Opinion
NO. 2012-CA-002191-MR
04-24-2015
WILLIAM GIBERSON APPELLANT v. CITY OF LUDLOW APPELLEE
BRIEFS FOR APPELLANT: Daniel J. Canon Laura E. Landenwich Louisville, Kentucky BRIEF FOR APPELLEE: Thomas F. Glassman Lindsay A. Smith-Rump Ft. Mitchell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NOS. 10-CI-03434 & 10-CI-03511
OPINION
AFFIRMING
BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: William Giberson appeals from a summary judgment of the Kenton Circuit Court affirming a decision rendered by the Ludlow City Council terminating his employment as a Ludlow City police officer. The Kenton Circuit Court ruled that KRS 15.520, known as the Policeman's Bill of Rights, is limited to cases involving a complaint against an officer by a private citizen and, therefore, did not apply to Giberson's case. It additionally found that even if the statute applied, it and all other statutory and constitutional requirements were satisfied by the notice and hearing afforded Giberson and the City's decision to terminate Giberson's employment was supported by substantial evidence. Based on the most recent pronouncement by our Supreme Court, the circuit court erred when it held KRS 15.520 does not apply to Giberson's case. However, we agree that all statutory and constitutional due process rights were satisfied by the notice and hearing afforded Giberson and the City's decision to terminate him was based on substantial evidence.
Giberson alleges that in 2009, a Ludlow resident (Jane Doe), informed him and Lieutenant Colonel Benny Johnson that she had been sexually abused by a former City Police Chief approximately twenty years prior, when she was a minor. In July 2010, Giberson learned an official report on the alleged abuse had not been completed and contacted the Kenton County's Attorney's office regarding the procedure for reporting the alleged sexual abuse. Upon the advice of the county attorney and subsequent advice by Kenton County Commonwealth Attorney Rob Sanders, Giberson prepared a standard police report and a form, referred to as a JC3. The JC3 was to be submitted to the Cabinet for Health and Family Services. However, it was not delivered as drafted by Giberson.
On July 22, 2010, Giberson was informed by the Ludlow City Attorney he had been placed on administrative leave because of concerns regarding his mental health. Chief Turner ordered Giberson to submit to a psychiatric examination to determine his mental fitness to perform police duties. Giberson was found fit for duty on August 10, 2010.
On August 11, 2010, a charging document stating the grounds for Giberson's suspension and termination was served on Giberson. Because the charging document and the dates and events described in that document are determinative of this appeal, we recite it in its entirety, exclusive of attached referenced exhibits.
Comes now the Chief of Police of Ludlow Police Department and hereby (proffers) charges against Police Officer William Giberson pursuant to KRS 15.520 and KRS 95.701 et.seq. based on the following violations of the Ludlow Police Department General Rules of Conduct, adopted by the Ludlow City Council pursuant to City of Ludlow, KY Ordinance 1987-3, and for violations of General Rules of Conduct 12.1 et seq. and 30.1 et seq. Please see a certified copy of Ordinance 1987-3 attached hereto and incorporated herein by reference as Exhibit "1". These charges are stated with specificity as follows:
FACTS
1. On January 23, 2010, Officer Giberson had a complaint of being rude and unprofessional to the public on a call for service. Officers were ordered to make a report on this incident, however while Lieutenant Colonel (LTC) Johnson was gathering information on this incident Officer Giberson was disciplined for another incident and sent to Employer Assistance Program, (EAP) and this was set aside pending the out come of the sessions with EAP. Please see attached call report and officers' reports to LTC Johnson regarding this incident as Exhibit "2" which is incorporated herein by reference. This conduct is in violation of Section 12.1.1 of the General Rules of Conduct and section 30.1 (A) (4) of the Ludlow Police Department's Rules and Regulations.
2. On May 8, 2010, Sgt. Beck gave Officer Giberson a counseling statement for his performance as it relates to working an Over-Time detail. Officer Giberson did not follow the instructions as
set forth by his supervising officer. This conduct is in violation of sections 30.1 (A) (4) and of the Ludlow Police Department's Rules and Regulations. Please see the counseling statement attached hereto and incorporated herein by reference as Exhibit "3".
