WILLIAM J. BARROW II v. LEXINGTON-FAYETTE URBAN COUNTY CIVIL SERVICE COMMISSION, LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, TIM BENNETT AND VIRGIL CARTER
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RENDERED:
July 7, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001118-MR
WILLIAM J. BARROW II
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 00-CI-04385
LEXINGTON-FAYETTE URBAN COUNTY
CIVIL SERVICE COMMISSION,
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT,
TIM BENNETT AND
VIRGIL CARTER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.2
COMBS, CHIEF JUDGE; KNOPF,1 JUDGE; BUCKINGHAM, SENIOR
BUCKINGHAM, SENIOR JUDGE:
William J. Barrow II appeals from an
order of the Fayette Circuit Court dismissing his complaint
against Lexington-Fayette Urban County Government Civil Service
Commission, Lexington-Fayette Urban County Government (LFUCG),
1
Judge William L. Knopf concurred in this opinion prior to his retirement
effective June 30, 2006. Release of the opinion was delayed by
administrative handling.
2
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 KRS 21.580.
Tim Bennett, and Virgil Carter.
The case involves a
disciplinary action taken by the commission against Barrow, an
employee of LFUCG, because he refused to answer questions
relating to his employment.
We affirm.
Barrow was an employee of LFUCG’s Department of Public
Safety, Division of Code Enforcement.
There had apparently been
a series of newspaper articles suggesting improprieties in the
operation of that division.
On September 1, 2000, Barrow was
directed by a supervisor to go to the law office of Michael J.
Cox.
Concerned that he was the focus of a criminal
investigation, he hired an attorney to accompany him.
When Barrow and his attorney arrived at Cox’s office,
Cox related to them that he had been retained by LFUCG to lead
an independent investigation regarding allegations of
impropriety within the division.
Cox stated that he intended to
ask Barrow “questions relating to the Division of Code
Enforcement, to his job there, and to any matters that may
impact or relate to his job with the City.”
Cox further
explained to Barrow that he was required to cooperate and to
answer questions.
Barrow’s attorney refused to allow Barrow to
answer any questions, and he asserted Barrow’s Fifth Amendment
right against self-incrimination on Barrow’s behalf.
Cox then sent a letter to Barrow’s attorney, dated
September 1, 2000, directing Barrow to appear again in his
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office on September 5, 2000, to answer questions relating to his
employment.
The letter stated that if Barrow failed to comply,
he would be subject to disciplinary action and/or termination by
LFUCG for insubordination.
The letter also informed Barrow that
his answers would enjoy immunity for use in any subsequent
criminal proceeding.
On September 5, 2000, Barrow and his attorney again
went to Cox’s office.
Tim Bennett, Commissioner of the
Department of Public Safety which includes the Division of Code
Enforcement, was present.
Cox reiterated that LFUCG was
directing Barrow to answer questions pertaining to his
employment and that his failure to do so would subject him to
potential disciplinary action or termination.
Barrow’s attorney
again indicated that Barrow was invoking his right against selfincrimination and that Barrow would not answer any questions.
As a result of his refusal to answer questions, on
September 6, 2000, Commissioner Bennett and then-Acting Director
of the Division of Code Enforcement Virgil Carter issued a
disciplinary action form to Barrow charging him with
insubordination and suspending him for three days (September 68) without pay pursuant to Section 21-14 of the LFUCG Code of
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Ordinances and the Government’s Uniform Urban County
Disciplinary Code and Guidelines.3
Barrow appealed the suspension to LFUCG’s Civil
Service Commission.
Following a hearing before the commission
on November 8, 2000, the commission issued an order denying
Barrow’s appeal.
The commission determined that Barrow was
guilty of insubordination, and it upheld the three-day
suspension without pay.
Barrow appealed the commission’s decision to the
Fayette Circuit Court.
and monetary damages.
In addition, Barrow sought an injunction
LFUCG, the Civil Service Commission, Tim
Bennett, and Virgil Carter were named as defendants.
In an
opinion and order entered on March 22, 2005, the court dismissed
all claims against the defendants.
This appeal by Barrow
followed.
Barrow’s first argument is that LFUCG wrongly
suspended him for the exercise of his constitutional rights
against self-incrimination.
The law is otherwise.
In Lefkowitz
v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977),
the U.S. Supreme Court held that “[p]ublic employees may
constitutionally be discharged for refusing to answer
3
In a letter dated August 27, 2000, Barrow voluntarily resigned his position
with the Division of Code Enforcement effective September 8, 2000. His
suspension was for September 6-8, 2000. Also, Barrow was erroneously paid
for the three days.
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potentially incriminating questions concerning their official
duties if they have not been required to surrender their
constitutional immunity.”
431 U.S. at 806.
See also Garrity v.
State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562
(1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20
L.Ed.2d 1082 (1968); and Uniformed Sanitation Men Association,
Inc. v. Commissioner of Sanitation of the City of New York, 392
U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968).
