Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: JANUARY 6, 2012; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR BILLY BEAVERS APPELLANT APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE JEAN CHENAULT LOGUE, JUDGE ACTION NO. 08-CI CITY OF BEREA, KENTUCKY, A FOURTH CLASS CITY; STEVEN CONNELLY, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF THE CITY OF BEREA; AND DWAYNE BRUMLEY, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF POLICE OF THE CITY OF BEREA APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: TAYLOR, CHIEF JUDGE; CAPERTON AND WINE, JUDGES. WINE, JUDGE: Billy Beavers appeals an order of the Madison Circuit Court granting summary judgment against him on claims of wrongful discharge and due

2 1 The City of Berea is a fourth-class city located in Madison County. KRS (4). process violations following his termination as a police officer. He argues that his termination violated the due process and hearing protections afforded to police officers under Kentucky Revised Statutes (KRS) We agree with the trial court that KRS only applies when disciplinary action is taken against a police officer based upon a citizen complaint. Since Beavers termination resulted from an internal police investigation without a citizen complaint, the provisions of KRS do not apply. Hence, we affirm. Beavers was employed by the City of Berea 1 as a police officer. On July 4, 2007, he was involved in an automobile pursuit that resulted in his use of force upon the passenger of the automobile involved in the pursuit. Although the passenger did not file any complaint regarding the incident, the Berea Police Department instituted an internal investigation of Beavers actions. Beavers was suspended with pay pending the outcome of that investigation. On August 1, 2007, the Department found that Beavers actions violated the Department s regulations. The following day, Beavers was notified that his employment was terminated in a letter signed by the City Mayor, Steven Connelly, and the City s Chief of Police, Dwayne Brumley. In response to his termination, Beavers filed a grievance form, denying that he had violated any regulations and alleging that his termination was excessive. On August 7, Mayor Connelly and Chief Brumley sent a letter which denied the grievance and re- -2-

3 affirmed Beavers termination. The same letter advised Beavers that he may request a hearing pursuant to the City s Personnel Policies. Shortly thereafter, Beavers counsel contacted counsel for the City, arguing that Beavers was entitled to an evidentiary hearing pursuant to KRS In response, the City took the position that KRS did not apply and that the City s Personnel Policies provided the only administrative remedy. Beavers declined to participate under such terms, and the hearing was cancelled. On July 3, 2008, Beavers filed this action against the City, Mayor Connelly individually and in his official capacity, and Chief Brumley, individually and in his official capacity. Beavers alleged wrongful termination in violation of his rights under KRS , and he sought damages for negligence per se for violating the statute, for defamation and for violation of the Kentucky Civil Rights Act. KRS et seq. In lieu of an answer, the City, Mayor Connelly and Chief Brumley (collectively the Appellees ) filed a motion to dismiss, arguing that the provisions of KRS do not apply. The trial court initially denied the motion, finding that issues of fact precluded summary judgment. On August 10, 2009, Beavers moved for summary judgment, arguing that he was entitled to the hearing provisions set out in KRS The Appellees renewed their motion to dismiss, or in the alternative, for summary judgment, arguing that a hearing under KRS is only required when the employment action is based on a citizen complaint. Chief Brumley provided an -3-

4 affidavit stating that no citizen complaint was filed in this case and the decision to terminate Beavers was based only on the results on an internal investigation. After considering the motions, the trial court granted the Appellees motion to dismiss, concluding that KRS was not applicable in this case. Beavers now appeals. The sole issue in this case concerns the application of KRS , also known as the Police Officer s Bill of Rights. That statute sets out the standards and administrative due process rights which apply to investigations of complaints alleging misconduct by a police officer. As noted above, the trial court found that the procedures set out in KRS apply only when the action is taken pursuit to a citizen complaint. Beavers maintains that that the statute applies to all investigations of a police officer, whether initiated by a citizen complaint or through an internal investigation. Since the interpretation and application of a statute is a question of law, we review the matter de novo, without deference to the trial court s conclusion. Bob Hook Chevrolet Isuzu, Inc. v. Com. Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). The trial court relied on an unpublished decision by this Court, Marco v. University of Kentucky, 2006 WL (Ky. App. 2006)(2005-CA MR), which held that KRS applies only to investigations against a police officer which result from citizen complaints. This Court reached the same conclusion in several other unpublished decisions. Moore v. City of New Haven, 2010 WL (Ky. App. 2010)(2010-CA MR), and Ratliff v. -4-