3. On June 12, 2010, Officer Giberson was working "TAP", a grant to patrol and arrest intoxicated drivers. However, during this grant detail, Officer Giberson along with Officer Eastham responded to Villa Hills, Kentucky to back up the Villa Hills Police regarding subjects running from the Villa Hills Police at the Clubhouse in Prospect Point. Officer Giberson while working this detail, is permitted only to aid officers or other departments in emergencies only. The situation in Villa Hills did not constitute an emergency so as to excuse or allow Officer Giberson to respond to that scene for assistance. This conduct is in violation of sections 30.1(A) (2) and of the Ludlow Police Department's Rules and Regulations.
4. On June 12, 2010, Officer Giberson was continuing to work the "TAP" patrol and upon his arrival on a scene of a stop made by Officer Eastham, located an 18 year old suspect who had been operating a motor vehicle. The driver was stopped by Officer Eastham who noticed a smell of intoxicants on the driver and turned the investigation over to Officer Giberson for TAP detail contacts. Officer Eastham informed Officer Giberson that the suspect had been driving and Officer Giberson in turn arrested the driver for Alcohol Intoxication, without having performed any field sobriety tests. The threshold of proof for driving under the influence was lesser than that of standard alcohol intoxication since the driver was under 21 years of age, and only required the demonstration of a blood-alcohol level of .02. The Alcohol Intoxication charge has a greater threshold of proof, yet Officer Giberson elected to pursue the Alcohol Intoxication charge. The suspect was also charged with operating his vehicle on a suspended operator's license. This is inefficient conduct and in violation of sections 30.1(A) (1), (2), and (4) of the Ludlow Police Department's Rules and Regulations. Please see reports from Officer Eastham regarding the incident attached hereto and incorporated herein by reference as Exhibit "4".
5. On July 13, 2010, the Kenton County Attorney's Office called the Ludlow Police Department about paperwork on one of Officer Giberson's cases that is separate from any mentioned in these charges. Detective Hawks was advised by Clerk Bob Epperson, that the Kenton County Attorney Office is requesting a copy of the report
on case # 0710LD038. This is a Domestic Violence Assault where the perpetrator of the domestic violence was arrested on 07/10/2010. Detective Hawks located the entry in the report book, (Case # 0710LD038-Report, Case# 0710LD039-JC3); however, there is no report or JC3 to be found. Detective Hawks placed a copy of both the request and citation on LTC Johnson's desk. This is inefficient conduct and is a violation of section 30.1 (D) (4) of the Ludlow Police Department's Rules and Regulations. Please see the report from Detective Hawks regarding this event attached hereto and incorporated herein by reference as Exhibit "5".
6. On or about July 29, 2010, it was discovered that Officer Giberson failed to properly produce an incident report and log items into evidence. Specifically, Officer Giberson had four (4) United States Postal Service money orders in the amount of $820 each for a total of $3,380.00 turned over into his possession as part of a fraud investigation. Officer Giberson neither made a report regarding this incident nor did he log the money orders into evidence. Please see the attached inventory log of Officer Giberson police cruiser attached hereto and incorporated herein by reference as Exhibit "6".
7. On or about July 29, 2010, it was discovered that Officer Giberson failed to log items of property seized from individuals into evidence or turn them over to the Kenton County Jail facility. These items include; a brown wallet containing a Bank of America MasterCard belonging to Joshua Huffman and multiple gift cards; a second brown wallet containing cash; and a small, black and white purse. This conduct is in violation of the Ludlow Police Department Rules and Regulations section 30.01 (D) (4) and (18). Please see the attached inventory log of Officer Giberson police cruiser attached hereto and incorporated herein by reference as Exhibit "6".
8. On or about July 21, 2010, Officer Giberson was one of three officers on duty as a "first responder" unit. At approximately 2:47 p.m. dispatch relayed a call of a burglary in progress in the 300 block of Stokesay Street in Ludlow. Officer Giberson never responded. Dispatch called for Officer Giberson on the radio as to his status when he did not respond to the crime scene. Officer Giberson did not respond and failed to notify dispatch or his supervisors of his unavailability to take calls. Officer Giberson finally responded to dispatch that he would be responding from Madison Avenue in Covington. It was later determined that Officer Giberson was training with the Covington Police Department. This was done without notice
to his supervisors. The Ludlow Police Department, due to Giberson's inefficient conduct, was unaware that it would need to have someone cover Giberson's calls. Officer Giberson was out of the city of Ludlow and off his beat. This conduct is in violation of the Ludlow Police Department Rules and Regulations section 30.1(A)(2) and (D)(4). Please see the investigation report and dispatch log attached hereto and incorporated herein by reference as Exhibit "7".Chief Turner signed the charging document.
