Opinion
NO. 2017-CA-000673-MR
03-23-2018
GUY J. TURCOTTE APPELLANT v. CITY OF GLASGOW, KENTUCKY; and JAMES DUFF, in his individual and official capacity of Chief of Police, City of Glasgow, Kentucky APPELLEES
BRIEF FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky BRIEF FOR APPELLEES: Thomas N. Kerrick Matthew P. Cook Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE JOHN T. ALEXANDER, JUDGE
ACTION NO. 15-CI-00248 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Guy J. Turcotte appeals the Barren Circuit Court's summary dismissal of various civil claims he asserted against the above-captioned appellees. Upon review, we affirm.
The relevant factual and procedural history of this matter is accurately summarized in the circuit court's summary judgment order as follows:
[Turcotte] was appointed as Chief of Police in 2011, shortly after Rhonda Trautman was elected Mayor of the City of Glasgow.[FN]
[FN] The City of Glasgow will be referred to hereinafter as "the City."
Subsequently, Rhonda Trautman was defeated by Dick Doty in the November 2014 mayoral election, and Doty was scheduled to take office as Mayor on January 1, 2015. Doty's platform during the mayoral race included fiscal responsibility and integrity within the police department. [Turcotte] assumed that Doty would terminate his position as Chief of Police when he took office. On December 26, 2014, [Turcotte] resigned his position as the Chief of Police of the Glasgow Police Department effective December 30, 2014, pursuant to a scheme developed by himself and Mayor Trautman to preserve [Turcotte's] employment with the City. Immediately upon [Turcotte's] resignation, and on the eve of her departure from office, Mayor Trautman appointed [Turcotte] to the position of Lieutenant Colonel of Support within the Glasgow Police Department.
At the time Mayor Trautman appointed [Turcotte] to Lieutenant Colonel of Support, Major Eddie Lindsey, Lt. Col. James Duff, and Plaintiff were all salaried employees of the Glasgow Police Department. The budget for the Glasgow Police Department at the time allowed for three salaried officers. The appointment of [Turcotte] to the position of Lieutenant Colonel of Support left the Chief of Police position vacant. As a result, the Glasgow Police Department was without a police chief, but all three salaried positions were filled.
On or about January 2, 2015, upon taking office, Mayor Doty appointed Defendant Duff to act as Interim Chief of the Glasgow Police Department. Although [Turcotte]
was originally assigned an office, he was never assigned the duties or responsibilities of a lieutenant colonel. At the time, Major Lindsey was performing the duties of Lieutenant Colonel of Support, and had been since the retirement of Lt. Col. David Graves in February 2014. In fact, [Turcotte], while he was Chief of Police, had assigned the duties of Lieutenant Colonel of Support to Major Lindsey.
On May 27, 2015, [Turcotte] filed this action alleging a violation of KRS [Kentucky Revised Statute] §95.450 and defamation. [Turcotte] argues that KRS §95.450 was violated because, as the second-highest ranking officer within the Glasgow Police Department, he has been assigned no supervisory duties. According to [Turcotte], this has been the case since Doty was sworn in as Mayor and appointed Defendant Duff as Interim Chief of Police. Additionally, [Turcotte] alleges that Defendant Duff made defamatory statements about him. [Appellees], on January 31, 2017, filed their Motion for Summary Judgment, arguing that both of [Turcotte's] claims fail as a matter of law. On February 1, 2017, [Turcotte] filed his Motion for Partial Summary Judgment, arguing that there are no genuine issues of material fact, and that the conduct of the City and its agents is in violation of KRS §95.450.
As noted, the circuit court considered the motions of the respective parties and ultimately found in favor of the appellees, dismissing the balance of Turcotte's claims. This appeal followed.
Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013) (footnote omitted). Therefore, we operate under a de novo standard of review with no need to defer to the trial court's decision. Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010) (citation omitted). Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, stipulations, 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." Kentucky Rules of Civil Procedure (CR) 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, 807 S.W.2d at 480.
On appeal, Turcotte first contends the circuit court erred by dismissing his claims of defamation. To the extent that he elaborates upon this point, he does so only by quoting the standard for granting or denying a summary judgment, and concluding:
In the matter sub judice, there is very clear testimony that James Duff made repeated false, frivolous, and meritless claims against Guy Turcotte, and a jury could clearly find that Duff was doing so in order to damage the reputation of Guy Turcotte, both personally and professionally.
