TIMOTHY M. PANGALLO v. KENTUCKY LAW ENFORCEMENT COUNCIL; KENTUCKY JUSTICE CABINET
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RENDERED:
MAY 16, 2003; 10:00 a.m.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2001-CA-002765-MR
TIMOTHY M. PANGALLO
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD KOPOWSKI, JUDGE
ACTION NO. 00-CI-01351
KENTUCKY LAW ENFORCEMENT COUNCIL;
KENTUCKY JUSTICE CABINET
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** ** ** ** **
BEFORE: COMBS AND DYCHE, JUDGES; AND POTTER, SPECIAL JUDGE.1
POTTER, SPECIAL JUDGE:
Timothy M. Pangallo appeals from an
order of the Campbell Circuit Court dismissing his appeal from a
decision of the Kentucky Law Enforcement Council (KLEC) to
revoke his certification as a police officer for allegedly
making false statements to his employer, the Newport Police
Department (NPD), regarding the status of his Marine Corps
Reserves obligations and discharge.
1
Because Pangallo was denied
Senior Status Judge John Woods Potter sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution.
minimal due process safeguards under the procedures which
resulted in the revocation of his police officer certification,
we reverse the decision of the Circuit Court and remand for the
entry of an order requiring KLEC to reinstate Pangallo’s
certification to inactive status.
On December 3, 1999, Pangallo graduated from the
Kentucky Law Enforcement Basic Training in Richmond, Kentucky.
On March 10, 2000, he received his peace officer certification
from KLEC.
Pangallo was subsequently employed by NPD.
At the
time of his hiring, Pangallo was a member of the United States
Marine Corps Reserves.
On May 8, 2000, Pangallo received a discharge under
other than honorable conditions from the Marine Corps Reserves.
On August 24, 2000, after Pangallo reported for his shift at
NPD, he was approached by two of his superior officers, who
presented Pangallo with resignation papers.
Though Pangallo
signed the resignation papers, he now claims that he was coerced
into resigning and signed the papers under duress.
Within 10
days of Pangallo’s resignation from the force, the NPD notified
KLEC pursuant to KRS 15.392(1), and Pangallo’s police officer
certification was placed in inactive status.
On October 2, 2000, the NPD Operations Commander
mailed a letter to KLEC requesting that Pangallo’s police
officer certification be revoked.
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The letter stated that
Pangallo had made false statements to NPD officials regarding
his Marine Corps Reserves obligation and discharge.
As a result
of the letter, on November 15, 2000, KLEC issued a letter
revoking Pangallo’s police officer certification.2
On November 27, 2000, Pangallo filed an appeal of the
certification revocation with the Campbell Circuit Court.
KRS 15.390(2).
See
In the appeal, Pangallo contended that he had
never made misrepresentations to NPD officials, and that the
action of KLEC in revoking his police officer’s certification
was arbitrary, capricious and an abuse of due process in that he
was not afforded the opportunity to rebut the allegations of
NPD’s October 2, 2000, letter to KLEC.
On February 20, 2001,
Pangallo filed a motion to declare KRS 15.392(4) and KRS
15.392(5)3 unconstitutional as written and/or as applied against
appellant.
On May 29, 2001, Pangallo filed a motion for summary
judgment.
On September 27, 2001, the trial court entered an
order denying Pangallo’s motion for summary judgment,
determining that KRS 15.392(4) and KRS 15.392(5) are
2
We have been unable to reconcile these specific procedures with the statutes
applicable to KLEC, see KRS 15.310 – KRS 15.333, or to Officer Certification
and Training, see KRS 15.380 – KRS 15.404.
3
Effective July 15, 2002, KRS Chapter 15 was amended. As amended subsections
(4) and (5) of KRS 15.392 are renumbered as subsections (5) and (6),
respectively. In order to maintain consistency with the circuit court record
and appellate briefs, our citations to KRS Chapter 15 refer to the pre-July
2002 version. The 2002 amendments to Chapter 15 do not affect our decision
in this case.
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constitutional as written and as applied to the appellant, and
holding that KLEC acted properly when it revoked Pangallo’s
police officer certification.
This appeal followed.
Pangallo contends that his right to due process was
not observed in the course of KLEC’s revocation of his police
officer’s certification.
In reviewing an appeal from an administrative
decision, our judicial review is concerned with the question of
arbitrariness.
American Beauty Homes Corp. v. Louisville and
Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d
450, 456 (1964).
The scope of this review falls into three
fundamental grounds: (1) whether the agency acted in excess of
its granted powers; (2) whether the party to be affected
received procedural due process; and (3) whether there was
substantial evidentiary support for the action of the agency.