9. Officer Giberson continues to bring the City of Ludlow Police Department in disrepute by his continued failure to conform to the rules, regulations, and policies of this Police Department. Even though Officer Giberson has received numerous reprimands regarding his conduct and failure to comply with said rules. Attached hereto and incorporated herein by reference as Exhibit "8" is a summary of the complaints and problems with Officer Giberson, some of which he was disciplined for and others for which he was not disciplined. For those he was disciplined for there are corresponding disciplinary reports.
As Chief of Police, I believe that Officer Giberson continues to demonstrate inefficiency, misconduct and insubordination in his performance as a City of Ludlow Police Officer. He has continuously violated the departmental rules and regulations and fails to follow the goals and objectives of the Ludlow Police Department.
I have reviewed this documentation as well as Officer Giberson's history of behavior with the City of Ludlow Police Department. After careful review, I believe, as Chief of Police, that Officer Giberson will not change his course of conduct and will continue to bring this Police Department in disrepute.
WHEREFORE, I, Wayne Turner, as Chief of Police, will no longer accept the responsibility for the conduct and actions of Officer William Giberson as a Ludlow Police Officer, and request, on behalf of the Ludlow Police Department that the legislative body not only hear the above charges, but also consider Officer Giberson's past history as a member of this Police Department and terminate his employment with the City.
The matter was heard by the City on three dates over three months: August 26, 2010; September 13, 2010; and October 5, 2010. At all times, Giberson was represented by counsel and permitted to cross-examine witnesses, present witnesses and other evidence. Chief Turner was called by the City. Giberson called as witnesses Commonwealth Attorney Robert Sanders, Chief Turner, and Lieutenant Colonel Johnson. Giberson did not testify.
Chief Turner testified regarding the specific charges of misconduct and infractions of the police department's rules and regulations. He testified that charge 1 was based on Officer Giberson's loss of control and composure when dealing with a citizen. Charge two was based on Giberson's claim for overtime compensation while working on TAP detail. He explained that Giberson had been warned on several occasions overtime was not permitted because any amount over that awarded by the TAP grant would be required to be paid by the City. Despite these warnings, Giberson claimed overtime. Regarding charges 3 and 4, Chief Turner testified Giberson left his TAP detail to aid an adjoining police district in a non-emergency situation and, contrary to his duties as an officer and to his TAP detail, he failed to properly charge a suspect with driving while intoxicated. Regarding charges 5 and 6, Chief Turner testified as to the policies applicable to logging evidence and the need to preserve chain of custody.
Arguably the most serious charge was charge 8. While on duty as a first responder, Giberson left the City without notifying his supervisor and failed to respond to a call for fifteen minutes. Chief Turner testified as to the duties of first responders and that the failure to respond immediately places the public and officers in danger.
Chief Turner testified that no charge against Giberson taken in isolation would warrant him to seek termination. However, Giberson's course of inefficient conduct and misconduct despite attempts to resolve his employment issues led him to seek termination.
Giberson's counsel questioned Chief Turner regarding the allegations of sexual abuse made by Doe against the former Chief of Police. He characterized Giberson's report as fabricated in part, specifically the date and time of the alleged sexual abuse and, therefore, it was not filed with the Cabinet for Health and Family Services. He further testified that Doe was not willing to cooperate with an investigation.
Commonwealth Attorney Sanders testified that Giberson contacted him seeking advice on how to handle Doe's allegation and, specifically, whether he should file a JC3. Sanders recalled he told him to do so and that he was again contacted by Giberson after he was placed on administrative leave regarding possible legal recourse. Sanders was also contacted by Chief Turner for advice regarding the allegations of sexual abuse against the former Chief and Giberson's possible termination.
Lieutenant Colonel Johnson testified that he was present when Doe made the allegation of sexual abuse and Doe actually conveyed the information to him, not Giberson. He further testified that Giberson's report of the conversation was inaccurate. Lieutenant Colonel Johnson confirmed Doe was not willing to cooperate in any investigation.
