MICHAEL SCOTT v. CITY OF NEWPORT, KENTUCKY
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RENDERED: April 6, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-001673-MR
MICHAEL SCOTT
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
CIVIL ACTION NO. 97-CI-01407
CITY OF NEWPORT, KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; BUCKINGHAM and HUDDLESTON, Judges.
HUDDLESTON, Judge: Michael Scott appeals from a judgment affirming
his dismissal from the City of Newport Police Department.
raises eight issues on appeal.
Scott
He claims that (1) the alleged
failure of the city to advise him within twenty-four hours of the
reasons for his suspension violated Kentucky Revised Statute (KRS)
15.520; (2) that the charging document was so vague as to fail to
adequately identify the nature of the offenses with which he was
charged; (3) that the release by the City of the charging document
violated KRS 15.520(1) and KRS 61.878(h) and therefore denied him
due process; (4) that the circuit court used an improper standard
of review; (5) that his prior disciplinary actions were improperly
considered
by
the
Board
of
Commissioners;
(6)
that
the
Commissioners’ findings of fact were without sufficient probative
or factual support in the record and were inadequate to support
dismissal; (7) that the City failed to exhaust the administrative
remedies for which provision is made in its own administrative
policies; and (8) that the circuit court erred in failing to make
a declaration of his rights regarding pre-hearing publicity.
The
disputed.
circumstances
surrounding
Scott’s
dismissal
are
Brian Kren was arrested on the night of August 30, 1997,
for driving under the influence by Newport Police Officer J.J.
Bird.
Riding with Bird the night of the arrest was Anita Fox, a
civilian. Kren was transported to the Newport Police Station to be
booked and to be given a breath alcohol test.
Despite conflicting
testimony regarding Kren’s behavior on the night of the arrest,
Bird
reported
that
Kren
was
talkative,
combative
and
cocky.
According to Fox, Kren was agitated and yelling soon after being
brought to the police station.
Apparently, Kren calmed down to a point where Bird felt
it was safe to handcuff Kren in the front.1
Bird administered a
breath alcohol test, and the result exceeded the permissible level
for legal intoxication. Kren disputed the result, complaining that
the difference in the legal limit and the test result was a matter
of “geometry.”
Scott had entered the room and overheard Kren’s
1
Kren complained that his wrist was hurting from the
handcuffs due to recent surgery on his wrist.
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Scott then supposedly made a joke.2
statement.
disputed as to Kren’s reaction to the joke.
The testimony is
Scott claims Kren was
offended by the joke and approached him in a belligerent manner.
The City claims Kren only moved closer to Scott in order to better
hear or make comment about the “joke.”
Regardless, Scott, who was
facing a one-way mirror, pushed his right elbow against Kren’s
upper body to shove him away.3
The altercation did not end there.
After booking Kren,
Bird planned to transport him to a hospital pursuant to Kren’s
request for a blood alcohol test.
Apparently, Scott followed Bird
and Kren out of the station and the verbal exchange between Kren
and Scott continued until Kren was finally put into Bird’s police
cruiser. Scott filed a terroristic threatening charge against Kren
for comments made during the latter part of the altercation.4
Investigation of the incident by the Newport Police
Department Internal Affairs Division resulted in a finding that
Scott intentionally struck Kren, creating a hostile and explosive
situation.
Internal Affairs also found that Scott provoked Kren
even further by following Bird and Kren out to the police cruiser
and challenging and threatening Kren. Internal Affairs recommended
that Scott be immediately suspended and administrative charges
filed.
2
Scott asked Kren what the tree said to the acorn.
“punch line” was “geometry” (gee, I’m a tree).
3
The
The force of the shove and where the Scott’s elbow landed
on Kren were also disputed.
4
The charge was subsequently dismissed.
-3-
Scott was notified of his suspension on September 24,
1997, via a letter written by the Chief of Police.
The Chief
stated
“at
that
violated
probable
departmental
prisoners.”
cause
existed
policy
that
regarding
Scott
the
had
least
mistreatment
of
On September 26, 1997, the Disciplinary Charge and
Affidavit (the charging document), which gave specific facts about
the violations committed by Scott, was served upon Scott.
The
charging document was amended on September 30, 1997.