That said, Turcotte's contention of error violates CR 76.12(4)(c)(v) because it is not supported by:
An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
Specifically, Turcotte fails to identify where in the record he preserved an argument against or a challenge to the appellees' summary judgment motions with respect to his claims of defamation. This is unsurprising because, as the circuit court noted in its summary judgment order, Turcotte never responded to and therefore never contested the appellees' summary judgment arguments relating to the validity of his defamation claims. That aside, Turcotte fails to offer any legal authority relevant to defamation in his brief; he fails to identify any statement any individual made that he regards as defamatory; and, he does not take issue with any part of the eight pages of analysis the circuit court devoted to this issue in its summary judgment order, wherein the court (apparently upon its own initiative) examined Turcotte's deposition in exhaustive detail and ultimately determined even what Turcotte testified he believed amounted to defamation could not, as a matter of law, have qualified as such.
It is not the responsibility of this Court to construct a party's arguments or search the record to find support for a party's contentions, even assuming support exists. See Young v. Newsome, 462 S.W.2d 908, 910 (Ky. 1971); Sharp v. Sharp, 491 S.W.2d 639, 644-45 (Ky. 1973). Accordingly, we will not review Turcotte's contention that the circuit court erred by dismissing his claims of defamation. Cherry v. Augustus, 245 S.W.3d 766, 781 (Ky. App. 2006).
Next, Turcotte argues the circuit court erred by rejecting his argument that KRS 65.2001 et seq., the Claims against Local Governments Act (CALGA), is unconstitutional. This point is likewise unreviewable because the appellate record demonstrates Turcotte failed to comply with KRS 418.075(2) and CR 76.03(5).
Under KRS 418.075(2) and CR 76.03(5), challenges to the constitutional validity of a statute require that the Attorney General be given notice by serving that office with a copy of the petition, a prehearing statement, and a copy of any "pleading, paper, or other documents which initiate the appeal in the appellate forum" before the filing of the appellant's brief. Where a party fails to make the required service on the Attorney General, any issues regarding the constitutionality of a statute is not properly before the Court of Appeals and therefore is not subject to review. Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 466 (Ky. 2004).
Lastly, Turcotte argues that under the circumstances outlined above the City "reduced his grade" in violation of his rights under KRS 95.450. We disagree with this point for the same reasons the circuit court expressed in its summary judgment order, which we adopt in relevant part as follows:
Turcotte makes this particular argument in his brief under the following heading: "The trial court erred in its granting a summary judgment to the City of Glasgow on the statutory claims under KRS 95.450, when it held that '. . . there has been no reprimand and no reduction in grade as contemplated by the statute. . . ." (Emphasis added.) Despite this heading, however, Turcotte never made any argument below or in this appeal that what occurred amounted to a "reprimand" as contemplated by KRS 95.450. His arguments have always focused exclusively upon what he views as a "reduction in grade."
Without a qualifying disciplinary action within the meaning of KRS §95.450, the formal procedures set out in the statute are not required. "KRS 95.450 applies to disciplinary procedures and was intended to provide due process in such procedures, thus preventing arbitrary punishment of individual officers."[FN]
[FN] Beckham v. City of Bowling Green, 743 S.W.2d 858, 860 (Ky. App. 1987). See also Callis v. Brown, 283 Ky. 759, 142 S.W.2d 675 (1940).
The purpose of statutory protections relating to the discipline of police officers is to remove the police departments of city government from the "contaminating influence of local politics and thereby to guaranty efficiency in service and to assure incumbents of stability
of their positions as long as they are guilty of no dereliction of duty or other act authorizing and justifying their removal."[FN]
[FN] White v. City of Hopkinsville, 280 Ky. 661, 134 S.W.2d 236 (1939).
KRS 95.450(2) does not insulate an officer from any action that he or she may subjectively believe to be objectionable; on the contrary, it specifically provides that no police officer covered by that statute "shall be reprimanded, dismissed, suspended or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the legislative body, and only after charges are preferred and a hearing conducted as provided in this section."[FN]
[FN] KRS §95.450(2).
