LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT V. MOORE
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Dezmon Moore, a police officer with the Louisville Metro Police Department (LMPD), was terminated after the Chief of Police found he had committed three violations of the department's Standard Operating Procedures (SOPs). These violations stemmed from incidents involving domestic altercations with his wife, Bethel Moore, which led to multiple arrests and charges, including assault and violation of a no-contact order. Moore's criminal charges related to these incidents were eventually dismissed or expunged.
Moore appealed his termination to the Louisville Metro Police Merit Board, which upheld the termination after finding he had committed two of the three SOP violations. The Jefferson Circuit Court affirmed the Merit Board's decision, and the Court of Appeals also affirmed, though it noted errors in the Merit Board's consideration of expunged materials and transcribed witness statements without cross-examination. However, the Court of Appeals deemed these errors harmless.
The Supreme Court of Kentucky reviewed the case. The Court held that the Merit Board did not violate Moore's statutory or constitutional due process rights by considering transcribed witness statements without live testimony and cross-examination. The Court found that the statutes governing the Merit Board provided sufficient procedural safeguards, including the opportunity for Moore to subpoena witnesses. The Court also determined that the expungement statutes did not apply to the internal employment records of the LMPD's Professional Standards Unit (PSU), and thus, the Merit Board did not err in considering those materials.
Finally, the Court held that Moore's termination was not arbitrary, even though it was based on arrests and charges rather than convictions. The Chief's decision was supported by proper evidence, and the Merit Board's affirmation of the termination was justified. The Supreme Court of Kentucky affirmed the decision of the Court of Appeals.
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RENDERED: AUGUST 22, 2024 TO BE PUBLISHED Supreme Court of Kentucky 2022-SC-0112-DG LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT V. APPELLANT ON REVIEW FROM COURT OF APPEALS NO. 2020-CA-1296 JEFFERSON CIRCUIT COURT NO. 18-CI-003972 DEZMON MOORE; AND LOUISVILLE METRO POLICE MERIT BOARD APPELLEES AND 2022-SC-0369-DG DEZMON MOORE V. CROSS-APPELLANT ON REVIEW FROM COURT OF APPEALS NO. 2020-CA-1296 JEFFERSON CIRCUIT COURT NO. 18-CI-003972 LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT; AND LOUISVILLE METRO POLICE MERIT BOARD CROSS-APPELLEES OPINION OF THE COURT BY JUSTICE KELLER AFFIRMING Dezmon Moore was terminated from his employment with the Louisville Metro Police Department (LMPD) after the Chief of Police determined that he had committed three violations of police department Standard Operating Procedures (SOPs). Moore appealed his termination to the Louisville Metro Police Merit Board (the Merit Board). The Merit Board concluded that Moore had committed two of the three SOP violations that the Chief had found and upheld Moore’s termination. Moore then appealed to the Jefferson Circuit Court, which affirmed the Merit Board’s decision. He then appealed to the Court of Appeals, which affirmed the circuit court. This Court granted the Louisville/Jefferson County Metropolitan Government’s (Metro Government) Motion for Discretionary Review, as well as Moore’s Cross-Motion for Discretionary Review. After a thorough review of the record and the applicable law, we affirm the Court of Appeals, although we do so for different reasons. I. BACKGROUND Dezmon Moore was employed as a police officer with LMPD from November 2010 until he was terminated on May 24, 2017. LMPD Chief of Police Steve Conrad terminated Moore after finding that Moore committed three violations of LMPD SOP 5.1.2 – Obedience to Rules and Regulations. The first violation found by the Chief stemmed from an altercation Moore had with his wife Bethel Moore (Bethel) on September 4, 2016. As a result of the altercation, Moore was arrested and charged with assault in the fourth degree, domestic violence. Notably, as a condition of his bond, the Jefferson District Court issued an order prohibiting Moore from having any contact with Bethel. This charge, however, was eventually dismissed, and on March 29, 2 2017, Moore’s criminal case arising out of the September 4, 2016, incident was expunged. Shortly after the September 4, 2016, incident, both a Professional Standards Unit (PSU) investigation and a Public Integrity Unit (PIU) investigation were initiated. The PIU conducts criminal investigations of LMPD employees. The PSU conducts administrative/disciplinary investigations into possible internal policy violations by LMPD employees. During their investigations, the PIU and PSU interviewed various witnesses, took photographs, and collected documentary evidence. Meanwhile, however, on September 5, 2016, the day after the above referenced altercation, Bethel sought and obtained an emergency domestic violence protective order against Moore. On September 15, 2016, the domestic violence protective order petition was dismissed in exchange for an order prohibiting Moore from having unlawful contact with Bethel issued in the couple’s pending divorce case. The second SOP violation found by the Chief stemmed from Moore’s contact with Bethel on October 6, 2016, when Moore returned to the marital residence while Bethel was there, despite being under the no contact order issued in the District Court criminal case, which was still pending at that time. As a result of this incident, Moore was arrested and charged with the crimes of violation of conditions of release and harassing communication. On October 11, 2016, the Jefferson District Court issued a no contact order in this second pending criminal case. Moore eventually pled guilty to the singular charge of 3 violation of conditions of release on January 24, 2017. He was sentenced to 180 days in jail, but that jail sentence was conditionally discharged for two years on the conditions he have no contact with Bethel and commit no new criminal offenses. Shortly after this incident, the PSU opened a second investigation into Moore’s behavior. On October 7, 2016, the day after the above-referenced contact between Moore and Bethel, Bethel sought and obtained another emergency domestic violence protective order against Moore. On January 30, 2017, however, the Jefferson Family Court found Bethel failed to prove domestic violence had occurred and dismissed the protective order petition. The third violation of SOP 5.1.2 found by the Chief stemmed from Moore’s contact with Bethel at church on April 16, 2017, when he was alleged to have sat next to Bethel and attempted to engage her in a conversation. Moore’s contact was in violation of the no contact order issued as a condition of his sentence stemming from his prior Violation of Conditions of Release District Court criminal case. He was again criminally charged with harassment based on this incident. As stated above, the Chief terminated Moore’s employment with LMPD on May 24, 2017. He reviewed both PSU files, which included all of the investigation completed by the PIU. Moore appealed his termination to the Merit Board. The Merit Board reviews the Chief’s disciplinary actions and, in termination cases, holds a 4 public, evidentiary hearing. Prior to the Merit Board hearing, Moore objected to the admission of materials related to the September 4, 2016, incident, arguing that those materials had all been expunged. Regarding this objection, counsel for the Merit Board admonished Merit Board members not to consider Moore’s actual arrest or the charge stemming from that incident. Moore also objected to the admission of all transcribed witness statements if the witnesses were not called to testify during the hearing and made subject to cross-examination. The Merit Board overruled this objection. However, the Merit Board’s counsel admonished Merit Board members “to pay attention [to the witness statements] only in so far as the fact that they were part of the Chief’s record in this matter and not to prove charges in and of themselves.” At the conclusion of the hearing, the Merit Board found that Moore had committed two of the three SOP violations found by the Chief. The Merit Board found that no violation of SOPs had occurred during the September 4, 2016, incident, but found that Moore had violated SOP 5.1.2 on October 6, 2016, and April 16, 2017. In a 6-to-1 vote, the Merit Board also found that the Chief’s termination of Moore was justified by the two violations. Moore then appealed his termination to the Jefferson Circuit Court pursuant to Kentucky Revised Statute (KRS) 67C.323(3)(a) and KRS 67C.326(2). To the circuit court, Moore made three primary arguments that he continues to assert to this Court. First, he argued that the Chief and the Merit Board erroneously considered expunged materials related to the September 4, 2016, incident. Second, he argued that his statutory and constitutional due 5 process rights were violated when the Merit Board considered transcribed witness statements, while those witnesses did not testify at the hearing and were not subject to confrontation and cross-examination. Finally, he argued that LMPD improperly relied on his arrest and criminal charges, absent a criminal conviction, as bases for his termination. The Jefferson Circuit Court affirmed the Merit Board’s order. Moore then appealed to the Court of Appeals. The Court of Appeals held that the Merit Board erred in considering expunged materials, specifically arrest records and court records relating to the September 4, 2016, incident. The court held that error was harmless, however, because the expunged materials related primarily to the September 4, 2016, incident, and the Merit Board did not find an SOP violation related to that incident. The Court of Appeals also held that KRS 67C.325 provides a police officer the right to confrontation at a Merit Board hearing, and thus the Merit Board’s admission of transcribed statements in the absence of live cross-examination of the witness was error. According to the Court of Appeals, that error too was harmless because there was substantial witness testimony to support the Merit Board’s findings. Accordingly, the Court of Appeals affirmed the Jefferson Circuit Court. Metro Government then filed a Motion for Discretionary Review with this Court, arguing