ARNETT (MYERS) VS. CITY OF STANTON , ET AL.Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEALS FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NOS. 04-CI-00209 & 04-CI-00227
CITY OF STANTON, A KENTUCKY
MUNICIPAL CORPORATION; VIRGINIA
WILLS, MARIAM SMALLWOOD, JESSICA
WELLS, MIKE LOCKHART, JAMES MARTIN,
AND FRANK “JUNIE” HUTCHINSON,
INDIVIDUALLY AND AS COUNCILMEN
OF THE CITY OF STANTON; VICKIE
SLEMP, CITY CLERK OF THE CITY OF
STANTON; AND DAVID POOLE
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
KELLER, JUDGE: In September of 2004, the Stanton City Council (the Council)
voted to remove Mayor Myers Arnett (Arnett) from office. Arnett appealed the
Council’s decision. The Powell Circuit Court affirmed. It is from the court’s order
affirming the Council that Arnett appeals. In his appeal, Arnett argues that he was
denied due process of law, that the Council did not follow the statutory procedures
necessary to investigate his conduct and to remove him from office, and that the
Council violated the Open Meetings Act. The Council argues to the contrary and
that Arnett did not timely perfect his appeal to the circuit court. For the reasons set
forth below, we affirm.
1. Procedural Background
On August 10, 2004, members of the Council sent letters to Arnett
outlining various allegations of misconduct and asking Arnett to resign. Based on
those letters and other information, the attorney for the Council forwarded a letter
to Arnett dated August 13, 2004, formally advising him that the Council was
charging him with “misconduct, incapacity, and willful neglect in performance of
[his] duties as mayor.” The letter stated that a special meeting of the Council had
been scheduled for August 17, 2004, to “begin the removal process and schedule a
hearing date.” At the August 17, 2004, special meeting, the Council scheduled the
hearing for September 1, 2004.
In an apparent attempt to delay or stop the hearing, Arnett filed a
complaint on August 31, 2004, seeking a declaratory judgment and injunctive
relief. That complaint was assigned case number 04-CI-00209 (the complaint).
The Council went forward with the hearing on September 1, 2004, and voted to
remove Arnett from office. Arnett appealed the Council’s actions to circuit court.
The appeal was assigned case number 04-CI-00227 (the appeal).
Both cases moved through the circuit court until February 25, 2006,
when the court, in a handwritten note on the docket sheet, appears to have
dismissed the complaint for lack of prosecution. We note that no other action
appears to have been taken in the complaint action until December 28, 2006, when
the court entered a six-page order again dismissing it. In that order, the court
stated that Arnett’s request for injunctive relief was moot as the hearing had been
held. The court also noted that the issues raised by Arnett with regard to the
adequacy of the hearing and whether he received due process would be better
addressed within the appeal.
In the meantime, Arnett filed a petition for injunctive relief in the
appeal on June 18, 2005. On July 27, 2005, the Council moved to dismiss the
appeal on the grounds that Arnett had not perfected it. Following several
procedural motions and the filing of the transcript of the September 1, 2004,
hearing, the circuit court entered an order and judgment on March 21, 2007. In
that order and judgment, the court adopted the December 28, 2006, order
dismissing the complaint and found that said order was final and appealable with
an effective date for appeal purposes of March 21, 2007. The court also affirmed
the findings of the Council and its dismissal of Arnett. It is from this order and
judgment that Arnett appeals.
2. The Hearing Before the Council
Because Arnett argues, in part, that he was not given due process, we
will briefly summarize the evidence presented at the hearing before the Council.
There were essentially three charges brought against Arnett: (1) that he was often
“under the influence of alcohol” or intoxicated while acting as mayor; (2) that he
did not comply with various policies and/or regulations with regard to the
awarding of and payment under at least two contracts; and (3) that he engaged in
sexual harassment and other inappropriate conduct with employees of the City of
Stanton (the City).