After the filing of the first charging document but
before the City of Newport Board of Commissioners’ hearing, the
charging document and the notice of the date established for the
public hearing were released to the press.
On November 3 and 4, 1997, an evidentiary hearing was
conducted by the Commissioners.
Among the Commissioners’ findings
were that: Scott had provoked Kren to elicit conduct which formed
the basis of the terroristic threatening charge; Scott had struck
Kren without justifiable provocation; Scott had used excessive
force; Scott had interfered with Bird’s arrest; Scott had engaged
in conduct that deprived Kren of his civil rights; and Scott had
engaged in conduct unbecoming a Newport police officer. Based upon
the
findings,
disciplinary
the
severity
record,
the
of
the
acts
Commissioners’
and
Scott’s
terminated
prior
Scott’s
employment.
Scott appealed the Commissioners’ decision to Campbell
Circuit Court.
In a judgment dated April 21, 1999, the court held
that the record was replete with sufficient evidence upon which the
Commissioners’ could have based their decision, that the release of
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the charging document did not prejudice the finders of fact, and
tht the punishment of Scott was not arbitrary or capricious.
On
June 10, 1999, the court denied a motion by Scott to alter, amend
or vacate the judgment and for additional findings of fact.
KRS 15.520
On appeal, Scott raises two issues under KRS 15.520. The
first is whether the alleged failure of the City to advise Scott
within twenty-four hours of the reasons for his suspension violated
KRS 15.520(1)(b).
The second is whether the release of the
charging document to the press was a violation of KRS 15.520(1)(f).
KRS 15.520, "The Police Officers' Bill of Rights," was enacted "to
deal fairly [with] and set administrative due process rights for
police officers of the local unit of government and at the same
time provid[e] a means of redress by citizens of the Commonwealth
for wrongs allegedly done to them by police officers . . . ."5
The
provisions of KRS 15.520 apply to police officers employed by
cities which receive funds from the Kentucky Law Enforcement
Program Fund.6
KRS
twenty-four
15.520(1)(b)
(24)
hours
states
after
that
“[p]rior
suspending
the
to
or
officer
within
pending
investigation or disposition of a complaint, the officer shall be
advised in writing of the reasons for the suspension.”
claims
that
the
reasons
proffered
in
the
Chief
of
Scott
Police’s
September 24, 1997, suspension letter were not specific enough.
5
Ky. Rev. Stat. (KRS) 15.520(1).
6
See KRS 15.520(4).
-5-
The letter stated that Scott had “at least violated department
policy regarding the mistreatment of prisoners.”
Although the statute does require reasons to be given for
the suspension, it does not specify how detailed the reasons must
be.
Scott directs our attention to Hartman v. Board of Education
of Jefferson County7 and Bregel v. City of Newport.8
In Hartman,
this Court held that proper and adequate notice was not given by a
Board of Education in the demotion of certain counselors.9
There,
however, the issue was whether the board had complied with a
different statute, KRS 161.765(2)(b)(1) and (2)10.
No time limit
was imposed on the board in which to notify the counselors of the
reasons for their demotions, unlike here where notice had to be
given within twenty-four hours.
Bregel, although more on point with the facts of the case
under consideration, is also distinguishable.
Kentucky’s highest
court held that the charges filed against Bregel11 before the Board
of
City
Commissioners
did
“not
set
7
clearness
or
208 Ky. 581, 271 S.W. 665 (1925).
9
with
Ky. App., 562 S.W.2d 674 (1978).
8
out
See Hartman, 562 S.W.2d at 677.
10
KRS 161.765(2)(b)(1) provides “that a written statement of
grounds for demotion . . . shall be served upon the administrator.
The statement shall contain: 1. A specific and complete statement
of grounds upon which the proposed demotion is based, including,
where appropriate, dates, times, names, places and circumstances.”
It was clear that the reasons the Board gave for the demotions,
“the required reduction of expenditures in the 1977-78 budget . .
.,” did not comply. See Hartman, 562 S.W.2d at 676.
11
Frank Bregel was a member of the Newport police department
for twenty-five years.
-6-
distinctness any charge.”12
Bregel does not address the issue of
the required specificity of reasons for suspension required within
the twenty-four hour period because KRS 15.520 had not been enacted
at the time of the dispute.13
Scott’s challenge to the suspension letter because of
lack of specificity is without merit.
