Moore v. Louisville/Jefferson Cnty. Metro. Gov't
| Decision Date | 07 January 2022 |
| Docket Number | 2020-CA-1296-MR |
| Court | Kentucky Court of Appeals |
| Parties | DEZMON MOORE APPELLANT v. LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT; AND LOUISVILLE METRO POLICE MERIT BOARD APPELLEES |
DEZMON MOORE APPELLANT
v.
LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT; AND LOUISVILLE METRO POLICE MERIT BOARD APPELLEES
No. 2020-CA-1296-MR
Court of Appeals of Kentucky
January 7, 2022
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 18-CI-003972
BRIEFS FOR APPELLANT: David Leightty Louisville, Kentucky
Oral Argument for Appellant: David Leightty
BRIEF FOR APPELLEE LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT: Mitchel T. Denham Erin M. Shaugnessy Louisville, Kentucky
Oral Argument for Metro: Mitchel T. Denham
BRIEF FOR APPELLEE LOUISVILLE METRO POLICE MERIT BOARD: Mark W. Dobbins Kathleen M.W. Schoen Louisville, Kentucky
Oral Argument for Merit Board: Mark W. Dobbins
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
OPINION AFFIRMING
THOMPSON, K., JUDGE
Dezmon Moore, a former police officer with the Louisville Metro Police Department (LMPD), appeals his dismissal by the Louisville/Jefferson County Metropolitan Government (Metro) through the Louisville Metro Police Merit Board (Board) (collectively, appellees) as affirmed
by the Jefferson Circuit Court. Moore argues that his dismissal was erroneous, primarily because the Board considered records which were expunged and considered recorded statements in violation of his right to confrontation. While Moore has established error by the Board in allowing consideration of expunged materials and the admission of statements by persons who could have been called to testify, we affirm because these errors were ultimately harmless as there was an adequate basis for his dismissal given the overwhelming evidence supporting the two substantiated grounds for dismissal.
I. FACTS AND PROCEDURAL HISTORY
On May 24, 2017, the Chief of Police, Steve Conrad, terminated Moore's employment on the basis of three incidents: (1) a September 4, 2016 incident of domestic violence against his wife which resulted in an emergency protective order (EPO) which was dismissed by an agreed order and an assault IV-domestic violence charge which was ultimately dismissed with prejudice and expunged on March 29, 2017 (the September incident); (2) an October 6, 2016 incident in which Moore was arrested for violating a no-contact order with his wife, which ultimately resulted in a plea agreement in which Moore pled guilty to violation of the conditions of release with 180 days conditionally discharged for two years (the October incident); and (3) an April 16, 2017 incident in which
Moore violated the no-contact order and was charged with harassment (the April incident).
Moore sought review before the Board and had a four-day trial. He objected to the Board's considering the LMPD's proposed exhibits which included the entirety of the criminal investigative file on the September incident and the associated criminal charge as the crime was expunged. The matter was taken under submission and the Board members received the exhibits. The Board allowed the LMPD to introduce testimony about the investigation of the domestic violence call, statements and photographs taken as part of the investigation, and the discussion of Moore's arrest. Moore objected to the admission of exhibits and records of the arrest and related criminal proceedings, arguing that the expungements precluded their admission. He also objected to the admission of statements collected as part of the criminal investigation as violating his right to confrontation and cross-examination. The Board concluded that the records and statements were admissible, subject to an admonition that, without more, they could not prove LMPD's case. In addition, LMPD introduced court filings and orders regarding the two domestic violence cases, both of which were ultimately dismissed.
During the hearing, the Board heard testimony from investigating police officers about what they observed and what further investigation revealed
when they responded to the September incident, the October incident, and the April incident. LMPD also introduced witness statements collected by these officers during their investigations. Moore's ex-wife also testified about what occurred during all three incidents. Moore denied that he had ever committed domestic violence against his ex-wife in the September incident, but admitted to violating the no-contact order during the October incident. On the other hand, Moore denied violating the no-contact order during the April incident.