that the Court of Appeals’ interpretation of KRS 67C.325 regarding Moore’s right to confrontation was erroneous. This Court granted that motion. Moore then filed a Cross-Motion for Discretionary Review, arguing 6 that the Court of Appeals erred in holding that only arrest and court records were expunged and erred in holding that any error was harmless. Moore further argued that to base his termination on his arrest and criminal charges, absent a conviction, was arbitrary. We granted his cross-motion. After a thorough review of the record, the law, and arguments, we affirm the Court of Appeals, although we do so for different reasons. II. ANALYSIS To this Court, Metro Government argues that the Court of Appeals erred in holding that the Merit Board was prohibited from considering transcribed statements of witnesses without those witnesses being called to testify at the hearing and thus being subject to cross-examination. Moore, on the other hand, argues that the Merit Board erred in failing to exclude expunged materials from its consideration and that his termination was improperly based on his arrest and criminal charges instead of on any criminal conviction. We review each allegation in turn. A. Standard of Review “[J]udicial review of administrative action is concerned with the question of arbitrariness.” Am. Beauty Homes Corp. v. Louisville & Jefferson Cty. Plan. & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). The Circuit Court uses a “modified de novo” standard of review when reviewing actions of the Merit Board. Crouch v. Jefferson Cnty., Ky. Police Merit Bd., 773 S.W.2d 461, 464 (Ky. 1988). It “allows the reviewing court to invade the mental processes of the Board to determine whether its action is not arbitrary. To determine 7 arbitrariness, the appellate court may review the record, the briefs, and any other evidence or testimony which would be relevant to that specific, limited issue.” Id. In reviewing for arbitrariness, the reviewing court must determine whether the questioned exercise of authority might be infirm because the action exceeded the Board’s granted powers, the proceeding lacked procedural due process, or the Board’s decision lacked substantial evidentiary support. Am. Beauty Homes Corp., 379 S.W.2d at 456. Importantly, “[t]he appeal is not the proper forum to retry the merits.” Crouch, 773 S.W.2d at 464. In the case before us, all of the issues presented are questions of law. Thus, despite the above-described general standard of review, we review the issues before us de novo. Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 647 (Ky. 2017). B. Due Process Right to Cross-Examine Metro Government argues that Moore has no due process rights that would prevent the Merit Board from considering sworn, transcribed witness statements of individuals who were not called to testify at the hearing and, therefore, were not subject to cross-examination. Moore, on the other hand, asserts that such a right can be found in both the statutes that govern the Merit Board as well as in the Kentucky and United States Constitutions. 1. Statutory Due Process Rights Metro Government asserts that the Court of Appeals erred in concluding that the Kentucky statutes governing Merit Board proceedings grant Moore a right to cross-examination. Metro Government specifically argues that the 8 admission of prior sworn statements is contemplated, and even explicitly permitted, by the relevant statutes. Moore argues this Court should affirm the Court of Appeals’ holding that KRS 67C.325 provides him with procedural and administrative due process rights to cross-examine witnesses against him such that the admission of transcriptions of these witnesses’ prior statements was improper. KRS 67C.325 states in full, Procedural due process shall be afforded to any police officer brought before the board. The officer shall be given a prompt hearing by the board, have an opportunity to confront his or her accusers, and have the privilege of presenting the board with evidence. The board shall have the power to issue subpoenas attested in the name of its chairman, to compel the attendance of witnesses, to compel the production of documents and other documentary evidence, and so far as practicable, conduct the hearing within the Kentucky Rules of Civil Procedure. Upon a showing of proper need, the board shall issue subpoenas to compel the attendance of witnesses, or to compel the production of documents and other documentary evidence for the benefits of the officer or the chief at the request of the officer or the chief. (emphasis added). Moore asserts that the “opportunity to confront his or her accusers” language of KRS 67C.325 is modeled after the language of the Sixth Amendment to the United States Constitution and thus provides analogous rights. However, the Sixth Amendment provides criminal defendants with the “right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This language is markedly different from that contained in KRS 67C.325. KRS 67C.325 makes no mention of a “right” (other than in its title), and instead, merely provides a police officer with an “opportunity to confront his or 9 her accusers.” The word “opportunity” is crucial in this analysis, as the remainder of that statutory section sets out how that opportunity to confront is to be provided: “[T]he board shall issue subpoenas to compel the attendance of witnesses . . . at the request of the officer.” KRS 67C.325. Thus, police officers brought before the Merit Board are provided the opportunity to confront their accusers by requesting a subpoena be issued which compels the accuser’s attendance at the hearing and then confronting the accuser through direct or cross-examination. Nothing more is required by KRS 67C.325. To interpret KRS 67C.325 in any other way would apparently result in more procedural due process rights for officers employed by LMPD than for officers employed by many other agencies within the Commonwealth. 1 We are mindful that we must “presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes.” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). The above interpretation of KRS 67C.325 is further supported by the language contained in a related statute, KRS 67C.326(1)(h). When the two statutes are read together, it becomes even clearer that the legislature intended for sworn, transcribed witness statements to be considered by the Board even if those witnesses were not called to testify at the hearing. The Police Officers’ Bill of Rights, KRS 15.520, which applies to many of our Commonwealth’s police officers, does not include similar “opportunity to confront” language. However, KRS 78.460, which provides procedural due process rights to county police officers, does include similar language. 1 10 KRS 67C.326(1)(h) sets forth the “minimum” “administrative due process rights” provided to police officers in proceedings in front of the Merit Board. KRS 67C.326(1)(h)2 explicitly permits the Merit Board to consider “any sworn statements or affidavits” and requires those statements to “be furnished to the police officer no less than seventy-two (72) hours prior to the time of the hearing.” If the General Assembly had intended to permit the Merit Board to consider sworn statements and affidavits only if the witness was called to testify, it would have said so. We are not permitted to add words to a statute, and “a legislature making no exceptions to the positive terms of a statute is presumed to have intended to make none.” Lee v. Ky. Dept. of Corr., 610 S.W.3d 254, 262 (Ky. 2020) (quoting Bailey v. Reeves, 662 S.W.2d 832,834 (Ky. 1984)). KRS 67C.326(1)(h) further provides that the accused police officer “may cross-examine all witnesses called by the charging party.” KRS 67C.326(1)(h)7 (emphasis added). This right is specifically and explicitly contingent upon the witness being, in fact, “called by the charging party.” Moore asserts that the LMPD’s presentation of a sworn, transcribed witness statement is tantamount to the LMPD calling that witness to testify at the hearing, which in turn, triggers his right to cross-examine the witness. We find no support for this contention in either the plain language of the statute or in our Court’s precedent, and it appears to be directly contrary to KRS 67C.326(1)(h)2, which, as just discussed, allows for consideration of sworn statements and affidavits. 11 Like KRS 67C.325, KRS 67C.326(1)(h) also provides an accused police officer the right to request a subpoena to require the attendance of witnesses at the hearing. KRS 67C.326(1)(h)6. In order for a police officer to avail himself of the “opportunity” to confront his accuser, he may need to subpoena the witness, call him or her to testify, and then cross-examine him or her. Further, police officers are explicitly provided the right to cross-examine witnesses called by the LMPD. KRS 67C.326(1)(h)7. We find nothing in the language of KRS 67C.325 or 67C.326 which provides Moore any greater right to crossexamine. Accordingly, the Merit Board did not violate Moore’s statutory Due Process rights in considering sworn, transcribed witness statements even though those witnesses did not testify at the hearing and were not subject to cross-examination. 2. Constitutional Due Process Rights Moore argues that even if the statutes do not prohibit the Merit Board from considering sworn, transcribed statements of witnesses who were not called to testify at the hearing and therefore were not subject to crossexamination, both the Kentucky and United States Constitutions do. He argues that his constitutional procedural Due Process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section Two of the Kentucky Constitution may be greater than those provided by the statutes and were violated when the Merit Board considered sworn, transcribed statements of witnesses who were not subject to cross-examination. He further argues that the Sixth Amendment Confrontation Clause jurisprudence should 12 inform our Due Process analysis. He does not, however, engage in a meaningful way with the Mathews v. Eldridge factors which, as described below, the United States Supreme Court has stated determine the contours of procedural Due Process protections. 