Id.
The primary allegation of arbitrariness in this case is
that Pangallo did not receive procedural due process under the
procedure whereby KLEC revoked his police officer certification.
The minimum requirements of due process are notice, an
opportunity for a hearing appropriate to the nature of the case,
and the making of particularized findings of fact for the
record.
Cape Publications, Inc. v. Braden, Ky. 39 S.W.3d 823,
827 (2001).
-4-
The appellees agree with Pangallo’s argument that a
police officer is entitled to due process before his
certification status can be revoked by KLEC.
The appellees,
however, contend that Pangallo waived his right to challenge the
revocation of his certificate when he voluntarily resigned from
the NPD police force.
While we agree that by resigning from the
force Pangallo waived his rights to the due process procedures
applicable to the termination of a police officer, for the
reasons stated below, we do not agree that he further waived his
due process rights to challenge the verity of NPD’s conclusion
that he engaged in willful falsification of information to
obtain or maintain certified status.
KLEC, among other things, certifies applicants who
have met its requirements to be a law enforcement officer.
15.330(e).
KRS
Certification is a prerequisite for permanent
employment in many law enforcement jobs.
KRS 15.380.
The statutory scheme for becoming certified and
remaining certified is somewhat peculiar.
The scheme apparently
was designed to limit KLEC’s ability to second-guess an
officer’s employer’s assessment of his suitability for law
enforcement work.
categories:
denied.
KRS 15.386 sets forth five certification
precertification, certified, inactive, revoked,
In addition, upon the death of a certified officer, his
certification is retired.
KRS 15.392(3).
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A somewhat simplified description of the certification
categories is as follows:
An individual who is employed by a
law enforcement agency and meets certain minimum qualifications,
but has not completed his training, has precertification status
and is given a year to complete his training.
KRS 15.386(1).
A
person who is employed in law enforcement and meets all the
requirements is certified.
KRS 15.386(2).
A person’s
certification becomes inactive upon his separation from his
employment.
KRS 15.386(3).
If a person with an inactive
certification later obtains employment in law enforcement, he
will again become certified if he updates his training and has
not committed certain acts for which his certified status may be
revoked.
Id.
A person whose employment is terminated for
certain specified reasons, including willful falsification of
information to obtain or maintain certified status, is subject
to having his certification revoked.
KRS 15.386(4).
KRS 15.392(1) provides that within 10 days after an
employee leaves his employment, the employer must file a summary
with the KLEC providing relevant information about the
separation.
KRS 15.392(4) provides that the “employing agency’s
findings of fact and evidentiary conclusions shall be deemed
final.
[KLEC] shall be limited only to revoking the
certification.”
KRS 15.392(5) provides that the “[KLEC] shall
not accept or hear complaints.”
-6-
Thus while KLEC initially certifies officers, the
employer plays the dominant role concerning whether an officer
maintains that certification.
The employer makes the decision
about whether to fire an individual, and its basis for the
termination determines whether the KLEC places the employee on
inactive or revoked status.
Clearly the statutory scheme
envisions that the employee will obtain his due process through
the employment termination process.
The above scheme does not fully envision the factual
situation in this case, i.e., the situation where a police
officer is accused of misconduct, voluntarily resigns for an
ostensible reason which would not result in revocation but
thereby waiving his due process through the employment
termination process, has his certification placed in inactive
status, and then has his certification revoked based upon an ex
parte unilateral report by the employing agency to KLEC.
As previously noted, Pangallo was a member of the
Marine Reserves when he sought employment with the NPD.
As part
of the employment process, he was asked questions about his
reserve status.
According to the October 2, 2000, NPD letter to
the KLEC, Pangallo stated that he was meeting his reserve
obligations and had never been disciplined.
Pangallo was then
hired, and after completing training became certified.
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After
Pangallo was certified, he was discharged from the Marine
Reserves on other than honorable conditions.4
The October 2000 letter also stated that, in
investigating Pangallo’s discharge from the Marines, NPD had
discovered that Pangallo had not been attending drill meetings.
NPD concluded that therefore, contrary to what Pangallo had
stated on his employment application, he was in fact not meeting
his reserve obligation.
After the above information came to light,
representatives of NPD confronted Pangallo with this information
and gave him the opportunity to resign, which he accepted.
Although the appellate record does not contain a copy of
Pangallo’s resignation letter, NPD’s October 2, 2000, letter
specifically states that Pangallo resigned for “personal
reasons.”
The October 2000 letter to KLEC stated as fact that
Pangallo had misrepresented his reserve status to the Department
upon his initial employment and at least once during his
employment.
