Opinion
No. 2009-CA-000310-MR.
May 7, 2010. NOT TO BE PUBLISHED
Appeal from Campbell Circuit Court, Honorable Julie Reinhardt Ward, Judge, Action No. 07-CI-01837.
Kurt J. Meier, Fort Thomas, Kentucky, Briefs for Appellant.
William H. Schoettelkotte, Assistant Campbell County Attorney, Newport, Kentucky, Brief for Appellees.
OPINION
Ronald Ratliff appeals from the February 3, 2009 judgment of the Campbell Circuit Court, which affirmed the Campbell County Police Merit Board's decision to uphold Police Chief Keith D. Hill's termination of Ratliff's employment as a police sergeant. We affirm.
This appeal concerns the termination of Campbell County police officer, Ronald Ratliff, by Police Chief Kevin D. Hill and the Campbell County Merit Board. Ratliff was a police officer for the Campbell County police department for fifteen years. Information about alleged misconduct by Ratliff surfaced during the investigation of another Campbell County police officer. Upon learning the information about Ratliff, Chief Hill ordered an investigation. On September 21, 2007, Chief Hill informed Ratliff that he was under investigation for misconduct and inappropriate behavior. Ratliff was then interrogated by police lieutenants, David Fickenscher and Bill Wilson. Following the interview, Chief Hill placed Ratliff on administrative leave with pay.
Between the time of the investigation and the termination, the following events occurred: Ratliff sent Chief Hill two e-mails in which Ratliff admitted to "recent actions" and "poor decisions." Then, after discussion about the e-mails with Ratliff, Chief Hill ordered that Ratliff submit to a polygraph examination. After the polygraph examination, Ratliff admitted to receiving free drinks at two Campbell County bars and disclosing the name of an undercover informant to a member of the public. Thereafter, On September 29, 2007, Ratliff was discharged by Campbell County Police Chief Hill. At the time of the termination, Chief Hill provided Ratliff a letter which listed the twelve violations by Ratliff of the Campbell County police department's policies, procedures, and code of conduct.
Ratliff then appealed the termination and requested a hearing before the merit board. Ratliff, through counsel, filed a motion in limine to prevent the police department from presenting any evidence regarding the twelve violations. Further, Ratliff filed numerous other motions including a motion to dismiss violations 8, 11, and 12 as duplicative, a motion to exclude Ratliff's oral statements, a motion to dismiss for violations of KRS 15.520, a motion to declare all witnesses as hostile witnesses, and a motion for the board to retain independent counsel. During the course of the litigation, Ratliff was sent a complete list of witnesses, a copy of all witnesses' statements and reports, a copy of Lieutenant Fickenscher's interview tape, and a copy of all documents to be introduced as exhibits. In addition, Patrick Walsh, an attorney, was retained to represent the merit board. The hearing was scheduled for November 19, 2007.
On November 19, 2007, a hearing was held before the full merit board beginning at 9:00 a.m. and lasted until after midnight and into the early hours of the next day. After the presentation of evidence and closing arguments of both attorneys, the merit board, pursuant to KRS 78.455, met in executive session to make its decision. The board affirmed the decision to terminate Ratliff and denied Ratliff's motion to dismiss based on his contention that KRS 15.520 had been violated.
Next Ratliff, under KRS 78.455(2)(a), appealed the decision to the Campbell Circuit Court. On September 24, 2008, after a hearing and submission of briefs by the parties, the court issued its order, which remanded the matter to the merit board. The order further instructed the merit board that, in determining whether to uphold the chief's termination of Ratliff, it must exclude Ratliff's testimony, Ratliff's statement, the polygraph, the testimony from Ratliff's interrogation, testimony by any officer about the polygraph, and any exhibits introduced by Ratliff or the police officer who had interrogated Ratliff.
In order to meet the directives of the court's order, counsel agreed for the board to consider the evidence from a redacted transcript and exhibits, and also excluded the items and exhibits pursuant to the court order. The merit board's attorney suggested a meeting between all the parties to discuss the evidence to be considered, the redaction of the transcript, and the proposed findings and conclusions by each party. Ratliff's counsel, however, did not attend the meeting.
At the conclusion of the merit board's second hearing on October 29, 2008, it again affirmed the termination of Ratliff. For a second time, Ratliff appealed to the circuit court. On February 3, 2009, the Campbell Circuit Court affirmed the merit board's decision. This appeal followed.
Ratliff argues on appeal that the circuit court's decision was clearly erroneous because the merit board used evidence on remand that should have been excluded pursuant to the court's orders. Second, Ratliff contends that, because the circuit court failed to clarify the scope of the officer's bill of rights in KRS 15.520 and KRS 78.455, Ratliff was denied due process rights.