Following the conclusion of the hearing, the Board met in an executive session and when the Board returned to regular session, a board member made a motion that "based upon the totality of the circumstances, which include findings that the charges were not all proven, but that some were, the Board upholds the decision of the Chief." The Board then voted six-to-one to uphold the termination and requested that board counsel draft the written order. The lengthy written decision made numerous factual findings and ultimately concluded that the September incident was not proven, but the October incident and April incidents were proven and established that Moore failed to be obedient to rules and regulations pursuant to Louisville Metro Police Department, Standard Operating Procedure 5.1.2.
Moore sought review before the circuit court, which affirmed the Board's decision. This appeal followed. Additional facts will be set forth below as necessary.
II. STANDARD OF REVIEW
Kentucky Revised Statutes (KRS) 67C.323(1) sets out the procedure for the Board's review of the Chief's dismissal of a non-probationary officer. Any person aggrieved by the Board's decision may appeal to the circuit court of the county in which the Board meets. KRS 67C.323(3)(a). The circuit court's judgment in review of such matters is subject to review by this Court. KRS 67C.323(3)(b).
"[J]udicial review of administrative action is concerned with the question of arbitrariness." Kaelin v. City of Louisville, 643 S.W.2d 590, 591 (Ky. 1982). The scope of appellate review for arbitrariness extends to "(1) action in excess of granted powers, (2) lack of procedural due process, and (3) lack of substantial evidentiary support[.]" American Beauty Homes Corp. v. Louisville & Jefferson County Planning and Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964); see also Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464, 467 (Ky. 2005).
The circuit court's standard of review for the Board's action is modified de novo, allowing the court to review the record, briefs, and any other
evidence relevant to the specific, limited issues on appeal. Crouch v. Jefferson Cty., Kentucky Police Merit Bd., 773 S.W.2d 461, 464 (Ky. 1988). Such review does not involve a retrial of the merits. Id. However, "[a] reviewing court does not have the authority to review the penalty determination of the civil service board and does not have the power to reverse the disciplinary action taken by the Board." City of Louisville By and Through Kuster v. Milligan, 798 S.W.2d 454, 458 (Ky. 1990). This Court's review is governed by the clearly erroneous standard set out in Kentucky Rules of Civil Procedure (CR) 52.01. The circuit court's findings shall not be set aside unless they are not supported by substantial evidence. Stallins v. City of Madisonville, 707 S.W.2d 349, 350 (Ky.App. 1986). Of course, appellate review of questions of law remains de novo. Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky.App. 1998).
III. ISSUES
Moore raises the following allegations of error: (1) the Board erred by failing to exclude expunged material, including the transcribed witness statements; (2) the circuit court erred by finding that the admission of expunged materials was harmless; (3) the Board violated his right to confront witnesses against him by permitting the admission of transcribed witness statements; (4) the Board arbitrarily upheld the termination despite not sustaining the charges based on the September incident; and (5) the Board arbitrarily upheld the Chief's
decision to terminate him when it was based upon one arrest and criminal charges rather than the establishment of any crime.
IV. ADMISSION OF EXPUNGED MATERIALS
Moore primarily argues that the Board erred by admitting or considering any records or materials relating to the criminal charges which were later expunged. Consequently, we must first address how the expungement statutes relate to what can and cannot be considered in an employment disciplinary matter. This requires interpreting the relevant statutory language of KRS 431.076(6), which provides as follows:
After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
While there are several Kentucky cases regarding whether defendants fit within the class of persons eligible for expungement, there is an absence of opinions analyzing what exactly is expunged. Therefore, to determine this matter, we start by analyzing the interpretation to be given to the statutory language.
"The primary purpose of judicial construction is to carry out the intent of the legislature." Commonwealth v. Kash, 967 S.W.2d 37, 43 (Ky.App. 1997). "The most logical and effective manner by which to determine the intent of the legislature is simply to analyze the plain meaning of the statutory language: '[r]esort must be had first to the words, which are decisive if they are clear.'" Stephenson v....
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