Crouch v. Jefferson County, Kentucky Police Merit Bd.

• Decision Date: 08 September 1988
• Docket Number: No. 86-SC-521-DG,86-SC-521-DG
• Citation: 773 S.W.2d 461
• Parties: Bobby G. CROUCH, in his official capacity as Chief of the Jefferson County, Kentucky Police Department, Movant, v. JEFFERSON COUNTY, KENTUCKY POLICE MERIT BOARD and John A. Rogers, Respondents.
• Court: United States State Supreme Court — District of Kentucky

Page 461

773 S.W.2d 461

Bobby G. CROUCH, in his official capacity as Chief of the Jefferson County, Kentucky Police Department Movant, v. JEFFERSON COUNTY, KENTUCKY POLICE MERIT BOARD and John A Rogers, Respondents.

No. 86-SC-521-DG.

Supreme Court of Kentucky.

Sept. 8, 1988.

As Modified on Denial of Rehearing June 8, 1989.

William T. Warner, Conliffe, Sandmann, Gorman & Sullivan, Louisville, for movant.

Larry C. Ethridge, C. David Johnstone, Louisville, for respondents.

STEPHENS, Chief Justice.

The issues to be decided by this appeal are whether the de novo review of Brady v. Pettit, Ky., 586 S.W.2d 29 (1979), and City of Henderson Civil Service Commission v. Zubi, Ky., 631 S.W.2d 632 (1982), applies to KRS 78.455, and if so, to what is the extent of that review.

We hold that the Brady and Zubi standard of de novo review applies in all public employee discharge cases. The circuit court shall review administrative decisions by reviewing the record, briefs and any other evidence relevant to the narrow issue of arbitrariness in the discharge of an employee.

On November 30, 1976, Police Officer John Rogers was discharged by the Jefferson County Police Chief, pending resolution of criminal charges against him. He was accused of misconduct which included, among other offenses, driving under the influence. Rogers was granted a hearing by the Jefferson County Police Merit Board on January 27, 1981. ¹ The Board then reversed his dismissal, holding that it was unjustified and unsupported by proper evidence. Although the Chairman of the Merit Board ruled that the issue of disparate treatment was not properly before them, he allowed the Jefferson County Police Chief to be questioned as to whether Rogers' discharge was a disproportionate penalty compared to a civilian employee charged with the same offense. Counsel challenged the Chief's credibility by questioning him as to less severe disciplinary actions taken with regard to other officers' alcohol-related accidents. Nevertheless, the impeachment evidence in this case was presumably not available for substantive consideration by the Board. The police chief appealed, and the Jefferson Circuit Court reversed the decision of the Board, holding that the Board's action was clearly erroneous, being based on sympathy, and not substantive evidence. Finally, the court ruled that Brady v. Pettit does not apply to an appeal pursuant to KRS 78.455, and a completely new trial with new evidence should be held before the circuit court. Rogers appealed this decision to the Kentucky Court of Appeals, which reversed the circuit court and held that it was error to find that the Board's decision was not supported by the evidence presented. They found that it was improper for the circuit court to invade the mental processes of the Board members and second-guess whether the evidence presented at the hearing was persuasive. Furthermore, the Court of Appeals ruled that there is no distinction between the de novo statute at issue in this case, KRS 78.455, and the review statute in Brady v. Pettit.

Bobby Crouch, as chief of the Jefferson County Police Department, moved for discretionary review to this court, and we affirm the Court of Appeals in part and reverse in part.

Appellant argues that the Brady v. Pettit and City of Henderson Civil Service Commission v. Zubi cases should apply to all public employee discharge cases in Kentucky which involve similar "de novo" appeal statutes. In Brady, we were called upon to construe the meaning of KRS 67A.290, which provides in pertinent part:

(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. (Emphasis added.)

We held that, consistent with American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964), a completely new trial could not be held by an appellate court and remain constitutionally sound. American Beauty Homes held that it is a violation of the separation of powers doctrine for the legislature to statutorily require an appellate level court to adjudicate upon administrative rather than judicial considerations. Furthermore, it is constitutionally impermissible for the General Assembly to confer upon the judiciary the identical duties and powers of an administrative commission.

The requirement in KRS 67A.290 of a de novo review from the decision of the Civil Service Commission was interpreted in Brady to mean less than a full evidentiary hearing as if no action had ever been taken. We find no discernible difference between KRS 67A.290, and the statute at issue here. KRS 78.455 provides:

In all cases provided for in KRS 78.445 and 78.450, the action of the chief or of the board shall be final except in the following cases:

(1) Every action in the nature of a dismissal, suspension, reduction or fine made by the chief, shall be subject to review by the board at the request of any officer or employee affected by KRS 78.400 to 78.460, and the board shall give notice and hold a public hearing with respect thereto, and in any case where, after such public hearing, a majority of the members of the board are of the opinion that the action of the chief is unjustified or unsupported by proper evidence, then the order of the chief may be set aside and revoked by the board and the board may impose such penalty or punishment as it may deem necessary and appropriate, if any.

(2)(a) Every action in...