Pearce v. Univ. of Louisville
| Decision Date | 18 November 2011 |
| Docket Number | NO. 2009-CA-001813-MR,2009-CA-001813-MR |
| Parties | JEFFERY TODD PEARCE APPELLANT v. UNIVERSITY OF LOUISVILLE, BY AND THROUGH ITS BOARD OF TRUSTEES APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
Appellant was terminated from his position as a police officer with the University's Department of Public Safety (the Department) on April 6, 2007, for work-related misconduct after the University discovered that he had violated a number of university and departmental policies during two separate incidents. Specifically, the University concluded that Appellant had: (1) failed to timely respond to a fire alarm at the university's Medical Dental Research (MDR) building and to timely file a written report about that incident; and (2) that he improperly engaged in a wrong-way traffic pursuit. The facts of each incident are set forth herein.
In the early morning hours of November 14, 2006, Appellant was working at the University's Health Science Center campus in downtown Louisville. At approximately 4:47 a.m., Shannon Adams, a Department dispatcher, notified Don Martin of the Health Science Center's Physical Plant Division that a fire alarm was going off at the MDR building. There had been several false alarms at the building that week, but it was not known if this particular alarm was false. Adams called the Louisville Fire Department (LFD).
Adams notified Appellant of the fire alarm at approximately 4:54 a.m. and told him, "Sir, just to let you know I went ahead and contacted LFD on that alarm."3 Appellant responded, "Okay, so what are we doing?" to which Adams replied, "Per Don, he got over there within a couple of minutes and said that it's still acting up, however, it's not reading the same; so just to be on the safe side, we went ahead and notified LFD but he doesn't see any fire in the building at all." To this, Appellant responded, "Okay." Appellant subsequently notified Adams that he was escorting a student to a campus building, an assignment he had received prior to being told about the fire alarm.4 This assignment was completed at approximately 5:06 a.m.
At approximately 5:12 a.m., Martin contacted Adams and asked her why a police officer had not been sent to the scene. Adams, referring to Appellant,responded, to which Martin replied, "He never did show up over here." Adams then radioed Appellant and asked him if he was going to the MDR building. When Appellant told Adams that she had never dispatched him to the alarm, she responded, "Sir, I, uh, I advised you that we had LFD en route; that [Don Martin] wanted me to go ahead and contact them." Subsequently, at the administrative hearing concerning Appellant's termination from employment, the hearing officer found that Appellant knew he had the responsibility to respond to the fire alarm in accordance with established protocol since the LFD had been dispatched "and that he had acknowledged that responsibility when he responded 'Okay.' " Appellant actually arrived at the MDR building at 5:17 a.m. - approximately twenty-two minutes after he had responded "Okay" to Adams' report that the fire department had been dispatched to the scene.
Appellant explained that he was "upset" and "irritated" when he arrived at the MDR building because he believed that an officer from the Belknap campus should have been sent to cover the fire alarm or at least to assist him. By the time Appellant arrived, the LFD had already left the scene.
Physical plant representative Martin then approached Appellant to provide him with information that was necessary for preparation of the fire alarm incident report required by state law. However, Appellant told Martin that he was not going to write the report. Appellant then left after talking to his supervisor, Lieutenant Rick Brown, and being told to go home. According to Appellant, Lieutenant Brown did not tell him to complete the report prior to leaving, butLieutenant Brown denied this. Appellant later acknowledged that completing a fire alarm incident report before the end of his shift was his responsibility whenever he was dispatched to a scene, and multiple officers within the Department testified that officers responding to a fire alarm have the responsibility to prepare fire alarm incident reports.5
The following day, Lieutenant Brown instructed Appellant to prepare the report after news of the incident reached Major Robert W. Bringhurst, Department Operations Commander, and after an inquiry had been made as to why a report had not been submitted. According to Lieutenant Brown, he was unaware that Appellant had failed to write the report after his shift. Appellant complied with the request.
Upon this evidence, the hearing officer concluded that Appellant would have failed to complete the mandatory report if not for Lieutenant Brown's direct order. As such, the hearing officer found that "although [Appellant] filed the report within a day of the incident and within the time period allowed by state law for submitting reports to the state fire marshal, those facts did not excuse failure to draft a report until he was directed to do so by his supervisor."
On November 18, 2006, Major Bringhurst instructed Appellant to produce a detailed written account of the incident, including an explanation of why he had failed to go to the scene when told of the alarm and why he did notimmediately prepare a report afterwards. As a result of his dissatisfaction with Appellant's response to this order, Major Bringhurst created a "review board" to examine the incident to determine if it was caused by any training, policy, or communications problems or if it had been caused by Appellant's wrongful actions. The review board concluded that the latter was the case, a determination which led to the subject administrative proceeding against Appellant.
At the beginning of his shift on February 23, 2007, Appellant drove Officer Robin Skaggs to the Chestnut Street garage in downtown Louisville so that Officer Skaggs could pick up his vehicle. After the officers entered the garage, Appellant saw a white vehicle traveling the wrong way on "one-way" Jackson Street. At least one witness testified that this was not uncommon because the roads around the Health Science Center campus are somewhat confusing.
Appellant asked Officer Skaggs to remain in the cruiser with him while he pursued the vehicle. Officer Skaggs agreed. Appellant indicated that when he pulled onto Jackson Street, he could no longer see the vehicle in question since it had presumably turned onto Broadway. Despite this fact, Appellant drove his cruiser the wrong way on Jackson Street in pursuit of the vehicle.
Officer Skaggs testified that Appellant's cruiser reached a speed of up to fifty miles per hour for one and a half blocks on Jackson Street before turning onto Broadway. For vehicles traveling in the proper direction on this one-way street, the posted speed limit is thirty-five miles per hour. Neither Appellant norOfficer Skaggs could recall whether Appellant had turned on his emergency lights before turning onto Jackson Street. Appellant eventually caught the white vehicle on Broadway and Appellant initiated a traffic stop. The driver was let go with a verbal warning.
Appellant's supervisors became aware of this incident when Officer Skaggs asked about receiving overtime pay for his time spent on the traffic stop. Officer Skaggs's supervisor expressed concern about Appellant's conduct and reported the incident to Appellant's supervisor. The Department subsequently began an investigation of the incident and ultimately concluded that Appellant had failed to show adequate care and caution under the circumstances.
On April 6, 2007, following the Department's initial investigation of the aforementioned incidents, Appellant was notified that Department Chief of Police Wayne Hall had recommended that Appellant's employment with the University be terminated. One of the letters provided four reasons for the recommendation: (1) failing to complete the required fire alarm incident report following the incident at the MDR building; (2) driving the wrong way on a one-way street; (3) incompetence; and (4) dishonesty. A pre-termination hearing was scheduled for the same day; however, Appellant refused to participate in this hearing because his counsel was not allowed to attend. Chief Hall subsequently issued an official recommendation that Appellant be terminated as a University police officer.
After his employment was terminated, Appellant sought and was granted a comprehensive de novo post-termination administrative hearing facilitated by the Attorney General's Office of Administrative Hearings (OAH). Over the course of four days in June and August 2008, the University and Appellant, with counsel, were afforded the opportunity to present witness testimony and other evidence before an OAH hearing officer and to cross-examine the other parties' witnesses. The parties were also allowed to tender post-hearing briefs arguing their positions.
In a comprehensive order, the hearing officer concluded...
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