After three hearings, on October 5, 2010, the City voted to terminate Giberson. The City unanimously found Giberson violated the rules and regulations of the police department and guilty of the charges contained in the charging document on counts one through eight.
Giberson filed an action for violations of the Whistleblower Act, KRS 61.101 et seq., and wrongful termination. He also filed an action challenging the City's administrative decision to terminate him. Discovery proceeded and eventually all claims other than Giberson's administrative challenge were resolved. The circuit court affirmed the City's decision and this appeal followed.
Giberson's initial contention is that his termination was in violation of KRS 15.520. The City argues, and the circuit court agreed, the statute is only applicable where a private citizen's complaint is made against an officer and not to situations, as here, where the disciplinary action is initiated by the chief of police based on intra-department charges.
The City's contention is not unfamiliar to this Court. In a string of unpublished cases this Court held that KRS 15.520 applies only to investigations against a police officer which originate with a citizen's complaint. Marco v. University of Kentucky, 2005-CA-001755-MR , 2006 WL 2520182 (Ky.App. 2006); Ratliff v. Campbell County, 2009-CA-000310-MR, 2010 WL 1815391 (Ky.App. 2010); Moore v. City of New Haven, 2010-CA-000019-MR, 2010 WL 4295588 (Ky.App. 2010); Pearce v. University of Louisville, 2009-CA-001813-MR, 2011 WL 5599540 (Ky.App. 2011); Hill v. City of Mt. Washington, 2011-CA-000378-MR, 2012 WL 163037 (Ky.App. 2012); Beavers v. City of Berea, 2010-CA-0001522-MR, 2012 WL 28690 (Ky.App. 2012). Our Supreme Court accepted discretionary review of Pearce and Hill and resolved the issue by an opinion rendered December 18, 2014. Pearce v. University of Louisville, by and through its Board of Trustees, 448 S.W.3d 746 (Ky. 2014).
As background, we note that absent a statute or contract stating otherwise, "the employment of police officers is terminable at will by the appointing authority for any cause or for no cause." Howard v. City of Independence, 199 S.W.3d 741, 745 (Ky.App. 2005). Prior panels of the Court held KRS 15.520 does not confer due process rights to an officer facing disciplinary action if the charges originate from within his or her department. While perhaps due process rights may have arisen from contract or other applicable statutes, KRS 15.520 was not broadly construed to afford such protections in intra-department disciplinary actions. Our Supreme Court declared this Court strayed "down the wrong path." Pearce, 448 S.W.3d at 749.
KRS 15.520 was enacted "to establish a minimum system of professional conduct of the police officers of local units of government of this Commonwealth by creating standards of conduct 'to deal fairly and set administrative due process rights for police officers . . . and at the same time providing a means of redress by the citizens of the Commonwealth for wrongs allegedly done to them by police officers[.]" McCloud v. Whitt, 639 S.W.2d 375, 377 (Ky.App. 1982) (quoting KRS 15.520). In Pearce, the Court focused on the intent of the legislature to provide administrative due process to police officers which it termed was a matter "of significant concern to law enforcement personnel throughout the state and to municipalities and governmental units that employ them[.]" Pearce, 448 S.W.3d at 747. The Court noted the statute establishes a "baseline system for the investigation and hearing of complaints against police officers[.]" Id. at 750.
To avoid any further debate on the issue, the Court straightforwardly and unambiguously drafted its opinion. The Court firmly stated: "Upon review, we conclude that as it is currently written, KRS 15.520 applies to disciplinary actions that originate from within a police department as well as to disciplinary actions initiated upon complaints from persons outside the police department." Id. at 748. To cement its holding, the Court explained:
[W]e find nothing in the statutory text which would limit the application of the police officer's bill of rights to only complaints lodged by a member of the public. To the contrary, the broad and sweeping language employed by the legislature, as explained above, would appear to evince a legislative intent to cover both public and internally generated complaints. An examination of the individual provisions of the bill of rights discloses that they confer police officers with no more than basic due process protections in the event of the initiation of disciplinary proceedings against them than would be expected if a principal objective of the legislation is to attract and retain outstanding citizens to serve as our first line of defense against murderers, thieves, robbers, and other criminals.Id. at 758.
