ROBERT RELFORD, JAMES M. MORRIS, ESQ., AND MORRIS & MORRIS, P.S.C. v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT CIVIL SERVICE COMMISSION
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RENDERED: December 3, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002039-MR
ROBERT RELFORD,
JAMES M. MORRIS, ESQ., AND
MORRIS & MORRIS, P.S.C.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES KELLER, JUDGE
ACTION NO. 97-CI-03837
v.
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT CIVIL SERVICE COMMISSION
AND:
APPELLEE
CROSS-APPEAL NO. 1998-CA-002301-MR
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT CIVIL SERVICE COMMISSION
CROSS-APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES KELLER, JUDGE
ACTION NO. 97-CI-3837
v.
ROBERT RELFORD
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
Robert Relford, James M. Morris, Esq., and Morris
& Morris, P.S.C. bring Appeal No. 1998-CA-002039-MR from an
August 13, 1998 order of the Fayette Circuit Court, and
Lexington-Fayette Urban County Government Civil Service
Commission (Civil Service Commission) brings Cross-Appeal No.
1998-CA-002301-MR from a July 15, 1998 opinion and order of the
Fayette Circuit Court.
We affirm.
Robert Relford is a civil service employee of
Lexington-Fayette Urban County Government.
On June 20, 1997, he
was served by Robert Ramsey, then Director of the Division of
Building Maintenance and Construction, with a “Notification of
Reasonable Cause Testing.”
testing.
It ordered him to undergo drug
The notification was predicated upon the belief that
Relford had recently been charged with possession of controlled
substance and drug paraphernalia.
testing.
Relford refused to undergo
He maintained that the notification was defective
because he had not been, in fact, charged with a controlled
substance violation.
Through counsel, he sought to have the
reasonable cause notification so amended.
was denied.
However, his request
Consequently, the Civil Service Commission entered
an October 15, 1997 opinion and order acknowledging that the
notification to Relford was inadequate, but nevertheless
suspending Relford, without pay, for thirty days.
Relford appealed to the Fayette Circuit Court pursuant
to Ky. Rev. Stat. 67A.290.
On July 15, 1998, the circuit court
reversed the Civil Service Commission's opinion and order
suspending Relford.
The court concluded that the Civil Service
Commission acted arbitrarily by not following its own drug
testing procedures.
Through counsel, Relford then filed a motion
requesting an award of attorney fees.
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On August 13, 1998, the
circuit court entered an order denying the motion.
These appeals
follow.
APPEAL NO. 1998-CA-002039-MR
The sole issue in this appeal is whether Relford, who
successfully appealed an adverse decision of the Civil Service
Commission, is entitled to an award of attorney fees.
Relford
claims he comes within the purview of the Civil Rights Attorney's
Fee Award Act of 1976 codified in 42 U.S.C. §1988 (Civil Rights
Fee Act).
That act provides in relevant part as follows:
In any action or proceeding to enforce a
provision of sections 1981, 1981a, 1982,
1983, 1985 and 1986 of this title, title IX
of Public Law 92-318..., the court, in its
discretion, may allow the prevailing party,
other than the United States, a reasonable
attorney's fee as part of the costs.
[Emphasis added.]
We are, however, unable to agree with Relford.
He claimed that
the Civil Service Commission acted arbitrarily, and by so doing,
violated his Fourth Amendment Constitution rights.
We do not
view Relford's Fourth Amendment claim as within the compass of
the Civil Rights Fee Act.
In sum, we do not believe that Relford
asserted a “civil rights” claim cognizable under Civil Rights Fee
Act.
See Dawson v. Birenbaum, Ky., 968 S.W.2d 663 (1998).
As
such, we are of the opinion that Relford is not entitled to an
attorney fees award.
CROSS-APPEAL NO. 1998-CA-002301-MR
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On cross-appeal, the Civil Service Commission contends
that the circuit court improperly reversed its order suspending
Relford without pay for thirty days.
Specifically, it asserts
that there existed substantial evidence to support the
notification of drug testing and imposition of a thirty-day
suspension.
We disagree.
We believe it incumbent upon a governmental agency to
follow its own rules and regulations.