As to Arnett’s intoxication, several employees of the water
department testified that Arnett was intoxicated when he visited a job site where a
water line was being repaired. We note that it is unclear from the record when this
incident occurred. Other city employees testified that, in early 2003, when Arnett
arrived for a Council meeting, he was too intoxicated to function. Therefore, the
meeting was cancelled, and one of the employees drove Arnett home. The mayor
of a neighboring city testified that she and Arnett attended a meeting with
representatives of FEMA that had been called to advise officials in Powell County
how to obtain federal funding for flood relief. Arnett appeared to be intoxicated at
that meeting. Vickie Slemp (Slemp), the city clerk, Teresa Koontz (Koontz), the
assistant city clerk, and Wendy Floyd (Floyd), an employee who worked part-time
for the City and part-time for the police department, testified that for six to eight
months prior to the hearing, Arnett was under the influence of alcohol every time
he came to the City’s offices. Finally, several citizens testified that Arnett
appeared to be intoxicated on several occasions while in public and while
conducting the duties of his office.
With regard to financial irregularities, witnesses testified that Arnett
approved payments to contractors that had not been authorized by the Council.
Furthermore, testimony indicated that Arnett had made payment to a contractor to
build sidewalks when that contractor had not been awarded a contract by the
Council. However, a former Council member testified that the issue regarding that
contract was discussed with the Council at the time it occurred and no one on
As to Arnett’s behavior toward employees, Slemp testified that Arnett
made several comments regarding his desire to “sleep with” her. Although she did
not consider these comments to amount to sexual harassment, she did report them
to three Council members in July 2004. Slemp discussed Arnett’s behavior with
the other three Council members by telephone and/or e-mail. Floyd testified that
Arnett made a comment about her appearance and stared “lustfully” at her on at
least one occasion. Floyd reported Arnett’s actions to her supervisor, Slemp, and
prepared a written complaint in July 2004. Furthermore, Floyd testified that the
female employees in the City office agreed that none of them would be alone with
At the conclusion of the hearing, counsel for Arnett asked the Council
to retire to deliberate. However, while a discussion regarding whether to do this
was taking place, Arnett said, “I say vote and get it over with.” His counsel
reiterated Arnett’s statement and the Council voted unanimously to remove Arnett
as mayor. As noted above, Arnett timely appealed the Council’s decision to the
circuit court, and the circuit court affirmed the Council’s removal of Arnett as
With this background in mind, we will address the issues raised by
Arnett on appeal: (1) that he was denied due process of law; (2) that the Council
did not follow the proper statutory procedures in investigating the allegations
against him and in removing him from office; and (3) that the Council violated the
Open Meetings Act.
STANDARD OF REVIEW
Arnett raises issues of law, which are subject to de novo review.
Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001); see also A & A
Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.
App. 1999); Aubrey v. Office of Attorney General, 994 S.W.2d 516, 518-19 (Ky.
App. 1998); and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
1. Due Process
We will first address the due process issue raised by Arnett. Arnett’s
primary argument is that the members of the Council “had previously reached an
agreement and were committed to” removing Arnett from office prior to the
hearing. According to Arnett, this bias by the members of Council “should have
disqualified them from sitting as hearing officer(s) and/or judges[.]” In support of
this argument, Arnett cites to the letters written by members of Council prior to the
Additionally, Arnett argues that the Council voted to remove him
because of improper political motives.2 In support of this argument, Arnett states
that “the conduct at issue in the charges arose during the prior administration of
Arnett as Mayor of the City of Stanton.” We will address each argument in the
order set forth above.
At the outset, we note that the former Court of Appeals, in Arbogast
v. Weber, 249 Ky. 20, 60 S.W.2d 144, 147 (1933), held that bias or prejudice on
the part of city commissioners is not sufficient to enjoin them from acting on
charges against another commissioner. See also, Reed v. City of Richmond, 582
S.W.2d 651, 655 (Ky. App. 1979). One who claims such bias or prejudice bears
the burden of proof; however, in judging whether bias or prejudice had an impact
on the Council’s decision, “the court will give full consideration to the fact that the
same body acted as accuser, judge and jury.” Reed, at 655.
As noted above, Arnett relies on the letters written from the members
of Council prior to the removal hearing to show undue bias and prejudice.
