Fournier v. City of Lawrenceburg, No. 2007-CA-000490-MR (Ky. App. 4/11/2008)
| Decision Date | 11 April 2008 |
| Docket Number | No. 2007-CA-000490-MR,2007-CA-000490-MR |
| Parties | Thomas R. FOURNIER, Appellant v. CITY OF LAWRENCEBURG, Appellee. |
| Court | Kentucky Court of Appeals |
Gregory Ward Butrum Louisville, Kentucky, Brief and Oral Argument for Appellant.
Charles D. Cole Lexington, Kentucky, Brief and Oral Argument for Appellee.
Before: ACREE, KELLER, and MOORE, Judges.
The Board of Council of the City of Lawrenceburg (the Council) discharged Thomas R. Fournier (Fournier) from his position as a police officer based on charges that Fournier violated several of the police department's standard operating procedures (SOPs). The Anderson Circuit Court upheld the Council's actions, and it is from the circuit court's opinion and order that Fournier appeals. On appeal, Fournier argues that: (1) the circuit court reviewed the Council's actions as an appeal rather than as an original action, thus applying the incorrect standard of review; (2) the terms "immoral and improper" and the phrase "the officer shall be courteous" as contained in the SOPs are unconstitutionally vague and the City arbitrarily applied them to Fournier; and (3) Fournier did not violate the SOPs as a matter of law. However, we are constrained to dismiss this appeal for Fournier's failure to name the proper appellee in his notice of appeal.
Fournier's personnel problems arose from two incidents. On February 16, 2005, Fournier arrested Kerry Robertson (Robertson) and charged him with "operating a motor vehicle under the influence of drugs alc [sic] etc." During the course of the arrest, Fournier found a small quantity of marijuana. While Fournier was processing Robertson's paperwork, the following conversation took place:
Fournier: But as for this [bag of marijuana], as for grandma's glaucoma medication, you know, what I'm going to do with this, I'm going to book into evidence, and so, you know, I have like a year to charge you with it. Okay? So if you go into court and you're like you know . . .
Robertson: Thank you, sir. I appreciate that, I do.
Fournier: Yeah, you know that if you start giving me a hard time in court about my DUI or my arrest or a question that I may have violated your rights in some way making up some kind of nonsense, then this is going to come back to haunt you.1
In May of 2005, Robertson's father filed a complaint with the City of Lawrenceburg (the City) regarding the preceding conversation. On May 17, 2005, the City's mayor, Bobby Sparrow (Mayor Sparrow), issued a letter to Fournier notifying him that he had been suspended without pay. As grounds for this suspension, Mayor Sparrow cited a number of violations of the SOPs related to the Robertson arrest. We note that several of the violations cited in Mayor Sparrow's May 17, 2005, letter were subsequently dropped or otherwise disposed of. The only violation related to Robertson's arrest that is of interest on this appeal, is that Fournier threatened Robertson with additional charges if Robertson asserted that Fournier had violated his rights during the arrest. According to Mayor Sparrow, that action by Fournier amounted to "immoral or improper conduct" and constituted "[a]ctivities that discredit the individual or organization."
The second incident occurred on May 10, 2005, when Fournier responded to a call for assistance from personnel at the Anderson County High School. When Fournier arrived at the high school, he met with an associate principal, Kathryn Wright (Wright), and one of the deans, Ronald Fields (Fields). Fields and Wright told Fournier that they had found marijuana, a pill, and $25.00 on a student and they asked Fournier to take the student into custody. Fournier refused to take the student into custody and did not file a petition with the court designated worker. However, he did advise Wright and Fields that they could contact the county attorney or the court designated worker and file a petition.
On May 10, 2005, Fields sent a letter to Chief of Police Tommy Burris (Chief Burris) complaining that Fournier had been "curt", "brusque", "condescending", "gruff", and "accusatory" during the preceding incident. On May 19, 2005, Wright also sent a letter to Chief Burris complaining that Fournier had treated Wright and Fields as if they "were stupid people" and that Fournier spoke "mean and bluntly" and in a "condescending" and "rude" manner. Both Fields and Wright stated that Fournier refused to honor their request to take the student into custody.