The situation herein involves multilayers of review. Initially, the police chief's actions regarding Ratliff were subject to the review of the merit board. We are informed on this point by KRS 78.455(1):
(1) Every action in the nature of a dismissal, suspension, reduction or fine made by the chief, shall be subject to review by the board at the request of any officer or employee affected by KRS 78.400 to 78.460, and the board shall give notice and hold a public hearing. . . .
Then, after the merit board renders its opinion, an aggrieved party may appeal the decision to the appropriate circuit court, sitting as an appellate court.
(2)(a) Every action in the nature of a dismissal, suspension, reduction or fine made by the board shall be final, except that any person aggrieved thereby may, within twenty (20) days after the rendition of the action, appeal to the Circuit Court of the county in which the board meets. The board shall be named respondent as the county police force merit board, and service shall be had on the chairman thereof. The appeal taken to the Circuit Court shall be docketed by the clerk as a civil action and shall be tried anew, as if no action had been rendered by the board.
KRS 78.455(2)(a). Finally, an aggrieved party may then appeal the decision of the circuit court to this Court.
(b) 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 civil action.
In making our review, we first note that the function of the hearing body in instances of charges against police officers is to ascertain whether the officer violated the rules and regulations of the department and, if so, impose a penalty. Only the former is subject to judicial review. Stallins v. City of Madisonville, 707 S.W.2d 349, 351 (Ky. App. 1986). Our review of the circuit court's actions is elucidated therein:
The standard guiding this Court on the appeal from the circuit court is the "clearly erroneous" rule as promulgated in CR 52.01. We cannot disturb the trial court's determination unless it acted clearly erroneously in the sense that its determinations were not supported by substantial evidence. See [Kentucky Rules of Civil Procedure] CR 52.01; Cherry v. Cherry, Ky., 634 S.W.2d 423 (1979).
Id. at 351.
As explained in Crouch v. Jefferson County, Kentucky Police Merit Bd., 773 S.W.2d 461, 463 (Ky. 1988), it is necessary, based on constitutional parameters, that de novo review applies to the case at bar and KRS 78.455. But the question remains as to an explanation of the requirements of a de novo review under KRS 78.455. To answer that inquiry, we turn to American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456, (Ky. 1964), which states, "[b]asically, judicial review of administrative action is concerned with the question of arbitrariness." Ultimately, in Crouch, the Court outlines the process to discern arbitrariness:
The exercise of discretionary power by the Commissioner, though resting ultimately on opinion as distinguished from pure fact, represents a factual finding and is not to be disturbed unless it is arbitrary or unreasonable. By "arbitrary" we mean clearly erroneous, and by "clearly erroneous" we mean unsupported by substantial evidence. By "unreasonable" is meant that under the evidence presented there is no room for difference of opinion among reasonable minds.
Crouch, 773 S.W.2d at 464. Moreover, as with any appeal from a decision of an administrative agency, we review the trial court's application of the law to the facts de novo. See Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 885-886 (Ky. 1996).
Furthermore, under the requisites of KRS 78.455, the standard of review to be applied is a modified de novo review. This review was elucidated in Crouch:
We must now determine the proper scope of the de novo review granted to the appellate court. It is clear from American Beauty Homes and Brady [ v. Pettit, 586 S.W.2d 29 (Ky. 1979)] that "de novo" is not, in this instance, a retrial of all the issues. The appellate court judge does not sit as a board and hear testimony. Nor does he or she determine the credibility or lack thereof, of witnesses. These tasks are assigned to the Board alone by the General Assembly, and may not, consistent with the separation of powers doctrine, be delegated to the courts.
Crouch, 773 S.W.2d at 463. To restate, the circuit court does not retry the case, as this would be a violation of the separation of powers doctrine. But, the Court continues:
Recognizing that something less than a new trial is demanded by the de novo review of KRS 78.455, the next step is to define how much less. For the answer to that inquiry, we again turn to American Beauty Homes. "Basically, judicial review of administrative action is concerned with the question of arbitrariness."
Id. at 464. In sum, any appellate court reviewing an administrative decision under KRS 78.455 is charged with determining whether the decision by the administrative officer/board was arbitrary.
Ratliff's first argument on appeal is that the circuit court's decision was clearly erroneous because it upheld the merit board's decision, which Ratliff maintains was arbitrary. The circuit court in its February 3, 2009 order noted that "[t]here is no evidence in the record that the witnesses and evidence presented at the Merit Board hearing came strictly from [Ratliff's] interrogation. Without proof to the contrary this evidence was properly presented to the Merit Board." Our review of the record convinces us that the circuit court was correct and that the merit board's decision was supported by substantial evidence, and hence, not arbitrary.