Therefore, we must examine the language of those letters. Frank Hutchinson
While we are not certain that this is a due process argument, we will address it in this section
of the Opinion since Arnett included it in the due process section of his brief.
stated in his letter that he had received “some very serious allegations” of sexual
harassment by Arnett. He asked Arnett to “step aside” so that the matter could
“remain private and not be dealt with publicly.” In her letter, Virginia Wills stated
that “[s]exual harassment is unacceptable within the Stanton City office or outside
the office.” She asked Arnett to “refrain from any behavior that would appear to
be of this nature” when he was acting as mayor and noted that “[t]he city has
encountered many problems in the last months.” Therefore, she asked Arnett to
resign and noted that she hoped the matter could be dealt with privately. Jessica
Wells (Wells), in her letter, asked Arnett to “refrain from any behavior that would
constitute sexual harassment of any nature.” As did the others, Wells asked Arnett
to resign, in part, to keep the matter private. Although it appears to be missing a
word or two, the letter from Mike Lockhart (Lockhart) also asked Arnett to refrain
from engaging in any activity that might constitute sexual harassment. As did
Wills, Lockhart noted that the city had “experienced numerous problems over the
past several months,” and Lockhart asked Arnett to resign. James Martin (Martin),
in his letter, asked Arnett to refrain from any behavior that might “constitute sexual
harassment.” As did Wills and Lockhart, Martin noted the problems the city had
experienced in the preceding several months, and he asked Arnett to resign.
Finally, Mariam Smallwood asked Arnett to behave in a manner so as to “be free
of sexual harassment” and to resign. She also noted the “many problems with
which the city has been confronted during the past several months” as a reason
supporting her request for Arnett’s resignation.
Taken singly or as a group, these letters do three things: they advise
Arnett that someone has complained about his behavior; they ask him to refrain
from engaging in behavior that could constitute sexual harassment; and they ask
him to resign in order to avoid a public hearing. They do not indicate that any of
the members of Council had determined to remove Arnett or that any of the
Council members had accepted the reports of Arnett’s behavior as being true. To
paraphrase the Court in Arbogast, “[t]he act of the [Council] in offering to permit
[Arnett] to resign does not show any prejudice on the part of the [Council], but was
rather a friendly act inasmuch as in the absence of such resignation the [Council]
could scarcely escape its duty of hearing these charges.” Arbogast v. Weber, 249
Ky. 20, 60 S.W.2d 144, 146 (1933).
As to improper political motives, Arnett argues that the charges relate
to his prior administration and that “[t]hese disputes were settled by the electorate
with Arnett’s reelection[.]” As previously noted, the charges against Arnett
centered on his apparent intoxication while performing his duties as mayor; his
handling of various contracts; and his alleged sexual harassment of employees.
Based on the record, it appears that the contract issues did arise during Arnett’s
prior administration. However, the sexual harassment appears to have been an
ongoing problem, with both Slemp and Floyd making written complaints in July
2004. Furthermore, two of the witnesses testified that Arnett appeared to be
intoxicated on a daily basis in the six months prior to the removal hearing.
Therefore, Arnett’s argument that the charges were stale is not supported by the
record. Finally, on this issue, we note that, after a thorough review of the record,
we can find no testimony from anyone indicating that any of the Council members
voted to remove Arnett for political reasons.
Arnett relies on Jones v. Hillview Civil Service Com’n, 760 S.W.2d 91
(Ky. App. 1988), to support his argument regarding improper political motivation.
However, that reliance is misplaced. Jones, an officer in the Hillview police
department, supported Leeman Powell (Powell) in a mayoral election. During the
campaign, Powell announced that, if elected, he would name Jones as chief of
police. The city council told Powell that they disapproved of Jones, and one of the
council members, Richard Terry (Terry), embarked on a write-in campaign for
mayor against Powell. Furthermore, council members advised Powell that, if he
attempted to appoint Jones as police chief, they would “tie his hands with the civil
service laws.” Id. at 92. Prior to the election, the council adopted an ordinance
establishing a civil service commission. Terry won the election and, two days
later, the council began proceedings to place police officers under the purview of
the newly created civil service commission. The council also appointed three
commission members, two of whom had worked on Terry’s campaign. Within two
weeks after police officers were classified as civil service employees, Jones was
called before the commission and fired.
Jones appealed and the Court of Appeals reversed the findings of the
commission. In doing so, the Court noted that the charges against Jones were
related to activity that occurred before the civil service commission had been
created. Furthermore, Jones had not been advised of several of the charges, many
of which applied to all officers in the department, not just Jones. Finally, the Court
noted that, when Jones asked to review his personnel file, he was told that no such
file existed; however, during the hearing before the commission, “the file was
produced and its contents were used as evidence against him.” Id. at 94.
