ARTRIP (JOHN) VS. CITY OF HOPKINSVILLE
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RENDERED: FEBRUARY 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000822-MR
JOHN ARTRIP
APPELLANT
v.
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 08-CI-00778
CITY OF HOPKINSVILLE
APPELLEE
OPINION
AFFIRMING IN PART
AND VACATING IN PART
** ** ** ** **
BEFORE: ACREE AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
ACREE, JUDGE: The issues before this Court concern the City of Hopkinsville’s
(City) decision to discharge John Artrip from his duties as a police officer. We
must determine whether KRS 15.520 prohibited the City from bringing charges
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580. Sr. Judge Buckingham dissented in this opinion prior to the expiration of his term of
senior judge service. Release of the opinion was delayed by administrative handling.
against him in 2008, and whether the City’s determination that Artrip was guilty2
of misconduct was based on substantial evidence. For the following reasons, we
affirm in part and vacate in part.
Facts and Procedure
Artrip was employed as a police officer in Hopkinsville, Kentucky, in the
autumn of 2004. Approximately one year later, following his involvement in two
minor motor vehicle accidents in Tennessee which occurred only moments apart,
he was arrested for reckless endangerment, driving under the influence (DUI),
violation of Tennessee’s implied consent law, and reckless driving. Hopkinsville
Chief of Police Kermit Yeager suspended Artrip the following day, providing him
with a memorandum which stated, “You are suspended from duty without pay
pending the outcome of charges placed against you in Montgomery County,
Tennessee.”3 No complaint was filed with the city council at that time, and no
hearing was conducted regarding Artrip’s suspension.4
Artrip filed a wrongful suspension claim against the City of Hopkinsville in
federal court, alleging he has been suspended in violation of KRS 95.450 and KRS
15.520, commonly known as the “Police Officers’ Bill of Rights.” The federal
court agreed with Artrip, concluding, “Chief Yeager had no authority to
2
Use of the word “guilty” here is not intended to connote criminal guilt but is consistent with the
terminology used by the City in its administrative disciplinary proceedings against Artrip.
3
The memorandum also instructed Artrip to turn in his identification and weapon and forbade
him from representing the police department or entering the police building for the duration of
his suspension.
4
Artrip eventually pleaded guilty to reckless driving and violation of Tennessee’s implied
consent law.
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indefinitely suspend Mr. Artrip pending the disposition of the criminal charges
filed against him [in Tennessee].” Artrip v. City of Hopkinsville, No. 5:07-CV-10R, 2008 WL 77715, at *4 (W.D. Ky. 2008).
Undisputed facts critical both to the federal case and to Artrip’s case now
before this Court are that “[t]o date[, January 4, 2008, the date the federal opinion
was rendered], Mr. Artrip has not been reinstated to active duty, no administrative
charges have been filed against him, no hearing has been conducted regarding his
suspension, and the criminal charges filed against him in Tennessee are still
pending.” Artrip, 2008 WL 77715 at *1 (emphasis supplied).
In the absence of Kentucky caselaw on the issue, the federal court relied on
advisory opinions of the Kentucky Attorney General. Id. at *2 - *4 (citing Opinion
of the Attorney General (OAG) 80-655 (1980) and OAG 81-134 (1981)). Based
on these advisory opinions, the federal court concluded that
Chief Yeager had no authority to indefinitely suspend
Mr. Artrip pending the disposition of the criminal
charges filed against him [in Tennessee]. Instead, upon
Chief Yeager’s decision to suspend him, Mr. Artrip was
entitled, under KRS 95.450, to have charges preferred
against him and a hearing held on those charges.
Artrip, 2008 WL 77715 at *4 (emphasis supplied). For Artrip’s remedy, the
federal court ordered his “reinstatement with full back pay and benefits.” Id. at *5.
A subsequent order sent the parties to mediation to determine the amount of back
pay and benefits. Following that mediation, the parties entered into a confidential
settlement agreement. This restored the status quo existing prior to Chief Yeager’s
order of suspension.
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On April 15, 2008, very soon after Artrip was reinstated in accordance
with the settlement agreement, the City formally preferred charges against him and
suspended his employment. This time, a written complaint was filed with the
City’s clerk, and Artrip was provided a document detailing the charges. There
were three charges: Count I, inefficiency; Count II, violation of law;5 and Count
III, violation of the rules adopted by the legislative body. The final Count was
based upon an alleged pattern of unprofessional conduct. Following a hearing, the
city council concluded Artrip was guilty of Counts I and II and fired him.
Artrip appealed the decision to the Christian Circuit Court where the parties
soon filed cross-motions for summary judgment. The circuit court determined that
the city council’s decision was based on sufficient evidence and a correct
application of the law. Appeal to this Court then followed.
On appeal, Artrip presents three arguments: (1) KRS 15.520 precluded the
City from bringing charges against him in 2008 because of his 2006 suspension;
(2) the mayor made erroneous evidentiary rulings in the proceedings before the
city council; and (3) the council’s factual conclusions with respect to Count I,
inefficiency, and Count III, violation of rules, were not supported by substantial
evidence. Consequently, he claims, the circuit court erred in affirming the City’s
decision.
