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IN THE CIRCUIT COURT OF JEFFERSON COU STATE OF MISSOURI
KENNETH J. MOSS, Plaintiff,
v. cause No.
1

FEB

14 2013 L

'o##ro,rHFff*
ral 3) 7- LLo o
Division

ROBERT K. SWEENEY Serve at: 503 Main St. Hillsboro, MO 63050

and

No. b

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.
Sen e

at:

GARRISON 18I 0 Craig Rd., Suite 05 St. Louis. Mo 63146

1

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

a

in Jefferson County, Missouri. He is also an eiected Councilman of the City'5 4tl'Ward and
business owner in the City of Arnold, as co-owner and General Manager of Arnold Stove

&

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
Attorney by a majority of the Council.

as the

City

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

wrongful acts of the Defendants as $ 508.010.4 R.S.Mo. because Moss was first injured by the
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
Sweeney regarding the City and Boone's

Arnold. Moss sought and obtained legal advice from

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
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

it. At

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.

a hearing, on or about

12.

in the wake of Rebecca Moss's renewed request for

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. 14.

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

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

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 attempts were made to interview Shockey, Shockey toid Moss:

iew. Ironically, after numerous

"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:

and Recreation for the CitS' of Arnold Missouri. in the tennination of Around September 2010.I was directlf Rebecca Moss, a former parks department employee and sister of

I am the Director of Parks

it"o'"d

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.
investigation,"

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

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.
from October

Garrison interviewed purported witnesses to Boone's allegations against Moss

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. b.

That Boone had filed a complaint that Moss had been harassing her for 2 years with the MCHR on September 27,2412. That several city officials asked Moss to resign his seat on the Council on September 20,2012but Moss refused. 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.

d.

That the harassment began after Moss's sister was fired fi'om her job with the Palks and Recreation Department in September 2010. The grounds for Moss,'s sister's discharge had been substantiated very well and the City had been through the file with Moss. That other City staff and officials had talked to Moss about his poor treatment of Boone. "Everyone has talked to [Moss] about tt." 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 deait."

b'

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

ir.

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 city to get a black eye over this." Because Moss would not apologize, Boone filed the complaint.
agreed

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 fired from her job with the Parks and Recreation Depafiment in September 2010. That other City staff and officials had talked to Moss about his poor treatment of Boone. That Moss was asked to refrain from running for political office while Boone was employed by the City.

b.

d.

That he was "ashamed Susie has been treated this way. It got to where 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, handling her job well and working hard. The city couldn't do any better." That Boone had tried to smooth things over with Moss and been "more than nice." See Exhibit 5.

e.

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

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 investigation as a "sham."

fairly.

One Council member even referred to the

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

if

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 attached hereto and incorporated b)/ reference herein'

Exhibit

10

45. 46.

Ms. Boone filed the December 21,2012 Charge of Discrimination under penalty
10.

of perjury. See Exhibit

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'; MIRMA will 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 may be 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 public projects are not and will not be completed because hnite time, money, energy and effort are being expended on this silliness.

,l

'

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

53.

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
set forth above.
as

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 AGAINST DEFENDANT ROBERT K. SWEENEY

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

58. 59.

Plaintiff incorporates b),reference

as

if fully

set forth herein, paragraphs

through 57 of this petition.

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

t8

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. 70. 71.

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

through 68 of this petition. Defendants caused to be published false statements about Moss.
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 2 years with the MCHR on September 27,2012.
19

b. c. d. e. f. 72.

That the harassment began after Moss's sister was fired from her job with the Parks and Recreation Deparlment in September 2010. That other City staff and officials had talked to Moss about his poor treatment of Boone. "Everyone has talked to fMoss] about

it."
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."
Because Moss would not apologize, Boone filed the discrimination complaint with the MCHR.

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

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. b.

That Moss's harassment of Boone began after Moss's sister was fired from her job with the Parks and Recreation Department in September 2010.

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 her job 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

20

under the Missouri Human fughts

Act.

See

Exhibit 10.

75. 76.

Shockey falsely stated in his MCHR Charge of Discrimination filed on January against him for engaging in protected

ll,2013 that Moss had retaliated

activity.

See

Exhibit

14.

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. 78.

Such statements pubiished by Defendants were false'

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.
willfully

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

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

21

::*.*

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 hereto and incorporated by reference herein.

Exhibit 17 attached

83. 84. 85.

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

11,

2013 against Moss and Ms. Borgelt was published on February 13,2013. See Exhibit 15. Moss's reputation has been damaged by the pubiications caused by Defendant's

as set forth in paragraphs 71 through 76 above.

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

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

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.

86.

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

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 leputation.

87.

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

22

and others from like conduct in the future.

WHEREFORE, Plaintiff Kenneth Moss prays for the entry ofjudgment against
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:
1

88. 89.

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

through 55 and paragraph 57 above.

The Defendants named herein, engaged in the intentional

lanful acts of:

a. b. c. d. e. f.

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

discrimination, and harassment against Boone

Causing to be published that Moss retaliated against Shockey;

Attempting to coerce Moss to resign his Council seat and agree not to run for any other elected office;
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

23

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

against Moss was even comPleted.

90. 91.

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

Defendants named herein acted with the intent to injure Moss.

As a direct and proximate result of the intentional larvful acts 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 public
allegations made against him by the Defendants as part of their broader conspiracl'.

92.

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

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.

93. 94.

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. 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.

WHEREFORE, Plaintiff Kenneth Moss prays for the entry ofjudgment against
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

jurisdictional minimum of this court, for punitive damages, for his costs herein expended,
including but not lirnited to reasonable attomeys' fees- and for such other and fuilher relief this Court deems appropriate and just under the circumstances.
as

24

COUNT IV

- CIVL

CONSPIRACY AGAINST ALL DEFENDANTS

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

95. 96.

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

through 57 and 69 through 94 of this petition. 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 in the intentional lau,ftl acts set forth in Count III.

to

commit a prima facie tort by engaging

97. 98. 99.

overt acts:

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

commit the unlawfui acts set forth in paragraph 96 above.

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.

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

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, c. d. e.

Falsely accusing Moss of retaliating through the MCHR Charge

of Discrimination fiIed by Shockey; Publicly accusing, Moss of harassing Boone for over two years; Pubiicly accusing Moss of retaliating against Shockey; Attempting to coerce Moss to resign his Council seat and agree not to run for any other elected office;

25

f.
b'

Conducting a sham investigation into the Boone allegations against Moss;

Releasing the sham investigation to the public before approved by the Council; and

it was reviewed or

h.

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.

101.

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

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

jurisdictional minimum of this court, for punitive damages, for his costs herein expended,
including but not timited to reasonable attomeys' fees, and for such other and fuither relief this Court deems appropriate and just under the circumstances.
as

26

Respectfully submitted,

& PETRUSKA LAW,L.L.C.

by:

Lynette M. Petruska, #41212 Michael A. Owens, #61990 2010 South Big Bend Blvd. St. Louis, Missouri 63117 (314) 645-6666 - Telephone (314) 645-7376 - Facsimile

Attorneys for Plaintiff

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