424 U.S. 319 (1976). Metro Government, on the other hand, would have this Court affirm the Court of Appeals’ holding that Moore has no constitutional right to cross-examination. “[T]he Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). The property rights protected by the Due Process Clause include the right to continued employment in a merit system like that established for LMPD. See id. at 539, 543. “The essential requirements of due process . . . are notice and an opportunity to respond.” Dep’t of Revenue, Fin. & Admin. Cabinet v. Wade, 379 S.W.3d 134, 138 (Ky. 2012) (quoting Loudermill, 470 U.S. at 546). The hearing at which the individual can respond “must be ‘at a meaningful time and in a meaningful manner.’” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). However, “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “[W]hat may be required under [the Due Process] Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.” Arnett v. Kennedy, 416 U.S. 134, 155 (1974). Notably, it does not always 13 require Sixth Amendment-like confrontation, as Moore suggests. To hold otherwise would elevate the rights provided at a civil administrative hearing to those provided at a criminal trial where the defendant’s very liberty, or even life, is at stake. Although our Court can interpret “the Constitution of Kentucky in a manner which differs from the interpretation of parallel federal constitutional rights by the Supreme Court of the United States[,]” when we do so, it is typically “because of Kentucky constitutional text, the Debates of the Constitutional Convention, history, tradition, and relevant precedent.” Commonwealth v. Cooper, 899 S.W.2d 75, 77–78 (Ky. 1995). When it comes to the Due Process Clause, this Court has adopted the three-factor test found in the United States Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319. Trans. Cabinet v. Cassity, 912 S.W.2d 48, 51 (Ky. 1995). In Mathews, the United States Supreme Court was tasked with determining how much procedural process was due to a Social Security disability benefit recipient prior to the termination of those benefit payments. 424 U.S. at 323. In order to do so, the Court stated that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 14 Id. at 335. Since then, the Mathews test has become the controlling test for determining how much procedural due process is required under any given set of circumstances, and we are ever mindful that “[t]he matter comes down to the question of the procedure’s integrity and fundamental fairness.” Richardson v. Perales, 402 U.S. 389, 410 (1971). Because this Court has not yet decided how much procedural process is constitutionally due a police officer before the Merit Board, we must undertake the Mathews analysis today. a. Private Interest The first factor to be considered in the Mathews test is “the private interest that will be affected by the official action[.]” Mathews, 424 U.S. at 335. In this case, the private interest at stake is the retention of merit employment. In Cleveland Board of Education v. Loudermill, the United States Supreme Court explained, “[T]he significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood.” 470 U.S. at 543. That Court went on to note that “[w]hile a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.” Id. So, while the private interest in retaining employment is high, it is, perhaps, not as high as the private interest at stake in other situations. For example, the United States Supreme Court noted that the private interest in retaining welfare benefits is higher than that in retaining employment because “termination of aid pending resolution of a controversy over [welfare] eligibility 15 may deprive an eligible recipient of the very means by which to live while he waits.” Goldberg, 397 U.S. at 264. The private interest here is also less significant than the private interest in the retention of Social Security disability benefit payments because in the case of the loss of disability benefits, “there is little possibility that the terminated recipient will be able to find even temporary employment to ameliorate the interim loss.” Mathews, 424 U.S. at 341. In cases such as the one before us, the private interest in retaining employment is lessened by the fact that the terminated employee has the physical ability to obtain at least temporary employment in order to mitigate some of the hardship imposed by the loss of his merit employment. b. Risk of Erroneous Deprivation and Probable Value of Additional Safeguards The second factor to be considered under the Mathews test is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards[.]” Mathews, 424 U.S. at 335. Here, the additional procedural safeguard that Moore seeks is live testimony and cross-examination of a witness whose statement the LMPD seeks to admit against him. Courts have long acknowledged the “value of cross-examination in exposing falsehood and bringing out the truth” in a fact-finding endeavor. Pointer v. Texas, 380 U.S. 400, 404 (1965). Further, “[d]ismissals for cause will often involve factual disputes.” Loudermill, 470 U.S. at 543. In fact, the United States Supreme Court has stated that “[p]articularly where credibility and 16 veracity are at issue, as they must be in any [public assistance benefits] termination proceedings, written submissions are a wholly unsatisfactory basis for decision.” Goldberg, 397 U.S. at 269. That Court went on to say that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Id. Notably, however, the Supreme Court used the term “opportunity” as opposed to the term “right,” and the facts of Goldberg are highly distinguishable from the facts before us today. In Goldberg, the New York City Department of Social Services procedures at issue failed to provide the opportunity for any “personal appearance of the [benefits] recipient before the reviewing official, for oral presentation of evidence, [or] for confrontation and cross-examination of adverse witnesses” prior to termination of public assistance benefits. Id. at 259. In our case, however, as is described below, hearings before the Merit Board include personal appearance by the officer, representation by counsel, presentation of live testimony and documents, oral argument, and cross-examination of witnesses called by LMPD. We contrast Goldberg with Richardson v. Perales. 402 U.S. 389 (1971), in which the United States Supreme Court reached a different result. In Richardson, the Court had to determine “whether physicians’ written reports of medical examinations they have made of a disability claimant may constitute ‘substantial evidence’ supportive of a finding of nondisability . . . when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports.” 402 U.S. 17 389, 390 (1971). Although the Court relied heavily on the “underlying reliability and probative value” of the medical reports, its ultimate holding was as follows: We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. Id. at 402 (emphasis added). The Court noted that “the claimant complains of the lack of opportunity to cross-examine the reporting physicians, [but] he did not take advantage of the opportunity afforded him under [the relevant regulation] to request subpoenas for the physicians.” Id. at 404 (emphasis added). It went on to say, “[A]s a consequence [the claimant] is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.” Id. at 405. Accordingly, despite the value of crossexamination in truth-finding, live testimony and cross-examination at a hearing are not always a prerequisite to admission of witness statements. Moore’s hearing in front of the Merit Board is distinguishable from most, if not all, of the United States Supreme Court cases cited thus far in this Opinion in one important way. The hearing that occurs in front of the Merit Board is a post-termination hearing, meaning that the police officer whose matter the Merit Board is considering has already been terminated from his employment. The hearing before the Merit Board is the last chance for fact18 finding, which is different from the cited cases that analyze pre-action hearings under statutory schemes which require a full hearing post-action. See, e.g., Loudermill, 470 U.S. 532. Thus, accurate fact-finding by the Merit Board is even more important. That being said, however, the General Assembly has already provided officers with extensive procedural safeguards in matters before the Merit Board. Prior to an officer ever being terminated or going before the Merit Board, KRS 67C.321(1) requires the Chief of Police to “furnish the officer concerned with a written statement of the reasons why the described action is being taken.” The officer is then “allowed a period of ten (10) days within which the officer may file a written answer to the charges and the reasons which caused her or his suspension, removal, or reduction.” Id. If the Chief proceeds with the termination, the officer is then permitted an appeal to the Merit Board, which “shall be heard by the full board. The board shall give notice and hold a public hearing.” KRS 67C.323(1). As previously discussed, KRS 67C.325 provides officers brought before the Merit Board certain procedural due process. Under that statute, “[t]he officer shall be given a prompt hearing by the board, have an opportunity to confront his or her accusers, and have the privilege of presenting the board with evidence.” KRS 67C.325. Further, at the request of the officer, “the board shall issue subpoenas to compel the attendance of witnesses, or to compel the production of documents and other documentary evidence for the benefits of the officer[.]” Id. 19 As previously discussed, KRS 67C.326 provides officers with certain “administrative due process rights.” It prohibits “threats, promises, or coercions” from being “used at any time against any police officer while he or she is a suspect in a criminal or departmental matter.” KRS 67C.326(1)(b). It further mandates that [a]ny charge involving violation of any consolidated local government rule or regulation shall be made in writing with sufficient specificity so as to fully inform the police officer of the nature and circumstances of the alleged violation in order that he may be able to properly defend himself. The charge shall be served on the police officer in writing[.] Id. at (1)(e). Finally, KRS 67C.326(1)(h) provides a long list of administrative due process rights that “shall be the minimum rights afforded any police officer charged.” 2 The officer “shall be given at least seventy-two (72) hours’ notice of any hearing[.]” Id. at (1)(h)1. He must be provided with “[c]opies of any sworn statements or affidavits to be considered by the hearing authority and any exculpatory statements or affidavits . . . no less than seventy-two (72) hours prior to the time of any hearing[.]” Id. at (1)(h)2. 