Cole v. City Council of City of Florence, No. 2006-CA-002108-MR (Ky. App. 9/21/2007)
| Decision Date | 21 September 2007 |
| Docket Number | No. 2006-CA-002108-MR.,2006-CA-002108-MR. |
| Parties | David B. COLE, Appellant v. CITY COUNCIL OF THE CITY OF FLORENCE, Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Stephen D. Wolnitzek, Shane C. Sidebottom, Covington, Kentucky, Brief for Appellant.
Charles D. Cole, Lexington, Kentucky, Hugh O. Skees, Florence, Kentucky, Brief for Appellee.
Before: NICKELL and STUMBO, Judges; ROSENBLUM,1 Senior Judge.
David B. Cole appeals from an order of the Boone Circuit Court upholding his dismissal from his position as a police officer with the City of Florence, Kentucky, for sending inappropriate e-mail messages over the police department's computer messaging system. We affirm.
Cole was initially employed as a police officer for the City of Florence in October 1997. At some point the police department issued laptop computers to its officers for use in their cruisers. The laptops included a Mobile data terminal system (MDT), an e-mail system for intradepartmental communications.
In 2002 the department undertook a random screening of MDT messages aimed at determining whether improper messages were being sent over the system. As a result of the review, Cole and four other officers were identified as having used the system to send inappropriate communications. As to Cole, the department charged that "during the period 4/5/02 through 4/14/02, [Cole] used the Mobile Data Terminal System to send embarrassing, indecent, profane and obscene communications." Among the messages which resulted in the charges were2 "K-Mart sucks"; "I'm just covering 3 while 60 jacks off on post"; ; "C.O.P.S. Citizens out preserving S-Blank-Blank-Blank-T-E-R-S."; "Probably got tired of feeding deputies for free"; and "What is this B-C-S-O substation?"3
As an initial step, the five police officers were asked to write a letter explaining their inappropriate messages. According to testimony presented at the September 9, 2002, City Council hearing, all of the officers except Cole wrote letters acknowledging their wrongdoing and expressing contrition. Cole, however, defended his messages as within the scope of legitimate police business, and did not express contrition. At the hearing, Cole acknowledged that his letter could be construed as "sarcastic."
As an informal resolution to the controversy, Police Chief Thomas Kathman offered the other four officers reprimands and counseling. Cole, however, was offered a one day suspension. Believing he was being singled out for more severe punishment in relation to the other officers, Cole exercised his right to have the charges of misuse of the MDT system reviewed by the Florence City Council.
A hearing was held before the City Council on September 9, 2002. At the hearing Chief Kathman recommended discharge for Cole's improper use of the MDT system. Kathman testified that he believed Cole's messages were worse than the other four officers', and that the other officers had demonstrated contrition, whereas Cole had not. Cole defended on the basis that, in effect, the messages he sent did not rise to a level of misuse which should result in a punishment greater than that imposed upon the other officers. Cole further testified that he did not believe that the messages he sent were embarrassing, indecent, profane or obscene.
At the conclusion of the hearing the City Council voted that Cole was guilty of misconduct and imposed as punishment dismissal from service with the Florence Police Department.
Cole subsequently appealed his dismissal to the Boone Circuit Court. On August 30, 2006, the circuit court entered an order affirming, by way of summary judgment, Cole's dismissal. Cole subsequently filed a motion to alter, amend, or vacate pursuant to CR4 59.05, which was denied by order entered September 29, 2006. This appeal followed.
In his first argument Cole contends that the circuit court erred by granting the City Council summary judgment, thereby affirming his termination. Based upon the applicable standards at issue, we construe this argument to be that the City Council acted arbitrarily in determining that Cole violated the rules and regulations of the police department. As discussed below, we conclude that the City Council did not act arbitrarily in reaching this determination.
We first note that the circuit court's awarding of summary judgment to the appellee was, in effect, a ruling upon the case as fully submitted by the parties. The record is complete, there are no genuine issues of material fact, and the issue presented is whether the City of Florence was entitled to judgment as a matter of law. CR 56.03; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Thus we move directly to the relevant authorities applicable to these proceedings.
City of Columbia v. Pendleton, 595 S.W.2d 718 (Ky.App. 1980); Stallins v. City of Madisonville, 707 S.W.2d 349, 350 (Ky.App. 1986).
The trial court's review upon appeal is limited to a determination, by way of a limited trial de novo, of whether the administrative body acted arbitrarily in deciding whether the employee violated the rules and regulations of the police department. Stallins at 350 (citing City of Henderson Civil Service Commission v. Zubi, 631 S.W.2d 632 (Ky. 1982)). "[T]he test for arbitrariness as in all reviews of actions by administrative bodies is based on the absence of substantial evidence to support the action in question, or is based on the presence of proof so overwhelming that relief must be granted to the claimant." Id. (citing City of Owensboro v. Noffsinger, 280 S.W.2d 517 (Ky. 1955); Williams v. Cumberland Valley National Bank, 569 S.W.2d 711 (Ky.App. 1978); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985)).
The standard guiding this Court on the appeal from the circuit court is the "clearly erroneous" rule as promulgated in CR 52.01. We cannot disturb the trial court's determination unless it acted clearly erroneously in the sense that its determinations were not supported by substantial evidence. Id.; CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1979). Of course, as with any appeal from a decision of an administrative agency, we review the trial court's application of the law to the facts de novo. See Reis v Campbell County Board of Education, 938 S.W.2d 880, 885-886 (Ky. 1996); Howard v. City of Independence, 199 S.W.3d 741, 743 (Ky.App. 2005).
We begin by noting that the circuit court used the "preponderation" standard as set forth in City of Owensboro v. Noffsinger, 280 S.W.2d 517 (Ky. 1955) and Kilburn v. Colwell 396 S.W.2d 803 (Ky. 1965) in its review. While we conclude that this was the incorrect standard, see Stallins, supra, nevertheless, we believe the circuit court's "determination upholding the city council's action was well within the guides recited above to determine whether the council's action was arbitrary." See Stallins at 351 ().
The circuit court found that Cole "admits that he sent the messages in question." That Cole sent the MDT messages is, in fact, not in dispute. Cole admits sending the messages. Moreover, it is not in dispute that the Florence Police Department had in place a policy prohibiting the sending of embarrassing, indecent, profane or obscene messages over the system. Upon our review of the text of the messages sent by Cole, it is apparent that the City Council did not act arbitrarily in determining that Cole violated the MDT messaging policy. The messages were laced with profanity and certain of the messages disparaged fellow police agencies. The City Council's determination that the messages were embarrassing, indecent, profane or obscene messages was a reasonable determination and was not arbitrary. It follows that the Council did not act arbitrarily in concluding that Cole engaged in a policy violation by sending the messages. Our review must end there. As previously noted, the punishment meted out by the Council is not subject to our consideration. Stallins at 350.
Notwithstanding the foregoing, Cole argues that the City Council's determination was arbitrary because the other four officers who sent inappropriate messages were only given reprimands and counseling as punishment, whereas he was singled out for suspension and, ultimately, terminated for his misconduct.
First, as previously noted, the punishment meted out is not subject to our review. This argument, in effect, asks us to do just that — review Cole's punishment relative to the punishment given to the other four officers. Hence, we believe that this argument asks us to act outside of the permissible scope of our review.
However, in any event, Cole's argument is unpersuasive. The record discloses that the other officers, in contrast to Cole, recognized their misconduct, were contrite for their...
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