5 Campbell County, 2010 WL (Ky. App. 2010)(2009-CA MR). The holdings in Marco and the other unpublished cases are not binding authority, but may be considered as persuasive if there are no other published opinions which address the issue before the Court. Kentucky Rules of Civil Procedure (CR) 76.28(4)(c). Beavers argues that the analysis in Marco conflicts with the clear language of KRS and with prior published cases interpreting the statute. We disagree. Beavers points out that the procedures set out in KRS apply to [a]ny complaint taken from any individual alleging misconduct on the part of any police officer[.] KRS (1)(a) (Emphasis added). He maintains that the protections of the statute apply whenever there is a complaint of misconduct on the part of a police officer, whether the complaint arises from within the police department or from outside of it. The Appellees, however, note that the preceding section, KRS (1), sets out the purpose of the statute as follows: In order to establish a minimum system of professional conduct of the police officers of local units of government of this Commonwealth, the following standards of conduct are stated as the intention of the General Assembly to deal fairly and set administrative due process rights for police officers of the local unit of government and at the same time providing a means for redress by the citizens of the Commonwealth for wrongs allegedly done to them by police officers covered by this section[.] Since the statute focuses on the need to balance the due process rights of police officers against the right of citizens to seek redress for wrongs allegedly -5-

6 done by police officers, the Appellees argue that the procedures apply only to investigations of police officers which result from citizen complaints. The Appellees also note that KRS (1)(a)(4) specifically provides that [n]othing in this section shall preclude a department from investigating and charging an officer both criminally and administratively. Even if KRS was applicable, a failure to provide any of the rights or to follow any of the provisions contained therein would not necessarily trigger an automatic renewal of a disciplinary determination. KRS (1)(h)(9) provides for an opportunity for a de novo hearing before a hearing officer. While given the opportunity to present his grievance, Beavers rejected the city s offer to challenge his termination. Furthermore, KRS 83A.080(2) and 83A.130(9) permit a local executive authority such as a mayor to terminate the employment of a nonelected city official such as a police officer only if there is no statute which provides otherwise. City of Madisonville v. Sisk, 783 S.W.2d 885, 886 (Ky. App. 1990). In Sisk, this Court suggested that KRS applies to any hearing conducted by a statutorily appointed authority or body regarding any complaint of police misconduct[.] Id. But in Sisk, the City of Madisonville had adopted the civil service provisions of KRS Chapter 95. The City of Berea has not adopted those provisions. Moreover, in City of Munfordville v. Sheldon, 977 S.W.2d 497 (Ky. 1998), the Kentucky Supreme Court specifically held that the filing of a citizen complaint triggers the hearing requirements of KRS Id. at 499. In -6-

7 Sheldon, the mayor s decision to terminate the officer was predicated on a citizen s complaint. But in the present case, the parties agree that no citizen complaint was filed. Therefore, we agree with the trial court that the statutory requisites of KRS are not relevant to Beavers termination. Accordingly, the judgment of the Madison Circuit Court is affirmed. TAYLOR, CHIEF JUDGE, CONCURS. CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION. CAPERTON, JUDGE, DISSENTS: I dissent because I believe that a plain reading of KRS makes it applicable to all complaints against police officers. First, KRS (1) states that its purpose is twofold. It states that the standards of conduct are stated as the intention of the General Assembly to deal fairly and set administrative due process rights for police officers and at the same time providing a means for redress by the Citizens of the Commonwealth.... If the General Assembly had meant to limit KRS to complaints by individuals then the language could simply have been drafted to say it was their intent to establish administrative due process rights for police officers when the departmental authority was processing complaints from individuals. Also, a plain reading of the phrase and at the same time strongly suggests the General Assembly intended the statute to have two separate purposes. If it was the intent of the General Assembly to limit KRS to the singular purpose of -7-

8 administrative handling of complaints from individuals, then it could easily have used the suggested language above and it would have likely deleted the phrase and at the same time which appears to be superfluous under the majority s opinion. It was not so drafted and, thus, I do not believe such was the intent. Second, section (1)(a) is the only subsection that addresses a complaint filed by an individual, i.e. a citizen. The remaining subsections do not use the word individual. More specifically, section (1)(b) addresses a criminal or departmental matter, section (1)(c) references a departmental matter, and section (1)(d) references [a]ny charge, all without reference to an individual. Why would the General Assembly conspicuously delete the word individual from the remainder of the statutory subsections if it intended the statute be limited to a complaint only from an individual? I believe that the singular reference to an individual in section (1)(a) is a manifestation of intent of the General Assembly that the remaining subsections of KRS apply to all proceedings involving police officers regardless of the source of the complaint. Additionally, it is important to note that subsection (1)(a) is merely a subsection of KRS Thus, I find it illogical to elevate subsection (1)(a) as controlling the application of the remaining subsections and thereby disregard their reference to a criminal matter, a departmental matter, or to any charge. I believe this to be particularly true where, as here, KRS is by its terms to have a twofold purpose. I believe that the intent of the General Assembly was to give KRS a twofold -8-

9 purpose and, in doing so, to allow the subsections to further define and give effect to each of its two stated purposes. I would find that KRS applies to all proceedings against police officers and would reverse and remand for a hearing applying these due process rights sub judice. BRIEFS FOR APPELLANT: Brooks Stumbo Richmond, Kentucky BRIEF FOR APPELLEE: Charles D. Cole Lexington, Kentucky James T. Gilbert Richmond, Kentucky -9-