3 The Supreme Court has recognized that a “safeguard against mistake is the policy of allowing the disability recipient’s representative full access to all information relied upon by 2 The General Assembly has amended KRS 67C.326, effective January 1, 2025, in a way that is seemingly beneficial for officers. For example, officers must be given twelve days’ notice of a hearing and must be provided with any statements and affidavits to be considered by the Merit Board at least twelve days before the hearing. KY LEGIS 181 § 10 (2024), 2024 Kentucky Laws Ch. 181 (HB 388). This expanded time frame provides a greater opportunity to effect due process. 3 Merit Board hearing procedures require all documents to be provided to the other side at least ten days before the hearing. 20 the state agency.” Mathews, 424 U.S. at 345–46. This access is granted in Merit Board proceedings. Additionally, if the disciplinary action was taken based on a complaint made by an individual, the Merit Board can only consider charges made by that individual if the individual appears at the hearing. KRS 67C.326(1)(h)4. Further, “[t]he accused police officer shall have the right and opportunity to obtain and have counsel present, and to be represented by counsel[.]” Id. at (1)(h)5. Regarding subpoenas, the General Assembly has provided an accused police officer in front of the Merit Board with the following rights: The appointing authority, legislative body, or other body as designated by the Kentucky Revised Statutes shall subpoena and require the attendance of witnesses and the production by them of books, papers, records, and other documentary evidence at the request of the accused police officer . . . . If any person fails or refuses to appear under the subpoena, or to testify, or to attend, or produce the books, papers, records, or other documentary evidence lawfully required, the appointing authority, legislative body, or other body as designated by the Kentucky Revised Statutes may report to the Circuit Court or any judge thereof the failure or refusal, and apply for a rule. The Circuit Court, or any judge thereof, may on the application compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court[.] Id. at (1)(h)6. The police officer must also “be allowed to have presented, witnesses and any documentary evidence the police officer wishes to provide to the hearing authority, and may cross-examine all witnesses called by the charging party[.]” Id. at (1)(h)7. Finally, action taken by the Merit Board is then appealable to the Circuit Court, and the judgment of the Circuit Court can be appealed to the Court of Appeals. KRS 67C.323(3); KRS 67C.326(2), (3). 21 In weighing the second Mathews factor, we conclude that there is at least some risk of an erroneous deprivation of an officer’s right to employment by allowing admission of sworn statements of witnesses who are not called to testify at the hearing and therefore are not subject to cross-examination. We further conclude that said risk would be somewhat mitigated by requiring those witnesses to appear in person and be subject to cross-examination before admitting their prior statements. See Mathews, 424 U.S. at 335. However, we also conclude that the right to cross-examine would likely have minimal value in accurate fact-finding because of the significant procedural safeguards already granted officers by the General Assembly, including notice of the hearing, right to counsel, access to the information relied upon by LMPD, and the right to subpoena witnesses. See id. c. Government’s Interest The final Mathews factor that we must consider is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. The United States Supreme Court also described this factor as “the public interest,” which includes “the administrative burden and other societal costs[.]” Id. at 347. Metro Government asserts three primary interests to be considered under this factor: (1) maintenance of employee efficiency and discipline, (2) expeditious removal of unsatisfactory employees, and (3) avoidance of 22 administrative burdens. These are all legitimate interests to be considered, although some weigh more heavily than others. The maintenance of employee efficiency and discipline is an important interest to consider. However, Metro Government does not explain how employee efficiency will be impacted by requiring the live testimony, subject to cross-examination, of witnesses before their prior statements will be considered by the Merit Board, aside from the general increased administrative burdens that would result. Further, the importance of maintaining appropriate discipline among police officers cannot be overstated; however, because Merit Board hearings take place only after termination, 4 there is no risk that an undisciplined employee will remain on the police force while awaiting his hearing and chance to cross-examine those witnesses whose statements have been submitted to the Merit Board. While the expeditious removal of unsatisfactory employees is also a legitimate factor to consider, it weighs very little in this case. Certainly, the quick removal of an unsatisfactory police officer, whose duty it is to uphold and enforce laws, is vital. However, additional process at the Merit Board stage would do nothing to stand in the way of that expeditious removal. As previously stated, the Merit Board hearing does not occur until after the police officer is The General Assembly has amended KRS Chapter 67C, effective January 1, 2025, to require Merit Board hearings to take place prior to any disciplinary action being taken under certain circumstances. KY LEGIS 181 § 10 (2024), 2024 Kentucky Laws Ch. 181 (HB 388). We make no holding regarding the weighing of the Mathews factors under the newly enacted legislation. 4 23 terminated and, therefore, does not impede a quick termination. Further, because the hearing takes place post-termination of employment, there would be no additional cost imposed on the state in terms of the officer’s salary while awaiting a hearing, as there would be in the case of an officer suspended with pay pending his Merit Board hearing. Finally, Metro Government asserts a governmental interest in the avoidance of administrative burdens. This is a real and significant interest that the United States Supreme Court has stated “must be weighed.” Id. at 348 (“[T]he Government’s interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed.”). The additional requirement that LMPD call to testify every witness the PIU or PSU interviewed so that they can be cross-examined would greatly increase the length of the Merit Board hearing. In the case at bar, for example, the hearing lasted four days even without LMPD calling those witnesses. It likely would have lasted several more if LMPD was forced to call an additional seven witnesses. That additional administrative cost and delay would result is obvious. Aside from the interests Metro Government asserts, there are other public interests that must be considered. Society has an interest in assuring that Merit Board actions are correct and just. The cross-examination requirement for which Moore advocates is one way in which that interest could be supported. Relatedly, society, LMPD, and the officer all share an “interest in avoiding disruption and erroneous decisions[.]” Loudermill, 470 U.S. at 544. 24 Finally, “[a] governmental employer has an interest in keeping citizens usefully employed rather than taking the possibly erroneous and counterproductive step of forcing its employees onto the welfare rolls.” Id. This interest is further shared by the public at large. d. Weighing of the Mathews Factors In summary, there are significant interests to both the individual and the public that are at stake in deciding how much process is due a terminated police officer in front of the Merit Board. However, “[a]t some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost.” Mathews, 424 U.S. at 348. Such is the weighing in the case at bar. The police officer’s interests are high and so are the public’s interests. However, as previously explained, given the significant safeguards already provided by the General Assembly to officers in matters before the Merit Board, the risk of error is relatively low. Likewise, there is little probable value in increasing the safeguards in front of the Merit Board by requiring live testimony by witnesses with cross-examination prior to the admission of the witness’s prior statement. Accordingly, we conclude that Moore’s Due Process rights were not violated when the Merit Board considered sworn, transcribed witness statements even though those witnesses were not called to testify at Moore’s hearing and therefore were not subject to crossexamination. 25 3. Collective Bargaining Agreement Because the Court of Appeals held that the collective bargaining agreement (CBA) between Metro Government and the Fraternal Order of Police (FOP) supported Moore’s right to confrontation, we feel compelled to address this issue. We begin by noting that the CBA is a negotiated agreement reached between Metro Government and the FOP. See KRS 67C.414. The FOP, however, is not and never has been a party to the proceedings before us today. Further, violations of the CBA can give rise to an independent suit filed in circuit court pursuant to KRS 67C.414, and alleged violations of the CBA are not appropriately litigated in front of the Merit Board. Accordingly, the CBA is not relevant to our analysis today, and we decline to address it further. C. Use of Expunged Materials In his cross-appeal, Moore argues that the Court of Appeals erred in holding that only arrest records and court records were subject to the Jefferson District Court expungement order. He asserts that the expungement order applies to both (1) the investigative files and documentation compiled by the PIU, and (2) the occurrence of, and all documents pertaining to, the arrest, charging, and criminal prosecution of Moore based on the events of September 4, 2016. He argues that placing the PIU investigative materials into the PSU file blatantly violated the expungement statute. As previously discussed, the criminal charges related to the September 4, 2016 incident were expunged pursuant to a Jefferson District Court order entered on March 29, 2017. That order stated, 26 The above-named offense(s) is/are expunged from the court records. On entry of this order, the proceedings shall be deemed never to have occurred; the court shall reply to any inquiry that no record exists; and Defendant shall not have to disclose the fact of the record or any matter relating to it on an application for employment, credit, or other purpose. (Bold in original). Regarding police and other agencies outside of the court system, the order stated, The Kentucky State Police and other following agencies [including LMPD], with custody of records relating to the arrest, charge or other matters arising out of the arrest or charge, shall expunge the record, including but not limited to: arrest records, fingerprints, photographs, index references, or other documentary or electronic data, and shall certify to the Court on this form within sixty (60) days of the entry of this order that the required expunging action has been completed[.] (Bold in original). The order was entered on a form provided by the Administrative Office of the Courts, and its language closely tracks the language of the expungement statutes. KRS 431.076 5, the expungement statute relevant to Moore’s circumstances, states in part, An order of expungement pursuant to this section shall expunge all criminal records in the custody of the court and any criminal records in the custody of any other agency or official, including law enforcement records, but no order of expungement pursuant to this section shall expunge records in the custody of the Department for Community Based Services. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged. KRS 431.076 has been amended multiple times since Moore’s expungement order was entered. However, all of the amendments to the relevant subsections of the statute apply retroactively. KRS 431.076(8). 5 27 KRS 431.076(4). That same statute goes on to state, After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. KRS 431.076(6). Notably, KRS 431.079(3) defines “expungement” as “the removal or deletion of records by the court and other agencies which prevents the matter from appearing on official state-performed background checks.” Stated simply, Moore argues that because the entirety of LMPD’s PIU file was subject to the expungement order, anything in the PSU files that came from the PIU file should also have been expunged and therefore excluded from the Merit Board’s consideration. 6 Moore asserts that pursuant to KRS 431.076, the records to be expunged include “law enforcement records.” He further contends that the PIU investigatory file was a criminal law enforcement record, and that all PIU records had to be expunged, including those PIU records placed in the PSU files. Metro Government and the Merit Board, on the other Moore relies heavily on McNabb v. Ky. Educ. Pro. Standards Bd., No. 2013-CA000601-MR, 2015 WL 5096007 (Ky. App. Aug. 28, 2015). However, McNabb is an unpublished Court of Appeals decision and holds no weight with this Court. Regardless, McNabb is distinguishable because McNabb’s teaching certificate was revoked based solely on a felony conviction which was eventually reversed and expunged, whereas Moore’s termination was not based solely on allegedly expunged materials. Id. at *3. 6 28 hand, argue that the expungement statutes do not apply to LMPD’s PSU files, as they are internal employment records. To determine what materials should have been excluded from the Merit Board’s consideration due to the expungement order, we must determine the breadth of the application of our Commonwealth’s expungement statutes. “The cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect.” MPM Fin. Group, Inc. v. Morton, 289 S.W.3d 193, 197 (Ky. 2009). “We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration.” Shawnee Telecom Res., Inc., 354 S.W.3d at 551 (citing Osborne v. Commonwealth, 185 S.W.3d 645 (Ky. 2006). “Only if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute’s legislative history; the canons of construction; or, especially in the case of model or uniform statutes, interpretations by other courts.” Id. In construing a statute, we must “presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes.” Id. Finally, “[a] wellestablished rule of statutory construction is that the courts will consider the purpose which the statute is intended to accomplish—the reason and spirit of the statute—the mischief intended to be remedied.” City of Louisville v. Helman, 253 S.W.2d 598, 600 (Ky. 1952). 29 In this case, much of the language contained in KRS 431.076 is broad. The statute requires that “records relating to the arrest, charge, or other matters arising out of the arrest or charge” must be expunged. KRS 431.076(4) (emphasis added). The statute further provides that “[a]fter the expungement, the proceedings in the matter shall be deemed never to have occurred.” KRS 431.076(6) (emphasis added). However, KRS 431.076 also includes language that appears to more clearly demonstrate the intent of the legislature in drafting the statute. The statute states that the records must be “delete[d] or remove[d] . . . so that any official state-performed background check will indicate that the records do not exist.” Id. (emphasis added). This language, which is repeated in the specific definition of “expungement” provided by the legislature, clarifies the effect that the expungement is intended to have. See KRS 431.079(3) (“For purposes of . . . KRS . . . 431.076 . . ., ‘expungement’ means the removal or deletion of records by the court and other agencies which prevents the matter from appearing on official stateperformed background checks.”). Accordingly, the plain language of KRS 431.076 shows the legislature’s intent that expungement is meant to “prevent[] the matter from appearing on official state-performed background checks” so that “[t]he person whose record is expunged shall not have to disclose” any information related to the record. After closely analyzing the expungement statute, we agree with Metro Government and the Merit Board that LMPD’s PSU files are internal employment files to which the expungement statute does not apply. Although 30 the PSU files are in the possession of an agency subject to the expungement order, they are not themselves a “criminal record” or a “law enforcement record” of the type contemplated by the legislature in drafting the expungement statutes. See KRS 431.076(4). The PSU files are, for all practical purposes, personnel files, similar to ones that would be maintained by the human resources department of any other employer. Because of this very nature, material that is contained within LMPD’s PSU files will never “appear[] on official state-performed background checks” regardless of the source of that material. KRS 431.079(3). Accordingly, because information contained in the PSU files is neither a criminal record nor would it appear on a state-performed background check, we conclude that it is not subject to the expungement order. Therefore, the Merit Board did not err in considering the information in the PSU files that was obtained from the PIU file. D. Reliance on Arrest and Criminal Charges Finally, Moore argues that basing his termination on his arrest and criminal charges, absent a conviction, was inherently arbitrary. He asserts that non-final criminal charges can never be the basis of the termination of a meritprotected employee. Regarding the Chief’s finding that Moore violated the SOP governing “Obedience to Rules and Regulations,” arising out of the September incident, the Chief’s pre-termination notice letter to Moore stated as follows: In regard to Professional Standards Case 16-189, I have determined you violated Standard Operating Procedure 5.1.2 Obedience to Rules and Regulations when you were involved in a physical altercation with your wife Bethel Moore on September 4, 2016. You 31 were arrested and charged with Assault 4th degree – Domestic Violence on September 5, 2016. Regarding the Chief’s finding that Moore violated the same SOP, arising out of the October incident, the Chief’s letter stated as follows: You violated Standard Operating Procedure 5.1.2 Obedience to Rules and Regulations when on October 6, 2016 you violated a court order by returning to your residence and having contact with Bethel Moore. On October 7, 2016 you were arrested for Violation of Conditions of Release and Harassing Communication. Regarding the Chief’s finding that Moore yet again violated the same SOP, arising out of the April incident, the Chief’s letter stated as follows: In regard to the Criminal Complaint Summons issued on April 18, 2017, I have determined you again violated Standard Operating Procedure 5.1.2 Obedience to Rules and Regulations when you violated a court order by initiating a verbal conversation with Bethel Moore on April 16, 2017. You were served on April 19, 2017 and charged with Harassment. SOP 5.1.2, in turn, states, Members of the LMPD shall not commit any act that constitutes a violation of any of the laws and ordinances applicable in their current respective location. Members shall also obey all rules, orders, policies and procedures of the department. Members who violate any of the above may be dismissed or be subject to other punishment as directed for such a violation. All members shall abide by the Standards of Ethical Conduct, located in the Louisville Metro Government Personnel Policies (Section 1.5). . . . Finally, KRS 67C.321(1) says that “[a]ny officer may be removed, suspended for a period not to exceed thirty (30) days, laid-off, or reduced in grade by the chief for any cause which promotes the efficiency of the services . . ..” (emphasis 32 added). In determining whether to set aside the Chief’s termination decision, the Board looks only to whether that decision was “unjustified or unsupported by proper evidence.” KRS 67C.323(1). None of the above quoted sources provide guidance as to the amount of evidentiary proof that the Chief must have in order to find a violation of an SOP, and the applicable statutes make clear that the Board may uphold the Chief’s decision where it is merely supported by proper evidence. Id. If we were to hold that the Chief could not terminate an employee for a violation of SOP 5.1.2 based on a violation of a law until that employee was formally convicted of the underlying offense, we would, in essence, be holding the Chief to a beyond a reasonable doubt standard of proof. Practically speaking, a holding such as that requested by Moore would also serve to prevent the Chief from finding a violation of this SOP for violation of a law until after a conviction, which, as is exemplified by this case, can take years. We refuse to require the Chief to either find a violation beyond a reasonable doubt or wait until a criminal conviction is final to find a violation. Further, it is clear from the Chief’s termination letter that