RICHARD PHILLIPS v. CITY OF STANFORD, KENTUCKY; JACK R. WITHROW; GENEVA OWENS; JOHN HALL; STEVE LUCAS; J.S. DAWSON; SHEILA KIDD; and, DON YOUNG
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RENDERED: May 21, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001987-MR
RICHARD PHILLIPS
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 96-CI-000033
v.
CITY
JACK
JOHN
J.S.
and,
APPELLANT
OF STANFORD, KENTUCKY;
R. WITHROW; GENEVA OWENS;
HALL; STEVE LUCAS;
DAWSON; SHEILA KIDD;
DON YOUNG
APPELLEES
OPINION REVERSING IN PART, VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE:
Appellant, Richard Phillips, appeals from a
judgment of the Lincoln Circuit Court dismissing his claims of
procedural due process violations under KRS 15.520, for lack of
jurisdiction, and upholding the Stanford City Council’s decision
to fire him from the Stanford City police force.
We reverse the
order of the circuit court dismissing appellant’s claims of due
process violations, vacate the judgment of the court upholding
the Stanford City Council’s decision, and remand this matter for
further review.
The record reveals these facts.
Appellant was hired by
the Stanford City Police Department in May 1989, serving in the
capacity of police officer.
During the course of his employment,
appellant owned and maintained a race car, competing in racing
events from time to time.
On occasion, he solicited sponsorship
of the vehicle from local businesses.
Those businesses which
sponsored the race car contributed either funds, services, or
parts.
Apparently, Doug Rayburn, a district manager for
several Sav-A-Lot stores in the area, one of which was located in
Stanford, voiced an interest in sponsoring the race car, although
it is unclear whether it was Rayburn who first approached
appellant concerning sponsorship or whether appellant solicited
Rayburn’s assistance.
Nonetheless, on behalf of the local Sav-A-
Lot store, Rayburn decided to sponsor the vehicle.
In May 1995,
Rayburn contacted appellant to let him know a sponsorship check
was available for pick-up.
The check for $300 was made to the
order of the “Stanford Police [De]pt., c/o Richard Phillips,”1
and was drawn on the account of “Lincoln County Foods, Inc.,
d/b/a Sav-A-Lot Discount Foods.”
Appellant picked up the check,
endorsed his name on the back of it, deposited it into his
personal bank account, and used the funds to maintain his race
car.
Two (2) months later, at 7 A.M. on the morning of July
13, 1995, just after appellant’s shift had ended, appellee Don
1
The check appears to name “Stanford Police Apt., c/o
Richard Phillips” as payee.
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Young, chief of police, informed appellant that appellee Jack
Withrow, mayor of Stanford, had a pressing matter which he wanted
to take up with appellant immediately.
Shortly thereafter, the
mayor and Chief Young proceeded to question appellant concerning
appellant’s race car and the manner in which appellant solicited
sponsors.
Apparently, the mayor read aloud from a sworn
statement submitted by Doug Rayburn setting forth the allegations
that: (1) appellant had solicited sponsorship of the race car
while in uniform; (2) Rayburn had assumed the car belonged to the
City of Stanford; and, (3) had Rayburn known the car was not
“tied in to the City,” and had he known the check “was in fact
for [appellant’s] personal gain,” he would not have sponsored the
car on behalf of the local Sav-A-Lot store.
While the mayor
discussed Rayburn’s statement with appellant and questioned him
about it, he did not provide a copy of it to appellant at that
time.
However, at the end of their meeting, according to Chief
Young, the mayor informed appellant he was suspended without pay
pending investigation of the matter.
Five (5) days later, on July 18, 1995, appellant
received two (2) letters, both of which were dated the same day,
and the first of which was signed by the mayor:
Due to the complaint filed against you (copy
attached), you are suspended without pay from
your duties as a police officer. This
suspension will continue through August 3,
1995. A hearing will be held at 6:30 P.M. on
August 3, 1995 in the councilroom at Stanford
City Hall, 305 East Main Street.
Pending the outcome of that hearing, a
decision will be made concerning your
employment status with the City of Stanford.
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Attached to the mayor’s letter was a second letter, signed by
Chief Young and notarized, stating:
Subject: Complaint of Misconduct and
Dishonesty
This formal complaint charges you with
misconduct and dishonesty by
soliciting/obtaining funds for an alleged
Stanford Police Department race car which
does not exist.
This occured [sic] about mid May 1995 and was
recently brought to my attention.
It appears that simultaneous with his receipt of the
above two (2) letters, appellant also received a copy of Doug
Rayburn’s sworn statement from which the mayor had read aloud on
July 13th.