The deficiency in Bregel
related more to the charging document than the suspension letter.
Hartman is also more in line with notice provided in the charging
document than the
suspension letter.
As the stated purpose of KRS
15.520 is to “set administrative due process rights for police
officers of the local unit of government and at the same time
provid[e] a means of redress by the citizens of the Commonwealth
for wrongs allegedly done to them by police officers,”
and
considering the level of specificity of the charges that were set
out in the charging document that was served on Scott within fortyeight hours of his suspension, we believe that the suspension
letter complied with KRS 15.520(b).
Scott was put on notice of the
suspension and was given reasons for the suspension, thereby
affording him adequate due process.
Scott’s next challenge under KRS 15.520 is his assertion
that KRS 15.520(1)(f) was violated with the release of the charging
12
Bregel, 271 S.W.2d at 665.
Bregel was accused of
“attempt[ing] to influence voters in the election of November 6,
1923, and in the primary of October 20, 1923" and with
“inefficiency and neglect in the performance of his duty . . . .”
Id.
13
KRS 15.520 was enacted in 1980.
-7-
document to the press.14
KRS 15.520(1)(f) states that “[w]hen a
police officer has been charged with a violation of departmental
rules or regulations, no public statements shall be made concerning
the alleged violation by any person or persons of the local unit of
government
or
the
police
officer
disposition of the charges.”
so
charged,
until
final
The threshold question is whether
release of the charging document contravened the statute’s intent
to guarantee police officers due process of law.
Because we have no precedential guidance on this issue,
it becomes one of statutory construction.
We reference two long-
established rules of statutory construction:
first, words and
phrases shall be construed according to the common and approved
usage of language, and two, statutes are to be construed to carry
out the intent of the statute.15
The intent of KRS 15.520(f) is to protect any police
officer
charged
with
violation
of
departmental
rules
and
guarantee that the officer is afforded due process of law.16
to
An
officer’s due process rights could potentially be jeopardized if
something was said concerning the charges that might lead the
Commissioners to reach a premature judgment.
The release of the
charging document did not contravene this statutory purpose.
The
Commissioners, who conducted the hearing, would have known about
14
Scott also attempts to form an argument under KRS 61.870
et seq., the Kentucky Open Records Act. This argument is misplaced
because the issue is the effect of the release of the charging
document, not whether the charging document could have been
obtained. Consequently, this argument will not be addressed.
15
See KRS 446.080(1) and (4).
16
See KRS 15.520(1).
-8-
the charges against Scott before the actual hearing took place,
regardless of the release of the charging document.
It was the
potential for premature opinion forming by the Commissioners that
could have most adversely affected Scott’s due process rights. The
release of the charging document could not have influenced the
Commissioners any more than they could have been influenced upon
seeing their agenda for the hearing.
The Commissioners were
necessarily aware that a full blown evidentiary hearing would have
to
be
conducted
to
determine
the
validity
of
the
charges.
Considering that the charging document was only a formal charge
against Scott, we do not believe any violation of his due process
resulted from its release.
Adequacy of the Charging Document
Although Scott argues that the release of the charging
document violated his due process rights, he also insists that the
charging document was so vague as to fail to adequately identify
the nature of the charges and the allegations against him.
charges
against
an
officer
must
“be
made
with
The
sufficient
distinctness to enable the person charged to know the acts which
are charged against him.”17
certain
and
of
such
“The charges must be definite and
character
as
to
establish
inefficiency,
misconduct, insubordination, or violation of law on the part of the
accused officer.”18
There can be no doubt that the original
charging document and the amended charging document exhibited the
17
Bregel, 271 S.W. at 665.
18
Armstrong v. Board of Civil Service Comm’rs, 48 S.W.2d
1055, 1055 (1932).
-9-
requisite
document
specificity.
identified
In
each
particular,
departmental
the
amended
policy
that
charging
Scott
had
violated,19 and contained a detailed narrative of the specific
allegations that led to the charge.
The charging document clearly
complied with the requisite level of specificity thus enabling
Scott to know the acts charged against him and prepare for the
Commissioner’s hearing.
Standard of Review
Scott alleges that the circuit court used an improper
standard of review.
Scott cites several cases for the proposition
that the court must review an employee termination on a de novo
basis where the court reviews the transcript and hears additional
witnesses.
