Dover officer claims racial discrimination in lawsuit

DOVER — Claiming to be a victim of racial discrimination during the city of Dover’s last search for a police chief, a current Administrative Command officer filed a federal lawsuit against a host of past and present officials on Oct. 16.

Veteran Dover officer Capt. David Spicer, who is white, claims he was unfairly passed over when the city promoted Marvin Mailey, who is black, in 2017. Capt. Spicer could not be reached for comment on Wednesday.

Dave Spicer

Capt. Spicer’s attorney Michele Allen, however, released a statement that read:

“Denying or selecting someone for a position based solely upon their race is wrong, plain and simple.

“Captain Spicer had a sterling reputation with more than twenty-two years of commendable service to the community. He had the support of his peers and exceeded the required qualifications listed in the Chief’s position. The person who was ultimately chosen was not, by any objective standards, the most qualified candidate.

Marvin Mailey

“You can reach no other conclusion then Captain Spicer was denied the promotion because of his race and that is discrimination. Period.”

Attorney Daniel A. Griffith — representing the city — declined comment Wednesday.

Mr. Mailey, who retired this year and has been hired by the Delaware Department of Correction, was named as a defendant in the 24-page action, along with Mayor Robin R. Christiansen, past and present council members and city staff.

Mr. Christiansen said, “This is America and everyone is entitled to litigate when they feel wronged. (Capt. Spicer) has chosen to exercise his constitutional right and I don’t have any feelings about him negatively or positively for that.

Dover Mayor Robin Christiansen.

“I think we’re going to be vindicated in the court system. We’re going to move on and find the best leadership to meet the responsibility of job one, which is to provide the best possible public safety and security for the City of Dover and its citizens.”

Council members President Timothy Slavin, David Anderson and Roy Sudler were named as defendants, along with past member James Hutchison, who served as Public Safety and Advisory Committee Chair. Mr. Slavin declined comment, while Mr. Sudler and Mr. Hutchison were not immediately available, along with Mr. Mailey.

Acting City Manager Donna Mitchell and Director of Human Services Kim Hawkins were named as defendants, and unavailable for comment on Wednesday due to work-related conferences out of town, a city spokeswoman said.

According to Mr. Anderson, the contents of the lawsuit were “silly and misguided.

“The interpretation of what he alleges is very weak and that’s why it was dismissed at every other level. I feel very confident it will be dismissed on its merits,” he said.

Mr. Anderson opted not to speak on the lawsuit’s specific claims “until speaking with legal counsel. It’s a court matter now.”

The lawsuit is seeking monetary compensation for damages, attorney’s fees and anything else the Court deems appropriate.

The action was “background noise,” Mr. Anderson said.

“The successful tenure of Marvin Mailey proved he was ready for the job. Everyone has the right to their opinions, it’s a free country and reasonable minds can disagree.

“Dave is a great American and a man who has dedicated his professional life to providing safety to the community he serves. I don’t have anything against him and I wish he wouldn’t go this route, but that’s certainly his right.”

Mr. Anderson also referenced Capt. Spicer’s being shot while breaking up a suspected drug deal in 2001 as a testament to his valued community service. The officer began with Dover PD on Sept. 22, 1997.

Chief search continues

The search for Mr. Mailey’s replacement continues, and Mr. Christiansen said he hoped that a candidate would be introduced to council at its first meeting in December. The position was advertised nationally and locally beginning on Sept. 10 and the application deadline closed Oct. 14.

Capt. Spicer said he applied for the position on Oct. 3. Part of the lawsuit claims his professional career opportunities have been lessened by the purported discrimination.

All applications will be presented to the selection committee and Mr. Christiansen said the list may be whittled to five or six candidates offered interviews.

“We advertised nationally because of the reputation of the Dover Police Department and its excellence of service in the past. We feel confident that there’s enough interest to become a part of that to (assure the addition of someone who can continue to guide us along that path).”

