Opinion
NO. 2014-CA-001085-MR
02-19-2016
KENNETH THOMPSON APPELLANT v. CITY OF GREENSBURG; GEORGE CHEATHAM II; JERRY COWHERD; BILL TAYLOR; BRENDA PATTERSON; WILLIAM O. MOORE; EDDIE GORN; AND SANDI MORAN APPELLEES
BRIEF FOR APPELLANT: Dawn Lynne McCauley Lebanon, Kentucky BRIEF FOR APPELLEE: Patsey Ely Jacobs Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREEN CIRCUIT COURT
HONORABLE VERNON MINIARD JR., JUDGE
ACTION NO. 11-CI-00010 OPINION
AFFIRMING BEFORE: COMBS, KRAMER, STUMBO, JUDGES. COMBS, JUDGE: Kenneth Thompson appeals the order of the Green Circuit Court which denied his complaint. He sought damages resulting from his dismissal from his job as a police officer for the city of Greensburg. After conducting a careful review of the record and the law, we affirm.
On November 9, 2010, Thompson received a notice of suspension from his duties pending investigation; notice of potential charges; and notice of hearing. Thompson was provided with the allegations and their factual bases in a memo on December 2, 2010, which charged him with inefficiency, misconduct, and insubordination for violating the policy. There was also a memo regarding the use of the department computer, which alleged that Thompson had accessed the public forum Topix and that he had posted inflammatory, false, and misleading statements while on duty.
George Cheatham, II, the mayor of Greensburg, presided over a due process hearing on December 22, 2010. Police officer Tracy Moon testified that he had installed a keystroke logging program on the department computer. A keystroke logging program tracks everything that is typed on a computer. Officer Moon occasionally checked the logs in order to monitor whether the computer was being used for legitimate department purposes. During one of his periodic checks, Officer Moon discovered that a user had made posts on Topix.
Police chief John Brady testified that the Topix posts made from the department computer were inappropriate and inciting. They involved a local love triangle. The involved parties were known to be at risk for domestic violence; therefore, Chief Brady's concern about the posts was heightened. He proceeded to testify that the department's records revealed that Thompson was the only officer on duty when the inappropriate comments were posted; the records also showed that he left the station for patrol only for the first half of his shift.
Additionally, the investigation relied on video footage of the computer, which showed Thompson using the computer during the timeframe during which the comments were generated. The officers matched timestamps of the public posts, the computer, and the camera in order to determine that Thompson had made the Topix posts. Finally, Chief Brady provided documents which Thompson had signed acknowledging his awareness of the computer policies.
In response, Thompson presented evidence which showed that members of other departments had access to the computer and that they had used it from time to time. He also pointed out errors in the timestamps of the camera. Thompson provided evidence of violations of other employees of department computer policies.
On December 30, 2010, Mayor Cheatham set forth his findings in a letter. He found that Thompson had committed the violations recited in the memo of December 2. He then went on to state that the violations were serious and that they negatively impacted the public perception and trust of the police department. Therefore, Mayor Cheatham terminated Thompson's employment.
On January 21, 2011, Thompson filed a complaint in Green Circuit Court alleging that he had been unlawfully discharged. He named the City of Greensburg, Mayor Cheatham, and the members of the city council as defendants (hereafter referred to as "the defendants"). Thompson sought reinstatement, back pay, costs, and fees.
The trial court held a hearing on September 6, 2013. The trial court found in favor of the defendants on March 7, 2014. Thompson filed a motion to alter, amend, or vacate the order on May 12, 2014, which the court denied on June 26, 2014. This appeal followed.
The case was assigned to several judges due to disqualifying conflicts before a qualified judge from another circuit was found. The search for a presiding judge significantly delayed the proceedings.
In order to apply our proper standard of review, we must analyze the role of the circuit court in such an administrative hearing. After an initial hearing, a discharged officer may appeal to the circuit court. KRS15.520(2). The circuit court must then conduct a "quasi trial de novo." Stallins v. City of Madisonville, 707 S.W.2d 349, 350 (Ky. App. 1976). It may only consider a transcript of the administrative hearing and any additional evidence presented by the employee. The trial court must determine whether the administrative hearing authority acted arbitrarily; it may not make findings regarding a penalty or punishment. Id.
Kentucky Revised Statutes.
Upon appeal to this Court, we must review application of the pertinent statutes de novo. Howard v. City of Independence, 199 S.W.3d 741, 743 (Ky. App. 2005). However, we may not disturb the trial court's substantive determinations unless it has committed clear error. Id. A decision is clearly erroneous if it is unsupported by substantial evidence. Thurman v. Meridian Mut. Ins. Co., 345 S.W.3d 635, 639 (Ky. 1961).
Thompson first argues that the proceedings were flawed from the beginning because he was never provided with a sworn affidavit required by KRS 15.520(1)(a)(2). The defendants suggest that we are prohibited from examining this argument because Thompson did not include it in his prehearing statement. CR 76.03(8) limits a party's appellate arguments to the issues he has designated in his prehearing statement.
Kentucky Rules of Civil Procedure.
Thompson's statement of issues in his prehearing statement designates the issues as: 1) whether a mayor who participated in the investigation may also preside over the hearing; and 2) whether that mayor must have training pursuant to KRS 13B.090(1). He points to KRS 15.520 as the controlling statute of the due process proceeding.