With the directive of our Supreme Court entrenched that KRS 15.520 is applicable to disciplinary actions against police officers originating from intra-department complaints, our decision is dependent upon whether those statutory mandates were satisfied and whether, under the appropriate standard of review, the decision must be affirmed. We begin with the standard of review applicable to both inquiries.
Whether the City complied with the statutory mandates is considered de novo. As stated in Liquor Outlet, LLC v. Alcoholic Beverage Control Bd., 141 S.W.3d 378, 381 (Ky.App. 2004), "[t]he Court of Appeals is authorized to review issues of law involving an administrative agency decision on a de novo basis." When presented with purely a question of law, "a reviewing court is not bound by the agency's interpretation of [a] statute." Id. Thus, whether the City complied with the statutory requirements set forth in KRS 15.520 is decided without deference to the City's decision to terminate Giberson. The second inquiry proceeds under a different standard of review.
KRS 15.520 specifically provides for judicial review of the City's decision. Subsections (2) and (3) provide as follows:
Any police officer who shall be found guilty by any hearing authority of any charge, may bring an action in the Circuit Court in the county in which the local unit of government may be located to contest the action of that hearing authority, and the action shall be tried as an original action by the court.
The judgment of the Circuit Court shall be subject to appeal to the Court of Appeals. The procedure as to appeal to the Court of Appeals shall be the same as in any civil action. As the provisions of this
section relate to a minimum system of professional conduct, nothing herein shall be construed as limiting or in any way affecting any rights previously afforded to police officers of the Commonwealth by statute, ordinance, or working agreement.
The somewhat unique procedural posture of review was described in Stallins v. City of Madisonville, 707 S.W.2d 349, 350 (Ky.App. 1986), where the Court made clear that the role of the City Council in this instance is as an administrative body empowered to make two determinations: "first, whether the officer has violated the rules and regulations of the department and if so, second, it must exercise its discretion in imposing a penalty." The circuit court is concerned only with the first inquiry leaving the punishment and discipline of a police officer to the City. Id. The Court continued to define the scope of the circuit court's review:
The discharged employee is entitled to something less than a trial de novo—a quasi trial de novo as it were. The burden shifts to the employee who has the obligation to furnish a transcript of the evidence before the hearing body and who has the right to call such additional witnesses as he may desire. The trial court in its review is to consider both the transcript and the additional testimony and it is limited to a determination of whether the administrative body acted arbitrarily in deciding whether the employee violated the rules and regulations of the police department. As related above, however, the review does not include the punishment meted.Id. (internal citation omitted). While a modified de novo standard of review is applicable, the circuit court is limited to resolving whether the decision was arbitrary. "[T]he test for arbitrariness as in all reviews of actions by administrative bodies is based on the absence of substantial evidence to support the action in question, or is based on the presence of proof so overwhelming that relief must be granted to the claimant." Id. at 351. "[I]t is incumbent upon the circuit court, sitting as an appellate court for the Board, to base its decision upon the transcript of the proceedings below, and any other evidence which is relevant to the issue of arbitrariness. No other evidence is to be admitted on appeal." Crouch v. Jefferson County, Kentucky Police Merit Bd., 773 S.W.2d 461, 464 (Ky. 1988) (citation omitted).
Giberson's initial contentions focus on the City's compliance with KRS 15.520. Among its specific requirements, the statute provides for notice and a hearing and the opportunity to be represented by counsel and to present evidence. Giberson does not dispute these basic rudiments of due process were provided but claims the specific language of the statute demands much more. As relevant to Giberson's arguments presented, Section 1 of the statute provides:
a) Any complaint taken from any individual alleging misconduct on the part of any police officer, as defined herein, shall be taken as follows:
1. If the complaint alleges criminal activity on behalf of a police officer, the allegations may be investigated without a signed, sworn complaint of the individual;
2. If the complaint alleges abuse of official authority or a violation of rules and regulations of the department, an affidavit, signed and sworn to by the complainant, shall be obtained;
(b)[...]Prior to or within twenty-four (24) hours after suspending the officer pending investigation or disposition of a complaint, the officer shall be advised in writing of the reasons for the suspension;
(e) Any charge involving violation of any local unit of government rule or regulation shall be made in writing with sufficient specificity so as to fully inform the police officer of the nature and circumstances of the alleged violation in order that he may be able to properly defend himself. The charge shall be served on the police officer in writing;
(h) When a hearing is to be conducted by any appointing authority, legislative body, or other body as designated by the Kentucky Revised Statutes, the following administrative due process rights shall be recognized and these shall be the minimum rights afforded any police officer charged:
2. Copies of any sworn statements or affidavits to be considered by the hearing authority and any exculpatory statements or affidavits shall be furnished to the police officer no less than seventy-two (72) hours prior to the time of any hearing;
3. If any hearing is based upon a complaint of an individual, the individual shall be notified to appear at the time and place of the hearing by certified mail, return receipt requested;
8. Any police officer suspended with or without pay who is not given a hearing as provided by this section within sixty (60) days of any charge being filed, the charge then shall be dismissed with prejudice and not be considered by any hearing authority and the officer shall be reinstated with full back pay and benefits[.]