the Chief based his termination decision on his own findings of unlawful contact between Moore and Bethel, and not only on the fact that Moore was criminally charged for his conduct. Accordingly, we hold that Moore’s termination was not arbitrary merely because the Chief found that he violated SOP 5.1.2 prior to being criminally convicted. After reviewing the evidence admitted at Moore’s hearing, the Board likewise determined that two of the SOP violations the Chief had found were 33 supported by proper evidence. We cannot say that the Board’s decision to uphold Moore’s termination was arbitrary. III. CONCLUSION For the above-stated reasons, we affirm the decision of the Court of Appeals. VanMeter, C.J.; Bisig, Conley, Keller, Lambert and Nickell, JJ., sitting. VanMeter, C.J.; Bisig and Lambert, JJ., concur. Conley, J., concurs in result only by separate opinion. Nickell, J., dissents by separate opinion. Thompson, J., not sitting. CONLEY, J., CONCURRING IN RESULT ONLY: I concur in the result only because I disagree with the Court regarding its conclusions concerning expungement and the right to confrontation. I believe the expungement statute, KRS 431.076, applies to Moore’s case and the Merit Board violated this statute by considering files that ought to have been destroyed pursuant to that statute and a lawful court order. Secondly, I conclude Moore has a Due Process right to confront the witnesses against him pursuant to the 14th amendment of the federal constitution and Section 2 of the Kentucky constitution. Despite these disagreements, I nonetheless believe that under the unique facts of this case the violations were harmless and, therefore, agree to affirm the Merit Board’s decision. Expungement is defined as “the removal or deletion of records by the court and other agencies which prevents the matter from appearing on official 34 state-performed background checks.” KRS 431.079(3). When an expungement order is rendered, all criminal records in the custody of the court and any criminal records in the custody of any other agency or official, including law enforcement records . . . [as well as] [e]very agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. KRS 431.076(4) (emphasis added). Thus, the intended effect of an expungement is, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official stateperformed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. Id. at (6). The Court holds that because the files of the LMPD’s Professional Standard Unit (PSU) are not meant to be publicly disclosed in a background check, the PSU files are not subject to the expungement statute and did not have to be destroyed. I disagree. To expunge is “to erase or destroy.” Black’s Law Dictionary, Expunge 727 (11th Ed., 2019). It is “a much stronger and more absolute remedy than sealing; when a record is expunged, all traces of it vanish, and no indication is left behind that information has been removed[.]” 24 C.J.S. Criminal Procedure and Rights of Accused § 2173. This is the plain purpose of our expungement statutes, which directs relevant records be expunged and deleted, rendered 35 non-existent, and deemed to never have occurred. So far as the Commonwealth is concerned an expunged criminal record, and all “records relating to the arrest, charge, or other matters arising out of the arrest or charge,” KRS 431.076(4), is consigned to oblivion. The Court correctly cites KRS 431.079(3) for the definition of expungement, but a background check will not disclose the investigation files of a local police department related to an arrest or conviction. The records of a 911 call; witness statements; evidence gathered; detectives notes; none of this is disclosed in a background check. Or consider a judicial record—a background check does not disclose the entire record such as the indictment; the motions and trial rulings; a trial record, if there is one. Instead, official background checks merely provide a limited summary of arrests, charges, and the resolution of those charges. KRS 431.076(4) unambiguously applies to all records “relating to the arrest, charge, or other matters arising out of the arrest or charge.” It is indisputable that when an expungement is ordered all records of it, and those relating to it, are to be destroyed and that includes documents that are not disclosed in a background check. In brief, these two provisions understood plainly are irreconcilable. I concede the definition of expungement under KRS 431.079(3), but KRS 431.076(4) applies to records that are routinely not disclosed on a stateperformed background check. The rule for irreconcilable provisions in a statute suggested by the late Justice Scalia is to not enforce either provision, but he admits this is “an unappealing course—especially when the matter covered by 36 the contradictory provisions is central to the document or statute in question.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 190 (2012). Kentucky courts have been inconsistent on the issue. For instance, we held a statute void for contradictory provisions incapable of administration. Sutton v. Rose, 5 S.W.2d 892, 892-93 (Ky. 1928). When interpreting wills and testaments, however, Kentucky courts embrace the rule that when confronted with irreconcilable provisions, the latter controls over the earlier. Thomas Ex’r v. Marksbury, 61 S.W.2d 282, 283 (Ky. 1933). If we follow the rule of Marksbury, as well as the general statutory canon that those statutes passed later in time control over earlier statutes, then KRS 431.076(4) controls since it was the more recently amended statutory provision. H.B. 327, 2020 Leg., Reg. Sess. (Ky. 2020). This, however, is also unappealing since it makes the scope of expungement dependent on whenever the General Assembly deems it necessary to amend the statute. As Justice Scalia noted, a third option is to enforce the “relatively more important” provision and that this option was favored by Prof. Williston. Reading Law, supra. That gets us nowhere, however, since we are dealing with a definition on one hand, and the scope of applicability on the other. The New York Court of Appeals follows the rule of Prof. Williston, and it has noted that the rule “is tempered by the corollary that the more specific clause controls the more general[.]” Israel v. Chabra, 906 N.E.2d 374, 380 n.3 (N.Y. App. 2009) (quoting 11 Lord, Williston on Contracts § 32:15, at 507–510 4th ed.). If we follow that rule, then KRS 431.076(4) is the more specific. The definition of expungement found in KRS 37 431.079(3) is a general definition, but KRS 431.076(4) is specific in what records are to be expunged when an agency is ordered to do so—all of them. To state it another way, KRS 431.0799(3) defines the purpose of expungement, while KRS 431.076(4) defines the manner in which expungement is to be achieved. Thus, because I believe there is an irreconcilability between these two provisions if interpreted according to their plain meaning, we must resort to statutory canons to find a resolution. That is possible here as KRS 431.076(4) is the more specific in scope of expungement, as opposed to the general definition of expungement. Absent some means to find which provision ought to control in this instance, we are left to do nothing but the Sutton court’s resolution which is to declare the statute void—an extreme measure. I conclude KRS 431.076(4) is the more specific provision and ought to be the principal guide in determining the scope of the expungement statute. That the immediate, even the principal goal, of expungement is to remove records so they do not appear on a state performed background check is conceded; but KRS 431.076(4) controls how that goal is to be achieved; and it is unambiguous in its instruction that any and all records related to an arrest, charge, or conviction are to be destroyed when an agency is ordered to destroy them. There are good reasons for treating internal police records of the allegedly criminal misconduct of their own police officers differently. But there is no basis in the statute for creating such an exception as analogous to a personnel 38 file. KRS 431.076(4) specifically highlights “law enforcement records” as subject to the expungement statute; and the records at issue here are indisputably “records relating to the arrest, charge, or other matters arising out of the arrest or charge,” that Moore received as a result of his conduct towards his ex-wife. Id. It is for the General Assembly to make law and create public policy. Caneyville Vol. Fire Dept. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 807 (Ky. 2009). This case highlights the necessity of the General Assembly to clear up this area of law as it pertains to records of police departments regarding their own employees. It is not the business of the Court to fill in gaps or create exceptions in a law “under the guise of interpretation.” Commonwealth v. Shivley, 814 S.W.2d 572, 573 (Ky. 1991). Therefore, because the PSU files were related to the arrests and charges that Moore had obtained a lawful expungement order for, the LMPD was duty bound to destroy said records. It did not comply with that order. That is a violation of the statue and a lawful court order. Had the files been destroyed as required, they would never have been used at the Merit Board. Thus, I conclude their use at the hearing violated the expungement statute. But, because the Merit Board found in favor of Moore regarding the September 4, 2016, incident, I cannot conclude he was harmed by the violation. Obviously, there is no harm remediable by this Court if the resolution was in Moore’s favor. The second issue is that of Moore’s Due Process right to confront the witnesses against him in person at the Merit Board hearing, rather than by 39 affidavits. That due process includes a right to confront witnesses against you in an administrative hearing, deciding adjudicative facts, over a recognized property interest is the law. Kaelin v. City of Louisville, 643 S.W.2d 590, 592 (Ky. 1982). In Slochower v. Board of Higher Ed. of New York City, the U.S. Supreme Court applied due process protections to the termination of a public employee from his position. 350 U.S. 551, 555-56 (1956). Moore is a public employee, so Sochower controls over the fact that due process does apply to his termination. In Goldberg v. Kelly, the Supreme Court affirmed that “[r]elevant constitutional restraints apply . . . to discharge from public employment.” 