Also, the mayor said, a new chief must continue to focus on community policing and partnering with residents in “being active participants in helping to protect the areas in which they live.”

The chief will be paid a maximum of $122,980 annually based on experience and qualifications.

The police department has an authorized strength of 101 sworn officers, 33 civilian members, and a cadet program consisting of six part-time civilian members. The chief reports directly to the mayor and the department has an operating budget of $17,256,100 in the 2019-20 fiscal year.

The allegations detailed

The lawsuit detailed a series of events that began with Paul Bernat’s selection as Dover’s chief of Police on April 4, 2014.

“The former mayor, Carleton Carey, instructed Paul Bernat that if he wanted to be promoted to Chief of Police he would have to select Marvin Mailey as his Deputy Chief, an African American, despite the fact there were more qualified candidates for the position,”
according to the action.

Mr. Mailey was promoted to second in charge and the lawsuit noted that five Caucasian officers filed racial discrimination grievances and settled with the city for a combined $300,000 paid out.

Following Mr. Bernat’s upcoming retirement announcement on Dec. 20, 2016, Capt. Spicer claimed that Mr. Sudler “began to aggressively campaign” for Mr. Mailey and use his council position “to unlawfully influence and circumvent the City of Dover’s selection process.”

The lawsuit also pointed to comments Mr. Sudler made to the Delaware State News that “many of his constituents have expressed to him the importance of having a new police chief who represents the diversity of the community her or she serves” and issues surrounding a published job description in the newspaper that supposedly left Mr. Sudler and Mr. Anderson unhappy.

Political pressure allegedly exerted by the councilmen supposedly led to a revised job description that included removing a bachelor’s degree requirement. While Mr. Mailey did not have a bachelor’s degree, Capt. Spicer pointed to his own bachelor’s and master’s degrees, the lawsuit indicated.

At a selection committee meeting on Feb. 14, 2017, the lawsuit claimed a retired Dover PD officer said “he feared there would be rioting and looting of businesses” in Dover “in order to pressure the Committee to hire an African American Chief.”

Capt. Spicer claimed that council president Mr. Slavin had already decided to nominate Mr. Mailey before applications were submitted as evidence by statements made during the first Police Chief Committee meeting on Feb. 1, 2017. A motion to hire Mr. Mailey failed for lack of a second, the lawsuit alleged.

Eventually, the city received 34 candidates and six candidates were selected for interviews. Mr. Mailey was nominated and confirmed as chief on May 4, 2017.

The promotion was followed by a series of alleged interactions and statements that Capt. Spicer cited, including:

• The mayor supposedly texted Mr. Bernat the night of Mr. Mailey’s ascension “stating he was sorry he let Bernat down” and “that he just (expletive) the Future of Dover PD. Bernat believed race was an unfair factor in the selection of Marvin Mailey as Chief of Police.”

• Former Dover Police Chief James Hosfelt allegedly said he told Capt. Spicer “he should hire an attorney because there were certain outside influences, which ‘obviously impacted Timothy Slavin and led him to do what he did.’ ”

Mr. Hosfelt confirmed the statement on Wednesday and explained that he didn’t think the process was fair to either Capt. Spicer or Mr. Mailey.

• Ex-City Manager Scott Koenig allegedly said “race was a factor in the decision-making process for the selection of Chief of Police. Koenig stated there was ‘a lot of discussion about race that carried through with the selection process.‘ “ He declined comment Wednesday.

An attempt to reach Mr. Bernat for comment was unsuccessful.

Capt. Spicer’s racial discrimination grievance with the city was denied on June 9, 2017. He interviewed for the Deputy Chief position and was notified he was not selected on July 24, 2017, according to the action.

Capt. Tim Stump was instead selected for Deputy Chief, though Capt. Spicer maintained he was more qualified. Capt. Stump currently serves as acting police chief and said earlier that he will not seek the permanent position.

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