Clearly, Jones is distinguishable from the case before us. There is no
evidence that any of the Council members opposed Arnett in his election for
Mayor. The Council existed at all times when the actions in question took place,
and there is no evidence that Arnett was denied access to any of the evidence that
was used against him. Therefore, Jones is not dispositive.
Based on the above reasons, we hold that Arnett received sufficient
substantive and procedural due process. Furthermore, we hold that the evidence
does not support Arnett’s claim that his removal was politically motivated.
2. Improper Investigation by the Council
Arnett’s second argument is that the Council violated KRS
83A.130(13), which provides that
[t]he council shall have the right to investigate all
activities of city government. The council may require
any city officer or employee to prepare and submit to it
sworn statements regarding his performance of his
official duties. Any statement required by the council to
be submitted or any investigation undertaken by the
council, if any office, department or agency under the
jurisdiction of the mayor is involved, shall not be
submitted or undertaken unless and until written notice of
the council's action is given to the mayor. The mayor
shall have the right to review any statement before
submission to the council and to appear personally or
through his designee on behalf of any department, office
or agency in the course of any investigation.
Arnett argues that, because the Council did not provide him with
written notification before undertaking an investigation of his behavior, the charges
against him and subsequent actions by the Council were void. We disagree for two
reasons. First and foremost, the statute cited by Arnett simply does not apply.
KRS 83A.130(13) states that the Council must advise the mayor of any
investigation into “any office, department or agency under the jurisdiction of the
mayor.” Notice is not required if an investigation is undertaken of the mayor.
Second, there is no evidence that the Council undertook any investigation. The
evidence indicates that individual Council members were advised of the sexual
harassment charges. The charges arising from Arnett’s intoxication were public
knowledge as evidenced by numerous newspaper articles in the record, and it
appears that any investigation regarding City contracts was undertaken by Slemp,
not by the Council or any member of the Council. Therefore, we hold that KRS
83A.130(13) has no application to this case. Furthermore, even if KRS
83A.130(13) does apply, there is no evidence that the Council violated its
3. Violation of the Open Meetings Act
Finally, Arnett argues that the Council met in violation of the Open
Meetings Act, KRS 61.800 et seq. In support of his argument, Arnett points to
testimony by Slemp that she advised three members of Council about Arnett’s
behavior when the four of them met at Dairy Queen. She advised the remaining
three members individually, either by e-mail or by telephone. These contacts
between Slemp and the members of Council dealt with only the issue of Arnett’s
alleged sexual harassment. In response to questions by Arnett’s counsel, Slemp
states on several occasions that she advised “Council” and that she spoke with
“Council.” However, she also states on several occasions that no meetings were
held without notice to the public. Faced with this evidence, the circuit court found
that, “[a]though a quorum of commissioners [sic] may have discussed the issue
among themselves at a gathering other than a regular meeting, there were no secret
meetings.” Based on the evidence as a whole, “we do not believe this finding is
clearly erroneous, [and] we will not disturb it on appeal. Avritt v. O'Daniel, 689
S.W.2d 36 (Ky. App 1985); CR 52.01.” Beckham v. City of Bowling Green, 743
S.W.2d 858, 861 (Ky. App. 1987).
Furthermore, we agree with the circuit court that any meetings that
may have taken place fall within an exception to the Open Records Act. KRS
61.810(1)(f) provides for closed door meetings when discussing matters that might
lead to discipline of “an individual, employee, member or student.” Any
discussions Council members may have had among themselves involved discipline
of Arnett thus falling within the preceding exception to the Open Meetings Act.
Therefore, we find that the actions of the Council did not violate the Open
4. Failure to Timely Perfect Appeal
Because we have affirmed the circuit court on substantive grounds,
we need not address this procedural issue raised by the Council.
For the foregoing reasons we hold that the Council of the City of
Stanton acted appropriately when it removed Arnett from his position as mayor.
The Council did not violate the Open Meetings Act, it did not deny Arnett due
process, and it did not violate KRS 83A.130(13). Therefore, the Powell Circuit
Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
Donna R. Hale
ORAL ARGUMENT FOR