Brady v. Pettit

• Decision Date: 03 July 1979
• Citation: 586 S.W.2d 29
• Parties: Terrence K. BRADY, Movant, v. H. Foster PETTIT, Mayor, Lexington-Fayette Urban County Government, Dean D.Hunter, Jr., Chief Administrative Officer of the Lexington-Fayette Urban CountyGovernment, Sidney C. Kinkead, Jr., Chairman, Julian A. Jackson, Sr., WilfredT. Seals,Walter Leet, Jr. and Wanda V. Cranfill, Members Lexington-Fayette Urban CountyGovernment Civil Service Commission, Respondents.
• Court: United States State Supreme Court — District of Kentucky

Page 29

586 S.W.2d 29

Terrence K. BRADY, Movant, v. H. Foster PETTIT, Mayor, Lexington-Fayette Urban County

Government, Dean D.Hunter, Jr., Chief Administrative Officer

of the Lexington-Fayette Urban CountyGovernment, Sidney C.

Kinkead, Jr., Chairman, Julian A. Jackson, Sr., WilfredT.

Seals,Walter Leet, Jr. and Wanda V. Cranfill, Members

Lexington-Fayette Urban CountyGovernment Civil Service

Commission, Respondents.

Supreme Court of Kentucky.

July 3, 1979.

Michael R. Moloney, Geralds, Cassidy & Moloney, Lexington, for movant.

R. Burl McCoy, Susan W. Wanat, Mary Ann DeLaney, C. Timothy Cone, Jane E. Graham, Lexington-Fayette Urban County Government, Lexington, for respondent.

STEPHENSON, Justice.

Following a hearing before the civil service commission of the Urban County Government, Terrence K. Brady was found guilty of misconduct and was discharged from his position as personnel director of the Urban County Government. The trial court held that Brady was not entitled to a trial de novo in circuit court and that the discharge was justified and entered summary judgment approving the action of the civil service commission. The Court of Appeals affirmed the judgment of the trial court. We granted discretionary review and reverse.

The facts as detailed in the opinion of the Court of Appeals are as follows. In 1974 Terrence K. Brady was serving as director of personnel of the Lexington-Fayette Urban County Government. On September 19, 20 and 24 the Lexington newspaper printed statements by Brady which accused the mayor of attempting to bend civil service rules in order to place political allies in jobs for which they were not qualified. Brady leveled numerous other charges against county officials to the effect that the merit system and civil service rules were being disregarded in the wake of political favoritism. Brady further threatened to resign, stating that he no longer felt allegiance to his job. On October 17, the mayor filed charges in accordance with KRS 67A.280 against Brady. After holding a lengthy hearing, the civil service commission concluded that Brady had a duty to discuss his accusations with his superiors in county government before airing them publicly. It was the opinion of the commission that Brady's conduct had undermined public faith in the personnel system and had caused a disruption of communication between himself and other persons in the executive branch of government. The commission found Brady guilty of misconduct and discharged him from the position of director of personnel.

Brady appealed this action of the civil service commission to the Fayette Circuit Court and demanded a trial de novo in accordance with KRS 67A.290, which provides:

(1) Any employe of the urban-county government found guilty by the civil service commission of any charge as provided by KRS 67A.280 or any action upheld under subsection (7) of the said section, or any amendment thereto, may appeal to the circuit court of the county in which the urban-county government is located within thirty (30) days after such action becomes final, but the enforcement of the judgment of the civil service commission shall not be suspended pending appeal.

(2) Upon request in writing by the accused and the payment of costs therefor, the secretary of the civil service commission shall file a certified copy of the charges and the judgment of that body in the circuit court. Upon the transcript being filed the case shall be docketed in the circuit court and tried de novo.

The trial court declined to hear the case de novo on authority of American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964), and decided the case on the record brought before the court granting respondents' motion for summary judgment. The record did not include the transcript of evidence heard before the civil service commission.

We do not consider the decision of the trial court on the merits of Brady's claim of violation of his first amendment rights. We consider the threshold question, one of procedure and reverse on this ground.

We are of the opinion the trial court erred in relying on American Beauty Homes without reference to the subsequent opinions by this court that have eroded the holding in American Beauty Homes. Standing alone, American Beauty Homes is authority that statutes providing for trial de novo in circuit court of administrative matters decided by appropriate bodies violates the constitutional doctrine of separation of powers and trial de novo provisions cannot be foisted upon the judiciary by the legislature. From the review of our opinions since, we conclude that American Beauty Homes now applies only to zoning matters and matters of like nature. A separate rule of law in de novo situations has developed in situations involving the discharge of teachers, policemen, firemen and the like. We conclude that the movant here falls within this category.

American Beauty Homes was decided in 1964 and overruled Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563 (1954). As stated American Beauty Homes rejected the de novo statute on the ground that the statute undertakes to impose on the court a nonjudicial function. Grady in considering a de novo statute in a zoning case held that "A hearing de novo means 'trying the dispute anew as if no decision had been previously rendered' " and recognized the authority of the legislature to determine by statute whether or not there should be a classic de novo hearing.

Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614, 615 (1956), without referring to Grady, eroded the classic de novo stance of Grady in the discharge of a police officer saying:

In order that the terms might be interpreted in the light of the customs of the community, their application and definition were left to the legislative body of that particular political entity instead of to the courts, except upon appeal. So, under this statute, the legislative body is charged with the duty to performing the judicial act of trying the accused officer and we believe we must accord to the judgment of that body the weight and sufficiency attributed to the legislative branch of the government in matters requiring definition of public policy.

It is true KRS 95.460 requires that upon appeal to the circuit court the case should be tried de novo by the judge of that court. We do not believe this to mean that the finding of the common council should not be assigned some weight, and interpret it to mean that the common council's finding as to the mores of the community should be given consideration.

It is not clear from the opinion what type proceeding was held in the circuit court, only that a trial was held. Harrell foreshadowed American Beauty Homes and Board of Education of Ashland School District v. Chattin, Ky., 376 S.W.2d 693 (1964). Chattin involved the discharge of a school teacher and cited American Beauty Homes. Chattin held that a de novo trial could not constitutionally be thrust upon the courts, and on the factual issues the circuit court is confined to the record of proceedings had before the administrative body and is bound by the administrative decision if it is supported by substantial evidence.

The first indication that this court was not wholly committed...