PORT RICHEY — Former City Manager Ellen Posivach claimed a small victory on Wednesday when a judge allowed a portion of her lawsuit against Port Richey to move forward. But she complained that another high profile target, incoming state Sen. John Legg, has been avoiding process servers in the case.
Posivach filed suit in August, saying Legg damaged her reputation when nearly two years ago he publicly blasted the idea of the city paying her a controversial severance package as she came under fire from the City Council for working too much from her Tarpon Springs home and taking expensive trips on the city's dime.
The council fired her in February 2011, saying she had made two high-dollar equipment purchases without the board's consent. She sought a $90,000 severance.
She says Legg sent a letter disparaging her to then-Mayor Richard Rober. The suit claims Legg, then a state representative, had no jurisdiction to weigh in on city matters.
Posivach also sued the city, council members Nancy Britton and Terry Rowe, and former council member Phil Abts for defamation, claiming they made comments about her to the media that damaged her reputation as well.
On Monday, a judge heard a motion to dismiss the suit from the city's attorney, but Legg was not party to the hearing because he hasn't been located to be served with the complaint, according to Posivach's attorney, John Shahan.
"My process server has been to his house and found his garage door open halfway, and seen lights on with people moving around, but no one answers," Shahan said. "We've been to his office but his workers say they can't accept the papers."
Posivach expressed frustration that Legg, who won a Senate seat during the Republican primary, has not made himself available to be served.
"How can you not serve a state senator?" she asked.
Shahan said if he is unable to serve Legg in the coming weeks, he will ask a judge to allow him to publish a notice in newspapers informing Legg of the suit. If Legg does not respond to that, Shahan said he could seek a default judgment.
Legg could not be reached for comment, but is aware of the lawsuit. In a September telephone interview with the Times, he blasted it.
"I kind of wear it as a badge of honor," Legg said at the time. "It's obviously a frivolous lawsuit that unfortunately is going to cost the taxpayers money. I would write a letter any day of the week against golden parachutes that allow ineffective bureaucrats to be bailed out."
With regard to the city, both sides claimed victory Wednesday as Circuit Judge W. Lowell Bray Jr. tossed out the defamation allegations against the city and the council members, but let stand another key piece of the lawsuit.
Bray sided with the city's attorney, Mike Pierro, who argued that case law is established that grants government leaders privilege to say what they want regarding the scope of city operations, including employee performance. Bray did allow Shahan 20 days to amend his complaint to make more arguments on the dismissal.
"We're happy," Pierro said of the ruling. "The case law with regard to the defamation allegations was overwhelmingly on our side."
The judge, however, allowed a count to stand that alleges the city violated a portion of its contract with Posivach that states neither side will make disparaging or negative statements about the other. Pierro argued that part of the contract was voided as the public had a right to be informed when the council found it necessary to discuss Posivach's job performance.
But Shahan said many disparaging comments about Posivach were made by city leaders to the media and not in the context of public city meetings.
"My client lived up to the contract; the city didn't," Shahan told the judge.
Also still moving forward is the lawsuit's claim that the city under its contract with Posivach must pay her severance. The council previously voted not to pay Posivach anything following a labor attorney's advice that the contract is moot because she violated city purchasing rules.