In Pearce, no hearing was provided and, therefore, the Court did not delve into the nuances of the statute's application. Here, anticipating that time might prove prior panels of this Court wrong, the City attempted to comply with the statutory mandates; the question is whether it did so. Admittedly, we write with no published precedent in an attempt to reach a decision consistent with the statutory language and its legislative intent.
Giberson initially maintains that KRS 15.520(1)(h)(8) was not complied with because the charged conduct occurred outside the sixty-day time period mandated by that subsection. Under his theory, a police department is prohibited from using incidents of misconduct or department rules and regulation infractions occurring more than sixty days before the disciplinary hearing. In a related argument, he contends the notice and hearing provisions were triggered on the date he was placed on administrative leave with pay. A previous panel of this Court disagreed with both contentions. With no published case for guidance, we rely on its reasoning as persuasive.
Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) permits unpublished Kentucky appellate decisions rendered after January 1, 2003, to be cited for consideration by this Court if there is no published opinion adequately addressing the issue before the Court.
In Hawkins v. City of Lawrenceburg, 2002-CA-001706-MR, 2003 WL 22111102 (Ky.App. 2003), a police officer was placed on administrative leave with pay and ordered to complete a mental evaluation and later suspended for disciplinary reasons. The officer contended KRS 15.520(1)(h)(8) was violated because the City of Lawrenceburg failed to provide a hearing within sixty days from the date he was placed on administrative leave with pay or, alternatively, within sixty days from the date of the events leading to his suspension. The Court rejected the argument that administrative leave with pay unrelated to disciplinary matters triggers the sixty-day requirement. Id. at 8. We agree.
Administrative leave with pay for the purpose of securing a mental health evaluation to ascertain an officer's fitness for duty is not a disciplinary action implicating due process rights. While on leave, Giberson remained subject to being called for duty and, importantly, at the time Giberson was placed on administrative leave, there was no "complaint" against him as used in the statute.
Giberson contends that if the statute does not apply when an officer is placed on administrative leave with pay, a department could indefinitely take such action without affording an officer due process rights. While theoretically possible, such a scenario is unlikely in view of the already strained financial condition of local police departments.
Giberson's construction of the statute that events older than sixty days prior to a hearing cannot be used to support an officer's termination is also misplaced. Again, the formal charge and the officer's suspension trigger the statute. In Hawkins, this Court expressed the same view:
By its plain language, KRS 15.520(1)(h)(8) does not establish a general statute of limitations period beyond which a specific instance of misconduct may not be considered in a disciplinary proceeding. Rather, the statute is only triggered once a charge has been filed and the officer has been suspended; and then a hearing has to be held within 60 days following the filing of the charge. The statute does not limit what may be considered in a disciplinary proceeding to events which occurred within 60 days prior to the suspension.Id.
Giberson was presented with a formal statement of the grounds for his suspension and termination on August 11, 2010. The first hearing was commenced on August 26, 2010, and the final hearing held on October 5, 2010, all well within the sixty-day period from the date of his suspension and receipt of the formal charging document.
Giberson also asserts KRS 15.520(1)(h)(2) was violated because he was not provided with exculpatory evidence prior to the hearing. The alleged exculpatory evidence he identifies are commendations in his personnel file.
Although defined in the context of a criminal case, the general definition of exculpatory evidence set forth in Dunn v. Commonwealth, 360 S.W.3d 751 (Ky. 2012), is adaptable to the present case. Exculpatory evidence is evidence favorable to the police officer and material to the grounds for termination. Id. at 768.