Interpreting the phrase "reduced in grade" in the context of the statute, Kentucky's highest court has held that "grade" refers to rank, not to job classification. [FN]
[FN] Schrichte v. Bornhorn, 376 S.W.2d 683 (Ky. 1964).
"If a man is transferred without a loss in pay rate from one job category to another with comparable authority, his classification is changed but his grade is not reduced."[FN]
[FN] Schricte v. Bornhorn, 376 S.W.2d at 685.
The Court does not believe the facts in this case amount to a reduction in grade as contemplated by the statute. First, the only frank transfer of title or diminution in grade in this matter was done at the will of [Turcotte], when he voluntarily resigned and accepted a lesser role within the department. He was not transferred or reduced in grade by the City without formal charges and a hearing, as argued by [Turcotte]. Instead, he voluntarily resigned as Chief of Police because he was concerned
that he would be terminated when Mayor Doty took office. There was no action taken on the part of the City that removed him from his position as Chief of the Glasgow Police Department. [Turcotte] (along with the former mayor) made the decision for [Turcotte] to voluntarily resign as Chief of Police, whereupon she would appoint him to the position of Lieutenant Colonel of Support before she left office. [Turcotte] has cited no authority establishing that the former mayor was empowered to assign job duties within the department, nor that she did so in this instance. Therefore, her appointment carried with it no inherent job duties.
[Turcotte's] responsibilities and authority have not been taken away. In fact, he was never assigned the responsibilities which would normally accompany the position of Lieutenant Colonel of Support, because those responsibilities were already being handled by Major Lindsey at the time of [Turcotte's] appointment. Defendant Duff, in his capacity as Interim Chief of Police, decided not to take those duties away from Major Lindsey and assign them to [Turcotte]. Defendant Duff did not demote [Turcotte] or reduce his grade. Since he resigned as Chief of Police, [Turcotte] has not ever had responsibilities greater than or different from his current duties. When the former mayor appointed [Turcotte] to a lieutenant colonel position, she gave him a title only.
Major Lindsey assumed the duties of the Lieutenant Colonel of Support position after having been assigned those duties by [Turcotte] in 2014, when he was Chief of Police. During the first four months of 2015, after he had voluntarily abdicated his position as Chief of Police, [Turcotte] was absent and unavailable to perform any work duties for all but a few days.[FN]
[FN] The Court notes that [Turcotte] had several health-related issues and a family emergency during the first four months of 2015; nothing in this Order is intended to cast doubt on the validity or legitimacy of these issues.
A decision to keep the duties with the individual who was already performing them, rather than to reassign those duties to another individual who was not present and able to assume them at the time, is objectively reasonable.[FN]
[FN] In fact, a decision to remove the duties and their accompanying authority from Major Lindsey, particularly if there were a concomitant reduction in pay, may well have required formal notice and a hearing pursuant to KRS §95.450(2) and Schrichte v. Bornhorn, 376 S.W.2d 683 (Ky. 1964), and might have been difficult absent allegations of "inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the legislative body," as required by statute.
Although there does not appear to be any binding precedential authority, there is an Attorney General Opinion to the effect that "an administrative transfer of assignments made in good faith to promote the efficient operation of the department" does not invoke KRS §95.450(2).[FN]
[FN] OAG 65-104.
In the case sub judice, there was no transfer of assignments; rather, there was a decision not to transfer duties, which was made in the interest of promoting efficiency, those duties being adequately performed already by Major Lindsey. Regardless, administrative allocation of job responsibilities in the service of efficiency is advisable and reasonable.
In light of the foregoing, Turcotte has identified no basis of reversible error, and his remaining appellate arguments are moot. Accordingly, we AFFIRM.
Turcotte's remaining arguments on appeal focus upon whether a violation of KRS 95.450 could provide the basis of a civil claim for monetary damages and whether the circuit court erred in denying a motion he filed requesting a change of venue. These claims are moot. --------
ALL CONCUR. BRIEF FOR APPELLANT: Matthew J. Baker
Bowling Green, Kentucky BRIEF FOR APPELLEES: Thomas N. Kerrick
Matthew P. Cook
Bowling Green, Kentucky