397 U.S. 254, 262 (1970). In Goldberg, the Supreme Court determined that a pre-termination hearing, consisting of “minimum procedural safeguards[,]” had to be conducted before termination of welfare benefits. Id. at 267. Among these minimal safeguards was “an effective opportunity to defend by confronting any adverse witnesses[.]” Id. at 268. Thus, confrontation of witnesses is not a heightened imposition upon the government; it was expressly conceived as a minimal requirement in Goldberg. Moreover, this Court embraced Goldberg in Kaelin, 643 S.W.2d at 592. In Kaelin, we definitively held that “in a trial-type adjudicatory hearing before an administrative body, the right of cross-examination is required by due process of law.” Id. at 592. That settles the question before us. 7 The appeal to the Merit Kaelin has been cited in worker’s compensation cases, Union Underwear Co., Inc. v. Scearce, 896 S.W.2d 7, 9 (Ky. 1995); vehicle registration licensing, Shockey Tours, Inc. v. Miller Transp., Inc., 984 S.W.2d 95, 98 (Ky. 1998); discrimination 7 40 Board is a trial-type adjudicative action. The governing statute makes this clear. When the Chief of the LMPD terminates an officer, the officer can appeal to the Merit Board and “[t]he board shall give notice and hold a public hearing. After the hearing, the board shall retire in executive session to discuss the evidence introduced at the hearing and to make its determination and conclusion.” KRS 67C.323(1). It has the power to review the evidence anew, weigh it anew, and reverse the decision of the Chief. Id. At the hearing itself, Procedural due process shall be afforded to any police officer brought before the board. The officer shall be given a prompt hearing by the board, have an opportunity to confront his or her accusers, and have the privilege of presenting the board with evidence. The board shall have the power to issue subpoenas attested in the name of its chairman, to compel the attendance of witnesses, to compel the production of documents and other documentary evidence, and so far as practicable, conduct the hearing within the Kentucky Rules of Civil Procedure. Upon a showing of proper need, the board shall issue subpoenas to compel the attendance of witnesses, or to compel the production of documents and other documentary evidence for the benefits of the officer or the chief at the request of the officer or the chief. KRS 67C.325. This is obviously a trial-type adjudicative hearing. Thus, “the right of cross-examination is required by due process of law.” Kaelin, 643 S.W.2d at 592. A trial-type hearing implies the opportunity for full rebuttal, and the opportunity to impeach witnesses. Cross-examination is a time-tested and unique method of assisting in the quest for truth . . . Without such opportunity, the search for truth may very well be impeded and restricted. complaints against unlawful termination in labor actions, Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130, 134 (Ky. 2000); and assessment of actuarial costs after retirement of a city employee, City of Villa Hills v. Kentucky Retirement Systems, 628 S.W.3d 94, 109 (Ky. 2021). Like American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450 (Ky. 1964), Kaelin is a generally applicable statement of law; not merely a zoning issue. 41 Id. at 591-92. The specific issue in Kaelin was an application for a zone change. Id. at 590. Yet, citing Goldberg’s holding that a welfare recipient was entitled to confront the witnesses against her prior to termination of those benefits, we announced “[t]he principle enunciated there applies with equal force to the situation in the present case.” Id. at 592. Respectfully, since we have already held a requested zone change is on an equal footing with termination of welfare benefits, then the termination from public employment is also on an equal footing and Goldberg should be controlling. Instead, the Court relies on Richardson v. Perales, 402 U.S. 389 (1971). But I believe Perales is inapplicable because it involved and held, a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant[.] Id. at 402. The Perales court heavily relied on the expert nature of the reports and their thoroughness. Id. When distinguishing it from Goldberg, the Court stated, unlike in Goldberg, that “the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors' credibility or veracity.” Id. at 407. The affiants in this case were not expert 42 medical witnesses and the credibility and veracity of the affiants are certainly at issue. Thus, I conclude Moore had a constitutional right to confront the witnesses against him at the Merit Board. I do not believe KRS 67C.325 is unconstitutional since it states, “[p]rocedural due process shall be afforded to any police officer brought before the board.” The statute can be readily understood and harmonized with the constitutional mandate. Nor do I believe that Moore had a burden to request subpoenas for all the witnesses against him. The statute states, “the board shall issue subpoenas to compel the attendance of witnesses, or to compel the production of documents and other documentary evidence for the benefits of the officer or the chief at the request of the officer or the chief.” Id. If Moore had the sole burden to call all the witnesses, even those adverse to him, then the statute would not include the chief as having the ability to request subpoenas on his own behalf. Instead, the correct understanding is that both sides have the ability to request subpoenas for their own witnesses; and constitutional due process requires Moore be confronted with the witnesses against him in person; therefore, the chief had the obligation to request subpoenas for those witnesses he intended to use to defend his decision before the Merit Board. Because I conclude a constitutional right was violated, the harmless error test for constitutional errors applies. The inquiry is whether there is a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998) 43 (quoting Chapman v. California, 386 U.S. 18, 23, (1967)). “The question is not simply whether there was sufficient evidence to support the conviction aside from the improper evidence. The question, rather, is whether the improper evidence . . . played a prominent enough role . . . [as] to raise a reasonable possibility that it contributed to the conviction.” Staples v. Commonwealth, 454 S.W.3d 803, 827 (Ky. 2014). Of course, this is not a criminal case so references to convictions are misleading, but the principle is the same. See KRS 67C.325 (“so far as practicable, [the Board shall] conduct the hearing within the Kentucky Rules of Civil Procedure.”); CR 61.01 (harmless error rule). Indeed, because this is an administrative action, we must be cognizant of the residuum rule which states, “the findings of an administrative agency will be upheld despite its partial reliance upon incompetent evidence (usually hearsay) if it also had before it competent evidence which by itself would have been legally sufficient to support the findings.” Big Sandy Comm. Action Program v. Chaffins, 502 S.W.2d 526, 530 (Ky. 1973). The administrative distinction is important—"courts will not set aside its [the Board’s] findings, as it would a [court’s] judgment, upon the ground that incompetent evidence was received to the prejudice of the losing party. They will set them aside only if there was not enough legally competent evidence to permit the same findings independently of the incompetent evidence.” Id. As for the September 4, 2016, incident there can be no finding of harm because the Board found in Moore’s favor. Nor can there be a finding of harm for the October 6, 2016, incident because Moore conceded that he did violate 44 the family court’s protective order. As for the April 16, 2017, incident, Moore’s ex-wife was called as a witness, and he did have the opportunity to crossexamine her. Thus, consonant with the residuum rule, because substantial evidence which was tested through the ordeal of confrontation was admitted into the record before the Board, its conclusion as to the April incident must be affirmed. NICKELL, J., DISSENTING: Respectfully, I dissent. Because I am convinced this Court lacks subject-matter jurisdiction over both the appeal and cross-appeal, I respectfully dissent. Louisville Metro lacks constitutional standing to appeal because it was not aggrieved by the decision of the Court of Appeals. Our lack of jurisdiction over the direct appeal also deprives this Court of jurisdiction to hear Moore’s cross-appeal because the cross-appeal lacks an independent jurisdictional basis. We did not accept discretionary review to unravel jurisdictional entanglements of the parties’ own making. Therefore, I would vacate the order granting discretionary review as improvidently granted, and further order the opinion of the Court of Appeals to be de-published. The issue of standing must be addressed as a threshold matter because “all Kentucky courts have the constitutional duty to ascertain the issue of constitutional standing, acting on their own motion, to ensure that only justiciable causes proceed in court, because the issue of constitutional standing is not waivable.” Commonwealth, Cabinet for Health & Fam. Services, Dept. for Medicaid Servs. v. Sexton ex rel. Appalachian Reg'l Healthcare, Inc., 566 S.W.3d 185, 192 (Ky. 2018). “[F]or a party to sue in Kentucky, the 45 initiating party must have the requisite constitutional standing to do so, defined by three requirements: (1) injury, (2) causation, and (3) redressability.” Id. at 196; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Constitutional standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)). Dismissal for lack of subjectmatter jurisdiction is required when a party fails to establish constitutional standing. City of Pikeville v. Kentucky Concealed Carry Coalition, Inc., 671 S.W.3d 258, 264 (Ky. 2023). “[A]ppeals are taken from judgments, not from unfavorable rulings as such.” Brown v. Barkley, 628 S.W.2d 616, 618 (Ky. 1982). In 1829, our predecessor Court remarked, “[w]e had not supposed, that a party would ever be allowed to call in question, in the revising court, a judgment in his favor, rendered at his instance, and effecting every object which he sought, or had a right to attain.” Todd v. McClanahan’s Heirs, 1 J.J. Marsh 355, 24 Ky. 355, 356, 1829 WL 1217 (1829). In subsequent decisions, this Court has repeatedly held “[a] party must be aggrieved by a judgment in order to appeal from it.” Barkley, 628 S.W.2d at 618; Civil Service Commission v. Tankersley, 330 S.W.2d 392, 393 (Ky. 1959); Maddox v. Giltner, 226 Ky. 578, 11 S.W.2d 426-27 (1928). Our unbroken adherence to this rule compels the conclusion that the 46 appellate rules governing the taking of appeal as of right (RAP 8 2) and motions for discretionary review (RAP 44) presuppose the necessity of an aggrieved party as a matter of standing. See Mathias v. WorldCom Technologies, Inc., 535 U.S. 682, 684 (2002) (“After full briefing and oral argument, it is now clear that petitioners were the prevailing parties below. . . . As a general rule, a party may not appeal from a favorable judgment simply to obtain review of findings it deems erroneous.”); see also 5 Am.Jur.2d Appellate Review § 243 (2023). Indeed, the failure of an appealing party to demonstrate aggrievement “dispenses with the necessity of considering, or in any wise determining, the merits of the case” and otherwise requires dismissal. Maddox, 11 S.W.2d at 427. A party is aggrieved “only when the judgment fails to give the [party] all the relief he has demanded or subjects him to some degree of relief he seeks to avoid.” 