Past praise within the department demonstrates only that Giberson performed his duties admirably at times but does not rebut the specific allegations of misconduct alleged in the charging document. While an officer's commendations might persuade a legislative body to impose a penalty other than termination, it is not evidence that the City is required to produce at the hearing. Giberson had ample opportunity before the hearing and over the course of the three months the hearings were held to gather and present any evidence he believed beneficial.
The next in the series of Giberson's arguments is that the City did not comply with KRS 15.520(1)(h)(3) by producing the complaining witness at the hearing. He contends that paragraph 1 of the charging document refers to information received from Officer Thomas Hawks who informed Chief Turner that Giberson was rude. He also points to charge 2 which references Sergeant Beck who did not testify and charge 9 which arises from various sources.
In Pearce, the Court held that individuals making an intra-department complaint are not excluded from the notice and appearance requirements of KRS 15.520(1)(h)(3). Pearce, 448 S.W.3d at 755. In this case, the hearing was based on the complaint signed by Chief Turner. While the other officers were possible witnesses, they were not the complaining individuals required to be notified of, and produced, at the hearing. Although Giberson could have subpoenaed their attendance, the City was not required to produce officers other than Chief Turner.
While not presented as a separate argument, Giberson alludes to the admission of hearsay evidence through Chief Turner. Hearsay evidence is admissible in an administrative hearing "if it is the type of evidence that reasonable and prudent persons would rely on in their daily affairs[.]" KRS 13B.090(1). "This is true even though the hearsay evidence alone is not sufficient in itself to support an agency's findings of fact unless it would be admissible over objections in civil actions." Mollette v. Kentucky Personnel Bd., 997 S.W.2d 492, 495 (Ky.App. 1999). The written reports documenting Giberson's misconduct and infractions of the department's rules and regulations are evidence that a reasonable and prudent police chief would rely upon when assessing an officer's job performance. We conclude any hearsay objection to Chief Turner's testimony regarding such reports was properly rejected.
Giberson also contends he was not adequately informed of the charges against him. The lengthy charging document details each event leading to the individual charges. Although deposition testimony taken subsequent to the hearing revealed there were other issues not specified in the charging document relating to Giberson's alleged wrongful termination, the grounds upon which Chief Turner sought Giberson's termination were sufficiently detailed. Giberson had notice of the charges against him to adequately defend his termination on those specific grounds and the hearing was limited to those issues.
In addition to violations of KRS 15.520, Giberson claims his termination was not in accordance with KRS 95.765, applicable to the City as a fourth-class city that has adopted civil service protections.
KRS 95.765, enacted before KRS 15.520, lacks the specificity of KRS 15.520 but sets forth basic due process afforded police officers. Under the statute, the officer must be provided notice of the charges against him, afforded a trial, and have the right to subpoena witnesses on his behalf. KRS 95.765(1). When compared, it appears to this Court that compliance with KRS 15.520 would necessarily result in compliance with KRS 95.765. In this case, Giberson's contentions are simply a rehash of his earlier arguments and for the same reasons are rejected in the context of KRS 95.765.
This apparent duplication of rights afforded police officers served as the basis for much of Chief Justice Minton's dissent in Pearce.
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Giberson contends that even if all statutory due process was afforded him during the termination process, the City's decision was arbitrary and capricious as a matter law. He points out he was prohibited from questioning witnesses regarding allegations of inappropriate sexual contact with minors by members of the police department to establish he was terminated for reasons other than those cited in the charging document. He was also prohibited from questioning Chief Turner or Lieutenant Colonel Johnson regarding the discipline of other officers for similar misconduct or rule infractions. The City contends that the only relevant evidence was that which either proved or disproved Giberson's misconduct and infractions of the department's rules and regulations. We agree.
Giberson sought to introduce the excluded evidence to demonstrate Chief Turner's motive in seeking his termination from employment and not to disprove that the events as described in the charging document were untrue. Whether Giberson was wrongfully terminated for whistle blowing is not relevant to whether there was substantial evidence that he violated the police department's rules and regulations.
In addition to claims he was denied statutory and constitutional due process, Giberson maintains he was denied equal protection because he was terminated while other officers who engaged in conduct violating the department's rules and regulations were not terminated. Further, he contends the department's rules and regulations are unconstitutionally vague and overbroad.