Ratliff alleges that the evidence used by the police department and the merit board was completely based on Ratliff's proffered statements during his interrogation and polygraph examination. The record does not support this claim. Nowhere does Ratliff explicate that the only evidence concerning his behavior came directly from the polygraph or his statements. Instead, he makes a scattershot of accusations regarding the evidence without any coherent explanation of his claim. For example, on page 7 of his brief, Ratliff cites one example of improper evidence used at the second hearing, which he claims was from the prohibited interrogation and polygraph. The example he mentions is found, according to him, on page 173 of the transcript. But close examination reveals that pages 153 to 180 of the original transcript were not included in the edited transcript used by the merit board at the second hearing.
Following the court's September 24, 2008 order remanding the matter to the merit board and ordering that the offending evidence be removed, the parties and the court agreed that the proper procedure was for the merit board to make its decision using a redacted transcript and exhibits. The use of transcripts in similar administrative hearings has been affirmed in both Crouch and Stallings.
At the second hearing, the redacted transcript and exhibits were properly introduced and included. To prepare the redacted transcript, the parties removed from the transcript Ratliff's testimony, his statements to Chief Hill and Detective Fickenscher, his taped interview, polygraph report, testimony about the polygraph by police officers, Ratliff's exhibits (at his insistence), and police officers' exhibits resulting from the interrogation. Before the October 29, 2008 hearing, the board's counsel reviewed the edited evidence and stated that this revised evidence complied with the court order. All the parties appeared at the remand hearing. Neither side introduced new evidence. And Ratliff did not object to the redacted transcript.
Ratliff also contends that because it was primarily the same merit board at both hearings, the second merit board could not fairly consider the redacted transcript. We do not find merit in this argument. Judges often admonish juries to disregard testimony, and they do. A similar factor is operative in this case.
As a reviewing Court, it is not our role to second-guess or reanalyze the evidence presented to the merit board. Our role as a review Court is to ascertain whether the circuit court's decision upholding the merit board's findings was clearly erroneous. Upon review, we cannot say that this determination was clearly erroneous. In fact, we find that the record is replete with substantial evidence regarding Ratliff's activities. Moreover, we are troubled by Ratliff's misstatements about the evidence garnered by the police department against him.
Ratliff's second major argument to bolster his assertion that the court's actions were clearly erroneous regards the applicability of KRS 15.520 to this action. We disagree with him. Notably, KRS 15.520 is titled "[c]omplaints against police officers; manner of investigation and hearing" whereas KRS 78.455 is titled "[a]ction of chief or board final; exceptions; appeals to courts." This action, clearly, stems from a termination by a police chief that was upheld by a merit board. Therefore, the appropriate procedure is found in KRS 78.455.
Similarly, we believe that the language of KRS 15.520 itself demonstrates that it is not applicable to the case at hand. The statutory language applies to police officers who are subject to citizen complaints as opposed to an internal investigation, as was the case here. In pertinent part, the statute states that "[a]ny complaint taken from any individual alleging misconduct on the part of any police officer, as defined herein[.]" KRS 15.520(1)(a). Here, Ratliff's termination was based on an internal departmental investigation rather than an investigation initiated as a result of a citizen complaint. And, therefore, the statutory requisites of KRS 15.520 are not relevant to Ratliff's termination.
Ratliff uses Howard v. City of Independence, 199 S.W.3d 741 (Ky. App. 2005), to support is proposition that KRS 15.520 must be used in disciplinary proceedings. A close reading of the case, however, provides that the case involved a mayor and a police officer and was not based on a firing by the police chief. Therefore, in that situation, KRS 78.455 was inapposite, and KRS 15.520 applied. On another note, Crouch, cited above, is the decision wherein the Supreme Court explains the de novo process for review of police chief and merit board decisions. Nowhere in Crouch is any mention made of the KRS 15.520. And, in fact, Crouch specifically mentions that this standard of de novo review applies to all public employee discharge cases. Crouch, 773 S.W.2d at 463. Thus, Ratliff's insistence that this case falls under the purview of the "Police Officer's Bill of Rights" is belied by statutory and caselaw and the handling of this case since its inception.
Finally, our assessment of the proceedings below confirms that Ratliff was afforded due process. Under KRS 78.455, any officer may be removed by the chief for any cause that will promote the efficiency of service. Keeping this applicable standard for a termination of a police officer under KRS 78.440-460 in mind and the procedural components therein, we believe that protocol was followed in this case. In contrast to Ratliff's assertion that the board abused its power and completely ignored the rules of evidence, the disciplinary proceedings were painstaking, long, and fair. Additionally, Ratliff was given detailed notice of the charges against him prior to suspension; he received ample notice of the merit board hearing; and, he was represented by counsel at all stages of the proceedings. And he was given the right to subpoena witnesses, cross-examine the police department's witnesses, and received copies of all witness statements and exhibits. The hearing itself lasted for hours during which time Ratliff's counsel was provided with all attendant powers and privileges. The hearing was recorded and transcribed. Thus, under the purview of KRS 78.455, we find that Ratliff received a full and fair due process hearing.
The judgment of the Campbell Circuit Court is affirmed.
ALL CONCUR.