Additionally, on July 18th or at some point
thereafter, appellant received a copy of a second statement,
sworn to and submitted by Sav-A-Lot’s store manager, Marty Hayes.
In his statement, Hayes alleged that “on or about the third week
of May a police officer dressed in full uniform by the name of
Butch Phillips picked a check up presented to him by me, Raymond
(Marty) Hayes, for sponsorship of a race car for the Stanford
Police Department.”
On August 3, 1995, the Stanford City Council met in
closed session to consider the matter.
Appellant was present at
the hearing, unrepresented by counsel.
He had subpoenaed no
witnesses, claiming he did not know he had the right to do so and
had not been informed he could do so.
The City Council called
only two (2) witnesses to testify, Chief Don Young and Marty
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Hayes.2
Chief Young testified directly from Doug Rayburn’s
statement.
Marty Hayes testified that his knowledge of the
matter came only from conversations he had overheard when
appellant and Rayburn were in discussion.
While Hayes conceded
he had never been a party to any discussions whatsoever with
either appellant or Doug Rayburn concerning the race car, he
testified he had, in fact, overheard appellant inform Rayburn the
car belonged to the police department.
Appellant questioned both Chief Young and Marty Hayes
and, in turn, was questioned by city council members.
He denied
being in uniform on each and every occasion he discussed the race
car with Doug Rayburn.
He further denied soliciting sponsorship
of the race car on behalf of the police department, and testified
that Rayburn knew, as did all other business sponsors in town,
the vehicle was privately owned.
He testified that while he
pulled the check out of the envelope in which it was handed him,
he did not pay much attention to the name on the check, other
than to note his name was there.
He further testified he did not
know what to expect at the hearing, the mayor’s having refused to
discuss the matter with him.
Finally, he testified:
I probably should not have cashed the check,
but I do not feel that that is worth losing
my job over. I mean, racing to me is a
hobby. I would not put my job, my lifeline,
at stake for three hundred dollars. I mean,
I did know that the check was going to be for
three hundred dollars because Doug came back
to me probably about the second or third time
that we talked, and told me that the most
that he could do, first he said the most he
2
Doug Rayburn was not present to testify nor does it appear
the City Council required his presence.
-5-
could do was two hundred; he came back a time
later and said he might be able to go another
hundred. So, I did know that three hundred
dollars was the most they were going to
sponsor. And to me, that’s not worth risking
my job to lie about.
The City Council and its attorney went into closed
deliberations for approximately ten (10) minutes, after which
appellant was informed the Council voted to fire him.
In
February 1996, pursuant to KRS 15.520(2),3 appellant filed suit
in Lincoln Circuit Court against the city, the mayor, the council
members, and the police chief, contesting their decision to fire
him.
Appellant not only alleged the decision was unsupported by
substantial evidence in the record, but also alleged the
procedural due process protections afforded him under KRS 15.520,
known as the “policeman’s bill of rights,” had been violated.
Specifically, he alleged:
(1) while KRS 15.520(1)(b) required that he be notified
in writing of the reasons for his suspension within 24 hours of
being suspended, he was not notified in writing until 5 days
after he was suspended;
(2) he was interrogated in the matter by the mayor and
Chief Young without notice and after his shift had ended, in
violation of KRS 15.520(1)(c), requiring that interrogation occur
3
KRS 15.520(2):
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.
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while the officer is on duty, and only after a request for
interrogation has been made in writing, followed by a 48-hour
waiting period;
(3) he was not advised he had the right to remain
silent and the right to counsel prior to being questioned by the
mayor and Chief Young, in violation of KRS 15.520(1)(d);
(4) the City Council failed to secure the appearance of
Doug Rayburn, the complainant, at the hearing, in violation of
KRS 15.520(1)(h)(3), the consequence of which should have been,
under KRS 15.520(1)(h)(4), dismissal of Rayburn’s complaint
against him; and,
(5) he was not informed of his right to be represented
by counsel at the hearing and his right to subpoenae witnesses
thereto, in violation of KRS 15.520(1)(h)(5) and (1)(h)(6).
In November 1996, appellees moved to dismiss
appellant’s procedural due process claims, arguing that pursuant
to Brady v. Pettit, Ky., 586 S.W.2d 29 (1979), the circuit court
was limited to determining whether the evidence supported the
decision of the City Council.
Appellees maintained the court had
no jurisdiction to address appellant’s due process claims.
On
November 22, 1996, the court dismissed appellant’s due process
claims for lack of jurisdiction, and scheduled a trial on the
issue of whether the City Council had acted arbitrarily.
