Kott v. City of Fairbanks, 6715
| Decision Date | 11 March 1983 |
| Docket Number | No. 6715,6715 |
| Parties | Casimer KOTT, Appellant, v. CITY OF FAIRBANKS, Appellee. |
| Court | Alaska Supreme Court |
Kenneth P. Ringstad, Rice, Hoppner, Brown & Brunner, Fairbanks, for appellant.
Howard Staley, Merdes, Schaible, Staley & DeLisio, Inc., Fairbanks, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
Sergeant Casimer Kott was dismissed from the Fairbanks Police Department because he erased a portion of a videotape. The portion he erased contained material that could have been construed as evidence that he used excessive force against a person arrested for operating a motor vehicle while intoxicated. This is an appeal taken by Kott from the judgment of the superior court affirming his dismissal. Kott's principal arguments on appeal are that (1) the superior court's findings of fact are not supported by substantial evidence, and (2) the remedy of dismissal is a denial of equal protection because other officers have not been dismissed for allegedly similar conduct. For the reasons set forth below, we conclude that both of these arguments are without merit and, accordingly, we affirm the judgment of the superior court.
At the time of the incident giving rise to Kott's dismissal, Kott was a sergeant with the Fairbanks City Police Department and had fourteen years of experience with law enforcement agencies. Prior to January 1979, Kott had not been the subject of any disciplinary proceeding and had been formally reprimanded only once.
On the evening of January 10, 1979, Kott assisted Officer Hills in the arrest of Terry Burtis for, among other things, operating a motor vehicle while intoxicated. Kott transported Burtis to the police station. Lieutenant Bonneville commenced videotaping Burtis while Kott attempted to have Burtis perform an OMVI balance test. Burtis was highly uncooperative. He strenuously objected to being videotaped and attempted to leave the camera's view several times.
During the course of events, Burtis left the foyer, where the videotaping was occurring, and entered a women's restroom nearby. Kott followed Burtis and an altercation ensued. Kott believed at one point that Burtis was about to strike him, so Kott struck Burtis in the chest with his fist. Burtis responded that this was "police brutality." Burtis then grabbed onto a stall partition in the restroom. Kott broke this grip by bringing his forearm across Burtis' wrist. Burtis then ran out of the women's restroom and into the men's restroom across the hall. Lieutenant Bonneville placed Burtis in an armlock, removed him from the restroom, and pushed him against a wall. Kott placed Burtis in handcuffs. The OMVI testing was discontinued and Burtis was transported to the Correctional Center. At this point, the videotaping was stopped.
Later that evening, Kott reviewed the tape. He played it several times at the request of other officers, who "were curious and amused by the antics which Burtis had displayed." The tape had fully recorded the sequence of events until the point at which Burtis left the foyer and entered the women's restroom. The videotape recorded some of the sounds emanating from the restrooms, but all speech was indiscernible. Officer Fox, another member of the Fairbanks Police Department, viewed the tape with Kott that evening. Fox subsequently testified that the tape had recorded sounds like "smack, smack" and a sound like something bumping against the wall. Kott indicated to Fox that he believed those were the sounds produced when he struck Burtis in the chest and when Burtis hit the wall.
Kott states that during the evening he openly discussed erasing this part of the tape. Later that evening, he rewound the tape to the point at which Burtis left the view of the camera to enter the restroom. Kott then erased the remainder of the tape relating to Burtis. The erasure took place in the foyer, which is a heavily used part of the station, and at least one other policeman was present at the time.
Kott's motivation for erasing the tape is a central point to his dismissal and this appeal. He contends that the reason he erased the tape is that he determined, in his discretion, that the tape had no evidentiary value "whatsoever" once Burtis left the viewing of the camera and entered the restroom. Officer Fox testified at Kott's administrative proceedings that he was with Kott during one of the times Kott reviewed the tape and, after the "smack, smack" and "bumping" sounds were replayed, Kott stated, "God, that doesn't look too good, you know, the--I gotta get this offa here." Another policeman, Officer Bellville, testified that Kott stated words to the effect of "this has to go" after Kott had listened to the last section of the tape. At the administrative hearing, Kott denied saying "this has to go." He has not, however, denied making the other statement to Officer Fox, either at the administrative hearing or on appeal.
