Opinion
NO. 2012-CA-001251-MR
02-21-2014
JAMES BEELER APPELLANT v. THE CITY OF HILLVIEW; CITY OF HILLVIEW POLICE DEPARTMENT; AND THE CITY OF HILLVIEW CIVIL SERVICE BOARD APPELLEES
BRIEFS FOR APPELLANT: Mark G. Hall Louisville, Kentucky BRIEF FOR APPELLEE: Mark A. Osbourn Adam E. Fuller Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 11-CI-01223
OPINION
AFFIRMING
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES. VANMETER, JUDGE: James Beeler appeals from the Bullitt Circuit Court's judgment affirming the decision of the City of Hillview Civil Service Board ("the Board") to terminate Beeler's employment with the Hillview Police Department. For the following reasons, we affirm.
Beeler was employed with the Hillview Police Department from January 2007 until he was terminated in August 2011. In July 2011, Beeler was provided notice of his suspension for violating multiple provisions of the police department's standard operating procedures ("SOP"). Beeler was charged with four violations: failure to complete required training; failure to follow orders from his Major to call his Sergeant; improperly filling out two evidence cards; and recording a conversation with his supervisor, Chief Caple, in violation of a special order. A hearing on the suspension and alleged violations was held on August 18 and August 22, 2011. The Board ultimately decided to terminate Beeler for his infractions. Beeler appealed the Board's decision to the Bullitt Circuit Court, which affirmed the Board's decision. This appeal follows.
Beeler claims the court erred in affirming the Board's decision for three reasons. First, Beeler claims that he was denied procedural due process because he was not given sufficient notice of the charges against him. Next, Beeler argues that ex parte communications between members of the Board and counsel for the police department further served to deny Beeler a fair hearing. Finally, Beeler claims that substantial evidence does not support the court's findings.
The standard of review for the circuit court in public employee discharge cases is a modified de novo review. Crouch v. Jefferson County, Kentucky Police Merit Bd., 773 S.W.2d 461, 464 (Ky. 1988). Modified de novo review requires the reviewing court to determine whether or not the action is arbitrary. Id. Three factors are to be considered in determining whether the decision of the administrative agency was arbitrary: "(1) action in excess of granted powers, (2) lack of procedural due process, and (3) lack of substantial evidentiary support." Am. Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964). Substantial evidence is defined as "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable persons." Aubrey v. Office of Attorney Gen., 994 S.W.2d 516, 519 (Ky. App. 1998).
Modified de novo review requires something less than a new trial. Crouch, 773 S.W.2d at 463. Review is limited only to the question of whether the administrative agency's decision is clearly unreasonable. Id. However, only the determination of whether the officer violated the department rules is subject to judicial review; the penalty imposed is not reviewable. Stallins v. City of Madisonville, 707 SW.2d 349, 350 (Ky. App. 1986).
This court reviews the circuit court's decision under a clearly erroneous standard, as set out in CR 52.01. Howard v. City of Independence, 199 S.W.3d 741, 743 (Ky. App. 2005). However, we review the trial court's application of the law to the facts de novo. Id.
Kentucky Rules of Civil Procedure.
Beeler's first argument is that he received insufficient notice of the charges against him. On July 21, 2011, Beeler was provided with a letter notifying him of the police SOPs he was accused of violating. Yet, the notice did not detail the conduct which was alleged to have violated police procedure. KRS 15.520(1)(e) states:
Kentucky Revised Statutes.
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Any charge involving violation of any local unit of 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[.]Since Beeler's notice did not contain a description of his violations, only a list of those rules he had violated, the circuit court properly held it to be insufficient per KRS 15.520(1)(e).
However, Beeler did not claim insufficient notice before the Board. If the trial court did not have occasion to decide an issue, then no potential error exists for an appellate court to review. Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). The rule that trial courts should first be given opportunity to rule on an issue before it may be subject to appeal has been extended to administrative agencies, precluding a party from raising an issue before the appellate court that was not raised before the administrative agency. Swatzell v. Commonwealth, 962 S.W.2d 866, 868 (Ky. 1998), overruled on other grounds by Rapier v. Philpot, 130 S.W.3d 560 (Ky. 2004). Without a ruling from the administrative entity, an appellate court has no jurisdiction to address such an issue. Beeler may not make this argument at the appellate level without first raising the issue in front of the Board.
Beeler argues that during his hearing, he questioned a witness, Chief Caple of the Hillview City Police, about this issue, and he therefore raised the issue before the Board. But, Beeler made no motion or objection as to insufficient notice during Chief Caple's testimony, or at any time during the hearing. Further, the Board does not appear to have addressed or made any ruling on the sufficiency of Beeler's notice. We do not believe that simply questioning a witness is sufficient to place the issue before the Board.
Next, Beeler argues that the Board was biased, and he therefore was denied a neutral decision maker, an essential element of due process. Beeler claims that comments by Chief Caple, documents provided to the Board prior to the hearing and a conversation between a Board member and police department official prevented him from receiving a fair hearing. We disagree. The ex parte communication must actually taint the decision in order for the Board's decision to be reversed. Louisville Gas & Elec. Co. v. Commonwealth, ex rel., Cowan, 862 S.W.2d 897, 901 (Ky. App. 1993). Beeler points to no evidence suggesting that the Board relied in any way upon the allegedly improper communications.
First, Chief Caple's comments about Beeler being on paid suspension did not give the Board any information that was not already available to them. Second, Beeler claims the documents provided to the Board, which included additional incidents involving Beeler that were not included in the notice of the hearing, made the Board members biased against him. However, the Board explained to Beeler that they would not be considering the irrelevant, inadmissible documents provided, and that they could not make a decision based solely on the provided documents. Absent any other evidence showing that the Board's decision was influenced by that information, we cannot say that the Board was clearly biased.
Finally, Beeler's claim that a communication between a Board member and a police department official was improper refers to a conversation about the appearance of the video camera used to tape the conversation between Beeler and Chief Caple. While this ex parte communication was improper, the trial court's decision that the content of this conversation was irrelevant and did not taint the Board's decision was not clearly erroneous. Therefore, we cannot say that the trial court committed any clear error in determining that these instances did not deprive Beeler of a fair hearing.
Lastly, Beeler argues that the Board's decision was not supported by substantial evidence. We may reverse the Board's decision only if the decision was clearly erroneous. Howard, 199 S.W.3d at 743. Based on the evidence in the record, we believe the trial court properly affirmed the Board's decision. Extensive evidence proves that Beeler did in fact commit the four alleged violations, and even Beeler does not deny the conduct alleged. Further, Beeler's recording of his conversation with Chief Caple was alone sufficient to warrant termination, a fact of which Beeler had notice prior to his decision to record the conversation. The trial court's decision was therefore not clearly erroneous.
The judgment of the Bullitt Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Mark G. Hall
Louisville, Kentucky
BRIEF FOR APPELLEE: Mark A. Osbourn
Adam E. Fuller
Louisville, Kentucky