We hold that the designation of the statute constitutes sufficient notice in this case. The purpose of the Civil Rules is to promote the objectives of appellate practice: "achieving an orderly appellate process, deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal." Ready v. Jamison, 705 S.W.2d 479, 482 (Ky. 1986).
Therefore, the Supreme Court established the rule of substantial compliance. Id. at 481. An issue will survive dismissal if it can be reasonably identified in the record and if the breach of the rule did not result in serious harm to the appellee. Compliance is determined on a case-by-case basis. Id. at 482.
In this case, we are persuaded that Thompson has substantially complied with the intent of the rule by citing to the controlling statute. The defendants were aware of Thompson's contention regarding the affidavit in the underlying proceedings. They cannot - in good faith - allege any harm by claiming insufficient particularity in the pleading (the prehearing statement). Therefore, we will consider the merits of the argument. See Jones v. Dougherty, 412 S.W.3d 188, 192 (Ky. App. 2012).
At the time of Thompson's hearing, KRS 15.520(1)(a)(2) directed that an accusation of violation of employment policies must be signed and sworn in an affidavit. The defendants do not dispute the fact that no affidavit was provided in this case. However, the record indicates that Thompson was provided with detailed notice of the charges in the memo written by Chief Brady. He received a hearing in which he had ample opportunity for cross-examination of witnesses, and he robustly availed himself of that opportunity. Therefore, Thompson was given due process. We do not believe the lack of an affidavit under these circumstances constituted reversible error.
KRS 15.520 was revised in 2015, but we must analyze the version of the statute which was in effect at the time of the underlying proceedings. --------
Thompson next argues that he was not provided with notice of the specific acts which were the basis of the charges against him pursuant to KRS 15.520(e). This allegation is based on his challenge to Mayor Cheatham's failure to name which of his alleged acts constituted inefficiency or insubordination. We disagree. Thompson received a memo from Chief Brady explaining his charges resulting from his improper use of the department computer. That memo specifically referred to his use of it to write inappropriate posts on Topix. Mayor Cheatham testified that it was inefficient for Thompson to use the computer for personal purposes instead of patrolling. He explained that violation of the department policy constituted insubordination. No parties at the hearing accused Thompson of any surprise offenses. We cannot conclude that the statute was violated.
Thompson's next arguments are related to the role of Mayor Cheatham. First, he claims that the mayor's participation rendered the hearing unfair because he had been involved in the investigation of the origin of the inappropriate Topix posts.
The parties do not dispute that Greensburg is a mayor-council city. Accordingly, "[t]he mayor shall be the appointing authority with power to appoint and remove . . . police officers . . .." KRS 83A.130(9). This court has already determined that in mayor-council cities, the mayor is authorized to conduct due process hearings for police officers. Howard v. City of Independence, 199 S.W.3d 741, 743 (Ky. App. 2005). The hearing must be conducted in accordance with KRS 15.520, which does not provide for a replacement authority.
Mayor Cheatham testified in circuit court that he had merely been informed of the violation and investigation. He was not told any specifics, including suspected offenders, until Thompson was formally charged. In fact, Mayor Cheatham recounted that he had hoped the charges against Thompson were untrue. Thompson cannot point to authority requiring Mayor Cheatham's recusal, and he does not demonstrate how he was prejudiced by Mayor Cheatham's participation. We find no error.
Next, Thompson claims that Mayor Cheatham was unqualified to preside over the hearing due to a lack of training. He cites to KRS 13B.030(4) which requires hearing officers to receive special training. However, Chapter 13B does not apply to city governments. KRS 13B.020(2)(f). Therefore, that argument has no merit.
Finally, Thompson claims that the finding of guilt was not supported by substantial evidence. We disagree. The defendants have provided a concise list of supporting evidence:
1.) that Thompson was the only police officer on duty when the questionable comments were posted on Topix on the night of October 10 and 11. He did not patrol for six hours of his shift. Thompson used the computer during that shift.
2.) that posts were made to Topix from the police department computer the night of October 14, 2010. Again, Thompson was on duty and did not patrol during the time period in question.
3.) that Thompson was aware of the computer policies.
4.) that Chief Brady recognized Thompson's writing style based on familiarity with Thompson's police reports.
Although Thompson sought to cast aspersions on the evidence, it nonetheless supported the findings of Mayor Cheatham and the circuit court. The circuit court must defer to the decision of an agency, even when conflicting evidence is present. Runner v. Commonwealth, 323 S.W.3d 7, 11 (Ky. App. 2010). Accordingly, we are unable to hold that clear error occurred.
Therefore, we affirm the Green Circuit Court.
STUMBO, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION.
KRAMER, JUDGE: I agree with the bulk of the majority opinion, but pursuant to CR 76.03(8), I respectfully disagree regarding Thompson's failure to include the issue concerning the lack of an affidavit in the underlying proceedings in his prehearing statement. See, e.g., Wright v. House of Imports, Inc., 381 S.W.3d 209, 212-13 (Ky. 2012) ("[T]he party appealing a trial court's judgment is limited to those issues identified by the prehearing statement[.]"). In my view, Thompson has clearly failed to comply with this requirement. Nonetheless, we do have the authority to review for manifest injustice under a palpable error standard, even if unpreserved. See id. Applying this standard, I do agree with the majority opinion that there was no error by the trial court. BRIEF FOR APPELLANT: Dawn Lynne McCauley
Lebanon, Kentucky BRIEF FOR APPELLEE: Patsey Ely Jacobs
Lexington, Kentucky