On January 11, 1979, the day following his arrest, Burtis appeared at an arraignment and admitted that he had been drunk. He indicated at that time that the police had "worked him over." This precipitated an in-house investigation, during which Kott and Lieutenant Bonneville were suspended without pay. After the investigation was completed, they were both terminated by the City Manager, but on the basis of their "destruction of evidence," rather than for assault or use of excessive force.
Kott requested the City Manager to reconsider his decision and permit Kott to orally refute the charges against him. The City Manager held an informal hearing on May 1, 1979, and subsequently notified Kott that upon further consideration he had nonetheless decided to uphold his original decision terminating Kott's employment. The City Manager further notified Kott that within fifteen days Kott could submit a written request for further review of his dismissal to the Commission on Ethics and Appeals [the "Commission"].
Rather than seeking review from the Commission, Kott filed a complaint with the superior court, alleging that the City of Fairbanks had wrongfully terminated him. The City filed a motion for summary judgment, contending that Kott's action should be dismissed because he had failed to exhaust his administrative remedies. The superior court denied this motion. On Petition for Review, this court reversed the denial of summary judgment, holding that Kott was required to seek review from the Commission and thereby exhaust his administrative remedies before filing suit against the City.
The Commission subsequently convened a hearing on Kott's appeal, at which sworn testimony was presented. It was the unanimous recommendation of the Commission that the City Manager's decision to dismiss Kott remain in effect. The City Manager accepted that recommendation and notified Kott accordingly. Kott then appealed this decision to the superior court. On February 4, 1982, the superior court issued its Findings of Facts and Conclusions of Law, affirming Kott's dismissal. This appeal followed.
Kott contends that the judgment of the superior court must be reversed because the City of Fairbanks did not produce sufficient evidence that Kott's conduct constituted a "substantial shortcoming which renders his continuance in office detrimental to the discipline and efficiency of the service." Onesto v. Police Board, 92 Ill.App.3d 183, 48 Ill.Dec. 118, 416 N.E.2d 13, 16 (Ill.App.1980). See also Kelly v. Murphy, 20 N.Y.2d 205, 282 N.Y.S.2d 254, 229 N.E.2d 40, 42 (N.Y.1967); Kreck v. Board of Public Safety, 65 Misc.2d 379, 318 N.Y.S.2d 587, 588 (N.Y.App.Div.1971) (). The City of Fairbanks concedes, for purposes of this appeal, that this is the proper standard of review. It contends that in accordance with this standard the judgment must be affirmed. We agree.
The Fairbanks Code of Ordinances, section 2.523(G), Rule VII(9), provides in relevant part as follows:
(9) Dismissal. The city manager, or his designee, may dismiss any employee for the good of the service. Reasons for dismissal may include but shall not be limited to:
(a) failure to meet prescribed standards of work, morality and ethics to an extent that makes an employee unsuitable for any kind of employment in the city service;
(b) theft or destruction of city property;
(c) incompetency, inefficiency or negligence in the performance of duty;
....
(f) [n]otoriously disgraceful personal conduct;
....
The City Manager cited subsections (a), (b), (c) and (f) as reasons for Kott's dismissal. The superior court granted a "trial de novo upon the record" pursuant to Appellate Rule 609. 1 In its Findings of Facts, the court stated that "Sergeant Kott made the decision to erase the portion of the tape containing the restroom noises and that he, in fact, later erased that portion of the tape outside the presence of other officers." The court impliedly accepted Officer Fox's testimony and rejected Kott's self-serving statements of his motivation for erasing the tape; it found that "Sergeant Kott erased said portion of the tape in order to destroy what he thought to be potentially damaging evidence of brutality on his part against Burtis while in the restroom." The court's Conclusions of Law were, in relevant part, as follows:
Sergeant Kott's erasing of the tape exhibited unsatisfactory personal conduct below the level of that expected of a police officer in the performance of his duties and that such conduct warrants disciplinary action by the City.
....
... The City gave as its reasons for dismissal, F.G.C. § 2.523 G 9(a)(b)(c)(f). Sub-paragraph (a) speaks of violations of "prescribed standards."
As near as this Court can determine from the record, neither the City or the Police Department has prescribed or promulgated such standards of "work...
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