Equal protection jurisprudence is typically concerned with governmental classifications that "affect some groups of citizens differently than others." McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Courts, including the United States Supreme Court, have been unwilling recognize the "class-of-one theory of equal protection" in the context of public employment. Patterson v. City of Earlington, 650 F.Supp.2d 674, 681-82 (W.D. Ky. 2009). As stated in Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 607-08, 128 S.Ct. 2146, 2156, 170 L.Ed.2d 975 (2008), not every public employment decision is a constitutional matter.
If ... plaintiffs need not claim discrimination on the basis of membership in some class or group, but rather may argue only that they were treated by their employers worse than other employees similarly situated, any personnel action in which a wronged employee can conjure up a claim of differential treatment will suddenly become the basis for a federal constitutional claim. Indeed, an allegation of arbitrary differential treatment could be made in nearly every instance of an assertedly wrongful employment action—not only hiring and firing decisions, but any personnel action, such as promotion, salary, or work assignments—on the theory that other employees were not treated wrongfully.
For similar reasons, Giberson's constitutional claims of vagueness and overbreadth fail. He contends the department's rules and regulations, as adopted by the City, are so vague that persons "of common intelligence must necessarily guess at [their] meaning and differ as to [their] application[.]" Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, (1926). He further contends they are so broadly written that first amendment rights are chilled. Aschcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 1399, 152 L.Ed.2d 403 (2002).
The rules and regulations cited as the basis for Giberson's termination include prohibiting conduct "unbecoming" a member, discrediting the member or department, or tending to "impair the operation or efficiency of the department or its members." He was also charged with failing to conduct himself to "foster harmony and cooperation" within and outside the department and failing to perform his duties with "diligence, intelligence, and interest[.]"
"[A] provision is too vague if it fails to give fair notice of what it prohibits; and a perfectly clear statute may be unconstitutionally overbroad if it unduly infringes upon a fundamental First Amendment right." Wilfong v. Commonwealth, 175 S.W.3d 84, 95 (Ky.App. 2004). However, professional rules of conduct adopted by a federal, state, or local government agency are not criminal in nature and, therefore, "a greater degree of flexibility and breadth is permitted," Alred v. Com., Judicial Conduct Comm'n, 395 S.W.3d 417, 424 (Ky. 2012). As stated by the United States Supreme Court:
"It is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees include 'catchall' clauses prohibiting employee 'misconduct,' 'immorality,' or 'conduct unbecoming.'"Arnett v. Kennedy, 416 U.S. 134, 161, 94 S.Ct. 1633, 1648, 40 L.Ed.2d 15, 37 (1974) (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C.Cir. 1968)).
The rules of conduct applicable to the City's police officers are necessary to the professional work of police officers and their interaction with the public. The rules and regulations are written with sufficient clarity so that people of common intelligence can readily understand the conduct prohibited and need not guess at its meaning. Connally, 269 U.S. at 391, 46 S.Ct. at 127.
Likewise, Giberson's claim that the rules and regulations governing an officer's conduct are overly broad is without merit. "The overbreadth doctrine generally involves a claim that in an effort to control proscribable conduct, a statute [or ordinance] impermissibly reaches constitutionally permissible conduct." Wilfong, 175 S.W.3d at 96. However, the doctrine has limited application when conduct rather than purely speech is prohibited. If conduct and not merely speech is involved, "the overbreadth of a statute must not only be real but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. We conclude Giberson's overbreadth challenge to the department rules and regulations adopted for the purpose of setting forth the appropriate conduct required of the City's police officers is not viable.
Finally, we conclude the circuit court properly granted summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. There was substantial evidence that Giberson violated the rules and regulations of the City's police department and, therefore, the City's finding was not arbitrary. Whether in the circuit court's or this Court's opinion such violations warranted termination is beyond the scope of judicial review. Stallins, 707 S.W.2d at 350.
The summary judgment of the Kenton Circuit Court is affirmed.
D. LAMBERT, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Daniel J. Canon
Laura E. Landenwich
Louisville, Kentucky
BRIEF FOR APPELLEE: Thomas F. Glassman
Lindsay A. Smith-Rump
Ft. Mitchell, Kentucky