On May 26, 2005, Mayor Sparrow sent correspondence to Fournier's attorney, outlining that various charges from the May 17, 2005, letter had been amended or dropped. Additionally, the letter cited new charges arising from the May 10, 2005, incident at Anderson County High School. Those charges included failure to cite the student and take him into custody, failing to file a juvenile complaint with the court designated worker, and acting in a discourteous manner to school officials.
On August 2, 2005, the Council conducted a disciplinary hearing regarding the charges against Fournier that arose from the two incidents. As a result of the Robertson arrest, Fournier was charged with immoral and improper conduct and engaging in activities that discredit the individual or organization for threatening Robertson with further charges if Robertson asserted that Fournier had violated his rights. As a result of the Anderson County High School incident, Fournier was charged with incompetency, inefficiency, and neglect of duty for failing to cite the student or take him into custody and for failing to file a complaint with the court designated worker. Finally, for acting in a discourteous manner, Fournier was charged with discourtesy to the public.
Wright testified at the hearing consistent with her letter to Chief Burris. Additionally, Wright testified that other police officers had handcuffed students and taken them into custody; however, she admitted that officers did not always do so. According to Wright, no other officer had ever refused to file a charge with the court designated worker or treated her the way Fournier had.
Fields testified that the school's policy is to call the police department when a student has illegal drugs. Generally, the police respond, take the evidence, handcuff the student, and take the student into custody, in part because school personnel want students to understand that there are consequences beyond the school. When Fournier responded to the call on May 10, 2005, he acted as if it was an imposition and Fields felt like Fournier was an adversary rather than a player on the same team. Fournier refused to take the student into custody and questioned the school's procedures with regard to handling students caught with illegal drugs. No other officer had questioned those procedures or treated Fields like Fournier had.
Following testimony by Robertson and his father, counsel for the City moved to dismiss all charges related to allegations that Fournier denied Robertson the opportunity to speak with counsel, and those charges were dismissed.
With regard to the Anderson County High School incident, Chief Burris testified that he was concerned with Fournier's attitude and demeanor and that Fournier had not removed the student from the school grounds. Fournier's rudeness toward school personnel violated the specific policy that states that
[w]hen an officer observes a violation of the law, he will issue a courtesy notice, cite, or arrest the violator in compliance with Departmental policies. The officer shall refrain from controversy and shall advise the violator of the procedures to be used in answering the charge. In all case [sic] the officer shall be courteous.
Fournier's failure to file a complaint with the court designated worker violated the specific policy that states that, if an officer does not believe that an offense warrants taking a juvenile into custody, "the officer shall file a juvenile complaint with the Court Designated Worker (CDW) and complete a Uniform Offense Report." Chief Burris testified that, under the SOPs, Fournier was subject to discipline for incompetency, inefficiency, acting discourteously to the public, and neglect of duty.
With regard to the Robertson arrest, Chief Burris testified that Fournier should not have offered to forego bringing charges against Robertson in exchange for Robertson waiving any assertions he had that Fournier had violated his rights. According to Chief Burris, a suspect is entitled to basic fairness and due process of law. By making the offer he did, Fournier violated Robertson's rights, and he acted improperly so as to discredit himself and the police department.
On cross-examination, Chief Burris testified that, although the policy manual states that placing someone in restraints constitutes an arrest, that action only "normally" constitutes an arrest and an officer can take someone into temporary custody without making an arrest. Chief Burris admitted that the procedures and policy manual for juveniles indicates that an officer is only required to issue a citation or make an arrest if he observes a violation of the law. He is not required to do so based on information he received from others.
Five police officers testified at the hearing. All of the officers testified that, with some exceptions not relevant to this appeal, it is not appropriate for an officer to arrest someone who has committed a misdemeanor outside of the officer's presence. However, Officer Jones testified that he has arrested and handcuffed students based solely on information from school personnel that a student had committed a misdemeanor. With the exception of Officer Briscoe, all of the officers testified that they do not always charge a person with possession of marijuana when they find marijuana while making a DUI stop. All of the officers who...
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