We are compelled to agree
with the circuit court that the Civil Service Commission failed
to follow its own drug testing procedures as established in the
“Lexington-Fayette Urban County Government Alcohol and Drug Free
Workplace Guidelines and Procedure Handbook” (Handbook).
In this
regard, we shall defer to the circuit court's ratiocination:
There were several types of testing programs
set out in the Handbook, but the petitioner
was specifically given notice that he was to
be tested under “Reasonable Cause Testing.”
The policy for this type of testing was
delineated, as follows:
Reasonable Cause Testing (RCT)-Employees will
be tested for drugs or alcohol when
reasonable suspicion exists to support a
belief that the employee is under the
influence of drugs or alcohol or that the
emplyee's [sic] behavior or work performance
has been affected by drugs or alcohol. The
basis for the decision shall be documented,
in writing, by at least two (2) trained
supervisors or by professional law
enforcement or medical personnel. A
determination will be based upon observation
and documentation of:
1.) Detection of an alcoholic substance
emitting from the employee's breath. This
shall include a detection of a “hang-over”
odor.
2.) Observation(s) of the employee's speech
being unusually slurred, or noticeably
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different without a proper medical reason
being given.
3.) Observation(s) of the employee's action
or conduct as being noticeably different or
impaired and not consistent with normal
conduct and without proper explanation.
4.) Observation(s) that the employee's
appearance, in conjunction with the above,
indicates that the employee is impaired.
Lexington-Fayette Urban County Government
Alcohol and Drug Free Workplace Guidelines
and Procedure Handbook, 13 (1996).
The Handbook also defines reasonable
suspicion, as follows:
Reasonable Suspicion-Whether a reasonable,
prudent individual, trained in the symptoms
of drug or alcohol abuse would believe, based
on observation, that someone was under the
influence of drugs or alcohol; or that based
on observation that drugs and/or alcohol is
being used or stored on LFUCG property.
Lexington-Fayette Urban County Government
Alcohol and Drug Free Workplace Guidelines
and Procedure Handbook, 5 (1996).
Based on these provisions, there are several reasons that the
testing of the petitioner should not have been ordered. The
first is that the reason given for the testing was an arrest of
the petitioner for possession of a controlled substance and
paraphernalia. This is not one of the criteria for ordering a
drug test under Reasonable Cause Testing in the Handbook,
regardless of the fact the petitioner was not arrested for
possession of a controlled substance.
A second reason is that the basis for the
decision to test was not properly documented.
Under the policy, two supervisors must
document, in writing, the reasons for
testing. In this case, only one, Robert
Ramsey, provided any type of basis. There is
no indication in the record that this was
documented by writing or that there were any
additional supervisor observations. There is
also no indication of any actual observances
of the petitioner other than his arrest,
which has already been disgarded [sic] as a
valid basis for the testing. There was a
written statement (the police incident
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report) in the record from a law enforcement
officer, E. A. Hart, that he observed the
petitioner in possession of drug
paraphernalia, but this still is not one of
the criteria for Reasonable Cause Testing.
Finally, reasonable suspicion, as defined in
the Handbook, was not satisfied. There is no
indication in the record that the petitioner
was observed under the influence of drugs or
alcohol. There is also no indication that
the petitioner was using, had used or was
storing drugs or alcohol “on LFUCG property.”
Upon the whole, we conclude that the “Notification of
Reasonable Cause Testing” was not issued in compliance with the
Handbook's procedures.
Thus, we are of the opinion that failure
of the Civil Service Commission to follow its own drug testing
procedures rendered the notification and subsequent suspension of
Relford arbitrary.
See American Beauty Homes Corporation v.
Louisville and Jefferson County Planning and Zoning Commission,
Ky., 379 S.W.2d 450 (1964).
For the foregoing reasons, Appeal No. 1998-CA-002039-MR
is affirmed.
Cross-Appeal No. 1998-CA-002301-MR is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEFS FOR APPELLEE/CROSSAPPELLANT:
James M. Morris
Sharon K. Morris
Jason V. Reed
Lexington, KY
Edward W. Gardner
Theresa L. Holmes
Lexington, KY
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