Standard of Review
5
Artrip stipulated to having violated the law; he bases his argument for reversal of this charge on
KRS 15.520 only.
-4-
This Court has described the circuit court review of actions taken by a
hearing body under that statute as “a quasi trial de novo.” Stallins v. City of
Madisonville, 707 S.W.2d 349, 350 (Ky. App. 1986). “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.”
Id. On appeal from the circuit court, this Court is guided by the “clearly
erroneous” standard set out in Kentucky Rule(s) of Civil Procedure (CR) 52.01.
Id. at 351. We are not to disturb the determinations of the trial court unless they
are not supported by substantial evidence. Id. (citations omitted). While the
hearing body’s determination of whether an officer has violated departmental
regulations is subject to judicial review, the punishment imposed is not. Id. at 350
(citing City of Columbia v. Pendleton, 595 S.W.2d 718 (Ky. App. 1980)). Of
course, 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 Board of Education, 938 S.W.2d 880, 885-86 (Ky. 1996).
The City was not precluded from preferring charges against Artrip in 2008.
The gist of Artrip’s first argument is that no hearing was conducted within
sixty days of his October 19, 2006 suspension and, therefore, KRS 15.520(1)(h)(8)
prohibits the preferring of charges against him in 2008. We disagree. Artrip
disputes the circuit court’s determination that because administrative charges were
never preferred against him, the City of Hopkinsville had not violated any
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provision of the Police Officer’s Bill of Rights. “This determination,” argues
Artrip, “flies in the face of the Federal Court’s ruling . . . that: ‘Mr. Artrip was
entitled to a hearing on such charges within sixty days of the date of his
suspension, October 19, 2006.’” (Emphasis in original).
We note first that no Kentucky court is bound by a federal court’s
interpretation of Kentucky law. LKS Pizza, Inc. v. Com. ex rel. Rudolph, 169
S.W.3d 46, 49 (Ky. App. 2005)(citing Embs v. Pepsi-Cola Bottling Co., 528
S.W.2d 703 (Ky. 1975)). Second, the federal court erroneously measured the
sixty-day period from the date of the suspension even though the applicable statute
clearly says
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 . . . .
KRS 15.520(1)(h)(8)(emphasis supplied). 6 No charges had been filed when the
federal court issued its order so there were no charges to be dismissed as required
by the statute. Clearly then, neither KRS 15.520(1)(h)(8) nor any other statutory or
regulatory provision of which we are aware prohibited the City from preferring
charges for the first time on April 15, 2008.
6
We recognize the conflict between KRS 15.520 and KRS 95.450. KRS 15.520(1)(h)(8)
requires that a hearing be conducted within sixty days, while KRS 95.450(3) requires that the
hearing be held within three days. The Kentucky Attorney General has determined that KRS
15.520(1)(h)(8) supersedes KRS 95.450(3). Opinion of the Attorney General (OAG) 81-134
(1981). The parties have not raised this as an issue on appeal, and indeed seem to agree that the
sixty-day limitation applies to the instant case. We therefore need not determine whether we
agree with the Attorney General’s determination, and this opinion should not be read as having
done so.
-6-
When we read KRS 95.450(1) and (5) together, and in the context of the
entire statutory scheme, we conclude that Chief Yeager was permitted to suspend
Artrip prior to preferring charges against him. In pertinent part, those sections read
as follows:
(1) Except as provided in subsection (5) of this section no
member of the police . . . department in cities of the
second and third classes or urban-county government
shall be reprimanded, dismissed, suspended or reduced in
grade or pay for any reason except inefficiency,
misconduct, insubordination or violation of law or of the
rules adopted by the legislative body, and only after
charges are preferred and a hearing conducted as
provided in this section.
....
(5) When the appointing authority or the head of the
department has probable cause to believe a member of
the police or fire department has been guilty of conduct
justifying dismissal or punishment, he or it may suspend
the member from duty or from both pay and duty,
pending trial, and the member shall not be placed on
duty, or allowed pay, until the charges are heard. If the
member is suspended, there shall be no continuances
granted without the consent of the member accused.
KRS 95.450(10, (5). Section (1) prohibits discipline of a police officer prior to
both the preferment of charges and a hearing except when, under section (5), the
police chief determines that there is “probable cause to believe [the police officer]
has been guilty of conduct justifying dismissal or punishment[.]” Under such
circumstances, suspension can precede the preferment of charges.
However, we agree that a suspension under KRS 95.450(5) does not allow a
police chief to suspend an officer indefinitely without preferring charges and
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without ever conducting a hearing. Considering the statutory scheme as a whole,
we conclude that it was incumbent upon Chief Yeager to prefer charges against
Artrip within a reasonable time after suspending him;7 the preferring of those
charges within a reasonable time after the suspension, not the suspension itself,
would begin the sixty-day period identified in KRS 15.520(1)(h)(8). Therefore, we
agree with the remedy ordered in the federal case because Chief Yeager failed to
prefer charges within a reasonable time, not because the hearing was not conducted
within sixty days of the suspension. We affirm the circuit court’s determination
that the 2008 preferment of charges against Artrip for his Tennessee arrest was
permissible.
