapler’s contract entitled him to post-employment benefits unless he resigned before completing three years of service as chief; he began working for the city in September 2007 and resigned in November 2010.

Kapler dropped his case against Tam, Kurita and Gallant and put forward an amended version of his complaint against the city only in August after the city successfully challenged the legal sufficiency of his claims. The city’s attorneys had sought to strike the case entirely, saying city leaders were just doing their jobs in investigating and seeking to fire Kapler, but Alameda County Superior Court Judge Brenda Harbin-Forte denied the city’s motion to strike and the city appealed.

The appeals court also ruled that the city can collect legal fees for defending itself and city leaders against what they believed – and the judges agreed – was a strategic lawsuit against public participation, or SLAPP, which is a suit intended to chill public participation by burdening critics with legal costs. The city’s attorneys made a similar motion in former interim city manager Ann Marie Gallant’s wrongful termination case, which was also denied by the trial court and is also being appealed.


Jon Spangler's picture
Submitted by Jon Spangler on Sat, Sep 8, 2012

Too bad it wasn't dismissed outright, but I'll take this as a good omen for the future outcome...

Submitted by OmbudsBen on Sun, Sep 9, 2012

Wasn't Kapler looking out for the taxpayers' bottom line? Trying to address cost? i'm all for fairly compensating government workers--good for the economy. But it concerns me when a few gov't workers become so affluent in a time of recession and struggle.