City of Louisville By and Through Kuster v. Milligan, No. 89-SC-796-DG

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: WINTERSHEIMER; LEIBSON, J., dissents by separate opinion in which STEPHENS, C.J., and GANT; LEIBSON; STEPHENS, C.J., and GANT
• Citation: 798 S.W.2d 454
• Parties: CITY OF LOUISVILLE, By and Through Thomas T. KUSTER, Director of Public Health and Safety, Appellant, v. Dennis L. MILLIGAN and Louisville Civil Service Board, Appellees.
• Docket Number: No. 89-SC-796-DG
• Decision Date: 08 November 1990

Page 454

798 S.W.2d 454 CITY OF LOUISVILLE, By and Through Thomas T. KUSTER,
Director of Public Health and Safety, Appellant,
v.
Dennis L. MILLIGAN and Louisville Civil Service Board,
Appellees. No. 89-SC-796-DG. Supreme Court of Kentucky. Nov. 8, 1990.

Page 455

J. Michael Brown, Director of Law, Paul V. Guagliardo, Asst. Director of Law, City of Louisville, Louisville, for appellant.

Mark L. Miller, Miller & Meade, Mark Dobbins, Louisville Civil Service Bd., Louisville, for appellees.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which reversed a summary judgment of the circuit court which had reversed a decision of the civil service board modifying a penalty imposed on an employee by the safety director.

The issue is whether K.R.S. 90.190(2) provides authority to the civil service board

Page 456

to modify a disciplinary penalty imposed by the appointing authority.

Milligan was terminated as a police detective for wrongful use of his weapon. He had been employed in the Louisville police division for nineteen years when, while on leave because of a leg injury, he fired shots at an individual he was trying to arrest outside his personal residence. The suspect had broken into Milligan's home the previous day and had assaulted a person living there for which a warrant had been issued. When the suspect returned for a second time to Milligan's home, Milligan attempted to arrest him and in the ensuing scuffle, was struck by a stick and knocked off the porch. Milligan informed the fleeing suspect that he was under arrest before firing two shots at the suspect's legs. The suspect jumped into a waiting automobile and Milligan fired four rounds into the moving vehicle with one shot striking the driver in the ear. Milligan's employment was terminated by the safety director for violating police regulations Rule 4.141, use of deadly force; Rule 4.124, firing at moving vehicle; of the rules and standards of conduct, Louisville Division of Police, and Policy and Procedural Manual, Chapter 3, Section III, Article 29B, Deadly Physical Force. Milligan appealed his dismissal to the civil service board. After an extended evidentiary hearing, the Board found that the police officer's conduct was in violation of departmental rules but because of his good employment record of nineteen years, concluded that dismissal was not justified and fixed his penalty at a 30-day suspension which is the maximum penalty allowed short of termination.

Pursuant to K.R.S. 90.190, the civil service board is authorized to investigate and determine the justification for all suspensions in excess of ten days, or dismissals or demotions.... K.R.S. 90.190(5) prohibits suspensions, dismissals or demotion of a covered employee by reason of race, creed, color, religion or political affiliation. In considering the matter it is most important to carefully distinguish between the administrative review between the safety director and the civil service board and the judicial review given the decision of the board.

K.R.S. 90.190(1) provides that an employee may appeal to the Board any dismissal and entitles that employee to a public hearing. K.R.S. 90.190(2) states in part that the Board has the authority to investigate and determine the justification for all dismissals. The Court of Appeals determined that the key issue centered on the legislative intent and interpretation of the meaning of the word "justification." Justification is a noun meaning to justify or to prove to be right, just or reasonable; to show to have a sufficient reason.

The Board is the final administrative reviewing authority of disciplinary actions. It is the duty of the Board to determine from the evidence whether there has been misconduct and also to ascertain whether the disciplinary action was justified under all the facts and circumstances. The power of the Board to modify discipline which is unjustified in the opinion of the Board is consistent with the legislative intent of the General Assembly as found by the Court of Appeals. K.R.S. 90.190(2) does not limit the authority of the Board to modify the penalty against a classified employee. The Board determined that the discharge of Milligan was too severe for the rule infraction involved under all the circumstances and therefore not justified.

The civil service statutes for cities of the first class as adopted by the legislature are contained in K.R.S. 90.110 through 90.230. These statutes demonstrate that the legislature intended to establish an independent civilian civil service board which could review actions taken by the department heads of the City of Louisville and determine the justification for such actions. Here, the actions of the Board are an administrative review of the factual findings presented by the safety director. Any logical interpretation of this statute requires that the Board have all the authority which is necessarily inferred or incident to the...