9 Barkley, 628 S.W.2d at 618. In other words, “the one seeking [appeal] must have been deprived by the judgment of some pecuniary or individual corporeal right, and, unless so done, he has not been aggrieved[.]” Maddox, 11 S.W.2d at 427. This rule applies equally at all levels of appellate review. California v. Rooney, 483 U.S. 307, 311 (1987) (per curiam). Certainly, “if a judgment has been affirmed, there is obviously no logical reason for the prevailing party to appeal, regardless of the ground or grounds upon which 8 Kentucky Rules of Appellate Procedure. 9 While the Barkley decision speaks to the availability of a cross-appeal, its definition of aggrievement applies equally to direct appeals. 47 affirmance occurs.” Fischer v. Fischer, 348 S.W.3d 582, 592 (Ky. 2011), overruled on other grounds by Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018). The Rooney decision is instructive. In Rooney, the State of California charged the defendant with several felony offenses after the execution of a search warrant produced incriminating evidence. 483 U.S. at 309. The defendant moved to dismiss the charges because “there was no probable cause to support the warrant because the earlier warrantless search of the communal trash bin had violated his Fourth Amendment rights under a number of California Supreme Court precedents, and that, without the incriminating evidence found in the trash, there was insufficient evidence to support the warrant.” Id. The trial court granted the defendant’s motion, and the State subsequently appealed. Id. at 310. The California Court of Appeal reversed the dismissal and allowed the prosecution to proceed. Id. at 310. The Court of Appeal concluded that although “the evidence found in the trash bin could not be used to support the search warrant . . . there was sufficient other evidence to establish probable cause in support of the warrant.” Id. (internal citation omitted). Both the State and the defendant petitioned for further review, which the Supreme Court of California denied. Id. at 310-11. The State then petitioned the United States Supreme Court for certiorari “arguing that the California courts had erred in stating that the search of the trash was unconstitutional.” Id. at 311. The Supreme Court granted certiorari, accepted the parties’ briefing, and heard oral argument. Id. at 308. 48 Upon further consideration, the Supreme Court determined that the issue was not properly presented for review and explained: This Court “reviews judgments, not statements in opinions.” Here, the judgment of the Court of Appeal was entirely in the State’s favor—the search warrant which was the sole focus of the litigation was deemed valid. The fact that the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate for this Court to rewrite the California court’s decision, or for the prevailing party to request us to review it. . . . The Court of Appeal’s use of analysis that may have been adverse to the State’s long-term interests does not allow the State to claim status as a losing party for purposes of this Court’s review. Id. at 311 (emphasis added). The Supreme Court ultimately dismissed the writ of certiorari as improvidently granted. Id. at 314. The reasoning of the Rooney decision applies with equal force to the present appeal. Louisville Metro has clearly prevailed at every level throughout this litigation. The underlying decision of the Court of Appeals simply did not aggrieve Louisville Metro because it affirmed the termination of Moore’s employment in all respects. Louisville Metro’s dissatisfaction with the Court of Appeals’ analysis does not reduce the ultimate relief it received or otherwise subject it to relief it seeks to avoid. “If one is not injured by a judgment, he cannot complain of its irregularity.” American States Ins. Co. v. Audubon Country Club, 650 S.W.2d 252, 254 (Ky. 1983). In other words, “a winner cannot appeal a judgment merely because there are passages in the court’s opinion that displease him—that may indeed come back to haunt him in a future case.” Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir. 1992). Moreover, “an appellee does not turn into an appellant by urging alternative grounds for 49 affirmance[.]” Id. at 925. Based on the foregoing authority, I would dismiss Louisville Metro’s appeal for lack of constitutional standing. The dismissal of a direct appeal for lack of jurisdiction also compels dismissal of the cross-appeal when the cross-appeal lacks an independent jurisdictional basis. 10 See City of Covington v. Crolley, 306 Ky. 252, 206 S.W.2d 933, 935 (1947). Our predecessor Court explained: There can be no cross appeal without a direct appeal, and there can be no direct appeal without the jurisdiction of the court. Hence, the dismissal of the appeal carries with it the dismissal of the cross appeal. Id. (citation omitted). Indeed, “[l]itigants in cross-appeal situations should be mindful that unless they are careful they may forfeit their right to all appellate review by standing on what they suppose to be their right to file a crossappeal.” First National Bank v. Comptroller of the Currency, 956 F.2d 1360, 1363-64 (7th Cir. 1992). If the first party to file lacks the right to appeal, then “the second party must file within the normal time limit.” Id. at 1364. In the present appeal, Moore was clearly aggrieved by the decision of the Court of Appeals and could have filed his own motion for discretionary review directly. Yet, Moore conditioned the opportunity for further review on a cross- This principle does not apply to dismissals for lack of prosecution or voluntary dismissals. RAP 4(A) (“The failure of a party taking an appeal to prosecute the appeal, or that party’s dismissal of it shall not prevent any party taking a crossappeal from prosecuting the cross-appeal.”) (emphasis added); see also Trustees of Eddyville Graded Common School v. Bd. of Edu. Of Kuttawa Common School, 140 Ky. 676, 131 S.W. 504, 505 (1910) (“the appellant has the right to dismiss his appeal before submission, and its dismissal does not affect the cross-appeal if there be one.”). A dismissal for failure to prosecute involves a party’s failure to pursue the appeal “diligently toward completion.” See “Dismissal,” Black’s Law Dictionary (11th ed. 2019). 10 50 motion for discretionary review following the grant of the prevailing party’s motion for discretionary review. See RAP 46(A). However, as stated above, Louisville Metro lacked standing to appeal the decision of the Court of Appeals. Thus, Moore was required to seek further review within the time allowed for the original motion for discretionary review. This he failed to do; consequently, his appeal must be dismissed as untimely. RAP 2(3) (“The failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial.”). While I understand the parties’ desire for this Court to resolve the important issues presented in this matter, “[s]ubstantive rights, even of constitutional magnitude, do not transcend procedural rules, because without such rules those rights would smother in chaos and could not survive.” Gasaway v. Commonwealth, 671 S.W.3d 298, 314 (Ky. 2023) (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977)). Further, an appellate court lacks jurisdiction “to give advisory opinions, even on important public issues, unless there is an actual case in controversy.” Pikeville, 671 S.W.3d at 263 (quoting Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992)). The enforcement of jurisdictional and procedural rules does not represent the exaltation of form over substance. Gasaway, 671 S.W.3d at 314. On the contrary, these rules serve the orderly administration of justice. Id. In closing, I echo Judge Easterbrook’s memorable explanation of the standing requirement in the appellate context: 51 Reluctance to review language divorced from results has a sound footing in the statutory requirement of an adverse effect—not to mention the constitutional requirement of a “case or controversy”— and has practical support too. Few victors in litigation or the administrative process are thrilled with the opinion; almost everyone perceives that different language could have produced benefits—perhaps ammunition for some future dispute (a particular concern of institutional litigants and those involved in long-running disputes), perhaps psychic gratification. It is work enough to resolve claims made by losers; review of claims made by winners could double the caseload, and to what end? Judicial time devoted to what may be a litigant’s will-o’-the-wisp is time unavailable to resolve other, more concrete, disputes. No wonder appellate courts do not issue Writs of Erasure to change language in district judges’ opinions, when the judgments are uncontested. U.S. v. Accra Pac., Inc., 173 F.3d 630, 632 (7th Cir. 1999). Considering the fatal jurisdictional defects plaguing these appeals, I am convinced discretionary review was improvidently granted. I would vacate the order granting discretionary review and order the opinion of the Court of Appeals to be depublished. Therefore, I respectfully dissent. 52 COUNSEL FOR APPELLANT/CROSS-APPELLEE, LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT: Mitchel Terence Denham McBrayer, PLLC Derek Miles DBL Law COUNSEL FOR APPELLEE/CROSS-APPELLEE, LOUISVILLE METRO POLICE MERIT BOARD: Mark Wesley Dobbins Tilford Dobbins Schmidt PLLC Kathleen M. Winchell Schoen COUNSEL FOR APPELLEE/CROSS-APPELLANT, DEZMON MOORE: David Lindsay Leightty Priddy, Cutler, Leightty & Meade, PLLC 53
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