Pursuant to KRS 15.386(4)(b), one ground for
revoking a police officer’s certification is when the officer
“has been separated from an enforcement agency for . . . willful
falsification of information to obtain or maintain certified
4
Interestingly, such a discharge will prevent someone from becoming
certified, see KRS 15.382(9), but the same discharge received by a certified
officer does not affect that officer’s certification as long as he remains
employed.
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status.”5
Although the letter specifically stated that Pangallo
had resigned, i.e., had been separated from the agency, for
personal reasons, nevertheless, KLEC revoked Pangallo’s
certification.
Pangallo sought a review of that decision but
was denied a hearing.
KLEC determined that it did not have the
power to hold a hearing based upon the statutory provisions that
“[t]he employing agency’s findings of fact and evidentiary
conclusions shall be deemed final,” KRS 15.392(4), and because
“[t]he counsel shall not accept or hear complaints,” KRS
15.392(5).
We agree with the Appellees that when Pangallo
resigned, he waived his right to question the termination of his
employment and the waiver was valid.
540 S.W.2d 870 (1976).
Redmon v. McDaniel, Ky.,
Pangallo has failed to state any facts
which would support his allegation that any actions by NPD
representatives in requesting his resignation rise to the level
of coercion or duress.
Rather, as in Redmon, it appears that
any threat against Pangallo was a mere threat to exercise a
legal right made in good faith; namely, a threat to terminate
Pangallo for willful falsification of information to obtain or
maintain certified status.
Clearly NPD possessed the right to
pursue such termination procedures.
5
Id.
Under the 2002 amendments, KRS 15.392(2) provides that “If the person has
been separated for any reason justifying revoked or denied status pursuant to
KRS 15.386, the council shall revoke the person’s certification.”
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However, Pangallo’s certification was not revoked
merely because he resigned from his job.
In fact, KRS 15.386(4)
does not authorize the revocation of an officer’s certification
merely for a resignation for personal reasons.
Pangallo lost
his certification because KLEC accepted NPD’s assertion that he
had made false statements to get, and later to maintain, his
job.
In order for KLEC to be statutorily authorized to take
that action, Pangallo must have been separated from his job for
that reason.
KRS 15.386(4)(b).
However, the record supports
only that Pangallo was separated from his job because he
voluntarily resigned, and that the resignation was the reason
for his separation from NPD.
Although Pangallo’s resignation papers are not part of
the record, it is fair to infer that the papers do not
specifically concede the misconduct charges against him or
specifically waive the right to challenge what the reason for
his termination might have been if he had not resigned.
Indeed,
one of Pangallo’s primary motives in resigning was probably to
avoid termination for misconduct and maintain a “clean record.”
This is borne out by the October 2000 letter which specifies
that Pangallo resigned for “personal reasons.”
Further, even if we have incorrectly deduced the
content of Pangallo’s resignation letter, we must nevertheless
infer that Pangallo did not specifically waive his due process
-10-
rights to refute NPD’s allegation that he had engaged in
misconduct.
waiver.
The burden of proof is upon the person relying upon
Waiver requires proof of a "knowing and voluntary
surrender or relinquishment of a known right."
Because this is
a right with both constitutional and statutory underpinnings,
proof of waiver must be clear and convincing.
As such, while no
formal or written waiver is required, statements and supporting
circumstances must be equivalent to an express waiver to meet
the burden of proof.
391 (1995).
Greathouse v. Shreve, Ky., 891 S.W.2d 387,
Here, the absence of resignation papers proving
waiver, i.e., the absence of proof, works against KLEC.
In summary, the record before this court supports only
that Pangallo was separated from NPD “for personal reasons,” and
the mere resignation of a police officer from his job for
personal reasons would normally result in his certification
being placed in inactive status pursuant to KRS 15.386(3).
Further, Pangallo was never given notice or an opportunity to be
heard regarding the October 2000 allegations of misconduct, nor
is there evidence in the record that he waived his right to
these minimal due process rights.
We are persuaded that the
denial of these minimal procedures requires that we reverse the
decision of the Circuit Court and remand for the entry of an
order requiring KLEC to reinstate Pangallo’s certification to
inactive status.
-11-
Because we have disposed of this appeal on other
grounds, we need not address Pangallo’s claim that KRS 15.392(4)
and KRS 15.392(5) are unconstitutional as written and/or as
applied against the appellant.
For the foregoing reasons the order of the Circuit
Court is reversed and remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Mott V. Plummer
Newport, Kentucky
Stephen D. Lynn
Associate General Counsel
Department of Criminal Justice
Richmond, Kentucky
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