Under the
authority of these cases, LFUCG could discharge Barrow for his
refusal to answer questions concerning his employment since he
had not been required to waive his right against selfincrimination.
Barrow relies on language in this court’s opinion in
Kidd v. Montgomery, 583 S.W.2d 87 (Ky.App. 1979), wherein it was
stated, “This court is aware that the principle that public
employees cannot be dismissed for invoking and refusing to waive
their constitutional right against self-incrimination is well
established in the law.”
Id. at 89.
Barrow’s reliance on that
language is misplaced.4
First, Barrow was not asked to waive his
constitutional right against self-incrimination when he was
directed by Cox to answer questions.
4
Rather, he was told by Cox
Regardless, the language in Kidd was dicta since the case was decided on
other grounds.
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that his right was preserved.
Second, the court in the Kidd
case stated that its statement was based on the holding of the
Supreme Court in the Gardner and Uniformed Sanitation cases.
See Kidd, 583 S.W.2d at 89.
Those cases allow for the
disciplining of public employees who refuse to answer
potentially incriminating questions about their employment if
they were not required to waive their right against selfincrimination.
See Cunningham, 431 U.S. at 806.
Thus, we
conclude that Barrow’s reliance on Kidd to support his position
is misplaced.
Barrow’s second argument is that LFUCG wrongly
suspended him in violation of his constitutional rights by not
giving him a pre-deprivation hearing.
Barrow cites Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487,
84 L.Ed.2d 494 (1985), in support of his argument.
As the trial
court herein determined, however, the Loudermill case does not
apply because here there was a suspension and not a termination.
Further, as the trial court noted, the post-suspension hearing
conducted by the Civil Service Commission was sufficient to
comply with Barrow’s due process rights.
See Gilbert v. Homar,
520 U.S. 924, 932, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997).
Barrow’s third argument is that the court erred in its
determination that Barrow was ordered to answer questions put to
him by Cox.
Having reviewed the record, it is clear that Cox
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told Barrow in no uncertain terms that he was required to answer
questions about his employment.
Barrow’s attorney indicated
that Barrow would not answer any questions put to him.
As the
trial court noted, it was apparent that even had Cox started
asking Barrow questions about his employment, Barrow’s attorney
would have intervened, objected, and instructed Barrow not to
answer.
In short, there is no question that Cox, on behalf of
LFUCG, directed Barrow to answer questions concerning his
employment.
In this regard, Barrow further argues that he could
not be found guilty of insubordination because Cox was not a
supervisor of Barrow and was not even a city employee.
Barrow’s
supervisor, Tim Bennett, was present in Cox’s office at the time
Cox directed Barrow to answer the questions.
acting on behalf of LFUCG as its attorney.
Further, Cox was
In short, we find no
merit to Barrow’s arguments in this regard.
In addition, Barrow maintains that Cox could not
compel him to answer questions by promising him that his right
to self-incrimination would not be waived since Cox was a
private attorney employed by LFUCG and was not a prosecutor
vested with the power to grant immunity.
We reject this
argument based on the holding of the court in Atwell v. Lisle
Park District, 286 F.3d 987, 990 (7th Cir. 2002).
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Next, Barrow contends that the Uniform Guidelines and
Standards of Disciplinary Actions for Urban County Government
had not been enacted by LFUCG’s legislative body as required by
KRS5 67A.280(7).
That statute provides in pertinent part that a
classified civil service employee of an urban county government
may be dismissed, suspended, or reduced in pay “but only as
provided by comprehensive plan or ordinance[.]”
The Charter of
the Lexington-Fayette Urban County Government is the
comprehensive plan.
See KRS 67A.210(1)(e).
Section 9.04 of the
Charter authorizes the preparation of a “comprehensive plan for
a classified civil service system.”
Ordinances is such a plan.
Section 21 of the Code of
We conclude that the requirements of
the statute were satisfied.
In addition to appealing from the Civil Service
Commission decision, Barrow filed claims for damages against
LFUCG, Bennett, and Carter.
His argument that LFUCG is not
entitled to the defense of sovereign immunity is without merit.
See Lexington-Fayette Urban County Government v. Smolcic, 142
S.W.3d 128, 132-33, (Ky. 2004).
Barrow also argues that Bennett
and Carter are not protected from liability by the doctrine of
qualified or official immunity.
merit.
5
This argument is also without
See Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
Kentucky Revised Statutes.
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Finally, Barrow argues that because he acted on the
advice of his attorney in invoking his right against selfincrimination, the court erroneously upheld his suspension.
disagree.
We
See Weston v. U.S. Department of Housing and Urban
Development, 724 F.2d 943, 950-51 (Fed. Cir. 1983).
The order and judgment of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
William C. Jacobs
Lexington, Kentucky
Carolyn C. Zerga
Lexington, Kentucky
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