Substantial evidence supported the city council’s finding that Artrip
was “guilty” of Count I, inefficiency, and Count III, violation of
rules adopted by the legislative body.
Artrip next argues that the evidence was insufficient to support the City’s
findings of “guilt” with respect to the first charge, inefficiency, and the third
charge, violation of local rules established by the legislative body. We disagree.
Our review of the City’s decision has not revealed any finding with respect
to the third charge. Rather, the decision states,
Following closed session and in open session, [the City]
Council returned and voted to find Officer Artrip guilty
on Count I by unanimous vote and guilty on Count II by
unanimous vote. By unanimous vote, Council dismissed
7
Chief Yeager would prefer such charges in the same manner as any person may file written
charges against a police officer for misconduct. KRS 95.450(2). A complainant prefers charges
by “filing them with the clerk of the legislative body[.]” Id. Chief Yeager’s suspension of Artrip
was not the equivalent of preferring charges against him.
-8-
Officer Artrip from employment as a Patrol Officer
within the City of Hopkinsville.
By omitting any discussion of Count III, the city council implicitly found Artrip
“not guilty” of that charge. It was improper for the circuit court to affirm the
administrative finding of guilt on Count III because no such finding existed, and
we vacate that portion of the circuit court’s order.
On the other hand, with respect to the circuit court’s ruling regarding Count
I, we affirm. As the circuit judge noted, there was sufficient support for a finding
of “guilty” on the inefficiency charge. This evidence included testimony that as a
result of his arrest and conviction, Artrip’s driving status was questionable and
that, even if he could legally drive in Kentucky for work-related purposes,
permitting him to do so could create liability issues for the City. Witnesses for the
City further testified that permitting an officer to continue to serve, despite having
broken the law of another state and having refused to cooperate with law
enforcement officials, would dampen department morale and damage the
department’s image within the community. That constitutes substantial evidence
to support the City’s factual determinations with regard to Count I.
Artrip asserts members of the city council were motivated to discharge him
because they were biased against him. He claims this bias arose because he had
recently prevailed against them in the federal district court. This allegation is mere
speculation, however. There is no evidence to indicate city council members were,
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in fact, biased. The circuit court’s ruling on this matter does not constitute an
abuse of discretion.
The circuit court’s affirmation of the mayor’s evidentiary rulings is moot.
Artrip contends Mayor Daniel Kemp erroneously granted the City’s motion
to exclude evidence of other police officers’ conduct in violation of the rules of the
legislative body that Artrip claimed was similar to his own but which did not result
in termination of their employment. He claims such evidence should have been
admitted because it was relevant to the matter before the council. The circuit court
disagreed, finding the proffered evidence was not relevant and affirming the
mayor’s ruling. We see no abuse of discretion in that ruling.
More to the point, however, this argument is moot. The evidence Artrip
wished to present was relevant, if at all, to Count III only, violation of local rules
by evincing a pattern of misconduct. Indeed, Artrip’s argument on this matter is
presented in the portion of his brief in which he contends there was insufficient
evidence to support a finding he was “guilty” of Count III. Because the council
did not make a finding with respect to this charge, and because we have already
vacated the circuit court’s affirmation of this matter, the argument has no practical
significance. We need not address it further.
Conclusions
That portion of the circuit court’s order which affirms the City’s
supposed finding on Count III, that Artrip had committed a violation of local rules,
-10-
is vacated. The remainder of the circuit court’s order was based upon substantial
evidence and correct application of law and is therefore affirmed.
MOORE, JUDGE, CONCURS.
BUCKINGHAM, SENIOR JUDGE, CONCURS IN PART AND
DISSENTS IN PART.
BUCKINGHAM, SENIOR JUDGE, CONCURRING IN PART AND
DISSENTING IN PART: While I concur with most of the majority opinion, I
respectfully dissent from the portion of the opinion that vacates the finding of guilt
as to Count III. In my opinion, this court should not reverse or vacate a decision of
the trial court on grounds not raised by the appellant on appeal.
“[W]e, as an appellate court, may affirm the trial court for any reason
sustainable by the record.” Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814
S.W.2d 928, 930 (Ky. App. 1991). I know of no case or other authority, however,
which holds we may reverse for any reason sustainable by the record, even though
the appellant failed to raise the issue on appeal. “Failure to raise an issue on appeal
waives it[.]” Personnel Bd. v. Heck, 725 S.W.2d 13, 18 (Ky. App. 1986).
Even if this court had the discretion to vacate or reverse based on an
issue from which no appeal was taken, I do not believe the court should exercise
such discretion and do so in this case, since the city council found guilt on Count
III and the parties addressed it in that manner in this appeal.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth Ray Haggard
Hopkinsville, Kentucky
David L. Kelly
Paducah, Kentucky
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