Opinion
NO. 2011-CA-002254-MR
01-04-2013
BRIEF FOR APPELLANT: Sands M. Chewning Hopkinsville, Kentucky BRIEF FOR APPELLEE: H. Douglas Willen J. Foster Cotthoff Hopkinsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 10-CI-00039
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: William Sparks appeals from an order of the Christian Circuit Court upholding his dismissal from the Oak Grove Police Department after an administrative hearing. We find no error and affirm.
On January 16, 2009, at approximately 2:30 a.m., Captain William Sparks was involved in a high-speed chase. The driver of the car was reported as suicidal by the 911 operations center. Sparks called for backup and other officers assisted with the pursuit. The officers pursued the suspect car into Tennessee. Shortly after crossing the Tennessee state line, the suspect vehicle came to a stop. The driver of the vehicle refused to respond to police commands and would not exit the vehicle. The officers proceeded to break out the car's windows. Sparks also pepper sprayed the individual, handcuffed him, and removed him from the vehicle.
Once the suspect was removed from the vehicle, he began begging the officers to shoot him. In addition, a suicide letter was found inside the vehicle. Because of the suspect's condition, Sparks decided to transport him to a military hospital in Fort Campbell, Kentucky, for a mental health evaluation.
The individual driving the car was a military veteran.
Upon returning to the Oak Grove Police Department, Sparks wrote a memorandum of the night's events and placed it on Major Les Langdon's door. Sparks was not scheduled to work for the next four days. Upon arriving at the Oak Grove Police Department, Major Langdon found the memorandum. Langdon believed some of Sparks' actions during and after the chase were inappropriate; therefore, he suspended Sparks, with pay, and began an investigation into the incident.
After conducting the investigation, Langdon recommended to Police Chief Milton Perry that Sparks be terminated. As a result, on February 9, 2009, Sparks received a letter informing him he was being suspended, without pay, due to allegations of misconduct and for violating department policies and procedures. The letter also informed Sparks he would be given the opportunity for a hearing before the "City Executive Authority."
Furthermore, Langdon believed Sparks' actions were so severe that he presented criminal misdemeanor charges against him for official misconduct. The gist of the charges against Sparks revolved around the commission of numerous felonies and misdemeanors by the criminal suspect during the high-speed pursuit without any criminal charges being filed by Sparks. These charges were ultimately dismissed by the Special Judge assigned to the case.
After the dismissal of the criminal charges, on December 9, 2009, Sparks was given an administrative hearing. The hearing was held in the Oak Grove City Council Chambers before Dan Potter, Mayor of Oak Grove. Sparks was represented by counsel and was afforded the opportunity to call witnesses, cross-examine witnesses, and present any documentary evidence on his behalf. The majority of the evidence presented at the hearing revolved around whether or not Sparks intended to bring charges against the criminal suspect. Chief Perry and Major Langdon both testified that they believed Sparks had no intention of ever filing charges against the suspect, only that he intended to dump the suspect at the military hospital and "be done with it."
At the conclusion of the hearing, Mayor Potter decided to terminate Sparks' employment with the Oak Grove Police Department. Sparks received a letter from Mayor Potter dated December 14, 2009, which set forth the reasons he was being terminated. Mayor Potter stated in the letter that he was being terminated for violating Police Department policies and procedures. Specifically, Mayor Potter stated that Sparks' decision not to arrest or bring charges against the suspect fell "beneath the standard that the City expects of its police officers."
Sparks then appealed Mayor Potter's decision to the Christian Circuit Court. Relying on the evidence presented at the administrative hearing, the circuit court upheld Sparks' termination and this appeal followed.
Sparks' first argument on appeal is that he was entitled to an administrative hearing before the Oak Grove City Council, not just Mayor Potter. We disagree. Kentucky Revised Statutes (KRS) 15.520(1)(h) sets forth the administrative due process rights a police officer is afforded when a complaint is filed against him, including a hearing "to be conducted by any appointing authority, legislative body, or other body as designated by the Kentucky Revised Statutes[.]" KRS 83A.130(9) states that "[t]he mayor shall be the appointing authority with power to appoint and remove all city employees, including police officers, except as tenure and terms of employment are protected by statute, ordinance or contract and except for employees of the council." To summarize, a police officer is entitled to a hearing before the mayor of a city when issues of misconduct arise, unless another statute controls.
Sparks claims that he was entitled to a hearing before the legislative body of the city, the City Council, pursuant to KRS 95.765. While KRS 95.765 does require that police officers be given a hearing before the legislative body of a city, that statute only applies if the city has adopted the civil service system of operating a police and fire department. City of Pikeville v. May, 374 S.W.2d 843, 844 (Ky. 1964); see also City of Munfordville v. Sheldon, 977 S.W.2d 497 (Ky. 1998). In this case, there is no evidence in the record before us that Oak Grove has adopted the civil service system; therefore, KRS 95.765 does not apply and Sparks was only entitled to a hearing before Mayor Potter pursuant to KRS 83A.130(9).
KRS 95.761 sets forth more details regarding the civil service system, but they are not pertinent to this case or our analysis.
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Sparks' next argument on appeal is that he was not notified of the misconduct charges against him in clear and specific writing as required by statute. KRS 15.520(1)(e) states:
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[.]Sparks claims he was never given the writing specified by this statute.
The record reveals that Sparks was given the written notice required by KRS 15.520(1)(e). Sparks received two letters from Mayor Potter, one dated January 20, 2009, and one dated February 9, 2009. The January letter stated Sparks was being suspended from the police force with pay due to the circumstances revolving around the high-speed chase on January 16, 2009. The letter then gave a description of Sparks' actions on that night. The February letter stated Sparks was being suspended without pay because of his actions during the high-speed chase. It also gave a description of said actions. Finally, after criminal charges were brought against Sparks, he received a report called a UOR2 Supplement. This report detailed further specifics regarding Sparks' conduct during the high-speed chase, the investigation into Sparks' actions, and what actions constituted the unauthorized exercise of his official functions. These actions were: 1.) towed subjects' vehicle across state lines without permission; 2.) failed to arrest or charge subject when subject committed felonies in his presence; 3.) used force on subject when no arrest was made; and 4.) put officers in harm's way by directing them to approach the vehicle and break out the windows. We believe that the two letters and the supplement report fully meet the requirements of KRS 15.520(1)(e).
Sparks' final argument on appeal is that there was not substantial evidence to support a finding that he used excessive force. This argument is without merit because, as stated previously, Mayor Potter's primary reason for terminating Sparks' employment was for failing to arrest or bring charges against the suspect.
Accordingly, the judgment of the Christian Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Sands M. Chewning
Hopkinsville, Kentucky
BRIEF FOR APPELLEE: H. Douglas Willen
J. Foster Cotthoff
Hopkinsville, Kentucky