Pursuant to CR 59, appellant asked the court to reconsider its
order of dismissal, arguing he had every right to attack the
process by which he had been fired, particularly when that
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process is specifically identified and mandated by statute.
However, the motion was denied.
A trial was conducted on June 30, 1997, at which
appellant was present and was represented by counsel.
In
addition to his own testimony, appellant called three (3)
witnesses to testify on his behalf, the first of whom was Bobby
Durham, the officer who responded to Doug Rayburn’s complaint and
took Rayburn’s statement.
It appears that Officer Durham’s
testimony was intended to rebut the City Council’s position that
the complaining individual in this matter, for purposes of KRS
15.520(1)(h)(3), was Chief Young, not Doug Rayburn, and as such,
Rayburn’s presence was not required at the City Council hearing.4
Officer Durham testified that Rayburn did, in fact, make a
complaint against appellant prior to giving his sworn statement,
and that it was this complaint which led to appellant’s
dismissal.
The circuit court, however, refused to consider this
testimony, and all other testimony that went to appellant’s due
process claims, having dismissed those claims prior to trial.
The second witness, Randall Reynolds, jointly owns the
race car at issue with appellant, and testified to certain
conversations he and appellant had with Doug Rayburn concerning
the car.
Appellant’s third witness, his wife, also testified as
to certain conversations between appellant and Rayburn which she
witnessed.
4
While Chief Young brought formal charges of misconduct and
dishonesty against appellant, we believe the complainant in this
case was Doug Rayburn, who was specifically asked to submit a
sworn statement, pursuant to KRS 15.520(1)(a)(2).
-8-
In its judgment of July 7, 1997, the court found that
the City Council did not act arbitrarily when it fired appellant
for misconduct and dishonesty, and that there was substantial
evidence presented to the City Council to support the action.
KRS 15.520(1) states:
In order to establish a minimum system of
professional conduct of the police officers
of local units of government of this
Commonwealth, the following standards of
conduct are stated as the intention of the
General Assembly to deal fairly and set
administrative due process rights for police
officers of the local unit of government and
at the same time providing a means for
redress by the citizens of the Commonwealth
for wrongs allegedly done to them by police
officers covered by this section[.]
KRS 15.520(1) (emphasis added).
Further, KRS 15.520(1)(h)
provides: “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[.]” (Emphasis added).
We agree with appellees that appellant was entitled
only to a quasi trial de novo and that, as such, the court’s
review of the matter was “limited to a determination of whether
in light of all the evidence the decision of the administrative
body is arbitrary.”
City of Henderson Civil Serv. Comm’n v.Zubi,
Ky., 631 S.W.2d 632 (1982).
See also Brady v. Pettit, Ky., 586
S.W.2d 29, 33 (1979) (“The trial court’s review is limited to a
determination of whether the administrative body acted
arbitrarily.”).
Further, we agree with appellees that “the test
for arbitrariness as in all reviews of actions by administrative
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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.”
Stallins v. City of Madisonville, Ky. App., 707 S.W.2d 349, 351
(1986) (citations omitted).
However, we disagree with appellees’ contention that
the circuit court did not have jurisdiction to resolve
appellant’s due process claims.
Violations of due process rights
committed in the course of decisionmaking by an administrative
body may render the decision itself arbitrary.
See Commonwealth
Transp. Cabinet v. Cornell, Ky. App., 796 S.W.2d 591 (1990).
Clearly, KRS 15.520 addresses, identifies, and mandates the very
rights appellant argues were violated by the authorities and the
City Council throughout the process of suspending him and,
ultimately, firing him.
If, in fact, appellant’s due process
rights were violated, the court “may find the [City Council’s]
action was arbitrary.”
Id. at 594.5
“Judicial review [shall be] limited to a review of the
transcript of the proceedings below and any other evidence which
is relevant to the issue of arbitrariness.”
City of Louisville
v. Milligan, Ky., 798 S.W.2d 454, 458 (1990)(emphasis added).
For the foregoing reasons, we reverse the order of the Lincoln
Circuit Court dismissing appellant’s due process claims for lack
of jurisdiction, vacate the judgment of the court entered July 7,
5
While KRS 15.520(1)(h)(9) provides the police officer with
the option of addressing alleged procedural violations before the
hearing authority, we do not believe that if he does not do so in
that particular forum, he is foreclosed from doing so at the
circuit court level. KRS 15.520(2).
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1997, and remand this matter for hearing on the issue of
arbitrariness, which shall encompass any and all evidence
relevant to appellant’s due process claims.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Edward E. Dove
Lexington, Kentucky
Edmund J. Benson
Lexington, Kentucky
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