“It is clear . . . that ‘de novo’ is not, in this
instance, a retrial of all the issues.”20
The standard of review
to be applied in a public employee discharge was described by the
Supreme Court of Kentucky in Brady v. Pettit.21
In summary, it appears that in public employee discharge
cases
where
there
is
a
trial
de
novo
statute,
the
discharged employee is entitled to something less than a
19
The amended charging document charged Scott with violating
Policy #01.02.95, Section R (Arrest and Treatment of a Prisoner);
Policy #01.02.95, Section C (Conduct); Policy #06.03.95, Section F
(Excessive Force); Policy #01.02.95, Section V (Ethics); and Policy
#01.02.95, Section C (Unbecoming Conduct).
20
Crouch v. Police Merit Bd., Ky., 773 S.W.2d 461, 463
(1988).
21
Ky., 586 S.W.2d 29 (1979).
-10-
classic
trial
de
novo
in
circuit
court.
In
this
proceeding in circuit court the burden of proof shifts to
the discharged employee.
After review of the transcript
of evidence or hearing the witnesses, the trial court is
limited
in
its
decision.
The
trial
court
may
not
substitute its judgment for that of the administrative
body, that is, there may not be a substitute punishment.
The trial court may find the discharged employee has
failed to meet the burden of proof and affirm the action
of the administrative board; or if it is found that the
employee has sustained the burden of proof, the trial
court may set aside the punishment. . . .
We are of the
opinion that trial de novo be further refined to the
extent that the discharged employee has the obligation of
producing the transcript of evidence of the proceeding
before the administrative board.
We are of the further
opinion that review of the transcript of evidence in
circuit court is a corollary to the burden of proof which
has shifted to the discharged employee. In circuit court
the transcript of evidence is reviewed but the proceeding
is not limited to this review; the discharged employee is
accorded the right to call such additional witnesses as
he may desire.
The trial court’s review is limited to a
determination of whether the administrative body acted
arbitrarily.22
22
Id. at 32-33 (original emphasis).
-11-
The circuit court obviously felt that the Commissioners’ decision
to terminate Scott was amply supported by the record.
Scott does
not allege, nor does the record indicate, that Scott attempted to
call witnesses or introduce additional evidence in the circuit
court to show that the Commissioners’ acted arbitrarily.
The
circuit court used the proper standard in evaluating Scott’s claim.
Use of Scott’s Prior Disciplinary Record
Scott argues that his prior disciplinary record was used
solely to prejudice him.
Although several allegations are made by
Scott, he provides no support for his argument that use of the
record actually prejudiced him.
It is clear that Scott’s prior
disciplinary record was only used in determining his punishment and
not it determining his guilt.
Scott’s due process rights were not
violated by the use of his disciplinary record.
Sufficiency of the Findings of Fact
Next, Scott contends that the Commissioners’ findings of
fact lack evidentiary support.
The Commissioners conducted an
evidentiary hearing where evidence was admitted and testimony was
taken.
While the evidence was conflicting on some points, there
was evidence of substance to support each critical finding made by
the Commissioners.
That is all that is required.
Denial of Scott’s Request for a Declaration of Rights
Scott appeals the circuit court’s denial of his request
for declaratory relief under KRS 418.045.
In pertinent part, KRS
418.045 states that “[a]ny person . . . whose rights are affected
by statue, municipal ordinance, or other government regulation . .
. may apply for and secure a declaration of his right or duties .
-12-
.
.
.”
Specifically,
Scott
sought
a
declaration
of
rights
regarding the release of the charging document to the press. Scott
contends that his right to a fair hearing was violated through the
release of the charging document to the press.
As this issue has
previously been addressed, we need not discuss it further.
Exhaustion of Administrative Remedies
Scott’s final argument is that the City’s procedural
policy number 01.12.98H3 was not followed and therefore the matter
was not ripe for the Commissioners to review the issue.
Although
Scott alleges that the policy requires the Chief of Police to
confer with an employee prior to pressing charges, a copy of the
procedure is not in the record.
As a result, we cannot review the
policy to determine if it applies and whether it was or was not
followed.
Conclusion
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Rand Steele
Covington, Kentucky
Daniel R. Braun
City of Newport
Legal Department
Newport, Kentucky
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