Opinion
Civil Action No. 5:03CV-141-R.
December 1, 2004
MEMORANDUM OPINION
This matter is before the Court upon Cross Motions for Summary Judgment (Dkt. Nos. 12 16). Responses and replies have been filed (Dkt. Nos. 19, 20 22). For the reasons that follow, Plaintiff's Motion for Summary Judgment is GRANTED and Defendant's Motion for Summary Judgment is DENIED.
BACKGROUND
William Laux brought this action alleging failure to provide adequate due process under Kentucky Revised Statutes § 15.520 when he was terminated on April 2, 2003. That day, he was called into the mayor's office and told that another officer, Tomlinson, had filed a complaint against Mr. Laux. Mr. Tomlinson had filed the complaint alleging that Mr. Laux, his training officer, did not follow proper procedures during a traffic stop. Mr. Laux stopped a car for speeding but did not cite the driver, "Emily," a waitress at the Flying J, for any violations. The City of Oak Grove ("City") later learned that Emily was driving without insurance, a license, or proper registration. When Mr. Laux was asked to explain why he did not give Emily any citations, he replied, "officer discretion." The mayor immediately gave Mr. Laux a letter of termination. The letter stated Mr. Laux had a right to a hearing within sixty days of the date of the letter. Further, if Mr. Laux desired a hearing, he must request it. Mr. Laux sent a letter on May 30, 2003 (59 days after his termination) requesting a hearing. On June 10, 2003, Mr. Laux received a letter from the City setting the hearing for June 17, 2003. Mr. Laux filed this lawsuit on June 12, 2003. On June 16, Mr. Laux's attorney sent a letter to the City stating that Mr. Laux would not attend the June 17, 2003 hearing because he believed that Mr. Laux should be reinstated immediately. Mr. Laux did not attend the June 17, 2003 hearing and another hearing was rescheduled for August 5, 2003. Mr. Laux informed the City that he would not attend that hearing either.STANDARD
A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Facts are "material" in a summary judgment inquiry only when they could affect the case's outcome under the controlling substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Stated differently, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Furthermore, an issue of material fact is "genuine" only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. Finally, while Kentucky state law is applicable to this case pursuant to Erie Railroad v. Tompkins, 304 U.S. 64 (1938), a federal court in a diversity action applies the standards of Fed.R.Civ.P. 56, not "Kentucky's summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., Ky., 807 S.W.2d 476 (1991)." Gafford v. General Electric Co., 997 F.2d 150, 165 (6th Cir. 1993).
DISCUSSION
Mr. Laux argues that he was deprived of due process required by Kentucky Revised Statutes Annotated § 15.520. If a person has a property right in his or her employment, "the State could not deprive [him] of this property without due process." Cleveland Bd. of Educ. v. Loudermill, 479 U.S. 532, 538 (1985). "Property interests are not created by the Constitution, `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . .'" Id. Both parties agree that Kentucky Revised Statutes Annotated § 15.520 governs the disposition of this action. Therefore, this Court must determine if Mr. Laux was deprived of his due process rights required under Ky. Rev. Stat. Ann. § 15.520 and the interpretations of that statute in the Kentucky common law.
The due process rights to be afforded to Mr. Laux are clearly set forth in Ky. Rev. Stat. Ann. § 15.520. When the City of Oak Grove receives a complaint about one of its officers, the City must serve the charges on the police officer in writing. Ky. Rev. Stat. Ann. § 15.520 (1)(a) (e). "Prior to or within twenty-four (24) hours after suspending the officer pending investigation or disposition of a complaint, the officer shall be advised in writing of the reasons for the suspension." Ky. Rev. Stat. Ann. § 15.520 (1)(b). Apparently, an officer can be suspended pending investigation or disposition of complaint. This statute, however, does not contemplate the officer being terminated until after investigation and a hearing on the complaint. City of Munfordville v. Sheldon, 977 S.W.2d 497, 499 (Ky. 1998). See also Office of Attorney General Opinion 83-231.
After receiving the charges, the officer shall be given 72-hours notice of the hearing conducted by a body designated under the Ky. Rev. Stat. Ann. § 15.520. Ky. Rev. Stat. Ann. § 15.520(1)(h)(1). If the hearing is not conducted "within sixty (60) days of any charge being filed, the charge then shall be dismissed with prejudice and not be considered by any hearing authority and the officer shall be reinstated with full back pay and benefits." Ky. Rev. Stat. Ann. § 15.520 (1)(h)(8).
The City cites Jewish Hosp., Inc. v. Baptist Health Care System, Inc., 902 S.W.2d 844, 848 (Ky.Ct.App. 1995) for the proposition that the officer must request a hearing. In Jewish Hospital, the due process statute at issue specifically stated that a hearing would be given upon request. Id. at 846-47. The Kentucky legislature did not mention a right to request a hearing in § 15.520. Therefore, the Kentucky legislature did not intend for hearings to be given upon request but instead mandated a hearing using the strong language of § 15.520(1)(h)(8) requiring a hearing to be conducted within 60 days or the officer is to be reinstated.
In this case, the complaint was not sworn. It is not necessary that the complaint be sworn for disciplinary action to be taken under Ky. Rev. Stat. § 15.520. McDaniel v. Walp, 747 S.W.2d 613, 614 (Ky.Ct.App. 1987).
Mr. Laux was not given a hearing within 60 days. The statute did not provide a mechanism for Mr. Laux to request a hearing but instead put the burden on the City to provide a hearing within 60 days of the complaint being filed and to provide Mr. Laux with notice of the hearing. The City argues that Mr. Laux was given a pre-termination hearing in the Mayor's office when she told him that he was fired. However, this hearing does not comply with the statutory requirement that Mr. Laux be given 72 hours notice of any hearing and have a right to have counsel present. Ky. Rev. Stat. Ann. § 15.520 (1)(h)(1) (5). Further, Mr. Laux did not waive his right to a hearing because the hearing was not provided within 60 days as required by statute. If the hearing had been conducted within 60 days of the complaint being filed, Mr. Laux could have waived his right to that hearing by his failure to appear.
CONCLUSION
The Plaintiff's Motion for Summary Judgment (Dkt. # 16) is GRANTED. The Defendant's Motion for Summary Judgment (Dkt. # 12) is DENIED. Both parties will present arguments in the form of briefs on the remedy for the violation of Mr. Laux's right to a due process hearing as set forth in the attached order.